Indigenous Cultural Property and International Law

Shea Elizabeth Esterling is Senior Lecturer in the Faculty of Law at the University of Canterbury in Christchurch, New Zealand; a Fellow of the Higher Education Academy; and Co-Chair of the American Society of International Law Rights of Indigenous Peoples Interest Group.

Acknowledgments xi

1 Introductions 1

On Indigenous Cultural Property and Restitution 1

On the Repatriation Debate 3

On Aims and Arguments 4

On Location 8

On Method 9

On Organization 11

2 A Textual Analysis: Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples 18

Introduction 18

I. Situating Indigenous Peoples and Claims for Cultural Property: A Brief History of Indigenous Rights as Human Rights 21

II. The UN Declaration on the Rights of Indigenous Peoples and Indigenous Cultural Heritage 27

A Distinctive Identity, a Distinctive Space: The UN Declaration on the Rights of Indigenous Peoples 27

The Long and Winding Road to the UNDRIP: A Soft Law Success 28

A Sui Generis Scheme: UNDRIP and Indigenous Cultural Heritage 33

A Tale of Terminology: Cultural Heritage Versus Cultural Property 35

III. A Textual Analysis: Article 11, Indigenous Cultural Property, Redress and the UNDRIP 40

Article 11: A Cultural Right in Cultural Integrity 40

Article 11: An Application 44

IV. The International Legal Framework for the Protection of Cultural Property 54

An Indigenous View: The UNESCO Convention 1970 56

An Indigenous View: The UNIDROIT Convention 1995 60

Conclusions 64

3 A Purposive Analysis: Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples 73

Introduction 73

I. One Step Forward, One Step Back: A Sui Generis Right Gained, a Sui Generis Right Lost 74

A Shadow of a Draft: Article 11 and Its Retrogression 74

Right to Restitution: A Drafting History 75

II. A Sui Generis Right Lost: Human Rights and the Restitution of Cultural Property 82

Article 27: A Cultural Right 83

Article 27: Limits 86

Article 1: The Right to Self-Determination 89

A Minimalist Approach: The Approach of States to Self-Determination 91

A Minimalist Approach and the Application of Self- Determination to Indigenous Peoples: The Beneficiary Debate 91

A Minimalist Approach and the Modality of Self- Determination Available to Indigenous Peoples: External and Internal Self-Determination 93

A Minimalist Approach: Self-Determination Within the UNDRIP 95

A Maximalist Approach: The Approach of Indigenous Peoples to Self-Determination 107

Conclusions 116

4 A Contextual Analysis: Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples 122

Introduction 122

I. The Disruption of Property Rights, Article 11 and the Restitution of Cultural Property 123

Western and Indigenous Conceptions of Property Rights 123

II. Collective Rights, Article 11 and the Restitution of Cultural Property 132

ICCPR Article 27 and Collective Rights 133

The UNDRIP and Collective Rights 136

III. Sovereignty, Article 11 and the Restitution of Cultural Property 140

Sovereignty 140

Article 11 and Sovereignty: Cultural Property and Its Redress 142

Voluntary Restitution of Cultural Property 148

IV. One Step Forward, Two Steps Back: Article 11 and the Disempowerment of Cultural Rights and Temporal Uncertainty 151

Decoupling Restitution and Cultural Integrity: Disempowering Cultural Rights 152

Decoupling Restitution and Cultural Integrity: Temporal Uncertainty 155

Non-retroactivity 156

Legal Status and the Temporal Scope of the Redress of Cultural Property Under International Law 159

Article 11 and Temporal Scope 161

Conclusions: Unintended Consequences and Indigenous Participation in International Law Making 170

5 Discursive Limits: Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples and Human Rights Law 180

Introduction 180

I. Essentialism as Categorization and Human Rights: Indigenous Identity 182

Essentialism as Categorization: Indigenous Identity and Restitution 185

Essentialism as Categorization: Indigenous Identity and the Restitution of Cultural Property 189

II. Essentialism as Categorization and Human Rights: Indigenous Claims 192

Essentialism as Categorization: Indigenous Claims and the Restitution of Cultural Property 195

III. Essentialism as Reification and Human Rights: Unstrategic and Strategic Approaches 198

Essentialism as Reification and Cultural Property: An Unstrategic Approach 199

Essentialism as Reification and Human Rights: Fixing Identity and Culture 201

Essentialism as Reification and the Restitution of Cultural Property: A Strategic Approach 204

IV. Conclusion: Downsides, Unintended Consequences and the Human Rights Discourse 215

6 Some Conclusions 227

Conclusion 245

Index 249