Indigenous rights and underwater cultural heritage: (de)constructing international conventions

Abstract

People, ideas and products of all civilisations have been moved by ships, making oceans one of the major drivers for the divergence and convergence of human societies. Furthermore, human beings have interacted and lived on and around oceans, so their heritage provides testimony to many periods and aspects of our shared history. The marine policies to protect underwater and coastal heritage are complex, since this heritage has an intricate two-way relationship with anthropology and law. The legal instruments to specifically protect underwater cultural heritage do not include the consideration of Indigenous communities, although there are nearly 2000 coastal Indigenous communities in 87 countries with coastal heritage and maritime-based traditions. Since it is the law of Coastal States (emphasis on States) that directs how submerged lands and waters that belonged to Indigenous communities are used, the international legal instruments offer little actual leverage to these communities over the management of their cultural resources. This article studies Indigenous rights over their underwater cultural heritage, exploring the legal issues, anthropological arguments and ethical dilemmas. It will also show the complexity of the language and the interpretation of international treaties for these communities. Finally, the article encourages inclusion of the Indigenous concept of intangible cultural heritage, arguing that Indigenous peoples have been, and are, innovative users of natural resources, and their traditional activities can benefit not only their own members but also the international community.