Cultural heritage rights and Indigenous peoples

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Ayla Do Vale Alves discusses how human rights law be reformed or strengthened to better protect Indigenous peoples' cultural heritage

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Institution: University of South Australia

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Ayla Do Vale Alves discusses how human rights law be reformed or strengthened to better protect Indigenous peoples’ cultural heritage

Image courtesy of interviewee. October 22, 2024

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This video outlines a chapter that analyzes the relationship between indigenous peoples and international law, particularly focusing on the cultural heritage rights of these communities. The author discusses the historical context, rooted in colonialism, which has led to current challenges in recognizing indigenous peoples as subjects of international law rather than mere objects. The chapter evaluates three primary regimes: international culture heritage law, intellectual property law, and human rights law, assessing their effectiveness in protecting indigenous heritage through an indigenous-oriented lens.

Key themes addressed include the inadequacy of international frameworks in safeguarding indigenous heritage, the fragmentation of legal protections, and the lack of a holistic approach that aligns with indigenous perspectives on communal rights. The chapter emphasizes the need for indigenous voices to be included actively in legal discussions and decision-making processes, advocating for reforms that better recognize collective rights.

The challenges posed by cultural appropriation are highlighted, illustrating how the absence of adequate legal protections can threaten indigenous identities and economic development. The author proposes practical pathways to improve existing legal frameworks, calling for an integrated approach that respects indigenous worldviews and offers perpetual protection for heritage elements.

The chapter concludes with a call for greater acknowledgment of indigenous interests in international law, emphasizing the importance of incorporating indigenous perspectives into discussions about heritage protection to foster better practices and improve the overall legal framework for safeguarding indigenous cultures.

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Here are five key points from the video:

1. **Cultural Heritage Rights and International Law**: The chapter focuses on the complex relationship between indigenous peoples and international law, particularly emphasizing cultural heritage rights. It highlights how historical colonialism has shaped this relationship, leaving legacies that still influence contemporary interactions and protections.

2. **Framework of Protection**: The analysis maps the current state of international law concerning indigenous heritage, examining three regulatory regimes: international cultural heritage law, intellectual property law, and human rights law. The chapter assesses how these frameworks interact with indigenous heritage rights and identifies existing gaps in their protections.

3. **Challenges in Current Legal Structures**: The video discusses the fragmentation and inadequacy within international law regarding indigenous heritage protection. It notes that laws often treat aspects of culture separately rather than recognizing the holistic understanding indigenous peoples have of their heritage, which can lead to insufficient protection for communal rights and identities.

4. **Need for Indigenous Representation**: A critical point made is the lack of genuine participation from indigenous representatives in decision-making processes at international organizations like WIPO. Indigenous voices should not only be heard as observers but should also be empowered to have decision-making authority in matters affecting their heritage.

5. **Pathways for Improvement**: The chapter proposes that international law needs to evolve to recognize the collective rights of indigenous peoples and accommodate their cultural needs. This includes revising legal frameworks to allow for perpetual protection of heritage, as indigenous communities often require, and creating opportunities for indigenous participation in creating legal standards that affect their heritage rights.

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Here are some key quotes extracted from the video, which effectively capture the main themes and messages discussed regarding the relationship between indigenous peoples and international law, particularly focusing on cultural heritage rights:

1. **Cultural Heritage and Identity**:
- "I think we really need to acknowledge the particular importance of heritage for indigenous peoples. It's pervasive. It reflects their identity, their stories, their ancestors, their spirituality."

2. **Challenges of International Law**:
- "When international law fails to protect heritage or fails to provide a response to a threat to heritage, then all these elements can be affected."
- "International law was not created or developed, taking indigenous people's concerns, needs, interests into account."

3. **Disconnection and Fragmentation**:
- "International law is very fragmented, which means that, in protecting culture or heritage, international regimes will separate elements of culture."
- "Indigenous communities tend to perceive the heritage holistically. So all the elements are interconnected, they're integrated."

4. **Inadequate Legal Framework**:
- "International law will either offer insufficient protection or fragmented protection, and ultimately doesn't provide adequate, culturally adequate responses to those threats."

5. **Need for Indigenous Representation**:
- "Indigenous representatives only have an observer status in that committee. So they can speak, but they don't have any decision-making power, which is definitely not ideal."
- "If we are negotiating new treaties that are affecting indigenous peoples, first and foremost, because they will be the key stakeholders, we need to hear from them and we need to take their perspectives and concerns into account."

6. **Cultural Appropriation**:
- "When there is a gap or, or there are weaknesses in the existing protection of international law, all these elements will be affected."

7. **Call for Change**:
- "The first thing is that indigenous peoples need to be at the forefront of the discussion."
- "There are some states and some regions that have been taking significant moves in the direction of incorporating more indigenous voices."

8. **Proposed Solutions**:
- "I do propose ways forward. I propose solutions, very clear pathways to address the shortcomings."
- "What are the key interests or concerns of indigenous communities? And also what kind of protection they need considering their cultural convideo."

9. **Holistic Approach**:
- "Taking an indigenous oriented approach is thinking... of how to offer that kind of protection, which will require some adjustments in the existing law."

10. **Advancing Better Practices**:
- "I hope that chapters like this... can help advance the field, can help other countries, other international organizations to think of how things can be made better."

These quotes synthesize the chapter's exploration of the ongoing challenges within international law regarding the protection of indigenous cultural heritage and underscore the necessity for a more inclusive framework that recognizes indigenous perspectives and rights.

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Book explored many of the key aspects in

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that relationship, and my chapter focuses

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on the cultural heritage rights aspect of the relationship

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between indigenous peoples and international law.

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In the chapter, I focus on indigenous peoples rights in

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relation to their heritage, considering that relationship

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somewhat problematic historically

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because it originated in colonialism

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and still finding some traces of those issues today,

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especially in how international law,

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international actors like states

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or international organizations,

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have some difficulty in including indigenous peoples as

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subjects rather than just objects of the system.

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So the chapter maps out the current state of,

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of international law,

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the framework protecting indigenous heritage,

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focusing on three regimes.

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So I'm looking at international culture, heritage law,

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international intellectual property law,

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and international human rights law,

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and also exploring a bit, some of the work

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that's going on at the World

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Intellectual Property Organization.

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Wipo as states have been negotiating new treaties,

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dealing specifically with the digital heritage there,

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but it's been going on for 20 years.

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So I look at how, how we could overcome some

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of the obstacles and impasse at Wipo too.

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And I look at these three regimes in the work at Wipo,

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considering six themes,

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assessing the regimes against six themes.

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And these themes, I identify them, as key topics,

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key points in indigenous people's international

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mobilization for heritage rights.

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So I, I assess the regimes,

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but trying to take an indigenous oriented focus

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in assessing strengths and weaknesses,

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and also ways forward.

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So the analysis gives us, a good understanding of the,

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the existing framework, what has been working,

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what hasn't, and also what could be improved in relation

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to the international framework,

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safeguarding indigenous heritage, I think we really need

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to acknowledge the particular importance of heritage

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for indigenous peoples.

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It's pervasive. It reflects, their identity,

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their stories, their ancestors, their spirituality,

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religion, their connection to land, to natural resources.

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So it's connected to many other aspects

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of indigenous people's lives.

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So when international law fails to protect heritage

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or fails to provide a response to a threat to heritage,

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then all these elements can be affected

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so quickly think of an example.

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Uh, we can think of a community that

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has a traditional ancestral practice of weaving rugs,

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for example, and that practice itself might be part

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of their heritage, but we can think of designs in these rugs

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as reflecting spiritual elements, sacred elements,

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or even the community's identity.

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Um, it could be even a part of their normative system.

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So the design in the rugs

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can also be part of their heritage.

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So what happens when international law fails to offer

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Tools to protect this heritage?

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Um, the community might end up not

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finding any sort of protection.

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So we can think, of that rug as also a big part

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of the community's economic development.

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Let's say they might sell these rugs to tourists, outsiders,

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visitors, and then if this rug is unprotected, let's say,

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the designs maybe could have been protected in copyright

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through intellectual property law,

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but if there's no protection, we could get,

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an outsider, a visitor going to the community,

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purchasing a rug, maybe taking photos of, of some

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of the designs, and then without the C'S consent,

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taking those designs, to outside the community

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and using them for their own benefit.

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So we can, we can see that as cultural appropriation,

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which is one of the big threats

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nowadays in relation to heritage.

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There's no response in international law

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directly focusing on appropriation.

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So in that situation, the person that

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appropriated the designs might get away with it,

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because there's nothing, stopping them from doing that.

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And by, by doing this, what happens is

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that the community might lose a big source

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of their economic development,

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but their identity might also be affected

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because we'll have other,

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other persons selling the rugs.

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And the, the, the connection

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to the community's identity will be, affected,

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but also their, the culture itself will be affected,

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if there's something sacred in one of the designs

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that was taken that will be affected as well.

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So when there is a gap or,

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or there are weaknesses in the existing protection

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of international law, all these elements will be affected.

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So it, it really is a, a, a, a significant part

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of indigenous lives that, if not protected,

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will affect their lives pretty heavily as well.

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We really have to go back and, and,

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and think about the origins of that relationship

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between indigenous peoples and international law,

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and the, the traces of colonialism

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and colonialization that we had today.

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So one of the things, is

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that international law was not created

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or developed, taking indigenous people's concerns, needs,

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interests into account, in

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that progression of their regime.

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So a few indications of this, disregard

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for indigenous interests is

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that very often indigenous peoples do not have a seat at the

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table in processes affecting them directly.

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So of course, that's, that's problematic.

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If we think about, that committee at Wipo

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that has been negotiating treaties,

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regarding indigenous heritage,

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indigenous representatives only have an observer

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status in that committee.

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So they can speak, but they don't have any decision making

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power, which it's definitely not ideal.

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Another negative aspect of international law, how it fails

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to respond to some of the threats, relates to the fact

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that international law is very fragmented, which means that,

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in protecting culture

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or heritage, international regimes will

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separate elements of culture.

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So we have, for example, cultural heritage law,

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which will perceive culture as an end in itself,

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or heritage as an end in itself,

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and protect the, the object, the tangible object.

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Um, on the other side, we have have a separate protection

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for intangible heritage, with intellectual property law,

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but indigenous communities tend

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to perceive the heritage holistically.

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So all the elements are interconnected, they're integrated.

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So there's this significant mismatch in relation to

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what the kind of protection international law offers

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and what indigenous peoples need and,

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and require in terms of protection.

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Um, another issue in international law is

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that it's a very state centric framework.

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So it's either focusing on states

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or, for example, with human rights law,

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it focuses on individuals,

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but then where is, what, where does,

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where do communities sit in that situation?

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So there is, this big significant problem still in

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international law in terms of addressing community rights.

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And when you're thinking about heritage

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for indigenous peoples, they tend to perceive it

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as a communal, custodianship.

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So there's no one individual owner of the rug, for example.

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Uh, it will be perceived as the community's heritage.

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So as international law doesn't offer an avenue for redress

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or remedies for collective rights,

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there will be, again, a gap there.

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So generally what happens is that international law will,

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either offer insufficient protection

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or fragmented protection,

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and ultimately doesn't, provide adequate,

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culturally adequate responses to those threats.

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Um, to indigenous heritage.

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Scholarship on this topic still tends

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to focus a lot on intellectual property law

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as the one possible avenue for solutions or for protection.

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But there is plenty of information

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and documents, from indigenous representatives saying

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that intellectual property law, it's just not sufficient.

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It's not sufficient, it's not adequate.

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So, even the scholarship that is critical

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of intellectual property law in its role in this field,

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it usually goes one or two ways.

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It either just restates the need for a sue generous regime

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where a regime that is tailored, to indigenous needs,

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but doesn't quite explain how

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that sue generous regime could be, articulated

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or materialized,

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or it just doesn't offer any alternatives.

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So acknowledges the problem, but without an alternative.

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And this is something that I, I seek to do

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with this chapter, with this work, which is, going

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beyond the intellectual property focus

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and assessing strengths

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and weaknesses across the three main regimes.

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And also, considering the dis ongoing discussions at

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Wipo, but also assessing how they relate to each other,

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how they can reinforce or compliment each other

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and where they conflict or where there's a contradiction.

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I do propose ways forward.

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I propose solutions, very clear, pathways to,

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to address the, the shortcomings.

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And I do that by taking this indigenous oriented approach.

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Also, not everywhere in the scholarship.

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On top of that, I, I try to give,

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a practical understanding of the analysis

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by assessing each one of these regimes, against,

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a real life scenario.

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So there is a, a case, a real case that I assess each

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of the regimes, against,

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and that gives a, a, a pretty tangible, understanding

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of the pros and cons of each regime

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and how they can be, improved.

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And finally, I conclude the chapter with,

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a very clear structured summary of the analysis of the, the,

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the key points, which I think could be useful as a,

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as a guideline, for these international efforts

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of discussions that this addressing the topic on how

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to improve

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or how to boost the already, strong points of each

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of the regimes, which is also something i I haven't

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seen in the scholarship yet.

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So an indigenous oriented approach is,

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as I mentioned earlier, looking at the themes

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of importance to indigenous peoples.

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So what are the themes is the accommodating indigenous

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worldviews and context.

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So an example is if we're thinking about intellectual

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property law, it tends to require novelty, originality,

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to, to offer the kind of protection.

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But very often when we're talking about indigenous heritage,

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it can be an ancestral song

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or a ritual ceremony.

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Um, it can be a design if that could be protected,

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via intellectual property law.

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It, it's just not gonna fit the requirements

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of novelty or in originality.

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So taking an indigenous oriented approach is thinking, okay,

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what are the key interests

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or concerns of indigenous communities?

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And also what kind of protection they need considering

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their cultural context.

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So that would be, an example thinking, again,

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intellectual property law, it tends to offer,

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protection limited in time.

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So it expires after a number of years,

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but very often indigenous communities will need protection

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perpetually, but it's something that the regime can't offer.

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So it's, it's about thinking of how to offer that kind

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of protection, which will require some adjustments in the

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existing law, rethinking indigenous participation.

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So if we are negotiating new treaties

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that are affecting indigenous peoples, first

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and foremost, because they will be the key stakeholders like

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Wipo is doing, it doesn't make much sense

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to have indigenous peoples only as observers.

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We need to hear from them,

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and we need to take their, perspectives and,

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and concerns into account,

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but also let them have decision making power.

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I think this is one of the key,

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reforms which will reflect on everything else.

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It, it will reflect on how indigenous peoples are perceived

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as, rights holders instead of,

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not specifically recognized as such in the instruments.

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And we're reflecting every other aspect

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because they will be, part of the decision making.

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I think the key takeaway is, is that if we are trying to

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improve, if we're serious about improving the, the level

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and, and the, the adequacy of the protection offered

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to indigenous heritage in international law,

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the first thing is that indigenous peoples need

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to be at the forefront of the discussion.

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So we need to, to change a little bit of

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The, the state centric

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or individual centric, rationale

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that pervades international law and try to be more, open

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and welcoming to communities and to collective rights.

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For example. Uh, I think there's a lot

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of potential in human rights law to address, some of the

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existing shortcomings, but there are some weaknesses

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that would need to be addressed.

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Generally. Uh, what I see is there can be a lot of

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resistance from states in relation to some of these reforms

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because they're pretty significant.

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They might, affect the idea of sovereignty.

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It's pretty, leading in international law.

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Uh, but there are some states

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and some regions that have been taking significant moves in

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the direction of incorporating more indigenous voices

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and also incorporating,

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instruments like the UN declaration on the rights

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of indigenous peoples, which is quite powerful,

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but non-binding and incorporating that into national law.

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So there is also appetite for change.

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I hope that chapters like this, that highlight,

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the protection of indigenous heritage in international law,

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looking at strengths,

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but also considering shortcomings in proposing solutions

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to these shortcomings can help advance the field,

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can help other countries, other international organizations

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to think of how things can be made better.

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So, advance better practices

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and just generally improve the situation, the framework

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for the protection of indigenous culture, heritage rights,

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both domestically and internationally.

Indigenous Heritage Rights and International Law

00:00:00 - Book explored many of the key aspects in that relationship, and my chapter focuses on the cultural heritage rights aspect of the relationship between indigenous peoples and international law. In the chapter, I focus on indigenous peoples rights in relation to their heritage, considering that relationship somewhat problematic historically because it originated in colonialism and still finding some traces of those issues today, especially in how international law, international actors like states or international organizations, have some difficulty in including indigenous peoples as

00:00:38 - So the chapter maps out the current state of, of international law, the framework protecting indigenous heritage, focusing on three regimes. So I'm looking at international culture, heritage law, international intellectual property law, and international human rights law, and also exploring a bit, some of the work that's going on at the World Intellectual Property Organization. Wipo as states have been negotiating new treaties, dealing specifically with the digital heritage there,

00:01:08 - So I look at how, how we could overcome some of the obstacles and impasse at Wipo too. And I look at these three regimes in the work at Wipo, considering six themes, assessing the regimes against six themes. And these themes, I identify them, as key topics, key points in indigenous people's international mobilization for heritage rights. So I, I assess the regimes, but trying to take an indigenous oriented focus

Safeguarding Indigenous Heritage: Challenges and Solutions

00:01:40 - and also ways forward. So the analysis gives us, a good understanding of the, the existing framework, what has been working, what hasn't, and also what could be improved in relation to the international framework, safeguarding indigenous heritage, I think we really need to acknowledge the particular importance of heritage for indigenous peoples. It's pervasive. It reflects, their identity, their stories, their ancestors, their spirituality,

00:02:11 - So it's connected to many other aspects of indigenous people's lives. So when international law fails to protect heritage or fails to provide a response to a threat to heritage, then all these elements can be affected so quickly think of an example. we can think of a community that has a traditional ancestral practice of weaving rugs, for example, and that practice itself might be part

00:02:42 - as reflecting spiritual elements, sacred elements, or even the community's identity. it could be even a part of their normative system. So the design in the rugs can also be part of their heritage. So what happens when international law fails to offer Tools to protect this heritage? the community might end up not finding any sort of protection. So we can think, of that rug as also a big part of the community's economic development.

Cultural Appropriation and the Gaps in International Law

00:03:15 - visitors, and then if this rug is unprotected, let's say, the designs maybe could have been protected in copyright through intellectual property law, but if there's no protection, we could get, an outsider, a visitor going to the community, purchasing a rug, maybe taking photos of, of some of the designs, and then without the C'S consent, taking those designs, to outside the community and using them for their own benefit. So we can, we can see that as cultural appropriation,

00:03:44 - nowadays in relation to heritage. There's no response in international law directly focusing on appropriation. So in that situation, the person that appropriated the designs might get away with it, because there's nothing, stopping them from doing that. And by, by doing this, what happens is that the community might lose a big source of their economic development, but their identity might also be affected because we'll have other, other persons selling the rugs. And the, the, the connection to the community's identity will be, affected,

00:04:18 - if there's something sacred in one of the designs that was taken that will be affected as well. So when there is a gap or, or there are weaknesses in the existing protection of international law, all these elements will be affected. So it, it really is a, a, a, a significant part of indigenous lives that, if not protected, will affect their lives pretty heavily as well. We really have to go back and, and, and think about the origins of that relationship between indigenous peoples and international law, and the, the traces of colonialism

Addressing the Disconnect: Indigenous Rights and International Law

00:04:47 - So one of the things, is that international law was not created or developed, taking indigenous people's concerns, needs, interests into account, in that progression of their regime. So a few indications of this, disregard for indigenous interests is that very often indigenous peoples do not have a seat at the table in processes affecting them directly. So of course, that's, that's problematic. If we think about, that committee at Wipo

00:05:18 - regarding indigenous heritage, indigenous representatives only have an observer status in that committee. So they can speak, but they don't have any decision making power, which it's definitely not ideal. Another negative aspect of international law, how it fails to respond to some of the threats, relates to the fact that international law is very fragmented, which means that, in protecting culture or heritage, international regimes will separate elements of culture. So we have, for example, cultural heritage law,

00:05:49 - or heritage as an end in itself, and protect the, the object, the tangible object. on the other side, we have have a separate protection for intangible heritage, with intellectual property law, but indigenous communities tend to perceive the heritage holistically. So all the elements are interconnected, they're integrated. So there's this significant mismatch in relation to what the kind of protection international law offers and what indigenous peoples need and, and require in terms of protection.

Addressing Gaps in International Law for Indigenous Community Rights

00:06:21 - that it's a very state centric framework. So it's either focusing on states or, for example, with human rights law, it focuses on individuals, but then where is, what, where does, where do communities sit in that situation? So there is, this big significant problem still in international law in terms of addressing community rights. And when you're thinking about heritage for indigenous peoples, they tend to perceive it as a communal, custodianship. So there's no one individual owner of the rug, for example.

00:06:56 - So as international law doesn't offer an avenue for redress or remedies for collective rights, there will be, again, a gap there. So generally what happens is that international law will, either offer insufficient protection or fragmented protection, and ultimately doesn't, provide adequate, culturally adequate responses to those threats. to indigenous heritage. Scholarship on this topic still tends to focus a lot on intellectual property law

00:07:28 - But there is plenty of information and documents, from indigenous representatives saying that intellectual property law, it's just not sufficient. It's not sufficient, it's not adequate. So, even the scholarship that is critical of intellectual property law in its role in this field, it usually goes one or two ways. It either just restates the need for a sue generous regime where a regime that is tailored, to indigenous needs,

Proposing Solutions for Indigenous Heritage Rights

00:07:58 - that sue generous regime could be, articulated or materialized, or it just doesn't offer any alternatives. So acknowledges the problem, but without an alternative. And this is something that I, I seek to do with this chapter, with this work, which is, going beyond the intellectual property focus and assessing strengths and weaknesses across the three main regimes. And also, considering the dis ongoing discussions at Wipo, but also assessing how they relate to each other,

00:08:29 - and where they conflict or where there's a contradiction. I do propose ways forward. I propose solutions, very clear, pathways to, to address the, the shortcomings. And I do that by taking this indigenous oriented approach. Also, not everywhere in the scholarship. On top of that, I, I try to give, a practical understanding of the analysis by assessing each one of these regimes, against,

00:09:00 - So there is a, a case, a real case that I assess each of the regimes, against, and that gives a, a, a pretty tangible, understanding of the pros and cons of each regime and how they can be, improved. And finally, I conclude the chapter with, a very clear structured summary of the analysis of the, the, the key points, which I think could be useful as a, as a guideline, for these international efforts of discussions that this addressing the topic on how

Enhancing Indigenous Perspectives in Intellectual Property Law

00:09:31 - or how to boost the already, strong points of each of the regimes, which is also something i I haven't seen in the scholarship yet. So an indigenous oriented approach is, as I mentioned earlier, looking at the themes of importance to indigenous peoples. So what are the themes is the accommodating indigenous worldviews and context. So an example is if we're thinking about intellectual property law, it tends to require novelty, originality, to, to offer the kind of protection. But very often when we're talking about indigenous heritage,

00:10:05 - or a ritual ceremony. it can be a design if that could be protected, via intellectual property law. It, it's just not gonna fit the requirements of novelty or in originality. So taking an indigenous oriented approach is thinking, okay, what are the key interests or concerns of indigenous communities? And also what kind of protection they need considering their cultural context. So that would be, an example thinking, again,

00:10:36 - protection limited in time. So it expires after a number of years, but very often indigenous communities will need protection perpetually, but it's something that the regime can't offer. So it's, it's about thinking of how to offer that kind of protection, which will require some adjustments in the existing law, rethinking indigenous participation. So if we are negotiating new treaties that are affecting indigenous peoples, first and foremost, because they will be the key stakeholders like Wipo is doing, it doesn't make much sense

Empowering Indigenous Voices in International Law

00:11:08 - We need to hear from them, and we need to take their, perspectives and, and concerns into account, but also let them have decision making power. I think this is one of the key, reforms which will reflect on everything else. It, it will reflect on how indigenous peoples are perceived as, rights holders instead of, not specifically recognized as such in the instruments. And we're reflecting every other aspect because they will be, part of the decision making. I think the key takeaway is, is that if we are trying to

00:11:41 - and, and the, the adequacy of the protection offered to indigenous heritage in international law, the first thing is that indigenous peoples need to be at the forefront of the discussion. So we need to, to change a little bit of The, the state centric or individual centric, rationale that pervades international law and try to be more, open and welcoming to communities and to collective rights. For example. I think there's a lot of potential in human rights law to address, some of the

00:12:12 - that would need to be addressed. Generally. what I see is there can be a lot of resistance from states in relation to some of these reforms because they're pretty significant. They might, affect the idea of sovereignty. It's pretty, leading in international law. but there are some states and some regions that have been taking significant moves in the direction of incorporating more indigenous voices and also incorporating, instruments like the UN declaration on the rights

Advancing Indigenous Heritage Protection in International Law

00:12:43 - but non-binding and incorporating that into national law. So there is also appetite for change. I hope that chapters like this, that highlight, the protection of indigenous heritage in international law, looking at strengths, but also considering shortcomings in proposing solutions to these shortcomings can help advance the field, can help other countries, other international organizations to think of how things can be made better. So, advance better practices

00:13:18 - for the protection of indigenous culture, heritage rights, both domestically and internationally.

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