OUVRAGE : S.E. Esterling, Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs

Shea Elizabeth ESTERLING

Examining the restitution of cultural property to Indigenous Peoples in human rights law, this book offers a detailed analysis of the opportunities and constraints of international law as a tool of resistance and social transformation for marginalized groups.

In accordance with an increasing insistence on respect for diverse cultures, and through their own international mobilization, Indigenous Peoples have participated in the construction of a distinct human rights framework. Significant academic inquiry has focused on the substantive gains made by Indigenous Peoples in this context, along with its impact on a body of law that had previously denied Indigenous Peoples a basis for claims to their own cultural materials and practices. Accordingly, this book acknowledges that Indigenous Peoples, as non-state actors, have generated greater substantive and procedural legitimacy in human rights law making. Offering normative insights into the participation of non-state actors in international law making, however, it also demonstrates that, despite their significant role in constructing the legal framework of human rights in the 21st century, the participation of Indigenous Peoples continues to be structurally limited.

With its interdisciplinary approach to the field, this book will appeal to scholars and students in the fields of law, politics, anthropology and indigenous studies.

TABLE OF CONTENTS 

 
Acknowledgments 

1 INTRODUCTIONS

On Indigenous Cultural Property and Restitution
On the Repatriation Debate
On Aims and Arguments
On Location
On Method
On Organization

2 A TEXTUAL ANALYSIS: ARTICLE 11 OF THE UNITED NATIONS DECLARATION

ON THE RIGHTS OF INDIGENOUS PEOPLES

Introduction

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

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

A Distinctive Identity, a Distinctive Space: The UN Declaration on the Rights of Indigenous Peoples
The Long and Winding Road to the UNDRIP: A Soft Law Success
A Sui Generis Scheme: UNDRIP and Indigenous Cultural Heritage
A Tale of Terminology: Cultural Heritage Versus Cultural Property

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

Article 11: A Cultural Right in Cultural Integrity
Article 11: An Application

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

An Indigenous View: The UNESCO Convention 1970
An Indigenous View: The UNIDROIT Convention 1995

Conclusions 

3 A PURPOSIVE ANALYSIS: ARTICLE 11 OF THE UNITED NATIONS DECLARATION

ON THE RIGHTS OF INDIGENOUS PEOPLES

Introduction

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

A Shadow of a Draft: Article 11 and Its Retrogression
Right to Restitution: A Drafting History

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

Article 27: A Cultural Right
Article 27: Limits
Article 1: The Right to Self-Determination
A Minimalist Approach: The Approach of States to Self-Determination
A Minimalist Approach and the Application of Self-Determination to Indigenous Peoples: The Beneficiary Debate
A Minimalist Approach and the Modality of Self-Determination Available to Indigenous Peoples: External and Internal Self-Determination
A Minimalist Approach: Self-Determination Within the UNDRIP
A Maximalist Approach: The Approach of Indigenous Peoples to Self-Determination

Conclusions 

4 A CONTEXTUAL ANALYSIS: ARTICLE 11 OF THE UNITED NATIONS DECLARATION

ON THE RIGHTS OF INDIGENOUS PEOPLES

Introduction

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

Western and Indigenous Conceptions of Property Rights

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

ICCPR Article 27 and Collective Rights
The UNDRIP and Collective Rights

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

Sovereignty
Article 11 and Sovereignty: Cultural Property and Its Redress
Voluntary Restitution of Cultural Property

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

Decoupling Restitution and Cultural Integrity: Disempowering Cultural Rights
Decoupling Restitution and Cultural Integrity: Temporal Uncertainty
Non-retroactivity
Legal Status and the Temporal Scope of the Redress of Cultural Property Under International Law
Article 11 and Temporal Scope

Conclusions: Unintended Consequences and Indigenous Participation in International Law Making 

5 DISCURSIVE LIMITS: ARTICLE 11 OF THE UNITED NATIONS DECLARATION

ON THE RIGHTS OF INDIGENOUS PEOPLES AND HUMAN RIGHTS LAW

Introduction

I. Essentialism as Categorization and Human Rights: Indigenous Identity

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

II. Essentialism as Categorization and Human Rights: Indigenous Claims

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

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

Essentialism as Reification and Cultural Property: An Unstrategic Approach
Essentialism as Reification and Human Rights: Fixing Identity and Culture
Essentialism as Reification and the Restitution of Cultural Property: A Strategic Approach

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

6 SOME CONCLUSIONS

Conclusion 

Index 

Shea Elizabeth ESTERLING, Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs, Abingdon, Routledge, 2023 (266 pp.)