Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples – Heritage Recognition, but Little Control and No Remedies

Abstract

Examining the drafting history and international and regional practice related to Article 11 of the UN Declaration on the Rights of Indigenous Peoples (2007), I show in this contribution that there is a mismatch between declaratory recognition of Indigenous rights over their heritage and actual enforcement and remedies. There is a growing body of practice on the recognition, particularly in the realm of participation in heritage management, and on declaring the importance of Indigenous heritage for cultural identity and other human rights. The connection to other human rights instrumentalizes cultural heritage concerns, which makes it harder for international practice to focus specifically on remedying cultural harm using the language and mechanisms of cultural heritage. While using heritage as instrument for other claims is not a problem, it is perfectly possible and reasonable that Indigenous peoples have claims to their heritage, which are not often captured by existing international rights frameworks. Further, in other legal contexts, heritage belongs to the state, not to (Indigenous) peoples. The lack of heritage-specific practice also translates into far less practice in terms of remedies and restitution, which needs to be guided by Indigenous voice and self-determination, and by a commitment to treating Indigenous cultural heritage as Indigenous peoples’, a right meritorious of protection beyond a broad commitment to culture or as an pathway to land rights. I argue that we need to move past declaratory engagement and put more emphasis into remedies, so that we can really deliver on the promise of Indigenous control over their heritage.