Abstract
This chapter analyses the position of indigenous peoples and the rights they hold to their cultural heritage within existing instruments of international cultural heritage law. In order to establish if it adds to the standards distilled in Chap. 2 for the evaluation of national repatriation frameworks in parts II and II all relevant instruments are considered briefly. Throughout the chapter it becomes visible that this field is not congruent with international human rights law in so far as the position of indigenous peoples is concerned, but rather that is only slowly starting to catch up. Unsurprisingly, UNESCO soft law instruments are ahead of binding treaty instruments in the field, but overall, more recent soft law instruments only incorporate human rights standards formulated under UNDRIP that were already extrapolated in Chap. 2. There is thus no need to add additional standards, instead ICHL reinforces the normative force of standards developed in human rights law, including those incorporated in the UNDRIP.
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Notes
- 1.
Human Rights Council, Promotion and protection of the rights of Indigenous Peoples with respect to their cultural heritage, Study by the Expert Mechanism on the Rights of Indigenous Peoples, U.N. Doc. A/HRC/30/53 [19.08.2015], para 72.
- 2.
UN Educational, Scientific and Cultural Organisation (UNESCO), Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970. UN Educational, Scientific and Cultural Organisation (UNESCO), Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972.
- 3.
Art. X UNESCO Constitution.
- 4.
Donders (2002), p. 107, observed that “[g]enerally speaking, most of the work of UNESCO does not lie in the field of preparing legally-binding instruments, but in the field of the development of concepts and the attunement of policies.”
- 5.
Bandarin (2012), p. 307.
- 6.
Preamble, recital 2: “That ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war”.
- 7.
Preamble, recital 3: “That the great and terrible war which has now ended was a war made possible by the denial of the democratic principles of the dignity, equality and mutual respect of men, and by the propagation, in their place, through ignorance and prejudice, of the doctrine of the inequality of men and races”.
- 8.
Art.1(2)(c) UNESCO Constitution. Compare Forrest (2007), p. 129. He has characterized the provision as an expression of universalism.
- 9.
Francioni (2013), para 1.
- 10.
Francioni (2013), para 1.
- 11.
Francioni (2013), para 1.
- 12.
Scovazzi (2020), p. 740.
- 13.
UNESCO, 18th General Conference, 18 C/ Resolution 3.428 Contributions of UNESCO to the return of cultural property to countries that have been victims of de facto expropriation (1974).
- 14.
UNESCO, Resolution 3.428 (1974), at para 5.
- 15.
UN General Assembly, Resolution 3187 [1973] specifically asks states to prohibit the removal of cultural objects still under colonial rule or territorial occupation (at para 3).
- 16.
Implementation of 18 C/ Resolution 3.428 of the General Conference concerning the Restitution or Return of Cultural Property, General Conference 19th Session, Document Reference: 19 C/109, at para 7.
- 17.
UNESCO, General Conference 20th Session, Document Reference: Resolution 20 C/ Resolution 4/7.6/5 (1978).
- 18.
Rules of Procedure of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation, rule 1.1, available via: Statutes and Rules of Procedure | United Nations Educational, Scientific and Cultural Organization (unesco.org) [last consulted 12.07.2021].
- 19.
Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, Art.3(2). Adopted by 20 C/Resolution 4/7.6/5 of the 20th session of the General Conference of UNESCO, Paris, 24 October–28 November 1978.
- 20.
Prott (2009b), p. 17.
- 21.
- 22.
Forrest (2010), p. xx.
- 23.
Bengs (1996), pp. 513–514.
- 24.
Nafziger and Paterson (2014), p. 4.
- 25.
Nafziger and Paterson (2014), pp. 5–6.
- 26.
Forrest (2010), preface lists five and excludes the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
- 27.
Forrest (2010), p. xxi.
- 28.
Preamble to UNESCO Declaration of the Principles of Cultural Cooperation, recital 2, 4. See also Donders (2002), p. 111.
- 29.
UNESCO Declaration of the Principles of Cultural Cooperation, Art.1(2), (3).
- 30.
Preamble to UNESCO Declaration of the Principles of Cultural Cooperation, recital 7.
- 31.
Fechner (1998), p. 382.
- 32.
See 1954 Hague Convention, preamble, recital 1 “Recognizing that cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction”. Emphasis added.
- 33.
See 1972 WHC Convention, preamble, recital 6,7. The 1972 WHC seeks to protect cultural heritage, because it fears destruction without such protection just as the 1954 Hague Convention seeks to protect heritage from destruction because of its value to humankind (see recital 3). The difference between the two is a question of emphasis not one of fundamental opposition.
- 34.
With all the consequences this entails for Indigenous Peoples: Lack of international legal personality, lack of self-determination and consequently a lack of participation.
- 35.
Compare Donders (2020), p. 384.
- 36.
Hereafter referred to as 1970 UNESCO Convention.
- 37.
Art.3 in conj. with Art.7(b) (ii) 1970 UNESCO Convention.
- 38.
Art.6 1970 UNESCO Convention.
- 39.
Art.7(b) (i) 1970 UNESCO Convention.
- 40.
For present purposes, it seems safe to observe that Indigenous religious objects could be classified on either religious grounds (where the custom in question is still used or revitalized) or secular grounds because of their importance to history or science. They will fall either under Art.1(b) as property relating to history or, more likely under Art.1(f) (objects of ethnological interest).
- 41.
Prott (2009a), p. 216.
- 42.
Forrest (2010), p. 41.
- 43.
Compare Forrest (2010), pp. 166–167.
- 44.
Similarly Nafziger and Paterson (2014), p. 12.
- 45.
Forrest (2010), p. 166.
- 46.
Prott (2009a), p. 216.
- 47.
Forrest (2010), p. 195.
- 48.
- 49.
Human Rights Council, Report of the Expert Mechanism on the Rights of Indigenous Peoples, Repatriation of ceremonial objects, human remains and intangible cultural heritage under the United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/HRC/45/35 [21.07.2020], p. 6.
- 50.
Art. 6 Vienna Convention on the Law of Treaties.
- 51.
Expert Mechanism on the Rights of Indigenous People, “Technical advisory note on the repatriation request for the Yaqui Maaso Kova” [16.06.2020].
- 52.
Hereafter referred to as 1972 World Heritage Convention.
- 53.
Forrest (2010), p. 226.
- 54.
Forrest (2010), p. 226.
- 55.
Forrest (2010), pp. 226–227.
- 56.
Forrest (2010), p. 226.
- 57.
Arts. 1,2 1972 World Heritage Convention.
- 58.
Arts. 4, 5 1972 World Heritage Convention. This identification, protection, conservation and presentation duties, subject to the availability of resources. These duties are fairly strong, even for states with limited resources. Art.4 requires a state to “do all it can to this end, to the utmost of its own resources”. This includes the obligation to seek assistance where this is appropriate.
- 59.
Art.4 1972 World Heritage Convention “transmission to future generations”, preamble recital 6 “Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole”.
- 60.
Art.11(4) 1972 World Heritage Convention, see also chapter V (arts 19–26) on conditions and arrangements for international assistance.
- 61.
Examples of human rights violations are the forceful removal of Indigenous Peoples in the case of the Bwindi Impenetrable National Park, Bwindi Impenetrable National Park or the Thungyai - Huai Kha Khaeng Wildlife Sanctuaries. For a good overview of both the harm suffered by Indigenous Peoples in connection to the world heritage process, and the potential it can have to further Indigenous rights, see Disko and Tugendhat (2014), p. This led to repeated calls for a change of the procedure, as well reparations for past harm done, for example in IUCN World Conservation Congress, Jeju, Korea, 6–15 September 2012, Resolution 5.055, Implementation of the United Nations Declaration on the Rights of Indigenous Peoples in the context of the UNESCO World Heritage Convention.
- 62.
Bandarin (2012), p. 310.
- 63.
Bandarin (2012), p. 310.
- 64.
UNESCO WHC, 31COM 13B, available at: http://whc.unesco.org/en/decisions/5197 [last accessed 18.08.2021].
- 65.
UNESCO WHC, 31COM 13B, available at: http://whc.unesco.org/en/decisions/5197 third sentence [last accessed 18.08.2021].
- 66.
UNESCO WHC, Operational Guidelines 2008, Section I.I, para 40 http://whc.unesco.org/archive/opguide08-en.pdf [last accessed 18.08.2021].
- 67.
UNESCO WHC, Operational Guidelines 2008, Section II.C, Section III para 123 http://whc.unesco.org/archive/opguide08-en.pdf [last accessed 18.08.2021].
- 68.
This was accompanied by the first reference to UNDRIP.
- 69.
Tauli-Corpuz (2014).
- 70.
Vrdoljak (2018), p. 259.
- 71.
See for example A Call to Action by the International Expert Workshop on the World Heritage Convention and Indigenous Peoples [Copenhagen, September 2012], available via: https://whc.unesco.org/en/events/906/ [last accessed 18.08.2021].
- 72.
No mention of free, prior and informed consent up to 2015.
- 73.
The most current operational guidelines at the time of writing are from 2019.
- 74.
Operational Guidelines 2015, section I.I para 40 identifies the relevant UNDRIP rights, including Articles 11, 12 and 31 UNDRIP, and applies them to different areas of UNESCO’s mandate. See in particular section B.5.
- 75.
UNESCO Policy on Engaging with Indigenous Peoples, 201 Ex/6 (Paris 2018).
- 76.
For example the insertion in Operational Guidelines 2019, section III para 123: “Effective and inclusive participation in the nomination process of local communities, indigenous peoples, governmental, non-governmental and private organizations and other stakeholders is essential to enable them to have a shared responsibility with the State Party in the maintenance of the property.”
- 77.
Operational Guidelines 2017 section III para 123. Maintained in Operational Guidelines 2019, section III para 123. Emphasis added.
- 78.
UNESCO Policy on Engaging with Indigenous Peoples, 201 Ex/6 (Paris 2018), para 77(r), at 26.
- 79.
Affirmed by UNESCO in several instances, i.e. “The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995), is complementary to the UNESCO 1970 Convention.” see 32 C/24, at 1, para 2. This complementarity is also reflected in the fact that the classification of cultural property used in UNESCO 1970 is mirrored in the 1995 UNIDROIT definition of cultural objects, the categories are simply placed in its Annex. There is, however, one important difference between the two definitions: state designation/ inclusion is not necessary in the UNIDROIT Convention, which reflects the fact that it is concerned with the return of stolen objects and primarily seeks to protect private ownership. In agreement, Prott (1997), p. 26.
- 80.
1995 UNIDROIT Convention, recital 3: “Deeply concerned by the illicit trade in cultural objects and the irreparable damage frequently caused by it, both to these objects themselves and to the cultural heritage of national, tribal, indigenous or other communities, and also to the heritage of all peoples”.
- 81.
Forrest (2010), p. 200. He explains “By 1995 the use of the term ‘property’ was considered outmoded, and ‘heritage’ was preferred. This, however, was opposed by some States, and the only way to achieve consensus was to introduce the more neutral term ‘object’.”
- 82.
http://www.unidroit.org/about-unidroit/overview [last accessed 18.08.2021].
- 83.
Prott (2009a), p. 215.
- 84.
Prott (2009a), p. 216 “The reaction to the text of the Convention was extraordinary. The wildest assertions were made.”
- 85.
Raschèr (2000), p. 70.
- 86.
- 87.
UNIDROIT 1995, Art 10. Also, Prott (2009a), p. 217.
- 88.
Kuprecht (2014), p. 96.
- 89.
In effect, the convention applies to object of an ‘international character’, see Art.1 1995 UNIDROIT Convention. While exported objects are thus definitely covered, it is debated what conditions need to be fulfilled precisely to fulfil this criterion. The explanatory report of the Secretariat on Art.1 of the Draft Convention, which already featured this provision, highlights that the drafters themselves were unclear as to what this terminology should mean: “The chapeau employs the somewhat vague language ‘claims of an international character’, any attempt to define more precisely what was an ‘international character’, having been abandoned in view of the difficulty, if not the impossibility, of reaching agreement on precise criteria, a problem which is frequently encountered in international private law Conventions.” [emphasis added by the author] Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Objects and Explanatory Report prepared by UNIDROIT Secretariat [December 1994] Document reference Conf. 8/3, at 23, para 22. Instead, somewhat optimistically, it was to be left to “the case-law in the different jurisdictions to work out a uniform notion” of the term. For further discussion of the term see Prott (1997), p. 22. Also, Groenen (2018), pp. 57–59.
- 90.
Art.3 1995 Unidroit Convention.
- 91.
Art.3(8) 1995 Unidroit Convention.
- 92.
Art.3(2) 1995 Unidroit Convention. For further discussion see Groenen (2018), pp. 410–415.
- 93.
Art.5(3)(d) 1995 Unidroit Convention and Art.7(2) 1995 Unidroit Convention.
- 94.
Art.5(1) 1995 Unidroit Convention.
- 95.
Similarly Prott (1997), p. 58.
- 96.
Under Arts.3(8), 5(3)(d) and 7(2) 1995 Unidroit Convention.
- 97.
Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Objects and Explanatory Report prepared by UNIDROIT Secretariat [December 1994] Document reference Conf. 8/3, para 53, p. 29 in Acts and Proceedings Compilation made available by UNIDROIT online. In this context, the secretariat also observes that “[a] definition of an indigenous community, based on that of Article 1 of the 1989 ILO Convention No. 169 on Tribal and Indigenous Peoples was proposed in this connection but was not included in the text.”
- 98.
Prott (1997), p. 40.
- 99.
Prott (1997), p. 40.
- 100.
Compare, Art.3(6) introduced in the Discussions on the Draft Convention by Australia, Canada and the United States CONF. 8/C.1/W.P. 67 Corr. “In addition, a claim for restitution of a sacred or communally important cultural object belonging to and used by a member or members of an indigenous community in a Contracting State as part of that community’s traditional or ritual use [shall not be subject to prescription] [shall be brought within [75] years].”
- 101.
Prott (1997), p. 40.
- 102.
By means of Art.5(3)(d) 1995 Unidroit Convention.
- 103.
Prott (1997), p. 70.
- 104.
See for example the statements made by Ms Hughes of the Canadian delegation, Diplomatic Conference for the adoption of the Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects – Acts and Proceedings, at 162, 256–257, available at: http://www.unidroit.org/english/conventions/1995culturalproperty/1995culturalproperty-acts-e.pdf [last accessed 18.08.2021].
- 105.
The delegates argued that the objects could not qualify as part of public collections because of access limitations but that they required special protection. See also Groenen (2018), pp. 326–327.
- 106.
The present lack of ratification of the Convention by Canada also does not seem to equal a general rejection of the Convention. In an answer to a UNESCO questionnaire, the government “indicated its support in principle … and has (in connection with the 1970 UNESCO convention) implemented provisions that are consistent with aspects of the UNIDROIT Convention”, see DC8/CS/1 Doc.3 UNIDROIT Secretariat report on the follow-up session in 2012, p. 11 available at: http://www.unidroit.org/english/conventions/1995culturalproperty/1meet-120619/dc8-cs01-03-e.pdf [last accessed 18.08.2021]. The lack of ratification of the UNIDROIT 1995 Convention by the United States may be attributed to other factors, such as the strong lobbying efforts of art dealers in the US against the ratification of the convention notably for its treatment of illegally excavated objects as stolen, see for example Olivier (1996), p. 660 citing Rothman and Fitzpatrick’s ‘Statement of Position of Concerned Members of the American Cultural Community Regarding the Unidroit Convention on the International Return of Stolen Or Illegally Exported Cultural Objects’.
- 107.
Between 01/2017 and 08/2021, there have been 13 new ratifications or accessions, bringing the total number of state parties to 50 [last accessed 18.08.2021].
- 108.
Groenen (2018), pp. 408–409.
- 109.
Srivinas (2008), pp. 530–531.
- 110.
Blake (2006), p. 5.
- 111.
Historical Background to the preparation of the preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage [Doc. Ref.: CLT-2003/CONF.205/INF.6] available at: http://www.unesco.org/culture/ich/doc/src/04557-EN.pdf. The model provisions are available at: www.wipo.int/wipolex/en/details.jsp?id=6714 [last accessed 18.08.2021].
- 112.
Blake (2006), p. 2.
- 113.
Blake (2006), p. 2.
- 114.
Art.1 The Australia ICOMOS Charter for Places of Cultural Significance (“Burra Charter”), 1979 version: http://australia.icomos.org/publications/charters/ [last consulted 3.09.2019].
- 115.
Art. 1.2 The Australia ICOMOS Charter for Places of Cultural Significance, first adopted in 1999 (Burra Charter): https://australia.icomos.org/publications/burra-charter-practice-notes/burra-charter-archival-documents/ [last consulted 18.08.2021]. The WHC also shifted towards incorporating the cultural dimensions of landscapes through its Operational Guidelines in 1992.
- 116.
Blake (2006), p. 3.
- 117.
Note that in the First Session of the Intergovernmental Meeting of Experts on the Preliminary Draft Convention for the Safeguarding of Intangible Cultural Heritage, CLT-2002/CONF.203/5 [December 2002] available at: http://unesdoc.unesco.org/images/0012/001290/129000e.pdf [last accessed 18.08.2021]. It was widely agreed upon, as noted in para 7.A. (i) that “In view of the specificity of the intangible cultural heritage, the 1972 Convention should be taken more as a source of inspiration than as a model”. However, in light of the structural parallels between the two instruments, this seems to have been more of an ambition than the actual outcome of the drafting process.
- 118.
Blake (2006), pp. 6–7.
- 119.
Comments by the United States and Canada, see Second Session of the Intergovernmental Meeting of Experts on the Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage – General Comments received from Member States, Doc Ref Doc.CLT-2003/CONF.205/5, at 25–26 and at 16–18 available via http://www.unesco.org/culture/ich/index.php?meeting_id=00051 [last accessed 18.08.2021].
- 120.
For a more general overview of the Convention’s evolution see UNESCO website: http://www.unesco.org/culture/ich/index.php?lg=en&pg=00310 [last accessed 18.08.2021].
- 121.
Art.1(a) 2003 ICH Convention. Traditional knowledge in this context is to be understood broadly as “knowledge and practices concerning nature and the universe”, see Art.2(2)(d) 2003 ICH Convention.
- 122.
Art.11 2003 ICH Convention: “Each State Party shall: (a) take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;”
- 123.
See Art.2(3), Art.13 2003 ICH Convention, and paras 170–197 of the Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (as amended June 2018) which centre on aligning the obligation to safeguard ICH with measures of sustainable development in the areas health, education, economic and social development. Chapter IV of the 2003 ICH Convention regulates safeguarding measures at the international level.
- 124.
At the very minimum, this includes the duty to identify and define the ICH that exists in its territory together with the communities that produce this heritage (Art.11(b) 2003 ICH Convention).
- 125.
Blake (2006), p. 66.
- 126.
Art.2(3) 2003 ICH Convention “‘Safeguarding’ means measures aimed at ensuring the viability of the intangible cultural heritage”. Emphasis added.
- 127.
Blake (2006), p. 41.
- 128.
First Intergovernmental Meeting of Experts on the Preliminary Draft Convention for the Safeguarding of Intangible Cultural Heritage, CLT-2002/CONF.203/5 [December 2002], at 2, para 7.A. (v), “To adopt the notion of “revitalization” so long as it does not underpin a policy of artificial “reactivation” of a given form of the intangible cultural heritage;” available at: http://unesdoc.unesco.org/images/0012/001290/129000e.pdf [last accessed 18.08.2021].
- 129.
Glossary Intangible Cultural Heritage, prepared by an international meeting of experts at UNESCO 10.06-12.06.2002, available at: http://www.unesco.org/culture/ich/doc/src/00265.pdf [last accessed 18.08.2021].
- 130.
Glossary Intangible Cultural Heritage, prepared by an international meeting of experts at UNESCO 10.06-12.06.2002, available at: http://www.unesco.org/culture/ich/doc/src/00265.pdf Emphasis in the original [last accessed 18.08.2021].
- 131.
Art.1(b) ICH 2003.
- 132.
Nafziger and Paterson (2014), p. 10.
- 133.
2003 ICH Convention, preamble recital 2.
- 134.
2003 ICH Convention, preamble recital 6: Recognizing that communities, in particular Indigenous communities, groups and, in some cases, individuals, play an important role in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity.
- 135.
2003 ICH Convention, preamble recital 1: Referring to existing international human rights instruments, in particular to the Universal Declaration on Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966, and the International Covenant on Civil and Political Rights of 1966,
- 136.
However, while it recognizes non-state actors much more than older UNESCO instruments did, this was not reflected in the drafting process. See criticism by Canada on this particular problem. Second Session of the Intergovernmental Meeting of Experts on the Preliminary Draft Convention for the Safeguarding of the Intangible Cultural Heritage – General Comments received from Member States, Doc Ref Doc.CLT-2003/CONF.205/5, at 17–18 available via http://www.unesco.org/culture/ich/index.php?meeting_id=00051 [last accessed 18.08.2021].
- 137.
Compare also Hausler (2020), pp. 784–785 who observes “while the Intangible Cultural Heritage Convention marked a significant step forward inhuman rights the participation of non-State actors in cultural heritage governance, it nevertheless did not achieve an equally shared concept of heritage governance between State and non-State actors”.
- 138.
They are too broad and manifest themselves in too many different ways for a specific religion to fall under the forms of ICH listed in Art.2(1) ICH.
- 139.
Respect for the intangible cultural heritage of communities is not a separate state obligation, rather the Convention only cites safeguarding as a clear legal obligation for the state in its territory under Art.11(a).
- 140.
Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage (as amended June 2018), paragraph 173(b).
- 141.
In this context Blake (2006), p. 6. She observes “There is no doubt that a ‘grey area’ exists between the Conventions that will need further elucidation.”
- 142.
Art.2(1) 2003 ICH Convention.
- 143.
Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Ethical Principles for Safeguarding Intangible Cultural Heritage (Windhoek, Namibia, 30 November to 4 December 2015), part of Basic Texts of the 2003 Convention for the Safeguarding of Intangible Cultural Heritage (2018 Edition) available via: https://ich.unesco.org/en/convention [last accessed 18.08.2021].
- 144.
Ibid, preamble.
- 145.
Ibid.
- 146.
Ibid, principle (4).
- 147.
Ibid, principle (5), emphasis added.
- 148.
Ibid, principle (5).
- 149.
Art.2(3) 2003 ICH Convention.
- 150.
Burri et al. (2009), pp. 361–362.
- 151.
UNESCO Constitution, Art. I(1).
- 152.
UNESCO Constitution, preamble, fourth recital.
- 153.
UNESCO Constitution, preamble, second recital: “That ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war”. See also Sect. 3.2.1 above.
- 154.
UNESCO Constitution, preamble fourth recital in 2001 UNESCO Declaration, preamble first recital. UNESCO Constitution, Art.I in 2001 UNESCO Declaration, preamble second recital.
- 155.
In this context, it is worthy to note that the term the 2001 Declaration employs—fruitful diversity of cultures—is in effect used in the organization’s constitution to limit the organization’s powers “With a view to preserving the independence, integrity and fruitful diversity of the cultures and educational systems of the States Members of the Organization, the Organization is prohibited from intervening in matters which are essentially within their domestic jurisdiction (Art.I(3) UNESCO Constitution emphasis added).” Thus, while the preservation of cultural diversity is not part of UNESCO’s mandate explicitly, cultural cooperation is very much in the organization’s mandate and the diffusion of culture which the declaration and the convention seek to protect by creating a counterbalance to the WTO.
- 156.
Compare Art.1 UCDC “Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.”
- 157.
Scovazzi and Nafziger (2007), p. 137 “Dans le cas de ‘créateurs sans biens culturels’, comme l’écrivain ou le musicien, ni la Convention du patrimoine mondial, ni la Convention du patrimoine immatériel ne pourraient s’appliquer. Il faut ici une réglementation plus vaste, visant la culture en tant qu’expression de la société ou du groupe social auxquels ils appartiennent. C’est le domaine de la culture dans son ensemble … C’est cette ‘culture’ qui prend des formes diverses à travers le temps et l’espace et qui pourrait être menacé par la perte de la diversité culturelle.”
- 158.
Express mention of Art.27 ICCPR in Art.5 UDCD.
- 159.
UNESCO CDCE Website, Historical Background available at: https://en.unesco.org/creativity/convention/history.
- 160.
Burri (2013), p. 357.
- 161.
Donders (2012), p. 165.
- 162.
In September 2015 the Convention had been ratified by 139 States.
- 163.
UNESCO Website on the Convention, text section under “about” available at: https://en.unesco.org/creativity/convention [last accessed 18.08.2021].
- 164.
Burri (2013), p. 360 “[O]ne might venture to suggest that what made the adoption of the UNESCO Convention possible emptied it of some of it stronger and more valuable content… The Convention’s less than bold text is also the result of the starkly different sensibilities and motivation of the parties when drafting an international instrument on cultural matters.”
- 165.
McGoldrick (2002), p. 459.
- 166.
Art.1(a) CDCE. Different from the declaration, the cultural diversity convention opts for the formulation diversity of cultural expressions rather than cultural diversity.
- 167.
Art.1(b) CDCE.
- 168.
Art.1(h), Art.2(2) and Art.5(1) CDCE.
- 169.
In Declaration, see Art. 8. Compare for UDCD Scovazzi and Nafziger (2007), p. 139.
- 170.
- 171.
Scovazzi and Nafziger (2007), pp. 146–150.
- 172.
Burri (2013), p. 359.
- 173.
CDCE, preamble 21st recital: “Referring to the provisions of the international instruments adopted by UNESCO relating to cultural diversity and the exercise of cultural rights”.
- 174.
Burri (2013), p. 359.
- 175.
M. Burri links the division between WTO and UNESCO back to the divide between the EU and the United States on free trade and culture and argues “as the distributive conflict between the United States and the EU continues, the UNESCO and the WTO regimes are highly unlikely to ‘converge into a new synthesis, but rather will remain in conflict for a prolonged period.’” Burri (2013), p. 363.
- 176.
Burri (2013), p. 358.
- 177.
Burri (2013), p. 359 Art.20 seeks to act as a conflict of laws rule but in effect does not offer a solution to a potential conflict of laws. Paragraph 1 provides that, in case of a conflict between the Convention and other treaties, states shall perform their duties in good faith, without subordinating the 2005 Convention to other instruments. Paragraph 2, by contrast, highlights that the Convention does not “modify the rights and obligations of the Parties under any other treaties”. This is the result of a compromise between the United States which wanted the 2005 Convention to be subordinate to other instruments and a number of other States which supported a formulation that would allow States to avoid serious damage to cultural diversity, see Scovazzi and Nafziger (2007), p. 145; McGoldrick (2002), p. 467. He has observed that “[a]rticle 20 was the subject of protracted and difficult debate. Many states considered the provision to be of fundamental importance.”
- 178.
The function of the guiding principles is apparent in the report on the second independent expert meeting which resulted in the first draft of the convention: “[T]he experts emphasized that the advantage of defining principles is to provide States with rules of conduct that are valid in all situations envisaged by the Convention. In light of this, the list of principles should be restricted.” Second Meeting of Experts on the Preliminary Draft on the Protection of the Diversity of Cultural Content and Artistic Expressions, UNESCO Doc Ref CLT/CPD/2004/602/6 [14.05.2004], at 5.
- 179.
Compare Kuprecht (2014), p. 99.
- 180.
Art.2(1) CDCE.
- 181.
The Operational Guidelines also highlight the need to “foster the full participation and engagement of all members of society contributing to the diversity of cultural expressions, particularly persons belonging to minorities, indigenous peoples and women;” see principle 1.3 on Article 7 ‘Measures to Promote Cultural Expressions’, Operational Guidelines last approved by the Conference of Parties at its fifth session (Paris, 10–12 June 2015).
- 182.
Compare Kuprecht (2014), p. 99.
- 183.
The author would not go so far as McGoldrick (2002), p. 471. He has argued that, while there are differences, the CDCE could be classified as a human rights treaty in the sense that it is “strongly premised on the value of cultural diversity as an international public good. It defends human creativity. In those senses it is supportive of individual cultural rights.”
- 184.
Graber (2012), p. 22.
- 185.
Burri et al. (2009), p. 368.
- 186.
Anna Meijknecht evaluates the role of the convention for Indigenous Peoples on the whole somewhat more positively. She especially emphasizes its symbolic value: “In the main, however, the added value of the Convention on the Diversity of Cultural Expressions is in its symbolic function: it brings the value of cultural diversity as such to the fore in an international sense”, see Meijknecht (2012), p. 226.
- 187.
Notably in the UNESCO Declaration of the Principles of International Cultural Co-operation 1966.
- 188.
For example, the 2001 UDCD versus the 2005 UNESCO Convention.
- 189.
Human Rights Council, Promotion and protection of the rights of Indigenous Peoples with respect to their cultural heritage, Study by the Expert Mechanism on the Rights of Indigenous Peoples, U.N. Doc. A/HRC/30/53 [19.08.2015], paras 67–68.
- 190.
UNESCO General Conference. Recommendation concerning the Protection and Promotion of Museums and Collections, their Diversity and their Role in Society (Paris, 17 November 2015), p. 9, para 18.
- 191.
Ibid, p. 11, footnote (i).
- 192.
Principles included in the ILA Resolution No 4/2006 adopted at the 72nd Conference of the International Law Association, held in Toronto, Canada, 4–8 June 2006.
- 193.
https://www.ila-hq.org/index.php/about-us/aboutus2 [last accessed 27.01.2020]
- 194.
ILA Constitution, sec. 3.1.
- 195.
ILA Toronto Conference (2006) Cultural Heritage Law Committee Report, p. 6.
- 196.
ILA Toronto Conference (2006) Cultural Heritage Law Committee Report, p. 1.
- 197.
Nafziger and Paterson (2014), pp. 16–17.
- 198.
Nafziger and Paterson (2014), p. 17.
- 199.
ILA Toronto Conference (2006) Cultural Heritage Law Committee Report, at 4.
- 200.
Ibid, at 5.
- 201.
Washington Conference Principles on Nazi-Confiscated Art [3.12.2008], principle II. Vilnius Forum Declaration [5.10.2000], principle 2.
- 202.
ICOM Code of Ethics, available at: https://icom.museum/wp-content/uploads/2018/07/ICOM-code-En-web.pdf [last accessed 18.08.2021].
- 203.
Since the 2019 ICOM meeting in Kyoto a process of review is underway which may lead to changes in the future, this process was not yet completed in July 2021.
- 204.
Section 2(15) also provides “There will be a strong presumption that a deaccessioned item should first be offered to another museum”. In author’s understanding, this sentence refers to the removal of an object through means other than repatriation, such as sale and donation. It is not relevant to community directed returns.
- 205.
Sec.3(7) ICOM Code of Ethics “Research on human remains and materials of sacred significance must be accomplished in a manner consistent with professional standards and take into account the interests and beliefs of the community, ethnic or religious groups from whom the objects originated, where these are known”.
- 206.
Kuprecht (2014), p. 127.
- 207.
Kuprecht (2014), p. 128.
- 208.
In agreement, Shaheed (2011), p. 7, paras 19–20.
- 209.
See discussions on 1972 World Heritage Convention Sect. 3.2.3.2 above.
- 210.
Art.1(a) CDCE.
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Tünsmeyer, V. (2022). Repatriation of Sacred Indigenous Heritage Under International Cultural Heritage Law. In: Repatriation of Sacred Indigenous Cultural Heritage and the Law. Studies in Art, Heritage, Law and the Market, vol 3. Springer, Cham. https://doi.org/10.1007/978-3-030-89047-6_3
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