Cultural Appropriation of Indigenous Cultural Heritage: Centring Indigenous Voice and Control in International Legal Responses

Abstract

This thesis examines the phenomenon of cultural appropriation of Indigenous heritage as a problem without a solution in international law. It centres often-neglected Indigenous voices in exploring legal responses based on Indigenous control over their heritage to fill this gap and provide adequate answers to the problem. I argue that centring Indigenous voices is crucial to shifting conventional understandings of appropriation and its harms in international fora, and to inform and guide international efforts to address the phenomenon. Additionally, I argue that Latin American legal experiences involving Indigenous heritage safeguarding can be not only informative in themselves but also create an additional lever for shifting received wisdom in this debate. Cultural appropriation occurs when a dominant group appropriates from a subordinate one (often the case of Indigenous peoples) without their authorisation or consent, causing harms to the latter by removing or misusing their heritage and affecting their (cultural) identity. The lack of adequate international legal response to appropriation aggravates its harmful effects by not providing Indigenous peoples with appropriate legal tools to prevent, stop, or remedy such practices. Considering the shortcomings of existing international regimes applicable to Indigenous heritage protection and of current efforts tackling appropriation internationally, this thesis examines and proposes pathways to a new international framework addressing appropriation and offering solutions to Indigenous groups. In this analysis, I rely on core claims advanced by Indigenous advocates against appropriation to identify key features of an appropriate international legal response to the problem. Further, besides centring Indigenous voices, and to the extent that international fora remain state-centric and require state-filtering of those solutions, I propose a shift away from the usual focus (in the law and scholarship) on the rationales and interests of Western (Euro/Anglo) and developed states. Instead, we should emphasise the views and propositions of Third World (and more specifically, Latin American) countries in international efforts addressing appropriation and Indigenous heritage safeguarding. This shift is justified by Latin American states’ historical support for and promotion of Indigenous rights internationally, and the existence of several specific laws in these countries directly safeguarding Indigenous heritage, including against appropriation. From these core arguments, I contribute to international legal scholarship on Indigenous heritage protection by promoting the focus on Indigenous voices in debates around appropriation and by highlighting useful Latin American responses to the issue often overlooked in (Anglophone) literature. I also suggest pathways and elements for a new international regime on appropriation that can overcome current impasses and challenges in international fora discussing the matter, recognising Indigenous peoples as subjects, rather than objects of international law, and giving them back the control over their heritage that they never relinquished.