Do We Need Another Human Right? Assessing the Right to the Repatriation of Cultural Property in the United Nations Declaration on the Rights of Indigenous Peoples

Due to the non-retroactivity of the framework for the protection of cultural property,I ndigenous peoples are left without a claim under international law for the repatriation of a vast bulk of their traditional property. The international community has responded to this situation by developing such a right in the 2007 United Nations Declaration on the Rights of Indigenous Peoples. This article examines this right to repatriation of cultural property as understood in the Declaration through the lenses of both the regimes for the protection of cultural property and the broader human rights framework. Ultimately, it demonstrates it is an unqualified right in that it necessarily fails to balance the interests of the parties involved in cultural property disputes by ignoring the interests of current owners of cultural property. In turn, such an absolute right works an injustice which is out of step with the broader human rights regime. Rather, it is the existing human rights framework that strikes the appropriate balance between Indigenous demands for redress and the broader concerns of justice that permeate this framework.This conference has been generously sponsored by the School of Social and Political Sciences and the Sydney Law School, University of Sydney, in collaboration with the School of Law, University of Western Sydne

Do We Need Another Human Right? Assessing the Right to the Repatriation of Cultural Property in the United Nations Declaration on the Rights of Indigenous Peoples

Due to the non-retroactivity of the framework for the protection of cultural property,I ndigenous peoples are left without a claim under international law for the repatriation of a vast bulk of their traditional property. The international community has responded to this situation by developing such a right in the 2007 United Nations Declaration on the Rights of Indigenous Peoples. This article examines this right to repatriation of cultural property as understood in the Declaration through the lenses of both the regimes for the protection of cultural property and the broader human rights framework. Ultimately, it demonstrates it is an unqualified right in that it necessarily fails to balance the interests of the parties involved in cultural property disputes by ignoring the interests of current owners of cultural property. In turn, such an absolute right works an injustice which is out of step with the broader human rights regime. Rather, it is the existing human rights framework that strikes the appropriate balance between Indigenous demands for redress and the broader concerns of justice that permeate this framework.This conference has been generously sponsored by the School of Social and Political Sciences and the Sydney Law School, University of Sydney, in collaboration with the School of Law, University of Western Sydne

The creation and protection of history through the prism of international criminal justice in Al Mahdi

This article examines the role that international criminal justice plays, firstly in creating history, and secondly in protecting history. With regards to the former function, history, in terms of historical truths and narratives are frequent casualties of war and so the first major thread of this discussion outlines the historiography of international criminal law through the prism of the illustrative case of Al Mahdi before the International Criminal Court. In other words this paper aims to set out an overview of the methods, processes and policies by which international criminal justice develops historico-legal narratives that attempt to get at the truth and protect the past from false or distorted narratives. With regards to the latter function, history, in terms of cultural heritage may often be destroyed in order to destroy the identity and even the existence of a people. Accordingly, the second major thread of this discussion is that when it comes to memorialising the significance of cultural property and the impact of its destruction for the benefit of our collective memory as a basis for punishing criminal acts of destroying cultural property, deterring future criminal acts, and providing victims with reparations, Al Mahdi represents a careful balance between legal pragmatism and legal principle, and furthermore that international criminal justice is an important stakeholder in the reparations and restorations process

Fluid Personality: Indigenous Rights and the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 in Aotearoa New Zealand

In March 2017, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ) (‘Te Awa Tupua Act’) became the first piece of legislation in the world to declare a river a legal person. Through this grant of legal personality the Whanganui River acquires the rights, duties, powers and liabilities of an entity with legal standing including the ability to sue those who harm it. This legislation is aimed at reconciling the relationship between the government of Aotearoa New Zealand and its Indigenous peoples (Māori) in light of the principles of the Treaty of Waitangi, one of the founding documents of Aotearoa New Zealand. However, the Te Awa Tupua Act also offers a platform to explore the promotion and protection of Indigenous rights in international human rights law including the United Nations Declaration on the Rights of Indigenous peoples in relation to Māori in Aotearoa New Zealand. This inquiry demonstrates that despite the novelty of the legislation and the exciting progress towards re-establishing Māori governance and management over the River that they held for centuries before European colonisation, the innovative grant of legal personality to a river does not fully address past wrongs in that it continues to exclude Māori ownership of freshwater. Ultimately the Te Awa Tupua Act leaves Aotearoa New Zealand wanting in its commitments under international human rights law