Cultural Property at the Crossroads: An Examination of the issue of the Restitution of Cultural Property to Indigenous Peoples in Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples

Abstract

Over the past thirty years, Indigenous Peoples have turned to international human rights law (IHRL) to help secure the return of their cultural property. In 2007 the United Nations [U.N.] passed the Declaration on the Rights of Indigenous Peoples [UNDRIP] which offers at Article 11(2) that: “States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural … property ….” Using a discourse analysis that relies heavily on U.N. documentation, after exploring the inadequacies of the traditional framework for the protection of cultural property, this thesis traces Article 11 from its origins at Draft Article 12 to its present form revealing that its contextualization in IHRL caused it to suffer a serious retrogression; a retrogression that allows it to step back and fit comfortably within existing IHRL thereby offering no real change regarding the restitution of cultural property. In turn, the remainder of this thesis focuses on what underpins this retrogression. It posits that at the micro-level the retrogression of Article 11 stemmed from links between cultural property and traditional property concepts and self-determination; while at the macro-level Article 11 suffered from the specter of sovereignty. In particular it concludes that as a consequence of this retrogression, the contextualization of the issue of the restitution of cultural property to Indigenous Peoples in Article 11 in IHRL represents an irony in the use of international law while it more broadly concludes that this is the result of the structural incapacity of IHRL to support such a claim at present. However, ultimately not all is gloom and doom; a dialogical space exists at the international level which holds promise for the future of indigenous advocacy to secure such a sui generis right to the restitution of cultural property for Indigenous Peoples.