NILR 2011
335
CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW:
THE CASE OF THE (STILL) INADEQUATE SAFEGUARDING OF
INDIGENOUS PEOPLES’ (TANGIBLE) CULTURAL HERITAGE
by Athanasios Yupsanis*
1.
Introduction: cultural and intellectual property or collective cultural heritage?
2.
Indigenous demands relating to cultural property/heritage and their
significance for them
3.
The inadequacy of international conventions on cultural property/heritage to
meet indigenous demands
A question of concepts: cultural property or cultural heritage?
Cultural internationalism vs. cultural nationalism: ignoring the rights of
indigenous peoples to their cultural heritage
Defining cultural property/heritage: overlooking indigenous perceptions
Other deficiencies of the international conventions for the protection of
cultural property/heritage as regards indigenous peoples
3.1
3.2
3.3
3.4
4.
Concluding remarks
Abstract
Indigenous peoples have historically experienced countless losses of cultural relics and material and spiritual treasures as well as the destruction of their sacred
cultural sites, a situation that continues to prevail. This desecration of ancestral
sites and the pillaging of sacred objects results in the cultural debasement of
indigenous peoples, causing a serious threat to their continuing collective existence as distinct societies. Unfortunately, the present international law regime
for the protection, repatriation and return of stolen and illegally exported cultural property presents serious deficiencies as regards its ability to reverse this
state of affairs and effectively safeguard indigenous peoples’ heritage.
*
LL.M., Ph.D. in international law (Aristotle University of Thessaloniki); Adjunct Lecturer at
the Law Faculty of Democritus University of Thrace. Contact: thayup@yahoo.gr.
Netherlands International Law Review, LVIII: 335-361, 2011
© 2011 T.M.C. Asser Instituut and Contributors
doi:10.1017/S0165070X11300022
NILR2011-3-Book 1.indb 335
15-11-2011 11:20:09
336
1.
A. YUPSANIS
NILR 2011
INTRODUCTION: CULTURAL AND INTELLECTUAL
PROPERTY OR COLLECTIVE CULTURAL HERITAGE?
Indigenous peoples have known and are continuing to experience assaults on
their culture, in the form of the theft, looting and pillaging of objects of spiritual/
religious/cultural importance to them, the desecration, deterioration, pollution
and destruction of, or the denial of access to, ancestral sites of sacred or cultural
significance to their communities,1 the appropriation of their traditional knowledge without their consent or a share in the benefits2 and the inappropriate
commodification or demeaning (mis)use of designs, motifs, symbols, dances,
stories, songs, and other intangible elements of their culture,3 matters that in current international law come under the field of the cultural and intellectual property
regime. For an immediate grasp of the conceptual and structural inadequacies of
that legal regime as regards the safeguarding of indigenous peoples’ cultural heritage, however, it must be made clear from the outset that from their point of view
the distinction between cultural and intellectual property is not particularly useful, as the UN Special Rapporteur for the protection of their heritage, Mrs
Erica-Irene Daes, has stressed,4 since it reflects an artificial distinction5 between
1. See A. Grammatikaki-Alexiou, ‘International Protection of Indigenous Cultural Property:
A Growing Problem’, in International Protection of Cultural Objects: A View to the Future, Colloquium, Athens, 23 November 2001 (Athens, Sakkoulas 2003) p. 95 at pp. 100-101.
2. See T. Janke, ‘Respecting Indigenous Cultural and Intellectual Property Rights’, 22 UNSW
LJ (1999) p. 631 at p. 632.
3. See D. Harry and L.M. Kanehe, ‘Asserting Tribal Sovereignty Over Cultural Property:
Moving Towards Protection of Genetic Material and Indigenous Knowledge’, 5 Seattle Journal for
Social Justice (2006) p. 27 at p. 27; M.A. Bengwayan, Intellectual and Cultural Property Rights of
Indigenous and Tribal Peoples in Asia (London, Minority Rights Group International 2003)
pp. 3-4; C. Callison, ‘Appropriation of Aboriginal Oral Traditions’, UBC L Rev. (Special Issue)
(1995) pp. 165-181.
4. See Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples,
by Erica-Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations,
UN Doc. E/CN.4/Sub.2/1993/28, 28 July 1993, p. 7, para. 21. It should be noted that the ‘Daes
Study’ has been appraised by critical scholars in the field as ‘the most authoritative international
document on the topic’ and ‘perhaps the most comprehensive of international documents to
address indigenous cultural heritage issues’, see A. Mohsen Al Attar, N. Aylwin and
R.J. Coombe, ‘Indigenous Cultural Heritage Rights in International Human Rights Law’, in
C. Bell and R.K. Paterson, eds., Protection of First Nations Cultural Heritage: Laws, Policy, and
Reform (Vancouver, University of British Columbia Press 2009) p. 311, at pp. 311, 318.
5. M. Sinjela and R. Ramcharan, ‘Protecting Traditional Knowledge and Traditional Medicines of Indigenous Peoples Through Intellectual Property Rights: Issues, Challenges and Strategies’, 12 International Journal on Minority and Group Rights (2005) p. 1 at p. 5.
NILR2011-3-Book 1.indb 336
15-11-2011 11:20:09
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
337
heart and mind,6 art and science,7 creative inspiration and logical analysis8 – a
way of looking at things that is incompatible with the perspective of their societies, which do not separate culture from intellect or intellect from culture,9 having
an holistic conception of the world as a single organic whole whose parts are
totally interdependent.10 In this context, the indigenous peoples, as Mrs Daes has
pointed out, ‘regard all products of the human mind and heart as interrelated, and
as flowing from the same source: the relationships between the people and their
land, their kinship with the other living creatures that share the land, and with the
spirit world’.11 According to Mrs Daes, the Western distinction between cultural
and intellectual property is not only incompatible with the holistic worldview of
the indigenous peoples but also inevitably results in different standards of protection for the different elements of their heritage, when it would be more
appropriate for these to be addressed and protected as a single, interconnected
and interdependent whole.12 This is why she has proposed, as more compatible
with indigenous cultures, the term collective heritage to describe and embody, in
a single concept, their songs, stories, scientific knowledge, art, etc.13 This awareness of the fundamental philosophical opposition between how indigenous
peoples see their heritage and how in the existing, Western-oriented system of
international law it is divided into cultural and intellectual property is, together
with a series of other variables that will be analysed in the subsequent sections,
essential to any understanding of the inadequacy of the international cultural
property regime to provide satisfactory and functional answers to the justified
cultural demands of indigenous peoples.
6. S. Wiessner and M. Battiste, ‘The 2000 Revision of the United Nations Draft Principles and
Guidelines on the Protection of the Heritage of Indigenous People’, 13 Saint Thomas L Rev.
(2000) p. 383 at p. 384.
7. R.L. Barsh, ‘How Do You Patent a Landscape? The Perils of Dichotomizing Cultural and
Intellectual Property’, 8 International Journal of Cultural Property (1999) p. 14 at pp. 15-16.
8. J. Burger and P. Hunt, ‘Towards the International Protection of Indigenous Peoples’
Rights’, 12 Netherlands Quarterly of Human Rights (1994) p. 405 at p. 417.
9. A. Te Pareake Mead, ‘Cultural and Intellectual Property Rights of Indigenous Peoples of the
Pacific’, Pacific Regional Workshop on UN Draft Declaration, Suva, Fiji, 1996, available at:
<www.ubcic.bc.ca/files/PDF/fiji.pdf>, at p. 4.
10. R. Strickland, ‘Implementing the National Policy of Understanding, Preserving and Safeguarding the Heritage of Indian Peoples and Native Hawaiians: Human Rights, Sacred Objects,
and Cultural Patrimony’, 24 Arizona State LJ (1992) p. 175 at p. 181; Wiessner and Battiste, supra
n. 6, p. 386.
11. Daes, supra n. 4, p. 7, para. 21; Sinjela and Ramcharan, supra n. 5, p. 5; Burger and Hunt,
supra n. 8, p. 417.
12. E.I. Daes, ‘The International Protection of Indigenous Peoples at the Regional and Global
Levels’, 25 Thesaurus Acroasium (2001) p. 29 at p. 63.
13. Daes, supra n. 4, p. 8, paras. 23-24; Burger and Hunt, supra n. 8, p. 417; see also P.K. Yu,
‘Cultural Relics, Intellectual Property, and Intangible Heritage’, 81 Temple L Rev. (2008) p. 433 at
p. 453.
NILR2011-3-Book 1.indb 337
15-11-2011 11:20:09
338
2.
A. YUPSANIS
NILR 2011
INDIGENOUS DEMANDS RELATING TO CULTURAL
PROPERTY/HERITAGE AND THEIR SIGNIFICANCE FOR
THEM
Demands for the return/repatriation of cultural objects and the remains of their
ancestors is a key item on the cultural agenda of the indigenous peoples,14 since
it is a fact that much of the cultural heritage of, e.g., those labelled Aboriginals in
Canada15 or of the Maori of New Zealand,16 etc. is now in state and private museums and collections in other countries, while in other cases a vast number of
cultural artefacts and human remains – which have a particular significance for
the cultural identity of indigenous peoples17 – are in national museums and collections.18 In either case, apart from the offence caused by public exposition of
the remains of their ancestors and the despoliation of the meaning of cultural and
often sacred objects, for the indigenous this state of affairs means the loss of any
possibility of control over their cultural resources and their proper use.19 More
concretely, the removal and relocation of a cultural object that has a major function in the practices of a group’s intangible cultural heritage can lead to the
destruction of that heritage, since specific objects, such as, e.g., particular musical instruments that are used in unique musical traditions or textiles that constitute
an inseparable part of spiritual practices or religious carvings that are cult objects,
are vital to its preservation.20 Thus, the exhibition in museums and private collections of objects that for their creators have a sacred or mystic nature not only does
nothing to promote inter-communal harmony but also threatens whole areas of
cultural heritage with extinction.21
It is generally accepted that culture embraces, among other things, artefacts
and other cultural objects that perform important semantic functions for a group,
especially in the case of indigenous peoples, where these items contribute to the
14. See T. Greaves, ‘Examining Indigenous Rights to Culture in North America’, 14 Cultural
Dynamics (2002) p. 121 at pp. 124-126; V.D. Montejo, ‘The Year Bearer’s People: Repatriation of
Ethnographic and Sacred Knowledge to the Jakaltek Maya of Guatemala’, 8 International Journal
of Cultural Property (1999) p. 151 at p. 151.
15. See C. Bell and R.K. Paterson, ‘Aboriginal Rights to Cultural Property in Canada’,
8 International Journal of Cultural Property (1999) p. 167 at p. 199.
16. See R.K. Paterson, ‘Protecting Taonga: The Cultural Heritage of the New Zealand Maori’,
8 International Journal of Cultural Property (1999) p. 108 at p. 114.
17. See R. Winthrop, ‘Defining a Right to Culture and Some Alternatives’, 14 Cultural
Dynamics (2002) p. 161 at pp. 167-168.
18. See S. Hutt and C.T. McKeown, ‘Control of Cultural Property as Human Rights Law’,
31 Arizona State LJ (1999) p. 363 at p. 366.
19. L.V. Prott, ‘The International Movement of Cultural Objects’, 12 International Journal of
Cultural Property (2005) p. 225 at p. 231.
20. Ibid., p. 236; see also J. Thompson, ‘Cultural Property, Restitution and Value’, 20 Journal
of Applied Philosophy (2003) p. 251 at p. 254.
21. Prott, supra n. 19, p. 232.
NILR2011-3-Book 1.indb 338
15-11-2011 11:20:09
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
339
symbolic reproduction of its conception of the world.22 This means that the possibility of the collective ownership or control of significant cultural relics is
fundamental to the degree that these are necessary for the group’s understanding
of itself, since they contribute to its self-definition of its culture and to its memory
and understanding of its past, while at the same time providing the material foundation on which future generations will build.23 The loss of this part of the group’s
cultural heritage is therefore claimed to deny these people access to their history,
removes any possibility of preserving their cultural continuity and endangers the
cultural blossoming of future generations.24 In this light, the fundamental argument for the return/repatriation of cultural objects to the indigenous communities
that created them lies in their importance for the preservation, regeneration and
development of their living culture.25
Another key demand relating to indigenous cultural property/heritage concerns the preservation and protection of sites, landscapes and areas that are for
them of sacred or cultural importance, and the right of unhindered access to those
places. It is now accepted that many landscapes and ecosystems that have been
labelled as ‘natural’ or ‘wildlife’ areas without discrete signs of human intervention are in reality the product of thousands of years of interaction between man
and nature, ‘human or cultural landscapes’26 that have particular meaning for the
spiritual, religious and, in general, the cultural life of indigenous communities.27
In many cases, however, this fact still goes unrecognised by the sovereign political and legal structures28 of the nation states or at best results in only limited
22. P.V. Ramaga, ‘The Group Concept in Minority Protection’, 15 Human Rights Quarterly
(1993) p. 575 at p. 583.
23. T. Simpson, ‘Claims of Indigenous Peoples to Cultural Property in Canada, Australia and
New Zealand’, 18 Hastings International and Comparative L Rev. (1994) p. 195 at pp. 197-198,
218.
24. J.C. Roberts, ‘The Protection of Indigenous Populations’ Cultural Property in Peru,
Mexico and the United States’, 4 Tulsa Journal of Comparative and International Law (1997)
p. 327 at pp. 329-330; Grammatikaki-Alexiou, supra n. 1, p. 100.
25. D. Pokorný, ‘Property, Culture, and Cultural Property’, 9 Constellations – An International
Journal of Critical and Democratic Theory (2002) p. 356 at p. 368.
26. See Implementation of Forest-Related Decisions of the United Nations Conference on
Environment and Development at the National and International Levels, Including an Examination of Sectoral and Cross-Sectoral Linkages, UN Doc. E/CN.17/IPF/1996/9, 12 February 1996,
available at: <www.un.org/documents/ecosoc/cn17/ipf/1996/ecn17ipf1996-9.htm>, at p. 6, para.
16(b).
27. See T. Koivurova, ‘The Draft for a Nordic Saami Convention’, 6 European Yearbook of
Minority Issues (2006/2007) p. 103 at pp. 122-123; D.B. Suagee, ‘Human Rights and the Cultural
Heritage of Indian Tribes in the United States’, 8 International Journal of Cultural Property
(1999) p. 48 at p. 50.
28. See A.M. Dussias, ‘The Right to Cultural and Religious Self-Determination: Lessons from
the Experience of Native Americans’, 2 ILSA JICL (1996) p. 633 at pp. 637-638, noting that ‘[f]or
judges who are more accustomed, however, to religions in which ceremonies can be conducted in
any church, synagogue or mosque, it may well be difficult to comprehend and protect a religion in
which specific sites are considered unique’; see also Mohsen Al Attar, Aylwin and Coombe, supra
NILR2011-3-Book 1.indb 339
15-11-2011 11:20:09
340
A. YUPSANIS
NILR 2011
protection.29 The effective protection of such areas is imperative both for the
cultural survival of the indigenous peoples concerned and for the preservation of
biodiversity, since many of these areas, as Mrs Daes has pointed out, function as
wildlife sanctuaries because the indigenous peoples draw lines beyond which
human activity is restricted and their sacred places thus serve as permanent
reserves of biodiversity, protecting many species that hunting or farming would
otherwise have wiped out.30
3.
THE INADEQUACY OF INTERNATIONAL CONVENTIONS
ON CULTURAL PROPERTY/HERITAGE TO MEET
INDIGENOUS DEMANDS
3.1
A question of concepts: cultural property or cultural heritage?
The different and dissimilar ways in which indigenous and non-indigenous communities view the world, art, science and society is immediately evident in the
terminology adopted by half of the major international instruments covering the
protection of cultural objects. In chronological order, the major international conventions are: the Hague Convention of 1954 for the Protection of Cultural
Property in the Event of Armed Conflict, the 1970 UNESCO Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property, the 1972 UNESCO Convention Concerning the
Protection of the World Cultural and Natural Heritage and the UNIDROIT Convention of 1995 on Stolen or Illegally Exported Cultural Objects.31 The first of
these focuses on the protection of movable and immovable cultural property at a
time of armed conflict, the second and fourth on the protection of movable cultural property in peacetime, and the third on the peacetime protection of,
primarily, elements of immovable cultural heritage.32
A glance is enough to show that two (1954 and 1970) of these four major conventions use the term property to describe the objects falling within their scope.
The notion/idea of property, however, as numerous commentators have observed,
n. 4, p. 322, observing that indigenous peoples ‘are obviously disadvantaged when they are asked
to claim property under foreign legal standards and their own protocols are ignored’.
29. P.J. O’Keefe and R.K. Paterson, ‘Guest Editorial’, 8 International Journal of Cultural
Property (1999) p. 1 at p. 2; see also Indigenous Peoples and Their Relationship to Land, Final
Working Paper Prepared by the Special Rapporteur, Mrs Erica-Irene A. Daes, UN Doc. E/CN.4/
Sub.2/2001/21, 11 June 2001, p. 25, para. 78.
30. E.I. Daes, ‘The Indispensable Function of the Sacred’, 13 Saint Thomas L Rev. (2000)
p. 29 at p. 32.
31. T. Scovazzi, ‘Legal Aspects of the Axum Obelisk Case’, 61 Museum International (2009)
p. 52 at p. 57; Grammatikaki-Alexiou, supra n. 1, p. 104.
32. L.V. Prott, ‘International Standards for Cultural Heritage’, in UNESCO, ed., World Culture Report: Culture, Creativity and Markets (Paris, UNESCO 1998) p. 222 at p. 224.
NILR2011-3-Book 1.indb 340
15-11-2011 11:20:10
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
341
is a Western/European concept freighted with a whole set of associations and
ideological charges, referring initially to rights of undisturbed ownership and
especially to the right of the individual to utilise exclusively, to alienate or to
exclude third persons from access to or the use of the object that is his/her property.33 In this context its use in the corpus of texts on the protection of cultural
artefacts appears to denote primarily a point of view focused on questions of
ownership of cultural objects, on the one hand laying weight on their commercial/marketable value as commodities to be bought and sold and, on the other,
overlooking their cultural dimension.34 Indeed, the specific expression cultural
property not only seems to focus on legal claims to material objects but also
appears to embody a static view of culture, while it tends, in addition, to minimise what is considered to be the essence of cultural property, that is, its relation
with the people of which it is a cultural expression.35 The reality, however, is that
around the planet there are civilisations with different concepts of ‘property’,
cultures that, for example, recognise rights to an object other than that of individual ownership or that do not recognise a right to alienate the object.36 Such is
the case with indigenous peoples, whose ‘property’ systems are characterised by
collective possession of the resources of their cultural heritage,37 which cannot be
alienated, ceded permanently or sold.38 As Mrs Daes has emphasised, only the
group as such can consent to the possession of its heritage, via specific decisionmaking processes that may, moreover, differ even within a single group
depending on what element of that heritage (songs, stories, medicinal knowl-
33. N. Brodie, ‘Stolen History: Looting and Illicit Trade’, 55 Museum International (2003)
p. 10 at p. 13; Prott, supra n. 19, p. 226.
34. J. Blake, ‘On Defining the Cultural Heritage’, 49 ICLQ (2000) p. 61 at pp. 65-66; Brodie,
supra n. 33, p. 13.
35. D. Sapiro, ‘Cultural Property and the International Cultural Property Society’, 12 International Journal of Cultural Property (2005) p. 1 at p. 4.
36. See S. Wiessner, ‘Defending Indigenous Peoples’ Heritage: An Introduction’, 14 Saint
Thomas L Rev. (2002) p. 271 at p. 272, noting that ‘[t]he indigenous view of the world, generally
speaking, is the antithesis to the Western paradigm: communitarian, not individual, focused on
sharing rather than shielding things, respect for land and all living things as sacred rather than as
objects ripe for exploitation and consumption’; see also L.V. Prott, ‘Individual or Collective
Rights for Cultural Heritage in the Information Society?’, 54 Museum International (2002) p. 7 at
pp. 7-8; Brodie, supra n. 33, p. 13; Burger and Hunt, supra n. 8, p. 418.
37. R.K. Paterson, ‘Claiming Possession of the Material Cultural Property of Indigenous Peoples’, 6 Media & Arts L Rev. (2001) p. 193 at p. 194; Daes, supra n. 12, pp. 61-62; Daes, supra
n. 4, p. 9, paras. 28-29, noting that ‘[a]lthough heritage is communal, there is usually an individual
who can best be described as a custodian or caretaker of each song, story, name, medicine, sacred
place and other aspect of a people’s heritage. Such individual responsibilities should not be confused with ownership or property rights. Traditional custodians serve as trustees for the interests of
the community as a whole and they enjoy their privileges and status in this respect for only so long
as they continue to act in the best interests of the community.’
38. Daes, supra n. 12, p. 62; Burger and Hunt, supra n. 8, p. 418.
NILR2011-3-Book 1.indb 341
15-11-2011 11:20:10
342
A. YUPSANIS
NILR 2011
edge, etc.) is involved.39 The assent of the group to third-party possession of
heritage objects is temporary and revocable, so that the group can ensure that the
elements of its heritage will be used in a fitting manner.40 Indigenous peoples, in
other words, do not see their cultural heritage in terms of ownership but in terms
of personal and collective responsibility.41 For them, a heritage is more a bundle
of relationships, rather than a bundle of economic rights. That is why in these
societies cultural resources, whether these are material objects, such as, e.g., ritual instruments, or intangibles such as songs, have no value outside these
relations.42
These thoughts, observations and considerations resulted in proposals to
replace the term cultural property by the less ideologically charged cultural heritage, which is, inter alia, more compatible with the philosophy of indigenous
peoples and expresses the idea of cultural objects more as goods that a group possesses, preserves and hands down to succeeding generations43 than as a commodity
that can be bought and sold, used exclusively or consumed.44 It has also been
argued that the concept of cultural heritage has a greater breadth than that of
cultural property, which is deemed unsuitable and inadequate for a variety of
cultural matters, such as non-material/intangible cultural resources (songs,
dances, traditional practices, etc.), which are held to be inherent in the concept of
heritage.45 This observation, although not unanimously accepted or at least subject to objections,46 has led to a gradual shift towards the adoption in some
international texts of the term cultural heritage, as is the case with, for example,
the UNESCO Convention of 1972 Concerning the Protection of the World Cul-
39. Daes supra n. 12, p. 62; Burger and Hunt, supra n. 8, p. 418; see also D.J. Halbert, Resisting Intellectual Property (London, Routledge 2005) p. 40.
40. Daes, supra n. 4, p. 9, para. 28; Daes, supra n. 12, p. 62.
41. T. Janke, ‘Managing Indigenous Knowledge and Indigenous Cultural and Intellectual
Property’, 36 Australian Academic and Research Libraries (2005) p. 99 at pp. 100-101; Mohsen
Al Attar, Aylwin and Coombe, supra n. 4, p. 320.
42. Daes, supra n.4, p. 8, para. 26; Daes, supra n. 12, p. 61; see also P. Shand, ‘Scenes from
the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights and Fashion’, 3 Cultural Analysis (2002) p. 47 at p. 62.
43. See J.M. Moran, ‘Legal Means for Protecting the Intangible Cultural Heritage of Indigenous People in a Post-Colonial World’, 12 The Holy Cross Journal of Law and Public Policy
(2008) p. 71 at pp. 72-73; see also Legal and Practical Measures Against Illicit Trafficking in Cultural Property: UNESCO Handbook, CLT/CH/INS-06/22, 2006, p. 4; Pokorný, supra n. 25,
p. 356.
44. Prott, supra n. 19, p. 226; Sapiro, supra n. 35, p. 4; Brodie, supra n. 33, p. 13; Wiessner
and Battiste, supra n. 6, p. 384.
45. M. Frigo, ‘Cultural Property v. Cultural Heritage: A “Battle of Concepts” in International
Law?’, 86 International Review of the Red Cross (2004) p. 367 at p. 369.
46. Ibid., p. 377 noting that some scholars consider that the notion of cultural heritage is an
abstract and ideal concept, whereas property is a more concrete one.
NILR2011-3-Book 1.indb 342
15-11-2011 11:20:10
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
343
tural and Natural Heritage47 and the more recent UNESCO Conventions of 2001
on the Protection of the Underwater Cultural Heritage and of 2003 on Safeguarding the Intangible Cultural Heritage.48 The UNIDROIT Convention of 1995 on
the protection of (material) cultural goods, however, avoids the use of either
term, preferring the compromise of the more ‘neutral’ concept of cultural
objects.49
This analysis leads to the conclusion that the concept of heritage is clearly
more compatible with the broader philosophy of indigenous societies and the
way in which these peoples look at culture, particularly in the context of a comprehensive approach like that of Mrs Daes, for whom ‘the heritage of indigenous
peoples is comprised of all objects, sites and knowledge, the nature or use of
which has been transmitted from generation to generation and which is regarded
as pertaining to a particular peoples, clan or territory’ and
‘includes all moveable cultural property as defined by the relevant conventions of
UNESCO; all kinds of literary and artistic works such as music, dance, song, ceremonies, symbols and designs, narratives and poetry; all kinds of scientific, agricultural, technical and ecological knowledge, including cultigens, medicines and the
phenotypes and genotypes of flora and fauna; human remains; immoveable cultural
property such as sacred sites, sites of historical significance, and burials; and
documentation of indigenous peoples’ heritage on film, photographs, videotape or
audiotape’.50
This sort of holistic approach, however, is, as will be seen, absent from the existing international conventions for the protection of cultural property/heritage.
47. Brodie, supra n. 33, pp. 13-14; see also A. Xanthaki, ‘Indigenous Cultural Rights in International Law’, 2 European Journal of Law Reform (2000) p. 343 at p. 353, commenting that the
1972 Convention seems to be more ‘indigenous-friendly’, as it uses the term cultural heritage,
instead of cultural property; see also Blake, supra n. 34, p. 67, observing that the use of the phrasing ‘cultural and natural heritage’ in the 1972 Convention is partly due to the fact that ‘to talk of
“natural property” would be a very strange construction …’
48. Frigo, supra n. 45, p. 368.
49. J.H. Merryman, ‘The UNIDROIT Convention: Three Significant Departures from the
Urtext’, 5 International Journal of Cultural Property (1996) p. 11 at p. 12; Prott, supra n. 19,
p. 226; Frigo, supra n. 45, p. 368; Brodie, supra n. 33, p. 14.
50. See Protection of the Heritage of Indigenous People, Preliminary Report of the Special
Rapporteur, Mrs Erica-Irene Daes, submitted in Conformity with Sub-Commission Resolution
1993/44 and Decision 1994/105 of the Commission on Human Rights, UN Doc. E/CN.4/
Sub.2/1994/31, 8 July 1994, Annex, p. 6, paras. 11-12; Daes, supra n. 12, p. 61; E. Stamatopoulou,
Cultural Rights in International Law – Article 27 of the Universal Declaration of Human Rights
and Beyond (Leiden, Martinus Nijhoff Publishers 2007) p. 214; K.A. Mattiske, ‘Recognition of
Indigenous Heritage in the Modern World: U.S. Legal Protection in Light of International Custom’, 27 Brooklyn JIL (2002) p. 1105 at p. 1111; Xanthaki, supra n. 47, p. 358; Wiessner and Battiste, supra n. 6, p. 384; Janke, supra n. 2, p. 633.
NILR2011-3-Book 1.indb 343
15-11-2011 11:20:10
344
3.2
A. YUPSANIS
NILR 2011
Cultural internationalism vs. cultural nationalism: ignoring the
rights of indigenous peoples to their cultural heritage
A second critical observation as regards the insufficiency of the international
instruments, with the exception of the 1995 UNIDROIT Convention, to provide
effective protection for the tangible cultural heritage of indigenous peoples concerns their general perspective, which is either one of cultural internationalism/
universalism/cosmopolitanism or one of cultural nationalism,51 and which in
either case disregards the needs, the claims and the rights of indigenous peoples.
More specifically, the theory of cultural internationalism holds that ‘cultural
property and its legacy supersede the “arbitrary” boundaries of the producing
nation and is celebrated as the cultural manifestation of a synoptic universalism,
the product of the (fictionalized) artist-as-human simpliciter’.52 In this light, the
need to preserve cultural heritage lies less in its significance for the specific people whose ancestors are believed to have created it and the country where it is
located and derived and more in its importance for, in the words of the Preamble
to the 1972 Convention, ‘mankind as a whole’.53 This ‘internationalist’ approach
colours both the 1954 Convention, the Preamble to which stresses on the one
hand that the preservation of the cultural heritage is of great importance for all
the peoples of the world and on the other that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all
mankind,54 and the 1972 UNESCO Convention, which embodies in Article 6(1)
a similar perspective.55 The ‘internationalists’ argue that the removal of antiquities from one country to another serves a legitimate purpose, because the
dispersal of cultural property promotes worldwide knowledge of our shared cultural heritage. They also point out that cultural relics are better protected and
51. See J.H. Merryman, ‘Two Ways of Thinking About Cultural Property’, 80 AJIL (1986)
p. 831 at pp. 831-832; J. Moustakas, ‘Group Rights in Cultural Property: Justifying Strict Inalienability’, 74 Cornell L Rev. (1989) p. 1179 at pp. 1221-1222; S.O. Forbes, ‘Securing the Future of
Our Past: Current Efforts to Protect Cultural Property’, 9 The Transnational Lawyer (1996) p. 235
at p. 242; see also F. Francioni, ‘The Human Dimension of International Cultural Herritage Law:
An Introduction’, 22 EJIL (2011) p. 1 at p. 1 commenting that this dual perspective cannot explain
the present state of international law since ‘today there are more than just two ways of thinking
about cultural property’.
52. C. Caruthers, ‘International Cultural Property: Another Tragedy of the Commons’,
7 Pacific Rim Law and Policy Journal (1998) p. 143 at p. 154.
53. See R. O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as
a Whole?’, 53 ICLQ (2004) p. 189 at p. 189.
54. See J.H. Merryman, ‘Cultural Property Internationalism’, 12 International Journal of Cultural Property (2005) p. 11 at p. 11; F. Francioni, ‘Beyond State Sovereignty: The Protection of
Cultural Heritage as a Shared Interest of Humanity’, 25 Michigan JIL (2004) p. 1209 at p. 1214;
Grammatikaki-Alexiou, supra n. 1, p. 104.
55. A. Strati, ‘The Right to the Common Heritage of Humanity: A Cultural Dimension’, in
S.E. Perrakis, ed., Les Droits des Peuples et des Minorités: Une Problématique en Mutation
(Athens, Sakkoulas 1993) p. 145 at p. 146 (in Greek); Francioni, supra n. 54, p. 1214.
NILR2011-3-Book 1.indb 344
15-11-2011 11:20:10
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
345
safeguarded in well-organised museums abroad than on archaeological sites or
kept in rudimentary conditions in museums of art with little in the way of
resources in the ‘exporting’ states (source countries). This, unsurprisingly, is the
view of several major museums in rich ‘importing’ nations (market nations),
some of which have relatively recently issued a joint declaration proclaiming that
they serve not only the citizens of one nation, i.e., of the country in which they
are situated, but the people of every nation:
‘Museums are agents in the development of culture, whose mission is to foster
knowledge by a continuous process of reinterpretation. Each [cultural] object [exhibited in them] contributes to that process. To narrow the focus of museums whose collections are diverse and multifaceted would therefore be a disservice to all visitors.’56
In this context museum defenders maintain that there are aesthetic, scientific and
educational reasons that outweigh the claims for repatriation of cultural objects/
goods to their countries of origin.57 This, it should be noted, is precisely the argument used against indigenous claims for the return of cultural objects of special
significance to their people from museums in other countries, proof that, as Xanthaki has pointed out, this approach totally ignores the importance of such objects
for the preservation of their culture.58
Cultural nationalism, on the other hand, contends that cultural property
belongs to the people who created it and their descendants;59 it is a part of the
national cultural heritage.60 Proponents of this view argue that removing cultural
objects from their historical-cultural setting reduces their cultural value and
impairs the culture of the peoples to which they belong.61 For them, cultural property is particularly significant for the people with whose history and identity it
is associated and this importance outweighs approaches that see it as simply
56. Declaration on the Importance and Value of Universal Museums, 2002, available at:
<www.tomflynn.co.uk/UniversalMuseumsDeclaration.pdf>.
57. See M.L. McIntosh, ‘Exploring Machu Picchu: An Analysis of the Legal and Ethical
Issues Surrounding the Repatriation of Cultural Property’, 17 Duke JCIL (2006) p. 199 at p. 211.
58. Xanthaki, supra n. 47, p. 350, observing that ‘[i]f the sole criterion for determining the
future of a cultural object is the interest of humanity, any State can argue that humanity will benefit more by the exhibition of indigenous cultural objects in a State museum, since State museums
usually surpass indigenous exhibition centres in terms of access and technology. However a decision based solely on these facts would completely neglect the meaning and importance of indigenous cultural objects for their communities.’
59. L.J. Weiss, ‘The Role of Museums in Sustaining the Illicit Trade in Cultural Property’,
25 Cardozo Arts & Entertainment LJ (2007) p. 837 at pp. 842-843.
60. J.S. Wolkoff, ‘Transcending Cultural Nationalist and Internationalist Tendencies: The Case
for Mutually Beneficial Repatriation Agreements’, 11 Cardozo Journal of Conflict Resolution
(2010) p. 709 at p. 725; Brodie, supra n. 33, pp. 12-13; Roberts, supra n. 24, p. 357; Simpson,
supra n. 23, p. 198.
61. M.R. Hoffman, ‘Cultural Pragmatism: A New Approach to the International Movement of
Antiquities’, 95 Iowa L Rev. (2010) p. 665 at p. 672.
NILR2011-3-Book 1.indb 345
15-11-2011 11:20:10
346
A. YUPSANIS
NILR 2011
something to be looked at. This view finds expression in the 1970 UNESCO Convention, whose Preamble states that cultural property constitutes one of the basic
elements of civilisation and national culture and that its true value can be appreciated only in relation to the fullest possible information regarding its origin,
history and traditional setting.62 This position underlies Article 4(a) of the Convention, which states a country’s cultural heritage includes the cultural property
created by the individual or collective genius of its own nationals,63 a clause that,
inter alia, implies that the cultural heritage of indigenous peoples is to be treated
as the property of the state.64
In sum, then, it may be said that, save for the shining example of the 1995
UNIDROIT Convention, the international instruments for the protection of (tangible) cultural property focus either on its significance for the nation states and
their dominant ethnic majorities (cultural nationalism), an approach that provides the legitimising basis for national demands for its repatriation, or on its
educational, research and cultural value for the whole world (cultural internationalism), a view that constitutes the chief argument of those who defend
keeping cultural objects in museums and collections in foreign countries, far
away from their place of origin.65 In neither case, as Watkins and Xanthaki have
pointed out, is any consideration whatsoever given to the cultural demands, views
and interests of those whom Watkins calls intra-nationalists, i.e., sub-groups
within nation states (such as indigenous peoples), who are seeking to regain control over the cultural heritage they see as their own.66 Always excepting the
particularly ‘indigenous-friendly’ 1995 UNIDROIT Convention, none of the others expressly mentions indigenous peoples and their cultural heritage, thus
perpetuating the traditional refusal of their right to determine the fate of their
heritage and to protect it from desecration and theft.67 Thus, the fact remains that
in both cases the indigenous peoples are disregarded, while their demands for the
return of cultural objects preserved in museums either at home or abroad often
elicits the standard response that, if returned, the object would either be damaged
62. G. Pulsinelli, ‘Harry Potter and the (Re)Order of the Artists: Are We Muggles or Goblins?’, 87 Oregon L Rev. (2008) p. 1101 at p. 1120; McIntosh, supra n. 57, p. 212; Blake, supra
n. 34, p. 62; Simpson, supra n. 23, p. 200.
63. N. Mezey, ‘The Paradoxes of Cultural Property’, 107 Columbia L Rev. (2007) p. 2004 at p.
2011.
64. Xanthaki, supra n. 47, pp. 359-360.
65. J. Watkins, ‘Cultural Nationalists, Internationalists, and “Intra-Nationalists”: Who’s Right
and Whose Right?’, 12 International Journal of Cultural Property (2005) p. 78 at p. 84.
66. Ibid., p. 79; Xanthaki, supra n. 47, pp. 348, 361, 367; Thompson, supra n. 20, p. 252, commenting that ‘[i]n international disputes about cultural property it is usually states which claim
right of possession over artefacts, monuments and relics. The basis for their claims is that these
things are found in, or were taken from, their territory. From a moral point of view this conception
of cultural property is unsatisfactory. It gives states unjustified precedence over the claims of other
collectivities … It favours collectivities that are territorial over those that are not.’
67. Watkins, supra n. 65, p. 80.
NILR2011-3-Book 1.indb 346
15-11-2011 11:20:10
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
347
or be hidden away where very few people could see it and then only on rare occasions, making it inaccessible to the general public and to scientific research.68 The
counter-response, formulated by Prott, is to ask what justification there can be for
the public exhibition of an object intended by its creator to be accessible only to
authorised persons, and her conclusion is that the profanation of important cultural objects by placing them on public view has clear negative consequences for
traditional societies, whose beliefs ought to be respected.69
3.3
Defining cultural property/heritage: overlooking indigenous
perceptions
One of the primary characteristics of the international conventions on the protection of cultural property/heritage is the fact that, with the exception of the
UNIDROIT Convention of 1995, they recognise that states have an exclusive
competence to determine which specific cultural items shall fall within their
scope; moreover, the emphasis they appear to lay on the material aspect of such
resources creates, in the view of some scholars, a sense that their importance is
assessed on the basis of their marketable/commercial value. Before attempting a
comparison of their different approaches, however, it is noted that there is no
commonly accepted definition in international law of the notions of cultural
property and cultural heritage70 as these terms are defined differently both within
the several domestic legal systems and in the relevant international treaties,
depending on the particular context and the specific objectives they are intended
to serve.71
Taking these texts in chronological order, then, cultural property is defined in
Article 1 of the 1954 Hague Convention as:
a. movable or immovable property of great importance to the cultural heritage
of every people, such as monuments of architecture, art or history, whether
religious or secular; archaeological sites; groups of buildings, which, as a whole,
are of historical or artistic interest; works of art; manuscripts, books and other
objects of artistic, historical or archaeological interest; as well as scientific
collections and important collections of books or archives or of reproductions of
the property defined above;
b. buildings whose main and effective purpose is to preserve or exhibit the movable
68. Prott, supra n. 19, p. 233.
69. Ibid., p. 234; Thompson, supra n. 20, p. 259; see also D. Lowenthal, ‘Why Sanctions Seldom Work: Reflections of Cultural Property Internationalism’, 12 International Journal of Cultural Property (2005) p. 393 at pp. 399-400.
70. A. Milligan, ‘Targeting Cultural Property: The Role of International Law’, 19 Journal of
Public and International Affairs (2008) p. 91 at p. 103; Frigo, supra n. 45, p. 375; GrammatikakiAlexiou, supra n. 1, p. 98; Blake, supra n. 34, pp. 62-63; Roberts, supra n. 24, p. 329.
71. T. Papademetriou, ‘International Aspects of Cultural Property’, 24 International Journal of
Legal Information (1996) p. 270 at p. 272; Frigo, supra n. 45, p. 375.
NILR2011-3-Book 1.indb 347
15-11-2011 11:20:11
348
A. YUPSANIS
NILR 2011
cultural property defined in sub-paragraph (a) such as museums, large libraries
and depositories of archives, and refuges intended to shelter, in the event of
armed conflict, the movable cultural property defined in sub-paragraph (a);
c. centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as ‘centres containing monuments’.72
While this definition indisputably covers elements of indigenous cultural
heritage,73 e.g., historical and architectural monuments, archaeological sites,
works of art, etc., it is, nonetheless, partial and inadequate as far as indigenous
peoples are concerned, because it focuses on ‘anthropogenic’, tangible movable
and immovable structures and objects (of economic/commercial value), ignoring
the intangible dimensions of the cultural heritage and disregarding elements of
that heritage with a particular cultural significance for indigenous peoples, such
as ‘natural landscapes’.74 Moreover, the major issue of what cultural property
falls within the Convention’s definition and is therefore protected depends
entirely on the state actors, as is clear from the combination of Articles 6, 10, 16
and 17 concerning the distinctive emblem to be used to identify cultural property
under special protection,75 which is applied by the competent state authorities.
This means that the indigenous peoples themselves have no recognised role
under the Convention, much less any rights as regards elements of their cultural
heritage.
Next, the 1970 Convention defines cultural property (Art. 1) as ‘property
which, on religious or secular grounds, is specifically designated by each State as
being of importance for archaeology, prehistory, history, literature, art or science
and which belongs to the following categories’:76
a. rare collections and specimens of fauna, flora, minerals and anatomy, and objects
of palaeontological interest;
b. property relating to history, including the history of science and technology and
military and social history, to the life of national leaders, thinkers, scientists and
artists and to events of national importance;
c. products of archaeological excavations (including regular and clandestine) or of
archaeological discoveries;
d. elements of artistic or historical monuments or archaeological sites which have
been dismembered;
72. E.J. Techera, ‘Protection of Cultural Heritage in Times of Armed Conflict: The International Legal Framework Revisited’, 4 Macquarie Journal of International and Comparative Environmental Law (2007) p. 1 at pp. 6-7.
73. Grammatikaki-Alexiou, supra n. 1, p. 104.
74. M.C. Driver, ‘The Protection of Cultural Property During Wartime’, 9 Review of European
Community and International Environmental Law (2000) p. 1 at pp. 2-3.
75. R. O’Keefe, ‘The Meaning of “Cultural Property” Under the 1954 Hague Convention’, 46
NILR (1999) p. 26 at pp. 27, 36, 53; Papademetriou, supra n. 71, p. 276; Driver, supra n. 74, p. 5.
76. J.M. Cheng, ‘The Problem of National Treasure in International Law’, 12 Oregon Review
of International Law (2010) p. 141 at pp. 147-148.
NILR2011-3-Book 1.indb 348
15-11-2011 11:20:11
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
349
e. antiquities more than one hundred years old, such as inscriptions, coins and
engraved seals;
f. objects of ethnological interest;
g. property of artistic interest, such as: (i) pictures, paintings and drawings
produced entirely by hand on any support and in any material (excluding
industrial designs and manufactured articles decorated by hand); (ii) original
works of statuary art and sculpture in any material; (iii) original engravings,
prints and lithographs; (iv) original artistic assemblages and montages in any
material;
h. rare manuscripts and incunabula, old books, documents and publications
of special interest (historical, artistic, scientific, literary, etc.) singly or in
collections;
i. postage, revenue and similar stamps, singly or in collections;
j. archives, including sound, photographic and cinematographic archives;
k. articles of furniture more than one hundred years old and old musical
instruments.77
Here, too, the definition of cultural property is of interest to indigenous peoples,
since it embraces elements touching on their cultural heritage (specimens of
fauna and flora, archaeological finds, paintings, lithographs, etc.), and here again
it is the state that has the exclusive competence to determine which elements of
cultural property are protected (Arts. 1, 6(a) and 13(d))78 while the interests of the
indigenous peoples are ignored, since the Convention makes no mention of them,
let alone of any rights over their cultural heritage.79 In addition, as with its predecessor from 1954, the focus of the Convention, on protecting marketable material
objects, does not seem to cover the full range of value of cultural resources, and
particularly the dimensions they have for indigenous peoples.80
Next, the 1972 Convention for the Protection of the World Cultural and Natural Heritage provides in Article 1 that ‘the following shall be considered as
cultural heritage’:
– monuments: architectural works, works of monumental sculpture and painting,
elements or structures of an archaeological nature, inscriptions, cave dwellings
and combinations of features, which are of outstanding universal value from the
77. K. Siehr, ‘The UNIDROIT Draft Convention on the International Protection of Cultural
Property’, 3 International Journal of Cultural Property (1994) p. 301 at pp. 301-302.
78. P. O’Keefe, ‘International Arts Law Update – Recent Developments’, 8 Media & Arts L
Rev. (2003) p. 347 at p. 347; Grammatikaki-Alexiou, supra n. 1, pp. 104-105; Simpson, supra
n. 23, p. 200.
79. R.W. Mastalir, ‘A Proposal for Protecting the “Cultural” and “Property” Aspects of Cultural Property Under International Law’, 16 Fordham ILJ (1992) p. 1033 at p. 1042; Grammatikaki-Alexiou, supra n. 1, p. 105; Simpson, supra n. 23, p. 200.
80. L. Guruswamy, J.C. Roberts and C. Drywater, ‘Protecting the Cultural and Natural Heritage: Finding Common Ground’, 34 Tulsa LJ (1999) p. 713 at p. 727; Grammatikaki-Alexiou,
supra n. 1, p. 105; Simpson, supra n. 23, p. 196.
NILR2011-3-Book 1.indb 349
15-11-2011 11:20:11
350
A. YUPSANIS
NILR 2011
point of view of history, art or science;
– groups of buildings: groups of separate or connected buildings which, because
of their architecture, their homogeneity or their place in the landscape, are of
outstanding universal value from the point of view of history, art or science;
– sites: works of man or the combined works of nature and of man, and areas
including archaeological sites which are of outstanding universal value from the
historical, aesthetic, ethnological or anthropological points of view.81
Similarly, Article 2 of this Convention provides that ‘the following shall be considered as natural heritage’:
– natural features consisting of physical and biological formations or groups of
such formations, which are of outstanding universal value from the aesthetic or
scientific point of view;
– geological and physiographical formations and precisely delineated areas which
constitute the habitat of threatened species of animals and plants of outstanding
universal value from the point of view of science or conservation;
– natural sites or precisely delineated natural areas of outstanding universal value
from the point of view of science, conservation or natural beauty.82
The reference in this definition to ‘combined works of nature and of man’ and to
‘archaeological sites’, etc., is of particular significance for the protection of ‘natural sites’ of major cultural importance to indigenous peoples.83 Its practical
significance for them, however, is considerably limited by the fact that this Convention, like its two predecessors, is wholly state-centric in conception, since its
Articles 3, 4, 5(d), 6(2) and 11(1) accord to the States Parties the exclusive competence to identify and delineate the various elements of cultural and natural
heritage covered by its definition and therefore falling under its protection
regime.84 Furthermore, it appears to focus more on the tangible manifestations of
cultural heritage, than on its intangible aspects.85 It is also governed by an ‘internationalist’ approach that is totally oblivious to the points of view and the interests
81. Y. Ahmad, ‘The Scope and Definitions of Heritage: From Tangible to Intangible’,
12 International Journal of Heritage Studies (2006) p. 292 at p. 295.
82. M. Rössler, ‘World Heritage Sites: Toward Linking the Tangible with the Intangible’, in
D. Harmon and A.D. Putney, eds., The Full Value of Parks: From Economics to the Intangible
(Lanham, Rowman & Littlefield Publishers 2003) p. 197 at pp. 197-198.
83. Driver, supra n. 74, p. 2.
84. See R.H.M. Goy, ‘The International Protection of the Cultural and Natural Heritage’,
4 NYIL (1973) p. 117 at pp. 130-132; Grammatikaki-Alexiou, supra n. 1, p. 106; Guruswamy,
Roberts and Drywater, supra n. 80, p. 728; Papademetriou, supra n. 71, p. 278.
85. See F. Lenzerini, ‘Intangible Cultural Heritage: The Living Culture of Peoples’, 22 EJIL
(2011) p. 101 at p. 104 commenting that during the negotiations leading to the adoption of the
Convention some state representatives observed that its scope was too narrow and that the action
of the international community should also extend to the immaterial aspects of the cultural heritage.
NILR2011-3-Book 1.indb 350
15-11-2011 11:20:11
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
351
of indigenous peoples. Moreover, the distinction it makes between ‘cultural’ and
‘natural’ heritage is unknown in traditional societies, and especially to indigenous peoples, who find insulting the description of sites on the World Heritage
List as exclusively ‘natural’.86 It must, finally, be noted that the criterion of outstanding universal value – again determined exclusively by the states – that
elements of cultural or natural heritage must meet in order to be protected under
the Convention considerably restricts its scope, since, as Grammatikaki-Alexiou
graphically describes, it excludes less glamorous elements of indigenous cultural
heritage.87 In this context, however, it should be noted that the guidelines for the
application of the Convention adopted by the competent Intergovernmental
Committee for the Protection of the World Cultural and Natural Heritage state,
albeit in fairly loose terms, that ‘the participation of local people in the nomination process is essential to make them feel a shared responsibility’ with the States
Parties in the maintenance of the sites.88 This development, taken together with
the relatively recent notion of ‘cultural landscapes’89 adopted by UNESCO, a
concept more compatible with indigenous perceptions, seems to reflect a shift
towards a friendlier approach to the cultural rights of the peoples under consideration.
The fourth definition of cultural property/heritage, that of the UNIDROIT
Convention of 1995, is far more sensitive towards indigenous peoples. It defines
(Art. 2) as cultural objects those things ‘which, on religious or secular grounds,
are of importance for archaeology, prehistory, history, literature, art or science’90
and belong to one of the categories listed in the Annex to it, which are exactly the
same as those in the 1970 UNESCO Convention.91 In other words, the definition
adopted by the International Institute for the Unification of Private Law is essentially identical to that of the 1970 Convention, except that it does not require the
States Parties to designate the elements of cultural property that it covers.92 This
is a fundamental difference, for it makes this the first convention to break the
86. Prott, supra n. 32, p. 234; see also Blake, supra n. 34, p. 67, noting that ‘[t]here is an
aspect of “natural heritage” which forms a part of the cultural heritage given the importance of certain landscapes and natural features to particular groups and cultures’.
87. Grammatikaki-Alexiou, supra n. 1, p. 106; Xanthaki, supra n. 47, p. 353; Guruswamy,
Roberts and Drywater, supra n. 80, p. 728.
88. Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Operational Guidelines for the Implementation of the World Heritage Convention,
WHC.97/2, February 1997, available at: <http://whc.unesco.org/archive/opguide97.pdf>, at p. 4.
89. See M. Rössler, ‘World Heritage Cultural Landscapes: A UNESCO Flagship Programme
1992-2006’, 31 Landscape Research (2006) pp. 333-353; Prott, supra n. 32, p. 234.
90. E. Sidorsky, ‘The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects: The Role of International Arbitration’, 5 International Journal of Cultural Property
(1996) p. 19 at p. 26.
91. L.V. Prott, ‘Unesco and Unidroit: A Partnership Against Trafficking in Cultural Objects’,
Uniform L Rev. (1996-1) p. 59 at pp. 61-62.
92. Ibid., p. 62; Caruthers, supra n. 52, pp. 146-147.
NILR2011-3-Book 1.indb 351
15-11-2011 11:20:11
352
A. YUPSANIS
NILR 2011
state monopoly of exclusive competence for determining the cultural objects that
require protection, while at the same time it covers all objects that have been
stolen from anywhere, thus including, as Prott points out, those stolen from traditional communities, which can be claimed back, even though the state has
neither registered nor designated them.93
To recapitulate, the state-centric orientation of the major international instruments on the protection of cultural property/heritage (save for the UNIDROIT
Convention) regarding the designation of the cultural objects subject to protection, in conjunction with their emphasis (partially except in the case of the 1972
Convention) on the material dimension (and the marketable value) of cultural
property/heritage, seems to leave little room for the effective protection of the
cultural heritage of indigenous peoples, particularly in the holistic dimension it
has for them.94
3.4
Other deficiencies of the international conventions for the
protection of cultural property/heritage as regards indigenous
peoples
Apart from the aforementioned more general characteristics (‘internationalist’ or
‘nationalist’ perception, monolithic state-centric competence on designating cultural patrimony under protection and emphasis on the material dimension of
cultural resources) of the majority of the most important relevant international
instruments that give rise to serious concerns regarding their potential to
adequately safeguard indigenous peoples’ heritage, they also have specific weaknesses that render the effective protection of that heritage even more difficult.
The Hague Convention, for example, lays down a series of undertakings for
the States Parties to it, both in peacetime and even more so in the event of armed
conflict, including, inter alia, the obligation: a) to prepare in time of peace for the
safeguarding of cultural property situated within their own territory against the
foreseeable effects of an armed conflict by taking such measures as they consider
appropriate (Art. 3);95 b) to respect, in the event of armed conflict, cultural property situated within their own territory and the territory of other contracting
parties by refraining from any use of the property and its immediate surroundings
or of the appliances in use for its protection for purposes which are likely to
expose it to destruction or damage and by refraining from any act of hostility
93. Prott, supra n. 91, p. 62.
94. See the observations made by Lenzerini that the cultural heritage is composed not only of
tangible properties, ‘but also and especially … it includes all immaterial elements that are considered by a given community as essential components of its intrinsic identity as well as of its uniqueness and distinctiveness in comparison with all other human groups’, supra n. 85, p. 102.
95. H.M. Hensel, ‘The Protection of Cultural Objects During Armed Conflicts’, in
H.M. Hensel, ed., The Law of Armed Conflict: Constraints on the Contemporary Use of Military
Force (Aldershot, Ashgate Publishing 2007) p. 39 at p. 61.
NILR2011-3-Book 1.indb 352
15-11-2011 11:20:11
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
353
directed against such property (Art. 4(1));96 and c) to prohibit, prevent and if
necessary put a stop to any form of theft, pillage or misappropriation of, and any
acts of vandalism directed against, cultural property,97 and to refrain from requisitioning movable cultural property situated in the territory of another contracting
party (Art. 4(3)).98
The effectiveness of this Convention is, however, restricted by a series of constraints deriving from the very context of its provisions. Concretely, the protection
provided is undermined by the particularly vague instances of ‘imperative/unavoidable military necessity’ (Arts. 4(2) and Art. 11(2)) as circumstances
justifying its waiver, a general and abstract escape clause susceptible of antithetical readings,99 even going so far as to permit, for example, as Strati notes, the
destruction of a cathedral because of the presence in it of a single enemy sniper.100
Another major defect of this Convention is that it does not establish a specific
procedure for the repatriation/return of cultural objects stolen, ravaged or looted
in times of armed conflict.101 It also leaves the states a wide margin for discretion
as regards the types of sanctions they impose for the infringement of the Convention102 as it does not establish a specific single mechanism for its implementation
but merely asks (Art. 28) the states to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or
disciplinary sanctions upon those persons, of whatever nationality, who commit
or order to be committed a breach of its provisions.103 Yet another defect is that
while the Convention asks the states to take steps in time of peace to safeguard
cultural property against the foreseeable effects of armed conflict, it lays down no
96. R. O’Keefe, The Protection of Cultural Property in Armed Conflict (Cambridge, Cambridge University Press 2006) p. 123; Papademetriou, supra n. 71, p. 276; Simpson, supra n. 23,
p. 199.
97. A. Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of
the Contemporary Law of the Sea (The Hague, Martinus Nijhoff Publishers 1995) p. 69; Simpson,
supra n. 23, p. 199.
98. S.A. Stuhl, ‘Spoils of War? A Solution to the Hermitage Drove Debate’, 18 University of
Pennsylvania Journal of International Economic Law (1997) p. 409 at p. 430.
99. K. Anderson, ‘The International Theft and Illegal Export of Cultural Property’, 8 New England International and Comparative Law (2002) p. 411 at p. 417; Grammatikaki-Alexiou, supra n.
1, p. 104; Roberts, supra n. 24, p. 335; Papademetriou, supra n. 71, p. 276.
100. A. Strati, ‘New Rules for the Protection of Cultural Resources During Wartime: The Second Protocol to the Hague Convention of 1954’, 21 Hellenic Review of European Law (Special
Issue) (2001) p. 451 at p. 455 (in Greek).
101. J.N. Lehman, ‘The Continuing Struggle with Stolen Cultural Property: The Hague Convention, the UNESCO Convention, and the UNIDROIT Draft Convention’, 14 Arizona JICL
(1997) p. 527 at p. 535.
102. S.L. Schairer, ‘The Intersection of Human Rights and Cultural Property Issues Under
International Law’, 11 Italian YIL (2001) p. 59 at p. 84.
103. D.A. Meyer, ‘The 1954 Hague Cultural Property Convention and its Emergence into Customary International Law’, 11 Boston U ILJ (1993) p. 349 at p. 357; Driver, supra n. 74, p. 6; Lehman, supra n. 101, p. 535.
NILR2011-3-Book 1.indb 353
15-11-2011 11:20:11
354
A. YUPSANIS
NILR 2011
specific requirements, and thus essentially permits them to do nothing.104 These
shortcomings, in conjunction with its ‘internationalist’ approach and state-centric
orientation on identifying cultural property under protection, substantially reduce
whatever role the Convention might have been able to play in protecting the cultural heritage of indigenous peoples at a time of armed conflict.
A series of weaknesses also characterise one of the main international instruments for the protection of cultural property in peacetime, the 1970 Convention
that covers both a) the prevention of illicit traffic (setting up suitable national
services (Art. 5), adopting legal and administrative measures (Arts. 7-8), introducing an appropriate export certificate (Art. 6(a)), and obliging antique dealers
to keep registers recording the origin of each cultural item (Art. 10(a)), and b) the
restitution of stolen inventoried cultural objects (Art. 7(b)(ii)).105
More specifically, the Convention lays upon the States Parties to it an obligation, on the one hand, to prohibit the import of cultural property stolen
(exclusively) from museums or religious or secular public monuments or similar
institutions in other states (Art. 7(b)(i)), and, on the other, to take appropriate
steps, at the request of the State Party of origin of the cultural property made
through diplomatic offices, to recover and return the cultural property claimed
(Art. 7(b)(ii)).106
In thus focusing solely on cultural property that has been stolen from museums, religious or public monuments and similar institutions, the Convention
clearly excludes from its field of protection cultural objects stolen from, e.g.,
archaeological sites, private collections, indigenous communities, etc.107 The narrow scope of the protection it affords, which covers only a specific and limited
category of cultural relics, coupled with its ‘nationalist’ perception that regards
the cultural heritage of indigenous peoples as state property (Art. 4), leaves little
or no margin for the effective protection of their interests. This is reinforced by
its strongly state-centric orientation, for it is the state that has the exclusive competence to designate which items constitute cultural property subject to protection108
104. A. Cunning, ‘The Safeguarding of Cultural Property in Times of War and Peace’,
11 Tulsa JCIL (2003) p. 211 at p. 233.
105. See UNESCO and UNIDROIT – Cooperation in the Fight Against Illicit Traffic in Cultural Property, Conference Celebrating the 10th Anniversary of the 1995 UNIDROIT Convention
on Stolen or Illegally Exported Cultural Objects, UNESCO, Paris, UN Doc. CLT-2005/Conf/
803/2, 16 June 2005, available at: <http://portal.unesco.org/culture/en/files/27177/11289380919
conference_summary.pdf/conference_summary.pdf>, at p. 3.
106. J.D. Nason, ‘Traditional Property and Modern Laws: The Need for Native American
Community Intellectual Property Rights Legislation’, 12 Stanford Law and Policy Review (2001)
p. 255 at p. 257.
107. J.F. Edwards, ‘Major Global Treaties for the Protection and Enjoyment of Art and Cultural Objects’, 22 U Toledo L Rev. (1991) p. 919 at p. 926; O’Keefe, supra n.78, p. 347; Lehman,
supra n. 101, p. 541; Prott, supra n. 91, p. 62.
108. M.L. Dutra, ‘Sir, How Much Is That Ming Vase in the Window? Protecting Cultural Relics in the Peoples’ Republic of China’, 5 Asian-Pacific Law and Policy Journal (2004) p. 62 at
NILR2011-3-Book 1.indb 354
15-11-2011 11:20:11
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
355
and the state that is primarily entitled to demand its return,109 an approach that
ignores the interests of individuals and sub-groups within the national territory.110
Another negative aspect of the Convention, both generally and specifically as
regards indigenous peoples, is the fact that it has no retroactive effect (Art. 7)111
which in practice means, as Mrs Daes has pointed out, that it precludes the recovery of their cultural objects, the overwhelming majority of which were lost before
the Convention came into force.112 The general effectiveness of this Convention
has in any case been debatable, since, as O’Keefe notes, relatively few illegally
removed cultural objects have been returned by virtue of its provisions.113
The UNIDROIT Convention stands as a glowing exception to the norm, for it
is unquestionably the most ‘indigenous-friendly’ international instrument touching on dimensions of their (tangible) cultural heritage. It is the first convention to
repeatedly and expressly mention the need to protect the cultural objects of indigenous peoples, beginning in its Preamble, whose third paragraph displays a
composite and comprehensive approach combining elements of the ‘internationalist’, ‘nationalist’ and indigenous points of view, in its recognition that the illicit
trade in cultural objects frequently causes irreparable damage both to the objects
themselves and also to a) the national heritage, b) the heritage of tribal, indigenous or other communities, and c) the heritage of all mankind.114
The UNIDROIT Convention does not, like the 1970 Convention, cover the
prevention phase, but rather focuses on the recovery phase and sets uniform rules
and conditions for restitution claims on stolen cultural objects (Chapter II, Arts.
3-4) and return claims on illicitly exported cultural objects (Chapter III, Arts.
5-7).115 One of its fundamental principles as regards the category of stolen cul-
p. 76; Prott, supra n. 91, p. 62; Mastalir, supra n. 79, p. 1040.
109. Anderson, supra n. 99, p. 421; Daes, supra n. 12, p. 67; Xanthaki, supra n. 47, p. 360. It
should be noted that Art. 13(c) of the Convention provides that States Parties admit actions for the
recovery of lost or stolen items of cultural property brought by or on behalf of the rightful owners
(e.g., individuals in their personal capacity) but subject to the condition that this is consistent with
the laws of each state, M.F. Bolaño, ‘International Theft Art Disputes: Harmonizing Common Law
Principles with Article 7(b) of the UNESCO Convention’, 15 Fordham ILJ (1991) p. 129 at
p. 166.
110. Prott, supra n. 91, p. 62.
111. R.K. Paterson, ‘Claiming Possession of the Material Cultural Property of Indigenous Peoples’, 16 Connecticut JIL (2001) p. 283 at p. 287; L.V. Prott, ‘Repatriation of Cultural Property’,
UBC L Rev. (Special Issue) (1995) p. 229 at p. 233; Xanthaki, supra n. 47, p. 360.
112. Daes, supra n. 12, p. 67.
113. P. O’Keefe, ‘International Arts Law Update – Unlawful Traffic in Cultural Heritage and
UNESCO’, 6 Media & Arts L Rev. (2001) p. 139 at p. 139, noting, however, that the Convention
has had a great moral influence; Brodie, supra n. 33, p. 19.
114. See A.F. Vrdoljak, International Law, Museums and the Return of Cultural Objects
(Cambridge, Cambridge University Press 2006) p. 273.
115. See J. Greenfield, The Return of Cultural Treasures, 3rd edn. (New York, Cambridge University Press 2007) p. 235.
NILR2011-3-Book 1.indb 355
15-11-2011 11:20:12
356
A. YUPSANIS
NILR 2011
tural objects is that their possessor must return them (Art. 3(1)).116 In Article 3(3)
it provides that claims for the return of stolen objects must be made either within
a period of 3 years from the time when the claimant – who may be a private individual or legal entity – knew the location of the stolen object and the identity of
its possessor or in any case within 50 years (of the theft).117 In relation to this
second case, however, the Convention recognises ‘preferential’ treatment for the
cultural heritage of indigenous peoples, for it provides that this 50-year period
does not apply to objects that form an integral part of a monument or archaeological site, or that belong to a public collection, or to sacred objects belonging
to tribal or indigenous communities (Art. 3(4) and (8)).118 More specifically, Article 3(8) provides that claims for the return of stolen sacred or communally
important cultural objects belonging to and used by tribal or indigenous communities as part of their traditional or ritual practice shall be subject to the (maximum)
time limitations applicable to public collections,119 which means that ‘unless the
claimant knows where the object is located and is aware of the identity of the
possessor, in which case the claim must be brought within three years – the relative limitation period under the general regime – no time limit applies to the
claim unless Contracting States make the declaration contemplated in Article
3(5)’.120
The Convention also deals with the question of illegally exported cultural
objects belonging to the heritage of indigenous peoples. Specifically, Article 5(3)
(d) provides that the courts or other competent authorities of the contracting
states shall order the return of illegally exported cultural objects, if the requesting state establishes that their removal from its territory significantly impairs,
among other things, their traditional or ritual use by a tribal or indigenous community.121 There is, however, a noteworthy difference in the way the Convention
addresses this question as compared to the case of stolen cultural objects, where
private individuals and legal entities are entitled to demand their return: in the
case of illegally exported cultural objects, by contrast, the right to request their
116. G. Sheng, ‘International Protection of Cultural Property: Some Preliminary Issues and the
Role of International Conventions’, 12 Singapore YIL (2006) p. 57 at p. 66.
117. A. Carleton, ‘Piracy in the Modern Age: Reviewing the Mechanisms Which Combat Pillage’, 4 Macquarie Journal of International and Comparative Environmental Law (2007) p. 21 at
p. 40.
118. See M. Phelan, ‘A History and Analysis of Laws Protecting Native American Cultures’,
45 Tulsa L Rev. (2009) p. 45 at p. 61; Vrdoljak, supra n. 114, p. 273.
119. J. De Werra, ‘Fighting Against Biopiracy: Does the Obligation to Disclose in Patent
Applications Truly Help?’, 42 Vanderbilt Journal of Transnational Law (2009) p. 143 at p. 160.
120. ‘UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: Explanatory
Report’, Uniform L Rev. (2001-3) p. 476 at p. 514. Art. 3(5) states that ‘[n]otwithstanding the provisions of the preceding paragraph, any Contracting State may declare that a claim is subject to a
time limitation of 75 years or such longer period as is provided in its law’.
121. M. Olivier, ‘The UNIDROIT Convention: Attempting to Regulate the International Trade
and Traffic of Cultural Property’, 26 Golden Gate U L Rev. (1996) p. 627 at p. 662.
NILR2011-3-Book 1.indb 356
15-11-2011 11:20:12
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
357
return is reserved exclusively to the state by application to the courts or other
competent authorities of the other contracting parties.
To sum up, the 1995 Convention contains the following positive elements as
far as indigenous peoples are concerned: a) it broadens the range of cultural
objects protected, since it covers not only those stolen from museums and religious or secular public monuments or similar institutions, as does the 1970
Convention, but also those stolen from any other place (e.g., illegal excavations,
private collections, traditional communities, etc.), while at the same time it does
not, as do all the other Conventions, restrict this protection to cultural objects that
have been specifically so designated, described and listed by the state122 and b) it
broadens the body of those legally entitled to submit claims for the repatriation/
return of stolen cultural objects to include private individuals and legal entities,
rather than limiting it to state agencies as is the case with the 1970 Convention.
One defect of this Convention, both in general and specifically as regards
indigenous peoples, is that it reserves the right to demand the return of illegally
exported cultural objects exclusively to the state (therefore barring private individuals and indigenous communities). Its most important weakness, however,
lies in the fact that it has no retroactive force as it applies only to cases of cultural
objects that were stolen or illegally exported after its entry into force (Art. 10(1)
and (2)),123 which from the indigenous point of view renders it useless for the
recovery of cultural heritage lost earlier.
4.
CONCLUDING REMARKS
This rough outline of the regimes for the protection of cultural property currently
in force in international law demonstrates the existence of serious weaknesses in
relation to the effective safeguarding of the rights of indigenous peoples as
regards their tangible cultural heritage.124 Although some Conventions (1970,
1995) do establish a right to reclaim the repatriation or return of stolen and illegally exported cultural heritage, they have no retroactive effect and thus cannot
be used to recover the large quantities of objects looted during the colonial period,
as is the case with indigenous peoples.125 Moreover, the state-centric approach of
122. See I.M. Goldrich, ‘Balancing the Need for Repatriation of Illegally Removed Cultural
Property with the Interests of Bona Fide Purchasers: Applying the UNIDROIT Convention to the
Case of the Gold Phiale’, 23 Fordham ILJ (1999) p. 118 at p. 140.
123. M.B. Doyle, ‘Ownership By Display: Adverse Possession to Determine Ownership of
Cultural Property’, 41 George Washington ILR (2009) p. 269 at p. 275.
124. T. Chapman, ‘Corroboree Shield: A Comparative Historical Analysis of (the Lack of)
International, National and State Level Indigenous Cultural Heritage Protection’, 5 Macquarie
Journal of International and Comparative Environmental Law (2008) p. 81 at p. 96.
125. R.K. Paterson, ‘Resolving Material Culture Disputes: Human Rights, Property Rights and
Crimes Against Humanity’, 14 Willamette JIL and Dispute Resolution (2006) p. 155 at p. 163;
McIntosh, supra n. 57, p. 200.
NILR2011-3-Book 1.indb 357
15-11-2011 11:20:12
358
A. YUPSANIS
NILR 2011
most of them concerning the designation of cultural items under protection
ignores indigenous interests and needs126 disregarding the fact that the states may
be unable or unwilling to protect the cultural heritage of their indigenous peoples.127 In addition, as Mrs Daes has pointed out in her Final Report on the
Protection of the Heritage of Indigenous People, the several limitations of the
existing treaties for the return of movable cultural property constitute a serious
obstacle to the effective protection of the heritage of the peoples in question.128
Finally, the existing conventions seem to focus on the material/tangible dimension of cultural property, providing only indirect, partial and insufficient
protection for its intangible dimensions129 which are crucial to the same degree to
indigenous collective identity and heritage. Thus indigenous peoples face an
unsatisfactory situation in this matter which even the ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (Νο. 169), the only
contemporary international legally binding instrument specifically devoted to
their rights,130 is unable to address, for it does not, given the ILO’s lack of competence in this sphere, concretely cover issues of cultural heritage, although it
does require the adoption of ‘special measures … as appropriate for safeguarding
the persons, institutions, property, labor, cultures and environment of the peoples
concerned’.131
It could be argued that the recent United Nations Declaration on the Rights of
Indigenous Peoples attempts, at least partially, to cover these gaps and weaknesses in the relevant international instruments, in that it touches, among other
things, on questions of cultural property, acknowledging for example in Article
12(1) the right of indigenous peoples to maintain, protect and have access in privacy to their religious and cultural sites, the right to the use and control of their
126. See Report of the Working Group on Indigenous Populations on its Eleventh Session, UN
Doc. E/CN.4/Sub.2/1993/29, 23 August 1993, p. 37, para. 170; Roberts, supra n. 24, p. 328; Simpson, supra n. 23, p. 195.
127. Grammatikaki-Alexiou, supra n. 1, p. 112; Simpson, supra n. 23, p. 220.
128. See Protection of the Heritage of Indigenous People, Final Report of the Special Rapporteur, Mrs Erica-Irene Daes, in Conformity with Subcommission Resolution 1993/44 and Decision
1994/105 of the Commission on Human Rights, UN Doc. E/CN.4/Sub.2/1995/26, 21 June 1995,
p. 5, para. 19; Xanthaki, supra n. 47, pp. 361, 366-367.
129. M. Bedjaoui, ‘The Convention for the Safeguarding of the Intangible Cultural Heritage:
The Legal Framework and Universally Recognized Principles’, 56 Museum International (2004)
p. 150 at p. 151.
130. See A. Yupsanis, ‘ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries 1989-2009: An Overview’, 79 Nordic JIL (2010) pp. 433-456; R.L. Barsh,
‘An Advocate’s Guide to the Convention on Indigenous and Tribal Peoples’, 15 Oklahoma City U
L Rev. (1990) pp. 209-236; L. Swepston, ‘A New Step in the International Law on Indigenous and
Tribal Peoples: ILO Convention No. 169 of 1989’, 15 Oklahoma City U L Rev. (1990) pp. 677714.
131. J.A.R. Nafgizer, ‘The Protection and Repatriation of Indigenous Cultural Heritage in the
United States’, 14 Willamette JIL and Dispute Resolution (2006) p. 175 at p. 186.
NILR2011-3-Book 1.indb 358
15-11-2011 11:20:12
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
359
ceremonial objects, and the right to repatriation of the remains of their ancestors,132
while the second paragraph of this article provides, albeit in fairly loose terms,
that the states shall seek to enable the access and/or repatriation of ceremonial
objects in their possession through fair, transparent and effective mechanisms
developed in conjunction with the indigenous peoples concerned.133 While the
Declaration is a particularly important development in the field of the recognition
and promotion of indigenous peoples’ rights, it is not, at least for the present, a
legally binding instrument,134 and moreover comes nowhere near framing a cohesive regime for the effective protection of the cultural heritage of indigenous
peoples, particularly in the watered-down final form that emerged from the Draft
Declaration: thus, for example, while the latter’s Article 12 provided that indigenous peoples should have a right to the restitution of cultural, intellectual,
religious and spiritual property taken without their free and informed consent or
in violation of their laws, traditions and customs,135 the corresponding second
paragraph of Article 11 of the Declaration provides that in such cases the states
shall provide means of redress136 through effective mechanisms, which may
132. See M. Cornu and M.A. Renold, ‘New Developments in the Restitution of Cultural Property: Alternative Means of Dispute Resolution’ 17 International Journal of Cultural Property
(2010) p. 1 at p. 6; J. Aguon, ‘Other Arms: The Power of a Dual Rights Legal Strategy for the
Chamoru People of Guam Using the Declaration on the Rights of Indigenous Peoples in U.S.
Courts’, 31 U Hawai’i L Rev. (2008) p. 113 at p. 143.
133. R.T. Coulter, ‘The U.N. Declaration on the Rights of Indigenous Peoples: A Historic
Change in International Law’, 45 Idaho L Rev. (2009) p. 539 at p. 549; K.L. Alderman, ‘Ethical
Issues in Cultural Property Law Pertaining to Indigenous Peoples’, 45 Idaho L Rev. (2009) p. 515
at p. 527.
134. See S. Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’, 22 EJIL (2011) p. 121 at p. 130, commenting that ‘[t]hough not a legally binding
per se, a declaration may be or become binding to the extent that its various provisions are backed
up by conforming state practice and opinio juris’. Also, P. Oldham and M.A. Frank, ‘“We the peoples” … The United Nations Declaration on the Rights of Indigenous Peoples’, 24 Anthropology
Today (2008) p. 5 at p. 5, observing that ‘[t]he Declaration is not a legally binding instrument but
is in some respects declaratory of customary international law. It is already being invoked in
national and regional legal cases and may form the precursor to a legally binding Convention’; see
also S. Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’,
7 Human Rights L Rev. (2007) p. 741 at p. 755. Finally, see Mohsen Al Attar, Aylwin and
Coombe, supra n. 4, p. 323 for a view holding that ‘[a]lthough we have as yet little or no authoritative interpretation of the Declaration and its protection of the cultural interests of indigenous
communities, it might be argued [emphasis added] that the continuing recognition of these issues
in international fora has led to the creation of an international framework in which the state’s obligation to protect indigenous knowledge and cultural property has become a customary norm’.
135. D.B. Suagee, ‘The Cultural Heritage of American Indian Tribes and the Preservation of
Biological Diversity’, 31 Arizona State LJ (1999) p. 483 at p. 508.
136. E. Stamatopoulou, ‘Taking Cultural Rights Seriously: The Vision of the UN Declaration
on the Rights of Indigenous Peoples’, in A. Xanthaki and S. Allen, eds., Reflections of the UN
Declaration on the Rights of Indigenous Peoples (Oxford, Hart Publishing 2011) p. 387 at p. 393.
NILR2011-3-Book 1.indb 359
15-11-2011 11:20:12
360
A. YUPSANIS
NILR 2011
include restitution,137 a patently much weaker form of words than the draft provision, which established a right of restitution in all such cases. Similarly, while
Article 29(1) of the Draft Declaration stated that indigenous peoples are entitled
to the recognition of the full ownership, control and protection of their cultural
and intellectual property,138 Article 31(1) of the Declaration acknowledges their
right to maintain, control, protect and develop their cultural heritage,139 but does
not recognise their full ownership of it. These examples preclude any exaggerated expectations as regards the role that the Declaration might be able to play in
the matter, at least for the foreseeable future.
This being the case, Mrs Daes’ recommendation and wish that the United
Nations examine the possibility of drafting a Convention for the protection and
recovery of the heritage of indigenous peoples140 in the holistic conception
expressed in her definition, a position embraced by several indigenous peoples
too,141 is a most interesting proposal, and one that any sense of justice renders
imperative. Such a development seems unlikely at present, however, given the
lack of political will demonstrated by the vigorous objections of a number of
states to the proposed wording of the relevant provisions in the Draft Declaration,142
which entrenched stronger cultural property rights for indigenous peoples than
the final version of the Declaration, and the over 15-year stonewalling of the
adoption of Mrs Daes’ (revised) ‘Draft Principles and Guidelines for the Heritage
of Indigenous Peoples’.143 Moreover, the justified enthusiasm caused by the
adoption of the UN Declaration may reasonably be expected to divert attention to
the effective implementation of its provisions rather than to shaping a new and
137. L.R. Helfer and G.W. Austin, Human Rights and Intellectual Property: Mapping the Global Interface (New York, Cambridge University Press 2011) p. 452.
138. M. Blakeney, ‘Communal Intellectual Property Rights of Indigenous Peoples in Cultural
Expressions’, 1 The Journal of World Intellectual Property (1998) p. 985 at p. 998.
139. F. Lenzerini, ‘Indigenous Peoples’ Cultural Rights and the Controversy Over Commercial
Use of Their Traditional Knowledge’, in F. Francioni and M. Scheinin, eds., Cultural Human
Rights (Leiden, Martinus Nijhoff Publishers 2008) p. 119 at p. 129.
140. Daes, supra n. 128, Annex, p. 15, para. 60; see also Report of the Seminar on the Draft
Declaration and Guidelines for the Protection of the Heritage of Indigenous Peoples, UN Doc.
E/CN.4/Sub.2/2000/26, 19 June 2000, Annex, p. 18, para. 55.
141. See Review of the Draft Principles and Guidelines on the Heritage of Indigenous Peoples, Expanded Working Paper submitted by Yozo Yokota and the Saami Council on the Substantive Proposals on the Draft Principles and Guidelines on the Heritage of Indigenous Peoples, UN
Doc. E/CN.4/Sub.2/AC.4/2005/3, 21 June 2005, p. 3, para. 6.
142. See R.L. Barsh, ‘Indigenous Peoples and the UN Commission on Human Rights: A Case
of the Immovable Object and the Irresistible Force’, 18 Human Rights Quarterly (1996) p. 782 at
p. 802.
143. On the Draft see Review of the Draft Principles and Guidelines on the Heritage of Indigenous Peoples, Expanded Working Paper submitted by Yozo Yokota and the Saami Council on the
Substantive Proposals on the Draft Principles and Guidelines on the Heritage of Indigenous Peoples, UN Doc. E/CN.4/Sub.2/AC.4/2006/5, 16 June 2006; A.F. Vrdoljak, ‘Reparations for Cultural
Loss’, in F. Lenzerini, ed., Reparations for Indigenous Peoples: International and Comparative
Law Perspectives (Oxford, Oxford University Press 2008) p. 197 at pp. 199-203.
NILR2011-3-Book 1.indb 360
15-11-2011 11:20:12
NILR 2011 CULTURAL PROPERTY ASPECTS IN INTERNATIONAL LAW
361
legally binding, indeed normative framework.144 In this situation, then, it is up to
the indigenous peoples to take flexible action to preserve their cultural heritage,
and to the states to give real substance to the content of the Declaration.
144. See J. Castellino, ‘The Protection of Minorities and Indigenous Peoples in International
Law: A Comparative Temporal Analysis’, 17 International Journal on Minority and Group Rights
(2010) p. 393 at p. 414, noting that the challenge of turning the two UN Declarations on Minorities
and on Indigenous Peoples into legally binding instruments appears insurmountable at this stage.
NILR2011-3-Book 1.indb 361
15-11-2011 11:20:13