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Abstract
This article addresses the challenges of Indigenous Peoples’ participation in conservation nomination processes and in the management of the sites they inhabit. It analyses the developments – conceptual and legal – produced both in UNESCO and in the United Nations Human Rights system for the inclusion of Indigenous People’s interpretations and visions and the respect of their rights in the context of World Heritage Sites. The author argues that the inter-governmental composition of the World Heritage Committee can make the introduction of an Indigenous Peoples’ rights-based approach in the World Heritage Convention decision-making processes extremely difficult; especially because some States have supported an outdated and manifestly wrong interpretation of sovereignty. This is why, in contrast to the traditional approach which focuses on ‘specific’ Indigenous Peoples norms, this paper suggests that a stronger emphasis on the recent developments in the International Human Rights system concerning the ‘general’ human right to take part in cultural life – which include Indigenous Peoples’ rights – would be, strategically speaking, a better way to support the inclusion of a rights based-approach to the World Heritage Convention decision-making processes.
Acknowledgements
This article is dedicated to the memory of Professor Karel A. Bakker, who was instrumental in the preservation of World Heritage in all its diversity and with whom I had the chance of talking about issues related with the topic of this article during the Conference ‘Living with World Heritage in Africa’ (South Africa, 2012). I wish to thank Amund Sinding-Larsen for providing relevant sources for this article and Siu-Lang Carrillo Yap, researcher in the Institute of European and International Law (Göttingen University) for her inspiring comments on an earlier draft of my paper. I am also grateful to the participants of a Conference at the University of Kent in January 2015 for their comments on the paper on which this article is based, especially Peter Larsen and Susana Galera.
Notes
1 Bakker, "Heritage as Transmission", 241.
2 Lixinski, Intangible Heritage in International Law, 24.
3 See the text in http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx [accessed 13 April 2016].
4 Cabrera Ormaza, “From Protection to Participation?”, 34. This author warns, however, against a limited understanding of Indigenous Peoples’ claims, which can derive from an excessive emphasis on the ‘ecological role’ of Indigenous Peoples (see p. 35, based on the opinion of Arturo Escobar).
5 The literature is abundant. See Northcott, “Realization of the Right to Natural Resources”.
6 Bizer, “What is a Property Right?” and Murphy, “Legal Fabrications and ‘Cultural Property’”.
7 See Rössler’s presentation transcribed in Disko and Tugendhat, International Expert Workshop, 23.
8 Ibid.
9 Ibid., 22.
10 Ibid.
11 Mainetti, “La coopération culturelle internationale”, 201.
12 See the text in http://portal.unesco.org/en/ev.php-URL_ID=13147&URL_DO=DO_TOPIC&URL_SECTION=201.html [accessed 10 July 2015].
13 Rössler’s expression, Disko and Tugendhat, International Expert Workshop, 14.
14 Silberman, “Heritage, Interpretation and Human Rights”, 249, 250.
16 Following Rössller’s opinion, Disko and Tugendhat, International Expert Workshop, 14.
17 de Merode and Smeets, “Introduction”, 10.
18 Ibid.
19 Disko and Tugendhat, International Expert Workshop, 14, 18.
20 Ibid., 18.
21 Ibid.
22 International Law Association, “Rights of Indigenous Peoples”, 12.
23 Ibid., 10.
24 Northcott, “Realization of the Right to Natural Resources”, 83.
25 Ibid., 82.
26 Anaya and Wiessner, UN Declaration on the Rights of Indigenous Peoples.
27 Disko and Tugendhat, International Expert Workshop, 18.
28 Lixinski, Intangible Heritage in International Law, 23.
29 As expressed by Buckley in Disko and Tugendhat, International Expert Workshop, 25.
30 Coombe, “Managing Cultural Heritage”, 376.
31 Meskell, “UNESCO and (WHIPCOE)”, 161.
32 Ibid.
33 Velasco, “Patrimonio Cultural Inmaterial”, 71.
34 See http://www.unesco.org/culture/ich/?pg=00173 [accessed 10 July 2015] and See Rudolf and Raymond, “A Community Convention?”.
35 See http://whc.unesco.org/document/123841 [accessed 10 July 2015].
36 Disko and Tugendhat, International Expert Workshop, 18, 19.
37 Ibid.
38 See http://www.ohchr.org/en/issues/ipeoples/emrip/pages/emripindex.aspx [accessed 10 July 2015].
39 See http://www.ohchr.org/en/issues/ipeoples/srindigenouspeoples/pages/sripeoplesindex.aspx [accessed 10 July 2015].
40 See http://unsr.jamesanaya.org/videos/video-mensaje-world-heritage-convention-and-indigenous-peoples [accessed 10 July 2015].
41 United Nations, Committee on Economic, Social and Cultural Rights, 9, 10.
42 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights adopted on 10 December 2008 by the UN General Assembly Resolution A/RES/63/117.
43 Inter-American Institute of Human Rights &International Commission of Jurists, Commentary on the Optional Protocol, 39.
44 United Nations, Committee on Economic, Social and Cultural Rights, 13.
45 Stamatopoulou, “Monitoring of Cultural Human Rights”, 23. A finalised version of this paper was published in 2012: Stamatopoulou, “Monitoring of Cultural Human Rights”.
46 Ekern et al., “Human Rights and World Heritage”, 213, 214.
47 Disko and Tugendhat, International Expert Workshop, 21.
48 Ibid.
49 Ibid., 28.
50 Ibid., 28, 29.
51 Messkell, “UNESCO and (WHIPCOE)”, 162.
52 Disko, “World Heritage Sites”, 173.
53 Disko and Tugendhat, International Expert Workshop, 15.
54 Ibid., 29, 57.
55 Ibid., 2.
56 Ibid., 17.
57 Ibid., 25, 26.
58 Ibid., 22, 23.
59 Ibid., 25.
60 Ibid., 26.
61 See case 276/2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. Paragraph 2 of the ruling. Available at http://www.hrw.org/sites/default/files/related_material/2010_africa_commission_ruling_0.pdf [accessed 10 July 2015].
62 See http://www.justconservation.org/video-the-endorois-case-litigating-the-right-to-development [accessed 10 July 2015].
63 Paragraph125 of the ruling. [accessed 10 July 2015].
64 Viljoen, International Human Rights Law, 227.
65 Ibid., 128.
66 Ibid.
67 Disko and Tugendhat, Indigenous Peoples’ Rights.
68 Ibid.
69 Available at http://www.achpr.org/sessions/50th/resolutions/197/ [accessed 10 July 2015].
70 Point 1 of the Resolution.
71 See Preamble of the Resolution.
72 See Preamble of the Resolution.
73 Point 2 of the Resolution.
74 See Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage Operational Guidelines, paragraph 123, 30.
75 See Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage Operational Guidelines, paragraph 123, 30. Note the difference between the plural ‘peoples’ – generally avoided in the Operational Guidelines – and the singular ‘people’ – used in the phrase ‘local people’ as synonymous of ‘local population’.
76 Points 3 and 4 of the Resolution.
77 Point 5 of the Resolution.
78 IUCN et al., World Heritage and Rights-based Approaches.