Fair Trade in Indigenous Cultural Heritage

Trade in indigenous cultural heritage, including songs, dances, ceremonies, symbols, designs, narratives, poetry and other expressions of traditional knowledge, is flourishing. Though indigenous peoples will welcome the idea that trade in certain artefacts of their cultural heritage may contribute to economic development, they will insist upon keeping sacred and communally important heritage off the market.

This project examines the possibilities, advantages and limits of adjusting international trade law to respond to the open questions around transfer and protection of indigenous cultural heritage. The dominant Western view shall be complemented with an indigenous perspective, in order to allow fair trade in indigenous peoples’ heritage.

International Law and the WTO

During the past decades, a number of international fora including the UN Human Rights Bodies, WIPO, UNESCO and WTO, among others, have been active in drafting policies or adopting legal instruments designed to protect the cultural and intellectual heritage of indigenous peoples more effectively. However, these activities lead to fragmentation of international law and are not sufficiently responsive to indigenous peoples’ claims for comprehensive protection of their interests in cultural matters.

This project takes the view that the adoption of the Declaration on the Rights of Indigenous Peoples (DRIP) by the UN General Assembly, in 2007, opened a new chapter in the debates on indigenous issues. The project takes the DRIP as a call for academics and practitioners alike to strive for a more coherent approach. Accordingly, when proposing adjustments of WTO law, coherence with the DRIP and ongoing developments within WIPO, UNESCO and other fora will be crucial.

Four Country Focus

The Aborigines in Australia, the Maoris in New Zealand, Canada’s First Nations and the American Indians in the United States have similar histories of colonisation. Indigenous peoples in these four jurisdictions form separate groups, which are clearly distinguishable from the immigrant population. At the international level, not only the four states, but also the indigenous peoples living on their territory tend to form coalitions when it comes to negotiations about indigenous issues.

This project sets proposed adjustments of international law, including trade law, in relation to the domestic law in the four jurisdictions, mainly with regard to intellectual property and cultural heritage law and to the existence or non-existence of indigenous peoples’ cultural self-determination. The relationship between state law and indigenous custom will be an important question.