Meet the Book Author: Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs

Shea Elizabeth Esterling, University of Canterbury, Faculty of Law (Aotearoa New Zealand)

In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Shea Elizabeth Esterling, whose new book Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs was published in October 2023 with Routledge.

What is the book about? 

Examining the restitution of cultural property to Indigenous Peoples in human rights law, this book offers a detailed analysis of the opportunities and constraints of international law as a tool of resistance and social transformation for marginalized groups. It argues that through participation as non-state actors in international law making, Indigenous Peoples have made gains in human rights.  Yet, this participation does not guarantee that these gains provide indigenous communities with on the ground benefits. To demonstrate this argument, this book takes as its focus the restitution of cultural property to Indigenous Peoples as embodied in Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples. Through this lens, it acknowledges that Indigenous Peoples, as non-state actors, have generated greater substantive and procedural legitimacy in human rights law making. However, it also demonstrates that, despite their significant role in constructing the legal framework of human rights in the 21st century, the participation of Indigenous Peoples continues to be structurally limited. In weaving together these narratives regarding indigenous participation and claims for the restitution of cultural property, this manuscript captures a more complete and nuanced picture regarding both the advancement and realization of indigenous claims as human rights and the restitution of indigenous cultural property. 

Why did I write it? 

In part, I wrote this book out of academic curiosity. It provides the first comprehensive critical commentary on the restitution of cultural property as embodied in Article 11 of the UN Declaration on the Rights of Indigenous Peoples. In doing so, this work is significant as it offers normative insight both into what indigenous participation in international law making does to international law and in particular human rights and to Indigenous Peoples.  Moreover, it is significant as it provides a critical analysis reflecting upon the coercions that underpin heritage, human rights, indigenous rights and restitution, which coalesce around binary constructions including cultural difference/universalism, essentialism/anti-essentialism and notions of past/present continuity (identity construction). For some time, many of these focal points, have been deconstructed or critiqued by post-colonial studies in relation to anthropology and archaeology. However, the turn to critical examination in relation to human rights is much more recent and has not been undertaken in relation to human rights claims surrounding the restitution of indigenous cultural property.  Consequently, this book fills a gap in scholarship. By offering a critical examination of the theoretical foundations of the repatriation movement through the contextualization of claims for the restitution of cultural property to Indigenous Peoples as a human right, it critically analyses the human rights discourse as an emancipatory project uncovering its discursive limitations. 

In part, I also wrote this book as part of a personal journey involving grappling with my own heritage as both immigrant and indigenous but with a lived experience as one of outsider rather than insider in the struggle for indigenous justice. As Aboriginal-Asian-Anglo Australian scholar Yin Paradies notes, Indigenous Peoples are often forced to confess intimate subjectivities.  In the eyes of the reader this undoubtedly will either establish or undermine my credibility or authority to write this book on the subject of the restitution of indigenous cultural property. Writing in academia at least has presented a safe space in which to explore my identity in the face of the ever-present “trepidation at being ‘caught out’ as inauthentic [which] arises from the deleterious notion that ‘there are protocols and ethics to adhere to when “becoming Aborigines”’.[1]  In turn this book ultimately serves a dual function; part academic inquiry and part personal journey within the broader ambit of post-colonial studies and my commitment to the indigenous struggle for justice.

[1] Y.C. Paradies, Beyond Black and White: Essentialism, Hybridity and Indigeneity, in Handbook of Indigenous Peoples’ Rights 27 (D. Short C. Lennox eds., Routledge 2016). 

How did I go about doing this research?

A commitment to indigenous justice alone however is not enough; funding and institutional support are crucial.  For this book, research was carried out with the generous financial support of two research institutions for which I am grateful.  At the outset of this project, I am indebted to the funding offered by the Higher Education Funding Council for Wales, which allowed me to undertake my doctoral studies at Aberystwyth University with the freedom to focus on research and writing. During my time at Aberystwyth University, I further received excellent institutional assistance from the Department of Law and Criminology that enabled me to collaborate as well as to debate and disseminate the ideas at the heart of this project across the world, from the UK to Australia and from Malta to Minsk. In addition, I am thankful for the generous financial support offered by the Oxford Fellowship at the University of Canterbury, which provided me with the resources to spend the final portion of this project as a Visiting Research at the University of Oxford in the Bonavero Institute of Human Rights.

Given the subject matter of this book, attending to methodology was of crucial importance. There is no one indigenous perspective or culture and so no one indigenous approach to cultural property and its restitution.  In turn, from the outset this book is cognizant of its limits; it cannot provide an account of all indigenous views. Yet, this research consciously relies on the work of indigenous scholars and indigenous advocates to reduce the threat of neglecting and/or diminishing indigenous voices.  Moreover, given my heritage as both colonizer and colonized this book also attends to my “strategic location” [1]  in the text as the author in relation to the issue of the restitution of indigenous cultural property. Further in grappling with these power relations that stem from aspects of my identity, positionality drives the final methodological consideration engaged in this inquiry, the employ of the analytical lens of Third World Approaches to International Law, which here is used to question and criticize the universality of human rights law. Ultimately, this approach to methodology emphasises the importance of context encouraging inquiry of a variety conceptual frameworks, which in this book is reflected in that it draws on literature and documents at the crossroads of cultural heritage, human rights, indigenous rights and restitution. With this interdisciplinary approach, this book will appeal to scholars and students in the fields of law, politics, anthropology and indigenous studies.

[1] E. Said, Orientalism 20 (Pantheon Books 1978).