In recent years, the debate over the restitution of cultural property has moved beyond national borders, with increasing attention given to the role of communities—especially those historically marginalised—in cultural repatriation efforts. What started as a question of state sovereignty and cultural nationalism has evolved into a deeper inquiry into the rights of the communities from which these artefacts originally came.

Part I of this two-part blog series examined the dominant theories of cultural property ownership: “cultural nationalism” and “cultural internationalism.” We discussed how cultural nationalism advocates for the retention of artefacts within their country of origin, asserting that these objects are integral to a nation’s identity and heritage. On the other hand, cultural internationalism emphasises a global stewardship, arguing that cultural artefacts should be shared with the world for the benefit of all humanity. Through this analysis, we highlighted the limitations of both approaches, particularly in how they overlook the rights and interests of indigenous and marginalised communities.

This part shifts focus to explore how international law can evolve to incorporate a community-based approach to the restitution of cultural property. We will first analyse the existing legal instruments and conclude that they lack any viable remedy for the communities. Then, we will advocate for the recognition of cultural heritage as a human right, which would empower communities to assert ownership over their cultural treasures. By reframing the discourse around repatriation, we aim to place communities at the centre of the process, ensuring that cultural property is not only returned to its place of origin but also restored to the people for whom it holds the greatest significance.

Repatriation Rights of Communities in International Law

International law has made significant strides in recognizing the rights of communities to repatriate cultural property, yet challenges remain. This section explores key international conventions and declarations that have shaped the legal landscape regarding the restitution of cultural property to communities.

1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

It was the first major international legal instrument to recognize that cultural objects could belong to entities beyond the state, such as museums, religious organisations, and indigenous communities. Its primary aim is to combat the illicit trafficking of cultural objects by facilitating their return to rightful owners when illegally exported or stolen. This convention marked a significant departure from earlier frameworks that dealt solely with state ownership of cultural property.

Article 5 of the Convention explicitly states that if a cultural object has been exported in a manner that severely impairs the cultural or spiritual values of a community, it must be returned. This was a substantial step forward for indigenous groups, as it acknowledged the importance of cultural property in sustaining their heritage. However, the Convention’s limitations lie in its structure, which only allows claims to be brought between contracting states. This means that indigenous communities themselves cannot directly initiate a claim without state involvement. Furthermore, with only 54 states ratifying the Convention as of now, its global reach remains limited. Nonetheless, it established an important precedent by addressing the community-based ownership of cultural property, recognizing the vital connection between cultural heritage and identity.

2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage

Building on the UNIDROIT Convention, the 2003 UNESCO Convention introduced an expanded view of cultural heritage by focusing on intangible heritage, such as traditions, languages, rituals, and practices that communities, groups, or individuals inherit and pass on. It shifted the discourse from the physical aspects of cultural property to include non-material aspects central to community identity. The Convention represents a significant milestone by acknowledging the integral role of communities in preserving intangible heritage and obligating state parties to engage with and support these communities.

Article 11 of the Convention tasks state parties with safeguarding intangible cultural heritage by involving communities and groups in the process of identifying, defining, and maintaining this heritage. The preamble itself underscores the importance of respecting the communities’ role in safeguarding their heritage. However, like the 1995 UNIDROIT Convention, it prioritises the state as the principal agent of action. The state retains control over which elements of cultural heritage are included on international lists, and it is the state that interacts with UNESCO. This limits the legal standing of communities to independently seek protection or repatriation of their heritage. Despite this, the Convention has played a pivotal role in expanding the recognition of non-state actors in the cultural property discourse.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007

Adopted by the United Nations General Assembly in 2007, the UNDRIP is a landmark document that recognizes the inherent rights of indigenous peoples, including their rights to cultural property. Unlike the earlier conventions, UNDRIP focuses squarely on the rights of indigenous communities rather than being mediated through the state. Article 11(1) of the Declaration provides for the right of indigenous peoples to maintain, protect, and develop their cultural heritage, traditions, and customs. This includes the right to control the cultural property and expressions of their communities, such as sacred sites, artifacts, and artistic works. In Article 11(2), the Declaration goes further by obligating states to provide redress mechanisms, including repatriation, to address the unjust appropriation of cultural property. 

The Significance of UNDRIP lies in the symbolic and political pressure it exerts on states to align their domestic laws and practices with the principles set forth in the Declaration. However, the non-binding nature of UNDRIP limits its enforceability. While it has helped shape international discussions around the rights of indigenous peoples, it lacks the legal force to compel states to act unless its provisions are incorporated into national legislation or are recognized as customary international law. 

There is growing recognition, however, of certain elements of community rights under UNDRIP as forming part of customary international law.  A report by the International Law Association concluded that certain aspects of the UNDRIP, such as the right to redress for historical wrongs, particularly concerning land, are part of customary international law, however, it was silent on the status of repatriation of cultural property. This leaves a vacuum in the international legal framework when it comes to addressing this specific issue. To find a solution to this problem, it might be useful to now turn to international human rights law. 

Looking for a Solution in Human Rights Law

The idea of including the right to culture as a human right first emerged during the preparation of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) of 1948, which was the first international treaty to criminalize genocide, including acts intended to destroy, in whole or in part, a national, ethnic, racial, or religious group. During its drafting, there was an attempt to include “cultural genocide” within its provisions, which would have criminalized the destruction of cultural heritage.

Although the attempt was unsuccessful, the focus on cultural rights was carried on in “the Universal Declaration of Human Rights (UDHR), 1948”, which was adopted only a day after the Genocide Convention. A cornerstone of modern human rights law, it was created in response to the atrocities of World War II, and aimed to establish a global standard for the protection of human dignity. Although primarily focused on civil and political rights, the UDHR also includes cultural rights. Article 27(1) explicitly recognizes “the right freely to participate in the cultural life of the community,” thereby highlighting cultural rights as an essential part of individual dignity and identity. Importantly, the UDHR establishes a direct link between culture and human rights, affirming that cultural participation is integral to the exercise of individual freedoms. It provides a moral and legal framework for recognizing cultural heritage as part of the human rights spectrum, which would later influence other international instruments.

The principles laid out in UDHR were expanded by the “International Covenant on Economic, Social, and Cultural Rights of 1966 (ICESCR)”. It is a binding international agreement that obligates state parties to take steps to ensure individuals enjoy their economic, social, and cultural rights. Article 15 of the ICESCR enshrines the “right of everyone to take part in cultural life” and recognizes the importance of culture as a fundamental human right. It also calls on states to take appropriate steps to conserve, develop, and diffuse culture. This covenant is particularly important for the protection of cultural heritage because it formally acknowledges that cultural rights are not simply abstract ideas but legally enforceable rights. It established cultural participation as a core human right and laid the foundation for considering cultural heritage as an intrinsic part of cultural identity.

The inclusion of cultural heritage in the broader human rights framework offers a potential solution to this legal void. Cultural heritage, both tangible and intangible, is essential to the preservation of group identity, and human rights law recognizes the importance of allowing individuals and communities to access, own, and protect their cultural heritage. The recognition of culture as a key component of human dignity, as outlined in the UDHR and ICESCR, provides a foundation for arguing that cultural rights should include the right to reclaim stolen or appropriated cultural property.

 However, the expansion of cultural rights into the realm of human rights reveals a critical tension between individual and collective rights. Human rights have traditionally been centred on the individual, whereas claims over cultural heritage often arise from collective entities, such as indigenous or ethnic groups. This dichotomy raises questions about how to reconcile individual rights with collective claims over cultural property.

Despite this tension, including cultural heritage rights within the scope of human rights offers a significant advantage for communities. Human rights do not depend on or derive from the state; they are fundamental, universal, and inalienable. Framing cultural heritage within human rights law, places the issue under the scrutiny of the international community, allowing for global mechanisms to address violations when states fail to act. In other words, it shifts the discussion from state-centric control of cultural heritage to one where the international community plays a role in protecting the cultural rights of groups and individuals against state abuses.

Incorporating cultural heritage into human rights law also challenges the notion of cultural nationalism. While cultural internationalism has historically been used as an argument against repatriation—suggesting that cultural objects belong to “humanity” as a whole rather than to specific groups—in the present framework, it can be reinterpreted to empower communities. By recognizing cultural heritage as a human right, international law would enable communities to claim ownership over their heritage independently of the nation-state, thus creating a legal basis for repatriation that transcends national borders. 

In conclusion, addressing the gap in international law on cultural property repatriation requires embracing cultural heritage as an integral component of human rights. Doing so would provide communities with a strong, universally recognized right to reclaim their cultural heritage, while also paving the way for more comprehensive legal solutions that transcend state interests and embrace the global significance of cultural identity.

Read Part I of the piece here.

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Kushagra Tiwari and Neeraj Kumar are fourth-year law students at NUJS, Kolkata.

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Picture Credit: Sèvres, Napoléonic Procession of Vatican Treasures to the Musée Napoléon (now the Louvre) (detail), c. 1810-3.