U N I T E D N A T I O N S
Economic and Social Council
Distr.GENERAL Original: ENGLISH GE. 95-12808 (E)
E/CN.4/Sub.2/1995/26, annex 1
21 June 1995
COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination and Protection of Minorities
Forty-seventh session
Item 15 of the provisional agenda
DISCRIMINATION AGAINST INDIGENOUS PEOPLES
Protection of the heritage of indigenous people
ANNEX
PRINCIPLES AND GUIDELINES FOR THE PROTECTION OF THE HERITAGE OF INDIGENOUS PEOPLE
Elaborated by the Special Rapporteur of the Subcommission
Mrs. Erica-Irene Daes
PRINCIPLES
1. The effective protection of the heritage of the indigenous
peoples of the world benefits all humanity. Cultural diversity
is essential to the adaptability and creativity of the human
species as a whole.
2. To be effective, the protection of indigenous peoples,
heritage should be based broadly on the principle of self-
determination, which includes the right and the duty of
indigenous peoples to develop their own cultures and knowledge
systems, and forms of social organization.
3. Indigenous peoples should be recognized as the primary
guardians and interpreters of their cultures, arts and
sciences, whether created in the past, or developed by them in
the future.
4. International recognition and respect for indigenous
peoples, own customs, rules and practices for the transmission
of their heritage to future generations is essential to these
peoples, enjoyment of human rights and human dignity.
5. Indigenous peoples, ownership and custody of their heritage
must continue to be collective, permanent and inalienable, as
prescribed by the customs, rules and practices of each people.
6. The discovery, use and teaching of indigenous peoples,
knowledge, arts and cultures is inextricably connected with
the traditional lands and territories of each people. Control
over traditional territories and resources is essential to the
continued transmission of indigenous peoples, heritage to
future generations, and its full protection.
7. To protect their heritage, indigenous peoples must control
their own means of cultural transmission and education. This
includes their right to the continued use and, wherever
necessary, the restoration of their own languages and
orthographies.
8. To protect their heritage, indigenous peoples must also
exercise control over all research conducted within their
territories, or which uses their people as subjects of study.
9. The free and informed consent of the traditional owners
should be an essential precondition of any agreements which
may be made for the recording, study, use or display of
indigenous peoples, heritage.
10. Any agreements which may be made for the recording, study,
use or display of indigenous peoples, heritage must be
revocable, and ensure that the peoples concerned continue to
be the primary beneficiaries of commercial application.
GUIDELINES
DEFINITIONS
11. The heritage of indigenous peoples is comprised of all
objects, sites and knowledge the nature or use of which has
been transmitted from generation to generation, and which is
regarded as pertaining to a particular people or its
territory. The heritage of an indigenous people also includes
objects, knowledge and literary or artistic works which may be
created in the future based upon its heritage.
12. The heritage of indigenous peoples includes all moveable
cultural property as defined by the relevant conventions of
UNESCO; all kinds of literary and artistic works such as
music, dance, song, ceremonies, symbols and designs,
narratives and poetry; all kinds of scientific, agricultural,
technical and ecological knowledge, including cultigens,
medicines and the rational use of flora and fauna; human
remains; immoveable cultural property such as sacred sites,
sites of historical significance, and burials; and
documentation of indigenous peoples, heritage on film,
photographs, videotape, or audiotape.
13. Every element of an indigenous peoples, heritage has
traditional owners, which may be the whole people, a
particular family or clan, an association or society, or
individuals who have been specially taught or initiated to be
its custodians. The traditional owners of heritage must be
determined in accordance with indigenous peoples, own customs,
laws and practices.
TRANSMISSION OF HERITAGE
14. Indigenous peoples' heritage should continue to be learned
by the means customarily employed by its traditional owners
for teaching, and each indigenous peoples' rules and practices
for the transmission of heritage and sharing of its use should
be incorporated in the national legal system.
15. In the event of a dispute over the custody or use of any
element of an indigenous peoples' heritage, judicial and
administrative bodies should be guided by the advice of
indigenous elders who are recognized by the indigenous
communities or peoples concerned as having specific knowledge
of traditional laws.
16. Governments, international organizations and private
institutions should support the development of educational,
research, and training centres which are controlled by
indigenous communities, and strengthen these communities,
capacity to document, protect, teach, and apply all aspects of
their heritage.
17. Governments, international organizations and private
institutions should support the development of regional and
global networks for the exchange of information and experience
among indigenous peoples in the fields of science, culture,
education and the arts, including support for systems of
electronic information and mass communication.
18. Governments, with international cooperation, should
provide the necessary financial resources and institutional
support to ensure that every indigenous child has the
opportunity to achieve full fluency and literacy in his/her
own language, as well as an official language.
RECOVERY AND RESTITUTION OF HERITAGE
19. Governments, with the assistance of competent
international organizations, should assist indigenous peoples
and communities in recovering control and possession of their
moveable cultural property and other heritage.
20. In cooperation with indigenous peoples, UNESCO should
establish a programme to mediate the recovery of moveable
cultural property from across international borders, at the
request of the traditional owners of the property concerned.
21. Human remains and associated funeral objects must be
returned to their descendants and territories in a culturally
appropriate manner, as determined by the indigenous peoples
concerned. Documentation may be retained, displayed or
otherwise used only in such form and manner as may be agreed
upon with the peoples concerned.
22. Moveable cultural property should be returned wherever
possible to its traditional owners, particularly if shown to
be of significant cultural, religious or historical value to
them. Moveable cultural property should only be retained by
universities, museums, private institutions or individuals in
accordance with the terms of a recorded agreement with the
traditional owners for the sharing of the custody and
interpretation of the property.
23. Under no circumstances should objects or any other
elements of an indigenous peoples' heritage be publicly
displayed, except in a manner deemed appropriate by the
peoples concerned.
24. In the case of objects or other elements of heritage which
were removed or recorded in the past, the traditional owners
of which can no longer be identified precisely, the
traditional owners are presumed to be the entire people
associated with the territory from which these objects were
removed or recordings were made.
NATIONAL PROGRAMMES AND LEGISLATION
25. National laws should guarantee that indigenous peoples can
obtain prompt, effective and affordable judicial or
administrative action in their own languages to prevent,
punish and obtain full restitution and just compensation for
the acquisition, documentation or use of their heritage
without proper authorization of the traditional owners.
26. National laws should deny to any person or corporation the
right to obtain patent, copyright or other legal protection
for any element of indigenous peoples, heritage without
adequate documentation of the free and informed consent of the
traditional owners to an arrangement for the sharing of
ownership, control, use and benefits.
27. National laws should ensure the labelling and correct
attribution of indigenous peoples, artistic, literary and
cultural works whenever they are offered for public display or
sale. Attribution should be in the form of a trademark or an
appellation of origin, authorized by the peoples or
communities concerned.
28. National laws for the protection of indigenous peoples,
heritage should be adopted following consultations with the
peoples concerned, in particular the traditional owners and
teachers of religious, sacred and spiritual knowledge, and,
wherever possible, should have the informed consent of the
peoples concerned.
29. National laws should ensure that the use of traditional
languages in education, arts and the mass media is respected
and, to the extent possible, promoted and strengthened.
30. Governments should provide indigenous communities with
financial and institutional support for the control of local
education, through community-managed programmes, and with use
of traditional pedagogy and languages.
31. Governments should take immediate steps, in cooperation
with the indigenous peoples concerned, to identify sacred and
ceremonial sites, including burials, healing places, and
traditional places of teaching, and to protect them from
unauthorized entry or use.
RESEARCHERS AND SCHOLARLY INSTITUTIONS
32. All researchers and scholarly institutions should take
immediate steps to provide indigenous peoples and communities
with comprehensive inventories of the cultural property, and
documentation of indigenous peoples, heritage, which they may
have in their custody.
33. Researchers and scholarly institutions should return all
elements of indigenous peoples, heritage to the traditional
owners upon demand, or obtain formal agreements with the
traditional owners for the shared custody, use and
interpretation of their heritage.
34. Researchers and scholarly institutions should decline any
offers for the donation or sale of elements of indigenous
peoples, heritage, without first contacting the peoples or
communities directly concerned and ascertaining the wishes of
the traditional owners.
35. Researchers and scholarly institutions must refrain from
engaging in any study of previously undescribed species or
cultivated varieties of plants, animals or microbes, or
naturally occurring pharmaceuticals, without first obtaining
satisfactory documentation that the specimens were acquired
with the consent of the traditional owners.
36. Researchers must not publish information obtained from
indigenous peoples or the results of research conducted on
flora, fauna, microbes or materials discovered through the
assistance of indigenous peoples, without identifying the
traditional owners and obtaining their consent to publication.
37. Researchers should agree to an immediate moratorium on the
Human Genome Diversity Project. Further research on the
specific genotypes of indigenous peoples should be suspended
unless and until broadly and publicly supported by indigenous
peoples to the satisfaction of United Nations human rights
bodies.
38. Researchers and scholarly institutions should make every
possible effort to increase indigenous peoples, access to all
forms of medial, scientific and technical education, and
participation in all research activities which may affect them
or be of benefit to them.
39. Professional associations of scientists, engineers and
scholars, in collaboration with indigenous peoples, should
sponsor seminars and disseminate publications to promote
ethical conduct in conformity with these guidelines and
discipline members who act in contravention.
BUSINESS AND INDUSTRY
40. In dealings with indigenous peoples, business and industry
should respect the same guidelines as researchers and
scholarly institutions.
41. Business and industry should agree to an immediate
moratorium on making contracts with indigenous peoples for the
rights to discover, record and use previously undescribed
species or cultivated varieties plants, animals or microbes,
or naturally occurring pharmaceuticals. No further contracts
should be negotiated until indigenous peoples and communities
themselves are capable of supervising and collaborating in the
research process.
42. Business and industry should refrain from offering
incentives to any individuals to claim traditional rights of
ownership or leadership within an indigenous community, in
violation of their trust within the community and the laws of
the indigenous peoples concerned.
43. Business and industry should refrain from employing
scientists or scholars to acquire and record traditional
knowledge or other heritage of indigenous peoples in violation
of these guidelines.
44. Business and industry should contribute financially and
otherwise to the development of educational and research
institutions controlled by indigenous peoples and communities.
45. All forms of tourism based on indigenous peoples, heritage
must be restricted to activities which have the approval of
the peoples and communities concerned, and which are conducted
under their supervision and control.
ARTISTS, WRITERS AND PERFORMERS
46. Artists, writers and performers should refrain from
incorporating elements derived from indigenous heritage into
their works without the informed consent of the traditional
owners.
47. Artists, writers and performers should support the full
artistic and cultural development of indigenous peoples, and
encourage public support for the development and greater
recognition of indigenous artists, writers and performers.
48. Artists, writers and performers should contribute, through
their individual works and professional organizations, to the
greater public understanding and respect for the indigenous
heritage associated with the country in which they live.
PUBLIC INFORMATION AND EDUCATION
49. The mass media in all countries should take effective
measures to promote understanding of and respect for
indigenous peoples' heritage, in particular through special
broadcasts and public-service programmes prepared in
collaboration with indigenous peoples.
50. Journalists should respect the privacy of indigenous
peoples, in particular concerning traditional religious,
cultural and ceremonial activities, and refrain from
exploiting or sensationalizing indigenous peoples' heritage.
51. Journalists should actively assist indigenous peoples in
exposing any activities, public or private, which destroy or
degrade indigenous peoples, heritage.
52. Educators should ensure that school curricula and
textbooks teach understanding and respect for indigenous
peoples, heritage and history and recognize the contribution
of indigenous peoples to creativity and cultural diversity.
INTERNATIONAL ORGANIZATIONS
53. The Secretary-General should ensure that the task of
coordinating international cooperation in this field is
entrusted to appropriate organs and specialized agencies of
the United Nations, with adequate means of implementation.
54. In cooperation with indigenous peoples, the United Nations
should bring these principles and guidelines to the attention
of all Member States through, inter alia, international,
regional and national seminars and publications, with a view
to promoting the strengthening of national legislation and
international conventions in this field.
55. The United Nations should publish a comprehensive annual
report, based upon information from all available sources,
including indigenous peoples themselves, on the problems
experienced and solutions adopted in the protection of
indigenous peoples, heritage in all countries.
56. Indigenous peoples and their representative organizations
should enjoy direct access to all intergovernmental
negotiations in the field of intellectual property rights, to
share their views on the measures needed to protect their
heritage through international law.
57. In collaboration with indigenous peoples and Governments
concerned, the United Nations should develop a confidential
list of sacred and ceremonial sites that require special
measures for their protection and conservation, and provide
financial and technical assistance to indigenous peoples for
these purposes.
58. In collaboration with indigenous peoples and Governments
concerned, the United Nations should establish a trust fund
with a mandate to act as a global agent for the recovery of
compensation for the unconsented or inappropriate use of
indigenous peoples, heritage, and to assist indigenous peoples
in developing the institutional capacity to defend their own
heritage.
59. United Nations operational agencies, as well as the
international financial institutions and regional and
bilateral development assistance programmes, should give
priority to providing financial and technical support to
indigenous communities for capacity-building and exchanges of
experience focused on local control of research and education.
60. The United Nations should consider the possibility of
drafting a convention to establish international jurisdiction
for the recovery of indigenous peoples, heritage across
national frontiers, before the end of the International Decade
of the World's Indigenous People.
Source: THE FOURTH WORLD DOCUMENTATION PROJECT
A service provided by The Center For World Indigenous Studies
Originating at the Center for World Indigenous Studies, Olympia, Washington USA www.cwis.org <http://www.cwis.org>
Questions may be referred to: Director of Research Center for World Indigenous Studies PMB 214 1001 Cooper Point RD SW Suite 140 Olympia, Washington 98502-1107 USA 360-754-1990 www.cwis.org <http://www.cwis.org> usaoffice@cwis.org <mailto:usaoffice@cwis.org>