International law and the protection of cultural diversity

Submitted by:

Chinmayi Patil

UID- UG21-34

Academic Year:2022-2023

B.A.LL.B. (Hons.) 3rd Year, 5th Semester

Submitted to:

Prof. Abhirup Das

Professor of International Law

July 2023

Maharashtra National Law University

SR TABLE OF CONTENTS PG
NO. NO.
1. INTRODUCTION 2

2. RESEARCH OBJECTIVES 3

3. RESEARCH QUESTIONS 3

4. RESEARCH METHODOLOGY 4

5. CHAPTER I- IMPORTANCE OF CULTURAL DIVERSITY OF 4

THE INDIGENOUS PEOPLE UNDER INTERNATIONAL LAW

6. CHAPTER II- INTERNATIONAL HUMAN RIGHTS 5

INSTRUMENTS FOR THE PROTECTION OF INDIGENOUS
PEOPLE
7. CHAPTER III- PROPERTY AS A SYMBOL OF CULTURAL 7
DIVERSITY AND THE 1954 CONVENTION FOR THE
PROTECTION OF CULTURAL PROPERTY IN THE EVENT
OF ARMED CONFLICT
9. CHAPTER V- APPLICABLE CASE LAWS ON PROTECTION 9
OF CULTURAL DIVERSITY

10. CRITICAL ANALYSIS 10

11. POLICY SUGGESTIONS 11

12. CONCLUSION 11

13. BIBLIOGRAPHY 12

1
INTRODUCTION

With the advent of globalisation and modernisation, the world is becoming more and more
homogenous. A global standard is emerging to which every nation state aspires to adhere to.
In order to fit in with the increasing homogenic international practices and to be a part of the
league of the top few nations that are at the fountain heads of international law and politics,
nations around the world, in particular the ex-colonies of imperialist nations, are ignoring the
cultural diversity and the ancient heritage that each of these nations carry.

Taking a brief look at the geopolitics relevant in the current state of affairs, the law regulating
several aspects are a ‘one size that fits all’. Such a generalised regulating mechanism is often
applied at the cost of the domestic cultures and customs that have been prevalent in the nation
for centuries.

Cultural diversity was not defined anywhere initially however it became an important aspect
with the shift in the politics during the World War II, with decolonisation and the emergence
of new nations. Newly independent nation states adopted their suppressed culture by imperial
states. A wave of nationalisation spread in the post war era and thus the need to recognise the
cultural diversity among the states became necessary.

Many international institutions laid down several conventions and treaties to protect the
culture diversity of the nation states, one of them being the UNESCO Convention on the
Promotion Cultural Diversity and Expressions (CDCE). The convention was designed to
enable the nations to protect and promote their cultural policies.

There are many hurdles that need to be crossed in the conquest of the protection of cultural
diversity. Taking the example of India itself, many cultures coexist at the same time.
Therefore, it becomes difficult to link diversity and culture in such a scenario. In the
existence of such diverse cultures, it becomes difficult to give an accurate definition of
culture. Many international institutions have tried to define the term in a broad manner so as
to incorporate as many cultures and traditions as possible, keeping in mind the diversity.

2
RESEARCH OBJECTIVES

1. To assess the effect of Cultural Diversity protection laws on safeguarding the rights
and identities of marginalized communities in different regions of the world.
2. To evaluate how well human rights instruments—in particular, the UNDRIP—
advance and defend the rights of indigenous communities across the globe.
3. To assess, with an emphasis on case studies and real-world application, how well
international legal frameworks—in particular, the Convention to protect cultural
property during armed conflicts.
4. To evaluate the obstacles to and restrictions on the application and enforcement of
international accords.

RESEARCH QUESTIONS

1. How do international organisations and entities promote the protection of cultural

variety through legal mechanisms? What are their tasks and responsibilities?
2. What are the principal human rights concerns faced by indigenous communities
globally, and how do these concerns change based on the political, social, and cultural
situations in which they are found?
3. What is the effect on the recognition and defence of native communities' rights of the
inadequacies and restrictions in the application of international human rights treaties,
such as the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP)?
4. How much has the UNDRIP and other international human rights instruments
benefited in the national and international recognition and defence of indigenous
peoples' rights?
5. What are the main barriers and difficulties, and how do they vary depending on the
type of war, to the preservation of cultural property during times of armed conflict,
such as historical monuments, artefacts, and heritage sites?
6. How effective is the Convention on the Protection of Property, among other
international legal frameworks, and what real restrictions are there on its application?

3
RESEARCH METHODOLOGY

The modus operandi used in the following project was extracted from trusted and reliable
sources of archived information. The doctrinal method of research was used in the following
project. Much of the information was collected from official and government sources added
with my perception and view of the topic. The following research method has been analytical,
objective and much effort has been taken to ensure that sources are veritable and astute. The
thesis and perspective used in the project are shrewd and have made a significant contribution
to this project. The main gist of this project has the pigment of the researcher’s point of view
and is critically reviewed.

CHAPTER I- IMPORTANCE OF CULTURAL DIVERSITY OF THE INDIGENOUS

PEOPLE UNDER INTERNATIONAL LAW

The shared objective of the indigenous communities is to preserve and uphold a culture that
is strongly connected to their ancestral regions and frequently has spiritual value, despite the
differences in their claims and desires. They are different from other marginalised groups in
terms of money or influence because of their special bond with the land. Domestic and
international laws have recognised their unique requirements, acknowledged their special
status, and built a legal framework to support them. Global policies place a high priority on
cultural diversity, with special attention to preserving their land, language, customs, and
endangered heritage. is to preserve and uphold a culture that is strongly connected to their
ancestral regions and frequently has spiritual value, despite the differences in their claims and
desires. They are different from other marginalised groups in terms of money or influence
because of their special bond with the land. Domestic and international laws have recognised
their unique requirements, acknowledged their special status, and built a legal framework to
support them. Global policies place a high priority on cultural diversity, with special attention
to preserving their land, language, customs, and endangered heritage.1

The international community has carefully listened to indigenous peoples' claims and
developed solutions that are suited to meet their needs in order to answer their goals. This has
necessitated reconsidering and reframing established human rights ideas. For instance, the
idea of property has been redefined as a collection of tangible and intangible components that

1
Champagne, Duane. "UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples): Human,
Civil, and Indigenous Rights." Wicazo Sa Review, vol. 28 no. 1, 2013, p. 9-22. Project MUSE

4
are classified as cultural heritage. Traditionally, the concept of property has focused on
individual rights such exclusive use and enjoyment, the capacity to sell, and destruction. 2
These are collectively held and stewarded for the benefit of future generations. Self-
determination, once linked to political power, has been redefined as the essential means for
preserving and nurturing the group's culture. This cultural self-determination framework
allows for change and adaptation, even assimilation and integration, as long as such
transformations are voluntary and the inherited traditions can endure in the hearts and minds
of indigenous people. The success of this approach largely depends on the will and
determination of indigenous communities to survive and flourish as a distinct culture, as they
have done despite existential threats in the past.3

It affirms the right of indigenous peoples and individuals to identify with their respective
communities or nations in accordance with their traditions and customs. These communities
often inhabited areas before the arrival of others and typically maintain distinct cultural and
political characteristics.4 Even though they live nomadic lifestyles, they may have
independent political and judicial systems, a shared history of being subjugated by non-
indigenous people, and a strong and continuing bond with their lands, territories, and
resources. Although they have a different legal standing than other minority groups,
indigenous peoples are frequently, though not always, underrepresented in the states in which
they live. Although there are certain rights under international law that overlap between those
of minorities and indigenous peoples, the Declaration is thought to be more comprehensive
than other international legal documents pertaining to minority rights.5

CHAPTER II- INTERNATIONAL HUMAN RIGHTS INSTRUMENTS ON

PROTECTION OF INDIGENOUS PEOPLE

1. The United Nations Declaration on the Rights of Indigenous Peoples

Adopted on September 13, 2007, the Declaration is a significant international
document that embodies nearly two decades of cooperation between indigenous
2
Barnabas, S. G. (2017). The Legal Status of the United Nations Declaration on the Rights of Indigenous
Peoples (2007) in Contemporary International Human Rights Law. International Human Rights Law Review,
6(2), 242-261. 6
3
Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-Socialist” Age’, 212 New Left
Review (1995) 68, at 69.
4
Programme of Activities for the International Decade of the World's Indigenous People, GA Res. 50/157, 21
Dec. 1995, Annex, at para. 6.
5
Report of the working group established in accordance with Commission on Human Rights Resolution
1995/32 of 3 Mar. 1995 on its eleventh session, Annex I, UN Doc. E/CN.4/2006/79 of 22 Mar. 2006.

5
 communities and UN member states. This long document (46 articles) focuses on the
protection of indigenous peoples' rights globally. The understanding that indigenous
peoples have a right to the full range of freedoms and human rights in conformity
with the Declaration of Human Rights, the United Nations, and international human
rights is a fundamental tenet of the UNDRIP. 6 Additionally, the right to self-
determination, autonomy, and the acknowledgment of native lands, territories, and
resources, this statement places a strong emphasis on the preservation and
advancement of indigenous cultures, religions, languages, and customs.

The UNDRIP is a modern illustration of the conflicts and collaborations that resulted
from using the right-to-culture framework to support indigenous causes. The
UNDRIP, I would argue, expresses an understanding of the interdependence between
rights to heritage, land, and development, affirms collective rights, and, on the one
hand, explicitly refers to the right to self-determination—all of which challenge or at
least advance the liberal human rights paradigm. However, it also symbolises the
enduring strength and survival of an international human rights paradigm that
prioritises individual civil and political rights over powerful forms of indigenous self-
determination3. In this way, I argue that the UNDRIP represents both the potential
extension and ongoing restriction of human rights as well as the persistence of some
biases.7

The affirmation of indigenous peoples' right to self-determination—which includes

their political status, economic, social, and cultural development, and internal
autonomy—underlines the relevance of the UNDRIP. It emphasises their claim to
their native lands, territories, and resources, which are crucial for the sustainability of
their culture and economy. Interestingly, the declaration emphasises nations'
responsibilities to preserve existing treaties and agreements between indigenous
peoples and specific states. Despite the UNDRIP's broad support, some countries first
rejected it because they believed it to violate their right to national sovereignty. To

6
Draft Declaration on the Rights of Indigenous Peoples, in UN Commission on Human Rights, Subcommission
on Prevention of Discrimination and Protection of Minorities, 45th Session, ‘Report of the Working Group on
Indigenous Populations on its Eleventh Session’, UN Doc. E/CN.4/Sub.2/1993/29/Annex I (23 Aug. 1993), Art.
31.
7
Karen Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context
of Human Rights, European Journal of International Law, Volume 22, Issue 1, February 2011, Pages 141–163

6
 guarantee that its ideals are respected and effectively implemented by all countries,
however, continued dialogue and action are necessary.8

2. ILO Convention on Tribal and Indigenous People, 1989

The Convention was accepted by the Labour Conference on June 27, 1989. It went into effect
on September 5, 1991. Even after twenty years, the Convention is still the only modern,
legally-binding international agreement containing several novel elements dedicated solely to
the rights of indigenous peoples to recognise, protect, and enhance their distinct identities. 9
Despite its shortcomings and limited number of ratifications, the Convention has proven to be
a significant step forward for the protection and enhancement of indigenous rights at the
national, regional, and international levels—particularly in Latin America.

The ILO Convention does not merely focus on the labour and working class under the treaty,
it also aims to safeguard the economic and social security of the indigenous and tribals
communities. It seeks to ensure equal treatment, protection from arbitrary administrative
laws, protection of their land and economical resources, health, provide vocation and
education to the concerned groups. It protects land rights and customary laws, guarantees
equal treatment in labour. It promotes eventual integration as a solution to resolve the
ongoing disputes, the supervisory mechanism has helped draw light on the abuse of these
indigenous and tribal groups.10

Despite its flaws and the opposition of many nation-states to ratify it, Convention 169 has
significantly aided in the growth of indigenous rights internationally. It acted as a launchpad
for larger and more ambitious initiatives, such the United Nations Declaration on the Rights
of Indigenous Peoples of 2007, which offers a more comprehensive framework and has
boosted support for indigenous rights globally.

CHAPTER III- PROPERTY AS A SYMBOL OF CULTURAL DIVERSITY

8
Global Indigenous Peoples’ Caucus. Steering Committee, ‘Report of the Global Indigenous Peoples’ Caucus’
(31 Aug. 2007).
9
Yupsanis, A. (2010). ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent
Countries 1989–2009: An Overview. Nordic Journal of International Law, 79(3), 433-456.
10
Lee Swepston, A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No.
169 of 1989, 15 OKLA. CITY U. L. REV. 677 (1990).

7
Cultural property is often seen as collective property of a particular culture. Especially in the
cases of indigenous people, the ownership of property is seen as a collective, permanent and
an inalienable right. There is a reflection of culture in seen in the monuments and other
cultural properties which can be seen as evolving with evolution of the culture.11

The artifacts found at Mohenjo Daro and the Konark Temple of Odisha are all symbols of
culture.12 Properties are used by cultures as a form of expression 13 and grow into cherished
pieces of communal culture. The process results in the creative human talent blossoming into
the arts, architecture, sculpture, monuments, painting, literature, and other countless beautiful
manifestations. Regardless of whether they are the results of individual genius or collective
effort, they form the cultural heritage of humanity across geopolitical boundaries. 14
Considering a certain culture, the cultural products it creates are an obvious symbol of
identity of itself,15 an important part of the cultural group's capacity to understand itself and a
source of cultural and traditional information. Because they attempt to capture eternity via
their beauty and function as tangible manifestations of culture and creativity, great works of
art are priceless objects.

Cultural property is contradictory in two different senses. First, the very coupling of its core
ideas presents a contradiction in cultural property. Property is immovable, owned, controlled,
and subject to alienation. Additionally, they have a tendency to sanitise culture, which is by
definition messy and human, making it both beautiful and ugly, obnoxious and inspiring, and
destructive as well as constructive The concept of property has so colonised the concept of
culture within the debate surrounding cultural property.

All that remains are claims to collective property based on what we still refer to as culture,
but which increasingly resembles a set of objects that we can only vaguely associate with a
particular group of people. Multiculturalism and the acknowledgement of distinct cultural

11
Forrest, C. (2009). International Law and the Protection of Cultural Heritage (1st ed.). Routledge. 4
12
YOUNG, JAMES O. “Cultures and Cultural Property.” Journal of Applied Philosophy, vol. 24, no. 2, 2007,
pp. 111–24. JSTOR,
13
Rabindranath Tagore, ‘Wealth and Welfare’ in Modern Review February 1905 Cited by Kedarnath
Mukerji, Political Philosophy of Rabindranath Tagore (1982), pp. 96-97.
14
Proceedings of American Society of International Law, vol.71(1977), pp. 196-205
15
Rebecca Clements, “Misconceptions of Culture: Native Peoples and Cultural Property Under Canadian
Law”, University of Toronto Faculty of Law Review, vol.10 (1991), p.49.

8
attributes have contributed to the spread of a logic that favours forcing "cultures" to conform
to certain groupings.16

1954 CONVENTION ON PROTECTION OF CULTURAL PROPERTY DURING AN

ARMED CONFLICT

The range of signatory nations, with their varied political philosophies and cultural
backgrounds, demonstrates the depth of support for the fundamental ideas of the Convention.
Not every provision of the Convention is deemed to be governed by customary international
law. Given the widespread retaliation theory of the Cold War era, the Convention might not
apply very much to total war. However, a number of countries and organisations accepted the
Convention for the sake of non-nuclear engagements.17

Nevertheless, the Convention defined and used the phrase "cultural property" for the first
time, unlike its preceding accords. Moreover, by closing the gaps left by the 1899 and 1907
Conventions, the 1954 Convention extended cultural property protection beyond full-scale
wars to all armed conflicts. In order to safeguard cultural property, the 1954 Convention also
established a worldwide emblem for all countries. A blue and white shield is supposed to be
used to signify the existence of cultural property. This shield can be flown as a flag or
displayed as an insignia on locations.18

CASE STUDIES

It was used to safeguard cultural properties in Cambodia and the Middle East in the late
1960s and early 1970s. Preah Vihear is a thousand-year-old temple that was intended to be
used as a bastion by Cambodian troops against the Khmer Rouge in 1975. While using the
authorised symbol, the loyalists did so in violation of the law. Furthermore, there was already
a disagreement with Thailand on who owned the Preah Vihear temple. Remaining in the

16
Mezey, Naomi. “The Paradoxes of Cultural Property.” Columbia Law Review, vol. 107, no. 8, 2007, pp.
2004–46. JSTOR.
17
Lawrence Freidman, The First Two Generations of Nuclear Strategists, in MAKERS OF MODERN
STRATEGY 740 (Paret ed. 1986).
18
Marion Haunton, Peacekeeping Property, Occupation, and Cultural Property, 12 U.B.C. L. REV. 217 (1995)

9
temple's perimeter was not widely supported because the Nol forces acted on behalf of the
government that ratified the Convention.19

The Near East and Persia emerged as a focal point for protection of cultural property in the
1980s. Israel attacked Lebanon in 1982. The neighbouring Arab countries asked Israel to
fully restore any damaged archives and other monuments in a resolution they presented to the
UN General Assembly. Neither the 1954 Convention nor the addendum protocol were
mentioned in the General Assembly Resolution. Rather, the Resolution leaned on arguments
based on customary international law. A force backed by Syria, Palestinian irregulars, and
other organisations that were breaking the Convention already are most likely implicated in
the complicated situation in Lebanon. Furthermore, the Lebanese government had dissolved
by the time of the Israeli invasion, and no recognised body was able to file accusations
against any of the parties at war.20

CRITICAL ANALYSIS

Community engagement: Legislative frameworks are frequently not implemented in a way

that guarantees genuine consultation with indigenous groups. Sometimes decisions that
impact their land rights and cultural property are taken without getting their informed
agreement. Respecting indigenous peoples' autonomy and right to self-determination requires
sincere consultation procedures.

Inadequate implementation: Legislative frameworks are frequently not implemented in a

way that guarantees genuine consultation with indigenous groups. Sometimes decisions that
impact their land rights and cultural property are taken without getting their informed
agreement. Respecting indigenous peoples' autonomy and right to self-determination requires
sincere consultation procedures.

Cultural property as an evolving concept: Indigenous cultures are changing, and the idea
of cultural property may not adequately reflect this. Since cultures change throughout time,
emphasising the preservation of static cultural artefacts might not adequately reflect how
indigenous identities are dynamic and ever-evolving.

19
See, e.g. Case Concerning The Temple at Preah Vihear (Cambodia v. Thailand), 1962 I.C.J. 6 (June 15).
20
See Michael Carver, Conventional Warfare in the Nuclear Age, in MAKERS OF MODERN STRATEGY 789
(Paret ed. 1986).

10
POLICY SUGGESTIONS

Free, Prior, and Informed Consent (FPIC) Requirement:

Any initiatives, programmes, or choices that have an immediate impact on indigenous lands,
territories, or cultural assets must follow the necessary FPIC procedures. This protects
indigenous authority and guarantees sincere consultation.

Independent Supervisory Authorities:

Create impartial monitoring organisations with representation from indigenous peoples to

keep an eye on and assess how well laws are being implemented. Decision-making processes
are made transparent and accountable as a result.

Public Awareness Initiatives:

Start public awareness efforts to inform the broader public about the value of cultural
diversity, indigenous rights, and the preservation of cultural heritage. This creates an
atmosphere that is conducive to the implementation of policies.

Role of Technology:

Encourage the monitoring and protection of cultural property through the use of cutting-edge
technology like blockchain, digital documentation, and satellite photography. This improves
conservation efforts and makes it easier to find lost or stolen artefacts.

CONCLUSION

In conclusion, indigenous communities with their deeply ingrained, time-honored identities

face the difficulty of maintaining their cultural variety and ancient legacy while the globe
continues to progress towards globalisation and standardisation. Despite facing numerous
obstacles, such as the effects of colonisation and contemporary influences, indigenous
peoples continue to have a special bond with their ancestral lands that is frequently of great
spiritual significance. Both domestic and international laws have built a legal framework to
sustain their special status in recognition of this unique relationship. Global policies place a
strong emphasis on the value of cultural diversity as well as the protection of endangered
languages, customs, sacred sites, and legacy.

11
The Indigenous Peoples Rights Declaration and the Convention of ILO are two important
international instruments that have been instrumental in preserving the rights and well-being
of indigenous and tribal communities across the globe. Adopted in 2007, the UNDRIP
highlights the entire gamut for the rights of indigenous peoples and stands as the culmination
of years of cooperation between indigenous groups and UN member states. The 1989 ILO
Convention 169 expands on its predecessor by acknowledging the rights to self-
determination, the preservation of ancestral lands, and involvement in the process of making
decisions. These treaties significantly advance indigenous human rights and self-
determination while acknowledging the complexity of state sovereignty.

Furthermore, preserving indigenous heritage depends on protecting cultural property.

Indigenous peoples view their culture as collective, everlasting, and unalienable, and they
feel a strong connection to their ancestral places. Hague Convention for the Protection of
Cultural Property During Armed Conflict (1954) is one of the international agreements that
acknowledges the cultural heritage of all peoples and emphasizes the importance of cultural
property protection in the evolving environment of international relations. The unique
identities and cultural legacies of indigenous communities will depend on the maintenance of
these international institutions and the respect for cultural variety in an increasingly
globalized world.

BIBLIOGRAPHY

Websites

United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples.
Retrieved from https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-
rights-of-indigenous-peoples.html

International Labour Organization. (1989). ILO Convention No. 169: Indigenous and Tribal
Peoples Convention. Retrieved from https://www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169

International Labour Organization. (2020). ILO Convention No. 107: Indigenous and Tribal
Populations Convention. Retrieved from https://www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C107

12
Hague Convention for the Protection of Cultural Property during Armed Conflict. (1954).
Retrieved from https://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/
the-hague-convention/

Articles

Christa Rautenbach, (2011), CULTURAL DIVERSITY AND INTERNATIONAL LAW, in

International Law and Institutions, [Eds. Aaron Schwabach, Arthur John Cockfield], in
Encyclopedia of Life Support Systems (EOLSS), Developed under the Auspices of the
UNESCO, Eolss Publishers, Oxford, UK, [http://www.eolss.net] [Retrieved March 16, 2011]

Moore, Margaret "Political Liberalism and Cultural Diversity". In (1995) Canadian Journal of
Law & Jurisprudence pp. 297-310. [Theoretical discussion of Rawls' theory of political
liberalism and its link with cultural diversity.]

Obuljen, Nina & Smiers, Joost. (2006) UNESCO's Convention on the Protection and
Promotion of the Diversity of Cultural Expressions: Making it Work. Institute for
International Relations: Zagreb. [Contains scholarly contributions on the CDC].

Parsons, Talcott & Shils, Edward "Values and Social Systems". In Alexander, Jeffrey &
Seidman, Steven. Eds. (1990) Culture and Society, Contemporary Debates Cambridge
University Press: New York pp.39-46. [Contains a discussion of the concept "culture"].

Books

Young, Iris M. (1990) Justice and the Politics of Difference. Princetown University Press:
Princetown.

Taylor, Charles (1983) Social Theory as Practice Oxford University Press: Delhi.

Kymlicka, Will (1995) Multicultural Citizenship: A Liberal Theory of Minority Rights.

Clarendon Press: Oxford.

Parsons, Talcott & Shils, Edward "Values and Social Systems". In Alexander, Jeffrey &
Seidman, Steven. Eds. (1990) Culture and Society, Contemporary Debates Cambridge
University Press: New York pp.39- 46

13
14