Conserving Heritage: Cultural and Intellectual Property Rights
For centuries, cultural artifacts have been stolen from indigenous people, sold and displayed in violation of their beliefs. Similarly, medicinal plants developed over thousands of years by traditional healers have reaped big earnings in the pharmaceutical market--with very small profit shared with the indigenous originators. Native legend song, lore and lahguage--few are unscathed by the long history of injustice towards the intellectual and cultural property rights of indigenous people.
One challenge in dealing with these rights is in balancing two distinct ideas as to how they should be handled. One view, subscribed to by many indigenous peoples, holds that they themselves must protect their own traditions, ideas, innovations and objects, and that only self-protection will guarantee preservation of their property and adequate compensation for its use.
Opposing this perspective is the claim of some States that, because many indigenous knowledge bases and cultural objects have universal value, they are part of the world's common heritage. Under this view, these objects and ideas should be accessible to all in society for legitimate scientific and educational purposes. it is hoped that the international Year for the World's indigenous People will increase the commitment of the international community to help indigenous people realize their rights in both areas.
Cultural property rights focus on enabling indigenous peoples to preserve and control the use of their relics, archaeological sites, textiles, skeletal remains, rituals, songs, legends, and other materials.
The term "cultural property" was formally coined by the UN Educational, Scientific and Cultural Organization (UNESCO) Convention for the Protection of Cultural Property in the Event of Armed Conflict--known as the Hague Convention--which was elaborated in 1954. The first in-depth definition was described in the landmark 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The term is defined as "property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science". While the document focused on the repatriation of cultural property to its place of origin, the scope of cultural property was broadened to include sites of outstanding universal value with the adoption of the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage.
These international Conventions have provided some redress for the exploited cultural heritage of indigenous people. The 1970 Convention, for example, gave the support of international law to the claims of the Aymara community in Cormoa, Bolivia, which in 1988 began pursuing the repatriation of sacred weavings that disappeared in 1978 during visits by North American ethnic art and antiquities dealers.
In Canada as well, the Kwakiotl Indians were able to invoke the Convention to secure the return of artifacts taken when police broke up a "Potlatch" ceremony in 1922. This ancient rite, held to celebrate important events such as initiations, deaths or the investiture of chiefs and marked by feasting, spirit-dancing and gift-giving, was banned in Canada from 1884 until 1951.
However, the international Conventions do not reflect all the concerns of indigenous people. For instance, they make no reference to skeletal remains, which are frequently displayed in museums in a manner perceived by native cultures as undignified and sacrilegious.
To augment the treaties, the UN General Assembly has formulated resolutions to support cultural property rights, including a 1991 appeal to States to conclude bilateral agreements for the return of cultural property to its country of origin.
Finalization of the draft Universal Declaration on the Rights of indigenous Peoples will further expand the protection of historical sites and structures, artifacts, designs, ceremonies and works of art. …