This thesis set out to understand the continued retention and delay in the return of ancient indigenous human remains by museums through an overall examination of the status of ancient indigenous human remains in international law. This thesis focuses on the status of indigenous human remains from a legal perspective critiquing property, cultural property, cultural heritage, intellectual property, Traditional Knowledge (TK) and a human rights approach. This thesis argues that there are three potential explanations for the delay or non-return evident in disputes. This thesis has offered up three possible solutions in a response to the explanations. The explanations are, (i) Ancient indigenous human remains are viewed as property by museums therefore they see themselves as the owners however indigenous peoples see themselves as custodians of their ancestors' human remains; (ii) There is a lack of a clear legal status in international law in relation to ancient indigenous human remains due to their sui generis nature; (iii) Furthermore there is a lack of human rights sensitisation in relation to claims for the return of ancient indigenous human remains. The solutions are, (i) Drawing on Honoré's theory and the metaphor of the bundle of sticks this thesis substitutes the traditional bundle of sticks in the property bundle for an indigenous perspective of the sticks which illuminates the true value of ancient indigenous human remains to indigenous peoples; (ii) After an analysis of the fragmented nature of international law in this area a useful jurisprudential and instrument Toolkit emerges; (iii) Adopting a human rights based approach recognises the necessary implementation of repatriation mechanisms. The approach sensitises the associated claims which run parallel with claims for ancient indigenous human remains. Furthermore a human rights based approach recognises that the cultural property and intellectual property terms in the United Nations Declaration on the Rights of Indigenous Peoples can be interpreted with reference to the indigenous context of the Declaration.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:687442 |
| Date | January 2015 |
| Creators | Batt, Fiona |
| Publisher | University of Bristol |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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