A/HRC/45/35
another’s worldviews. This has led to meaningful relationships, deep healing on both
sides and the start of new collaborations through repatriation processes and cultural
exchanges.
87.
States should enact or reform legislation on repatriation in accordance with the
Declaration on the Rights of Indigenous Peoples, in particular articles 11, 12 and 31,
with the full and meaningful participation of indigenous peoples and the safeguard of
free, prior and informed consent. This includes statutes, regulations and policies on
museum collections, deaccession and repatriation. In case of ambiguities or challenges
in implementation, the Declaration can be used as an interpretive tool. All such
programmes for repatriation must be fully funded so that museums and indigenous
peoples do not bear the burden that States have to comply with their human rights
obligations.
88.
States must recognize that indigenous peoples have their own concerns about
human remains, ceremonial objects and cultural heritage and, when making claims for
protection or repatriation, consider not only national interests but indigenous peoples’
own rights. Terms like “cultural property”, “cultural objects” and “cultural heritage”
must be understood to include the ceremonial objects, human remains, spiritual and
other properties of indigenous peoples. Similarly, a determination of whether an item
is “illicit” or “stolen” property must include analysis not only of State laws, but the laws
of indigenous peoples that set out standards of alienability, ownership, treatment and
custody of ceremonial objects, human remains and spiritual, intellectual and other
properties.
89.
As parties seek to comply with the Convention for the Protection of Cultural
Property in the Event of Armed Conflict, the Convention on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property and the UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects, they should work in partnership with not only the International Criminal
Police Organization (INTERPOL), national police forces, civil society and the
International Council of Museums, but also indigenous peoples’ institutions specializing
in cultural property and repatriation, such as the Association on American Indian
Affairs in the United States of America and indigenous peoples’ mechanisms of the
United Nations. With regard to repatriation of human remains, ceremonial objects and
indigenous spiritual, intellectual and other properties, States must consult and seek the
free, prior and informed consent of indigenous peoples, ensuring participation through
their own representative institutions. The Expert Mechanism specifically urges States
and indigenous peoples to enter into agreements regarding the ultimate return of these
items to indigenous peoples’ territories, consistent with their own laws, customs and
traditions, and/or alternative dispositions affirmatively requested by indigenous
peoples.
90.
UNESCO should consider ways of providing advice on repatriation to indigenous
peoples and promoting opportunities under the Convention on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property. Some concrete measures that UNESCO could take include capacity-building
for States parties and other stakeholders on repatriations under the United Nations
Declaration on the Rights of Indigenous Peoples; developing databases of indigenous
peoples’ ceremonial objects and human remains held by State museums, universities
and other repositories that are accessible to the indigenous peoples concerned and also
maintaining respectful protocols, such as not showing photographs of human remains
and sacred items; and considering the establishment of an international indigenous
repatriation review committee comprised of indigenous peoples, museum professionals,
human rights experts and others to provide advice and assistance on these claims.
91.
As the main international organization with a mandate to address issues related
to traditional knowledge, traditional cultural expressions and genetic resources, the
World Intellectual Property Organization has an essential role in the protection and
repatriation of indigenous peoples’ intangible cultural heritage. The WIPO
Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore should consider explicitly addressing repatriation
and continue its efforts to facilitate indigenous peoples’ meaningful participation in this
process. WIPO should strengthen its efforts to implement the rights articulated in the
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