International Trade in Indigenous Cultural Heritage
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International Trade in Indigenous Cultural Heritage

Legal and Policy Issues

Edited by Christoph Beat Graber, Karolina Kuprecht and Jessica Christine Lai

The book is unique in taking a multi-faceted approach to cultural heritage, incorporating discussion on tangible and intangible, moveable and immoveable elements of indigenous peoples’ culture. From the perspectives of several international legal fields, including trade law, intellectual property, cultural property, cultural heritage law and human rights, the book explores how indigenous peoples could be empowered to participate more actively in the trade of their cultural heritage without being compelled to renounce important traditional values. The national and local legal realities in four jurisdictions (New Zealand, Australia, United States and Canada) lay the scene for a wide-ranging analysis of various possibilities and proposals on how this might be achieved.
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Chapter 4: Finding space in the margins? Recognising the rights of indigenous peoples in the WTO

Fiona Macmillan


This chapter argues that the international legal regime is systemically divided between public international law and international economic law, with very little in the way of legal mechanisms to bridge the gulf between the two systems. Some interests of indigenous peoples, including those that relate to the protection of traditional knowledge and traditional cultural expressions, are recognised in the public international law system. However, there is considerable difficulty in finding space for the recognition of these interests in the system of international economic law. This conclusion is particularly problematic in light of the systemic pre-eminence of WTO (World Trade Organization) law, largely as a consequence of the power of its dispute resolution system. After considering the relationship between the two systems, and the respective places of indigenous peoples, cultural heritage protection and intellectual property protection within the two systems, the chapter analyses theWTOAppellate Body decision in China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audio-Visual Entertainment Products1 with a view to considering whether or not it is possible to find a space in the WTO system for the recognition of values generated in the public international system with respect to the protection of the cultural heritage of indigenous peoples.

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