While the current world order of independent nation-states may seem like a natural state that has existed for centuries, in reality, it is a relatively new development that was forged after the demise of imperial rule. Yet, the nation-state is the foundational entity of our current international political and legal framework. International treaties and relations are structured around the nation-state, which is recognized as the core entity in which rights are vested and on which obligations are imposed. This prioritization of the nation-state leads to issues when we consider the repatriation of cultural heritage, particularly in light of the history of many of the nation-states in existence today. Many of the nation-states we see on maps today were political creations whose borders were drawn arbitrarily, with complete disregard for the cultural, ethnic, political, religious, and social divides that already existed among indigenous and native peoples. As such, there is a discongruence between the peoples of the world and many of the national borders demarcated by maps today. This article examines this history, highlighting some of the arbitrary and politically-driven ways in which our world of nation-states came about. It also discusses some of the issues that arise when the nation-state is prioritized over peoples with respect to rights to cultural heritage. Finally, this article suggests that the framework for the repatriation of cultural heritage must evolve away from a system in which the default rightholder is the nation-state. Instead, where feasible and just, peoples should be recognized as having superior rights to cultural heritage. Such a model would give indigenous and marginalized peoples greater control over the fate of their cultural heritage and align more with the goals of repatriation.
Lubna S. El-Gendi, Illusory Borders: The Myth of the Modern Nation-State and its Impact on the Repatriation of Cultural Artifacts, 15 J. Marshall Rev. Intell. Prop. L. 486 (2016)