Recent years have witnessed a surge in the attention paid to restitution and repatriation efforts, both by the general public in different parts of the world and in scholarship. This is reflected in the repatriation of ancestral remains to Indigenous peoples from various museum collections and the restitution of cultural objects, spiritual objects, and natural history specimens from European collections.Footnote ¹ This is on top of other efforts that have been in existence for longer, for example, in Canada and the United States and elsewhere.Footnote ² Yet large numbers of Indigenous cultural objects and human remains taken during colonialism continue to be located in museums or private locations across the globe.Footnote ³ Academic debate surrounding the return of objects and human remains has studied the different return mechanisms and their wider context from a variety of disciplinary and methodological perspectives.Footnote ⁴ Shea E. Esterling’s work Indigenous Cultural Property and International Law—Restitution, Rights and Wrongs contributes a unique perspective to the debate surrounding the return of Indigenous objects and human remains.

The entire volume focuses on examining one provision of the United Nations Declaration on the Rights of Indigenous Peoples (hereafter UNDRIP), namely Article 11. This provision enshrines the Indigenous right to practice and revitalize their cultural traditions and obliges states to provide effective redress for different forms of property taken, such as the restitution of cultural property. The author explores Article 11 through four analytical lenses to trace how Indigenous participation in international lawmaking, human rights discourse, and state interests shaped the evolution of the provision. One chapter each is dedicated to textual, purposive, contextual, and discursive analysis respectively, with the two remaining chapters introducing the volume and offering concluding thoughts. Methodologically, Esterling positions the research within the TWAIL movement (Third World Approaches to International Law). Thereby, the author seeks to highlight “coercions that underpin heritage, human rights, indigenous rights and restitution through the vehicle of Article 11 of the UNDRIP” (8, 10–11). The book delivers on this promise by analyzing not only the language of Article 11 UNDRIP but also its drafting history, the arguments used by states to reduce its scope during the drafting, and its relationship with existing instruments in the field of cultural heritage law. The author spends a large part of their analysis reflecting upon what they consider the insufficient benefits that engaging with the human rights system yields to Indigenous peoples.

The following paragraphs will reflect upon the manner in which the different frames of analysis were employed before this review considers the overarching conclusions drawn by Shea Esterling. After introducing the reader to the chosen methodology and the overall objective of the research, the volume swiftly turns to the first frame of analysis in Chapter 2. The author employs a textual analysis of Article 11 to distill the gains secured by Indigenous peoples in pursuit of their claims through the language of human rights and participating in international lawmaking. These are underscored by a comparison with the dearth of avenues available to Indigenous peoples to protect and reclaim their heritage under existing international cultural heritage law (64). Exploring Article 11(2), the author discusses the connection between restitution and self-determination, as well as free, prior, and informed consent (FPIC). Moreover, she points to the textual inclusion of cultural property “taken … in violation of their laws, traditions and customs” into the right of effective redress. As a consequence, Indigenous laws, traditions, and customs affect the way in which access and transfer of Indigenous cultural heritage can be regulated for the mechanism to align with UNDRIP (54). Equally as interesting is the chapter’s discussion of the terms of cultural property versus cultural heritage and the difficulties arising out of the plethora of varying definitions. Even though the reader may have expected a justification for the terminological choices to be made in the introduction, it fits with the textual frame of analysis taken in Chapter 2. A bit confusing, by contrast, is the omission of any mention of Article 12 UNDRIP in the introduction, despite its close link with Article 11 UNDRIP seeing as it enshrines the return of ceremonial objects and the repatriation of human remains. The provision first appears in the textual analysis in Chapter 2 (34–35), where the author points out that cultural heritage encompasses forms of heritage that are captured by Articles 11 and 12 UNDRIP and later in the volume as part of the contextual analysis.Footnote ⁵

The textual analysis is complemented by a purposive analysis in Chapter 3. Esterling traces the drafting history of the declaration, and in particular Article 11 UNDRIP, to develop what ultimately becomes one of her core observations, namely that Indigenous peoples are subjected to a core tension in international law and human rights law: “between allowing Indigenous Peoples a space to advance claims and generate gains while simultaneously limiting these gains in the delivery of on-the-ground benefits” (117). This becomes clear when the author contrasts the weakening of Article 11 UNDRIP during the drafting process and the resulting regression in the regime of rights enshrined in the provision with the textual analysis they undertake in Chapter 2.

The book then turns to the adoption of the contextual lens in Chapter 4. This analytical frame explores potential reasons for the regression and considers its consequences for Indigenous peoples (122). Different conceptualizations of property (“Western” vs. “Indigenous”), the nature of collective rights, sovereignty, and cultural heritage law all form part of the context that is explored. The author for example traces how concerns over property rights drove some of the aforementioned regression of Article 11 UNDRIP (123–32). As part of the contextual analysis, Esterling also discusses international cultural heritage law and the role of sovereignty in its implementation, which might be the least convincing section of the work. For example, contrary to what is stated (147), Germany implemented a number of its obligations under international cultural heritage law in 2016 with the entry into force of the Cultural Property Protection Act, through provisions such as section 32. This implies the recognition of another state’s export laws (under certain conditions), contrary to the author’s observations.Footnote ⁶ Regardless, the author’s engagement with the context in which UNDRIP is embedded provides ample food for thought. Her criticism includes the claim that UNDRIP “disempowers cultural rights,” decouples cultural integrity and restitution, “jeopardizes the evolution of restitution as part of the cessation of ongoing wrongful acts,” and more (152–54). While one may disagree with some of these claims and the reasoning adopted to arrive at them, the chapter’s conclusions on the continuous subjugation of Indigenous concepts and values to “Western” values and/or law reflect experiences by Indigenous peoples in different countries and fields of law.Footnote ⁷ They are therefore likely to resonate strongly with anyone working in Indigenous and Aboriginal laws or Indigenous rights.

Chapter 5 presents the last analytical lens adopted by the author. Under the umbrella of discursive analysis, the author centers the concept of essentialism to examine both the regression of Article 11 UNDRIP, the Indigenous rights discourse, and its use by Indigenous peoples in an attempt to secure their claims, both for cultural property and other material gains (180, 190, 209–11). The author attributes this to the essentialist focus or nature of both cultural property and human rights, with the restitution of cultural property sitting at the intersection of both fields (217).Footnote ⁸ An essentialized framing of claims in the language of human rights can have negative consequences, the author warns, taking the “no new rights” narrative as an example. Esterling refers to the statement made by a diverse group of people (practitioners, United Nations experts, and academics) that UNDRIP introduced no new rights but rather enshrined existing rights, describing it as a realist advocacy strategy to secure the adoption of the declaration (192–95). This translation of claims for redress rooted in the colonial period comes at a cost, the author warns: It diminishes colonialism and fails to reflect Indigenous realities in order to secure adoption of the declaration (194–95). Conversely, one may argue that the “no new rights” approach transforms the entire declaration into an interpretation of binding treaty law, applicable in the context of Indigenous peoples, ultimately resulting in many more concrete state obligations than would otherwise be the case. The author, however, conceding potential gains of realist advocacy, focuses more on the loss of potentially new rights that the regression signifies. The analysis culminates in what could be termed a critique of the inefficacy of international human rights law to deliver tangible benefits on the ground. More specifically, the author “demonstrates that there is a tension in international law, and human rights in particular, between allowing Indigenous Peoples a space to advance their claims and generate gains while simultaneously limiting material gains in the delivery of on-the-ground benefits” (180). This does raise the question in how far these deficiencies in international law are merely a reflection of the failure on the national level to reconcile Indigenous sovereignty (both precontact and today) and the lingering effects of colonialism with contemporary state interests and wider societal interests. For this reason, it would be interesting to contrast the examination undertaken by Esterling with a study of the efficacy of various forms of participation and Indigenous advocacy to yield the tangible on-the-ground benefits that the author would like to see.

The author’s critique of the essentialist nature of the human rights and cultural property discourse is picked up again in the concluding chapter. Esterling argues that despite the potential benefits of using human rights to frame claims for the return of cultural objects, it only exacerbates the essentialism inherent in the cultural property debate. Indigeneity, she argues, is transformed “into a resource” with human rights softening the claims of Indigenous peoples from a claim to property to claims of access to it (241). Overall, the emphasis of this volume is on highlighting weaknesses of and limits to using human rights as a tool to advance claims for the restitution of Indigenous cultural property, rather than on proposing solutions or analyzing the effects of participation of Indigenous peoples on the national or local level (245). This does weaken her claim as to the failure of UNDRIP (in particular Article 11) to produce “on the grounds benefits,” although it may be argued that the author’s main criticism of insufficient benefits is focused on the failure to secure a right to the restitution of cultural property (7, 116). This failure of securing such a right underscores the failures of human rights law, which as Esterling convincingly details, is no “external factor able to resolve the indeterminacy in the repatriation debate” (236). With this argument the author neatly positions her work within wider critiques of human rights and international law as advanced by the TWAIL movement. Albeit not explicitly mentioned by the author, her work touches upon themes of the Fourth World approaches to international law (FWAIL) movement in so far as she explores limitations upon Indigenous peoples’ rights that were advanced by states during UNDRIP in order to safeguard their interests. The latter approach is a comparatively recent perspective that extends TWAIL’s critique by focusing on the unique issues faced by stateless nations, Indigenous peoples, and Aboriginal communities.Footnote ⁹

To conclude, Esterling succeeds in their objective of presenting a more nuanced picture of the benefits and drawbacks of Indigenous participation in international lawmaking in general, and the use of human rights to advance claims for the restitution of Indigenous cultural property in particular. Using an inspired approach of four distinct analytical lenses to examine one legal provision and its wider context, their analysis presents insights into the gains and limits the provision provides for Indigenous peoples across the globe. It also contributes to the academic debate through articulating the unintentional limitations Indigenous communities may experience as a side effect or rather consequence of using human rights to advance their claims (228). Moreover, the in-depth discussion of Article 11 UNDRIP and its drafting history will be of interest to actors from different (disciplinary) backgrounds who are engaged in the return of Indigenous cultural property.