Do We Need Another Human Right? Assessing the Right to the Repatriation of Cultural Property in the United Nations Declaration on the Rights of Indigenous Peoples

摘要

Due to the non-retroactivity of the framework for the protection of cultural property,I ndigenous peoples are left without a claim under international law for the repatriation of a vast bulk of their traditional property. The international community has responded to this situation by developing such a right in the 2007 United Nations Declaration on the Rights of Indigenous Peoples. This article examines this right to repatriation of cultural property as understood in the Declaration through the lenses of both the regimes for the protection of cultural property and the broader human rights framework. Ultimately, it demonstrates it is an unqualified right in that it necessarily fails to balance the interests of the parties involved in cultural property disputes by ignoring the interests of current owners of cultural property. In turn, such an absolute right works an injustice which is out of step with the broader human rights regime. Rather, it is the existing human rights framework that strikes the appropriate balance between Indigenous demands for redress and the broader concerns of justice that permeate this framework.