Cultural Rights As Collective Rights : An International Law Perspective [1 ed.] 9789004312029, 9789004312012

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Cultural Rights as Collective Rights

Studies in Intercultural Human Rights Editor-in-Chief Siegfried Wiessner St. Thomas University Board of Editors W. Michael Reisman (Yale University) Mahnoush H. Arsanjani (United Nations) Nora Demleitner (Hofstra University) Christof Heyns (University of Pretoria) Eckart Klein (University of Potsdam) Kalliopi Koufa (University of Thessaloniki) Makau Mutua (State University of New York at Buffalo) Martin Nettesheim (University of Tübingen; University of California at Berkeley) Thomas Oppermann (University 0f Tübingen) Roza Pati (St. Thomas University) Herbert Petzold (Former Registrar, European Court of Human Rights) Martin Scheinin (European University Institute, Florence)

VOLUME 7 This series offers pathbreaking studies in the dynamic field of intercultural ­human rights. Its primary aim is to publish volumes which offer interdisciplin­ ary analysis of global societal problems, review past legal responses, and ­develop solutions which maximize access by all to the realization of universal human aspirations. Other original studies in the field of human rights are also considered for inclusion. The titles published in this series are listed at brill.com/sihr

Cultural Rights as Collective Rights An International Law Perspective Edited by

Andrzej Jakubowski

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Jakubowski, Andrzej, 1980- editor. Title: Cultural rights as collective rights : an international law perspective / Edited by Andrzej Jakubowski. Description: Leiden : Brill, 2016. | Series: Studies in intercultural human rights ; 7 | Includes bibliographical references and index. Identifiers: LCCN 2016018478 (print) | LCCN 2016018540 (ebook) | ISBN 9789004312012 (hardback : alk. paper) | ISBN 9789004312029 (E-book) Subjects: LCSH: Human rights. | Civil rights. | Culture and law. | International law. | Multiculturalism--Law and legislation. | Minorities--Legal status, laws, etc. Classification: LCC K3240 .C855 2016 (print) | LCC K3240 (ebook) | DDC 341.4/85--dc23 LC record available at https://lccn.loc.gov/2016018478

Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brillopen. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1876-9861 isbn 978-90-04-31201-2 (hardback) isbn 978-90-04-31202-9 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Foreword ix Acknowledgments xii List of Select Abbreviations xiii Table of Cases xv Table of Instruments xxv Notes on Contributors xxxi Introduction 1 Andrzej Jakubowski

PART 1 Cultural Rights – Individual or Collective? 1 Cultural Rights as Collective Rights 15 Miodrag Jovanović 2 The Cultural Contingency of the Human Right to Freedom of Religion 36 Lorenzo Zucca 3 Collective Cultural Rights Considered in the Light of Recent Developments in Cultural Heritage Law 60 Janet Blake

PART 2 Collective Cultural Rights and International Human Rights Law 4 Foundations of Collective Cultural Rights in International Human Rights Law 87 Yvonne Donders 5 Protection of Community Culture as Part of Human Rights in International Law 113 Kamrul Hossain

vi 6

Contents

The Safeguarding of Collective Cultural Rights through the Evolutionary Interpretation of Human Rights Treaties and Their Translation into Principles of Customary International Law 133 Federico Lenzerini

PART 3 Collective Cultural Rights – Regional Perspectives 7

Cultural Heritage and the Collective Dimension of Cultural Rights in the Jurisprudence of the European Court of Human Rights 157 Andrzej Jakubowski

8

Collective Cultural Rights in Asia: Recognition and Enforcement 180 William Logan

9

Collective Cultural Rights as Human Rights Simpliciter: The African and African Charter Example 204 Folarin Shyllon

10

Collective Cultural Rights in the Inter-American Human Rights System 222 Kristin Hausler

Part 4 Enforcement of Collective Cultural Rights 11

The International Legal Framework for Enforcement of Cultural Rights 255 Francesco Francioni

12

Standing and Collective Cultural Rights 272 Ana Filipa Vrdoljak

13

Collective Cultural Claims before the International Court of Justice 288 Eleni Polymenopoulou

Contents

14

From ‘Genocide’ to ‘Persecution’: ‘Cultural Genocide’ and Contemporary International Criminal Law 313 Elisa Novic Select Bibliography 337 Index 359

vii

Foreword This collection is a welcome contribution to the literature on cultural rights that squarely takes on the challenge of addressing the crucial issue of col­ lective rights, that some consider to be ‘one of the most contested issues of ­international law and politics’, as pointed out in the introduction by the editor, Andrzej Jakubowski. Differing perspectives notwithstanding, as the first independent expert ap­ pointed by the United Nations Human Rights Council in the Field of Cultural Rights, I have stressed from the outset that cultural rights protect the rights for each person, individually and in community with others, as well as groups of people to develop and express their humanity, world visions, meanings as­ signed to life and understanding of development.1 Furthermore, as elaborated in my reports to the United Nations, the collective aspects of cultural rights are not particular to only some specified groups, such as minorities and indig­ enous peoples; they apply universally to all communities of shared cultural values. From the perspective of collective rights, it is essential to underscore that cultural rights are not about preserving cultural heritage, be it tangible or ­intangible. Cultural rights entail ensuring the conditions necessary to enable everyone, without discrimination and on a basis of equality, to contribute to the constantly evolving cultural life of as many – or as few – communities as they select to be part of. Pivotal to the recognition and respect of human dignity, that lies at the centre of notions of human rights, cultural rights en­ compass important freedoms connected to collective identity and the pursuit of specific ways of life, but equally to individual identity and self-expression. Cultural rights are inextricably linked to a host of other rights such as: free­ dom of expression and belief, information and communication, language, and education. The core features of cultural rights relate to the right of everyone to access, participate in and contribute to cultural life in all its diversity. In promoting the cultural rights of all without discrimination and on a basis of equality – whether individual or collective – it is of paramount importance to remember that culture itself is ever-evolving and that all collective identities entail con­ testations over meanings and definitions; processes that are inevitably linked 1 hrc, Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, un Doc. A/HRC/14/36, para 9.

x

Foreword

to the underlying structures and dynamics of power related to accessing and exercising control over economic, political and cultural resources. Hence, the right to access and contribute to cultural life necessitates access to both inher­ ited and contemporary cultural expressions of one’s own community and that of others. Cultural diversity must never be equated with cultural relativism: no one may invoke cultural diversity to infringe upon human rights guaranteed by in­ ternational law, nor to limit their scope. Nor can collective rights related to cultural identity be preserved at the cost of sacrificing the rights of particular individuals. Not all cultural practices accord with international human rights law; some practices may be particularly detrimental to, for example, the rights of women and girls or persons with disabilities. Identifying exactly which cul­ tural practices may be contrary to human rights presents a challenge. Never­ theless, the endeavour must always be to modify and/or discard all practices – new or old and regardless of provenance and justification – pursued in the name of culture that impede the enjoyment of human rights by any individual. Irrespective of political, economic and cultural systems, all States have an ob­ ligation to uphold the principle of non-discrimination and to respect, protect and fulfil the cultural rights of all persons. Upholding the cultural rights of all without discrimination will encourage the promotion of universal human rights in all communities, encouraging new thinking, cultural practices and context-specific vocabulary that espouse the universality, indivisibility, inter­ dependence and inter-relatedness of human rights. In this regard States have an obligation to exercise due diligence to address rights violations by non-state actors, including those undertaken in the name of culture and religion. Crucially, therefore, cultural rights are to be understood as including the right, without fear of punitive actions: not to participate in particular cultural activities; to challenge existing precepts and norms; to leave and re-join com­ munities; to critique, reject and innovate within such communities and to create new communities of shared cultural values; to hold multiple identities simultaneously. All individuals must be recognized as active and legitimate producers of culture(s). The diversity of opinion within communities is as im­ portant as the diversity across communities and relates to issues of power and authority, in terms of who ‘the community’ authorizes to speak on its behalf as well as who the state authorities recognize and give space to speak on behalf of that community. It is incumbent that States ensure equal opportunity for all voices within a community to be heard, in particular the marginalised. The collective rights aspects of cultural rights, especially in the context of international law, have remained a neglected area of human rights. This volume makes an important contribution on this complex and complicated

Foreword

xi

subject. Approaching the issue from the perspective of how collective rights are considered in international law, the volume brings new insights, critically interrogates existing concepts and raises important questions for further con­ sideration. It will undoubtedly make an important contribution towards the promotion of a better understanding and recognition of cultural rights as col­ lective rights in all their facets. Farida Shaheed

United Nations Special Rapporteur in the field of cultural rights October 2015

Acknowledgments This book is the fruit of a joint collective venture of many people and insti­ tutions. I would like to acknowledge the financial support offered by the Foundation for Polish Science, within the framework of its Homing Plus pro­ gramme (2012–2014), and institutional assistance provided by the Institute of Law Studies of the Polish Academy of Sciences in Warsaw. I am very grateful to Władysław Czapliński, Director of the Institute, for his enthusiasm and his support in organizing a research symposium in June 2013, during which the major outcomes of this project were debated and refined. I owe special thanks to Ana Filipa Vrdoljak. Her research guidelines as well as her unfailing encour­ agement, support and invaluable advice throughout the entire period of the project made this book come true. I am very thankful to Farida Shaheed for her most appreciated foreword to this book. I would like also to thank Christophe Germann and Janusz Symonides for their suggestions and assistance rendered in the initial stages of the project. I am immensely grateful to all the authors of this book, who generously accepted my invitation to present their research in Warsaw and to prepare contributions. Each has committed to the richness and diversity of this collection. We are all indebted to the careful language edit of this volume provided by James Hartzell. I would also like to acknowledge the assistance rendered by the administrative unit of the Institute of Law Studies in Warsaw. I am p ­ articularly grateful to Wioletta Magiera, Bożena Pałka, Marzena Krzyczkowska for their patience and understanding. My sincere thanks are also due to Siegfried Weiss­ ner, the Editor-in-Chief of the Studies in Intercultural Human Rights, and Bea Timmer, Lindy Melman, Judy Pereira and the staff at Brill-Nijhoff for their great assistance in the entire publication process. This book is dedicated to cultural diversity in the world and to all those individuals and communities who have contributed to its development and protection. Andrzej Jakubowski

Warsaw, Poland April 2016

List of Select Abbreviations ACtHPR African Court of Human and Peoples Rights AfCHPR African Commission on Human and Peoples’ Rights aichr asean Intergovernmental Commission on Human Rights asean Association of Southeast Asian Nations byil British Yearbook of International Law cerd Committee on the Elimination of Racial Discrimination cescr Committee on Economic, Social and Cultural Rights cets Council of Europe Treaty Series CoE Council of Europe crc Committee on the Rights of the Child cup Cambridge University Press ecosoc Economic and Social Council ECtHR European Court of Human Rights ejil European Journal of International Law esc Economic, Social and Cultural Rights ets European Treaty Series eu European Union fyrom Former Yugoslav Republic of Macedonia gyil German Yearbook of International Law Hart Hart Publishing hilj Harvard International Law Journal hr Comm Human Rights Committee hrc Human Rights Council hrq Human Rights Quarterly hup Harvard University Press IACmHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights icj International Court of Justice icj Reports International Court of Justice Reports of Judgments, Advisory Opinions and Orders iclq International and Comparative Law Quarterly icomos International Council on Monuments and Sites icsid International Centre for Settlement of Investment Disputes ictr International Criminal Tribunal for Rwanda icty International Criminal Tribunal for the former Yugoslavia

xiv

List of Select Abbreviations

ijcp International Journal of Cultural Property ijhr International Journal of Human Rights ila International Law Association ilc International Law Commission ilm International Legal Materials ilo International Labour Organization ilr International Law Reports iyil Italian Yearbook of International Law ln League of Nations lnts League of Nations Treaty Series nhri National Human Rights Institution Nijhoff Martinus Nijhoff Publishers oas Organization of American States oasts Organization of American States Treaty Series oau Organization of African Unity ohchr Office of the United Nations High Commissioner for Human Rights (ohchr) ojls Oxford Journal of Legal Studies Organization for Security and Co-operation in Europe osce oup Oxford University Press Parry’s cts Parry’s Consolidated Treaty Series pcij Permanent Court of International Justice pcij ser.A/B Permanent Court of International Justice, Collection of Judgments, ­Orders and Advisory Opinions (1931–40) pup Princeton University Press rcadi  Recueil des Cours de l’Académie de la Haye (Collected Courses of the Hague Academy of International Law) unchr United Nations Commission on Human Rights unesco The United Nations Educational, Scientific and Cultural Organization unga United Nations General Assembly unga Res. United Nations General Assembly Resolution unhrc United Nations Human Rights Council unpfii United Nations Permanent Forum on Indigenous Issues unsc United Nations Security Council unts United Nations Treaty Series un United Nations wh World Heritage whc World Heritage Committee whl World Heritage List

Table of Cases

African Commission on Human and Peoples’ Rights

Amnesty International and Others v Sudan, AfCHPR, Comm. Nos. 48/90,50/91, 52/91, 89/93, 8 November 1999. Centre for Minority Rights Development and Minority Rights Group (on behalf of ­Endorois Welfare Council) v Kenya, AfCHPR, Comm. No. 276/03, 4 February 2010. International Pen and Others v Nigeria, AfCHPR, Comm. Nos. 137/94, 139/94, 154/96 and 161/97 (1998), 31 October 1998. Malawi African Association and Others v Mauritania, AfCHPR, Comm. Nos. 54/91, 61/91, 98/93, 164/97 à 196/97 and 210/98, 11 May 2000. Organisation Mondiale Contre La Torture and Others v Rwanda, AfCHPR, Comm. Nos. 27/89, 46/91, 49/91 and 99/93, 31 October 1996. Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria, AfCHPR, Comm. No. 155/96, 27 May 2002, No. ACHPR/COMM/A044/1.



African Court of Human and Peoples’ Rights

African Commission on Human and Peoples’ Rights v the Republic of Kenya, ACtHPR, Application 006/2012 (received on 12 July 2012). African Commission on Human and Peoples’ Rights v the Republic of Kenya, ACtHPR, Application 006/2012, Order of Provisional Measures, 15 March 2013.

Australia Kruger v Commonwealth (1997) 190 clr 1, 38 (Dawson). Mabo & Ors v Queensland (No. 2) (1992) 175 clr 1, 107 alr 1. Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors (2001) 110 fcr 244, fca 45 (8 February 2001); affd (2002) 77 aljr 356, 194 alr 538, hca 58 (12 December 2002). Milirrpum v Nabalco Pty Limited and Anor (1971) 17 flr 141. Wik peoples v Queensland (1996) 187 clr 1. Yumbulul v Reserve Bank of Australia (1991) 21 Intellectual Property Reports 481

xvi

Table of Cases

European Court of Human Rights

Ahmet Arslan and Others v Turkey, Application No. 41135/98, Judgment of 23 February 2010, echr (2010). Albert Fürst von Thurn und Taxis v Germany, Application No. 26367/10, Decision of 14 May 2013, echr (2013). Beyeler v Italy, Application No. 33202/96, Judgment of the Grand Chamber of 5 January 2000, echr 2000-I. Buckley v the United Kingdom, Application No. 20348/92, Judgment of 25 September 1996, echr 1996-IV. Buonomo Gärber and others v Italy, Application No. 63783/00, Decision of 20 May 2003, echr (2003). Cha’are Shalom Ve Tsedek v France, Application No. 27417/95, Judgment of 27 June 2000, echr 2000-VII. Chapman v the United Kingdom, Application No. 27238/95, Judgment of 18 January 2001, echr 2000-I. Cyprus v Turkey, Application No. 25781/94, Judgment of the Grand Chamber of 10 May 2001, echr 2001-IV. D.H. and Others v the Czech Republic, Application No. 57325/00, Judgment of 7 February 2006, echr (2006). D.H. and Others v the Czech Republic, Application No. 57325/00, Judgment of the Grand Chamber of 13 November 2007, echr 2007-IV. Debelianovi v Bulgaria, Application No. 61951/00, Judgment of 27 November 2008, echr (2008). Debelianovi v Bulgaria, Application No. 61951/00, Judgment of 29 March 2007, echr (2007). Depalle v France, Application No. 34044/02, Judgment of the Grand Chamber of 29 March 2010, echr (2010). Dink v Turkey, Application Nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, Judg­ ment of 14 September 2010, echr (2010). Eweida and Others v the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10, 36516/10, Judgement of 15 January 2013, echr (2013) Former King of Greece and Others v. Greece, Application No. 25701/94, Judgment of 23 November 2000, echr 2000-XII. Garaudy v France, Application No. 65831/01, Decision of 24 June 2003, echr 2003-IX. Gorzelik and Others v Poland, Application No. 44158/98, Judgment of the Grand Cham­ ber of 17 February 2004, echr 2004-I. Hamer v Belgium, Application No. 21861/03, 27 November 2007, echr 2007-V. James and Others v the United Kingdom, Application No. 8793/79, Judgment of 21 Febru­ ary 1986, echr, Series A/98 (1986).

Table Of Cases

xvii

Kamasinski v Austria, Application No. 9783/82, Judgment of 19 December 1989, echr, Series A/168 (1989). Kamasinski v Austria, Application No. 9783/82, Judgment of 19 December 1989, echr, Series A/168 (1989). Kenedi v Hungary, Application No. 31475/05, Judgment of 26 May 2009, echr (2009). Kokkinakis v Greece, Application No. 14307/88, Judgement of 25 May 1993, echr, Series A/260-A (1993) Kozacıoğlu v Turkey, Application No. 2334/03, Judgment of the Grand Chamber of 19 February 2009, echr (2009). Lautsi v Italy, Application No. 30814/06, Judgment of the Grand Chamber of 18 March 2011, echr (2011) Lighgow and Others v the United Kingdom, Application Nos. 9006/80, 9262/81, 9263/81, 9265/81, 9266/81, 9313/81, 9405/81, Judgment of 8 July 1986, echr, Series A/102 (1986). Lingens v Austria, Application No, 9815/82, Judgment of 8 July 1986, echr, Series A/103 (1986). Lombardi Vallauri v Italy, Application No. 39128/05, Judgment of 20 October 2009, echr (2009). Muñoz Díaz v Spain, Application No. 49151/07, Judgment of 8 December 2009, echr (2009). Nikola Jorgić v Germany, Application No. 74613/01, Judgment of 12 July 2007, echr 2007-III. Nowakowski v Poland, Application No. 55167/11, Judgment of 22 July 2014, echr (2014). Nowakowski v Poland, Application No. 55167/11, Judgment of 24 July 2012, echr (2009). Oršuš and Others v Croatia, Application No. 15766/03, Judgment of the Grand Chamber of 16 March 2010, echr (2010). Otto-Preminger-Institut v Austria, Application No. 13470/87, Judgment of 20 September, echr, Series A/295-A (1994) Potomska and Potomski v Poland, Application No. 33949/05, Judgment of 29 March 2011, echr (2011). Potomska and Potomski v Poland, Application No. 33949/05, Judgment of 4 November 2014, echr (2014). Ruspoli Morenes v Spain, Application No. 28979/07, Judgment of 28 June 2011, echr (2011). scea Ferme de Fresnoy v France, Application No. 61093/00, Decision of 1 December 2005, echr (2005). Sidiropoulos & Others v Greece, Application No. 26695/95, Decision of 10 July 1998, echr (1998).

xviii

Table of Cases

Sporrong and Lönnroth v Sweden, Application No. 7752/72, Judgment of 23 September 1982, echr, Series A/52 (1983). Sud Fondi srl and Others v Italy, Application No. 75909/01, Judgment of 20 January 2009, echr (2009). Tănase v Moldova, Application No. 7/08, Judgment of the Grand Chamber of 27 April 2010, echr (2010). Thlimmenos v Greece, Application No. 34369/97, Judgment of the Grand Chamber of 6 April 2000, echr 2000-IV. Tunceli Kültür ve Dayanışma Derneği v Turkey, Application No. 61353/00, Judgment of 10 October 2006, echr (2010). Turgut and Others v Turkey, Application No. 1411/03, Judgment of 8 July 2008, echr (2008). Winterstein and Others v France, Application No. 27013/07, Judgment of 17 October 2013, echr (2013).



European Court of Justice

Inuit Tapiriit Kanatami and Others v European Parliament and Council, Case No. T-18/10, Order of 6 September 2011, [2011] ecr II-5599.



Extraordinary Chambers in the Courts of Cambodia (eccc)

Case No. 002/19-09-2007, Extraordinary Chambers in the Courts of Cambodia (eccc), Closing Order against Ieng Sary, Khieu Samphan, Nuon Chea and Ieng Thirith, 15 September 2010.

France Agent Judiciaire du Trésor v. Walter, Cour de Cassation, 29 February 1996, jcp 1996, ii, 22672. Klaus Barbie Case, No. 87–84240, Judgment of 3 June 1988, Cass. Crim., 1988, J.C.P. ii G, No. 21, 149 (Report of Counselor Angevin)



Human Rights Committee

Ángela Poma Poma v Peru, hr Comm. No. 1457/2006, 27 March 2009, un Doc. CCPR/C/95/D1457/2006 (2009).

Table Of Cases

xix

Apirana Mahuika et al. v New Zealand, hr Comm. No. 547/1993, 27 October 2000, un Doc. CCPR/C/70/D/547/1993 (2000). Howard v Canada, hr Comm. No. 879/1999, 26 July 2005, un Doc. CCPR/C/84/D/879/ 1999. I. Länsman et al. v Finland, hr Comm. No. 511/1992, 8 November 1994, un Doc. CCPR/C/52/D/511/1992. I. Länsman et al. v Finland, hr Comm. No.671/1995, 30 October 1996, un Doc. CCPR/C/58/D/671/1995. Kitok v Sweden, hr Comm. No. 197/1985, 27 July 1988, un Doc. CCPR/C/33/D/197/1985. Lovelace v Canada, hr Comm. No. 24/1977, 30 July 1981, un Doc. CCPR/C/13/D/24/1977. Lubicon Lake Band (Bernard Ominayak) v Canada, hr Comm. No. 167/1984, 26 March 1990, un Doc. CCPR/C/38/D/167/1984.

India Pramatha Nath Mullick v Pradyumma Kumar Mullick (1925) lr 52 Ind. App. 245.



Inter-American Commission on Human Rights

Grand Chief Michael Mitchell v Canada, IACmHR Report No. 61/08, Case 12.435, 25 July 2008, OEA/Ser.L/V/II.134 doc. 5 rev. 1, 160 (2008). Jehovah’s Witnesses v Argentina, IACmHR Report No. 45–78, Case 2137, 29 June 1979, OEA/Ser.L/V/II.47, doc. 13 rev.1 (1979). Jorge Odir Miranda Cortez v El Salvador, IACmHR Report No. 29/01, Case 12.249, 7 March 2001, OEA/Ser.L/V/II.111 doc. 20 rev., 284 (2000). Mary and Carrie Dann v United States, IACmHR Report No. 75/02, Case 11.140, 27 De­ cember 2002, OEA/Ser.L/V/11.117 doc.5 rev., 960 (2003).



Inter-American Court of Human Rights

Acevedo Buendía et al. v Peru, Judgment of 1 July 2009, IACtHR (Ser. C), No. 198 (2009). Afro-descendant communities displaced from the Cacarica River Basin (Operation Genesis) v Colombia, Judgment of 20 November 2013, IACtHR (Ser. C), No. 270 (2013). Aloeboetoe et al. v Suriname, Judgment of 10 September 1993, IACtHR (Ser. C), No. 15 (1993). Castillo Páez Case, Judgment of 3 November 1997, IACtHR (Ser. C), No. 34 (1997), Sepa­ rate Opinion of Judge Antônio A. Cançado Trindade.

xx

Table of Cases

Children’s Rehabilitation v Paraguay, Judgment of 2 September 2004, IACtHR (Ser. C), No. 112 (2004). Contreras et al. v El Salvador, Judgment of 31 Aug 2011, IACtHR (Ser. C), No. 232 (2011). Five Pensioners v Peru, Judgment of 28 February 2003, IACtHR (Ser. C) No. 98 (2003). Kichwa Indigenous People of Sarayaku v Ecuador, Judgment of 27 June 2012, IACtHR (Ser. C), No. 245 (2012). Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their Members v Panama, Judgment of 14 October 2014, IACtHR (Ser. C), No. 284 (2014). ‘The Last Temptation of Christ’ (Olmedo-Bustos et al.) v Chile, Judgment of 5 February 2001, IACtHR (Ser. C), No. 73 (2001). Mayagna (Sumo) Awas Tigni Community v Nicaragua, Judgment of 31 August 2001, 79 IACtHR (Ser. C), No. 79 (2001). Moiwana Community v Suriname, Judgment of 15 June 2005, IACtHR (Ser. C), No. 124 (2005). Myrna Mack-Chang v Guatemala, Judgment of 25 November 2003, IACtHR (Ser. C), No. 101 (2003). Norín Catrimán et al. (Leaders, members and activist of the Mapuche Indigenous People) v Chile, Judgment of 29 May 2014, IACtHR (Ser. C), No. 279 (2014). Pueblo Indigena Kichwa de Sarayaku v Ecuador, Judgment of 12 June 2012, IACtHR (Ser. C), No. 245 (2012). Saramaka People v Suriname, Judgment of 28 November 2007, IACtHR (Ser. C), No. 172 (2007). Sawhoyamaxa Indigenous Community v Paraguay, Judgment of 29 March 2006, ­IACtHR (Ser. C) No. 146 (2006). Street Children (Villagrán-Morales et al.) v Guatemala, Judgment of 19 November 1999, IACtHR (Ser. C), No. 63 (1999). Tiu-Tojín v Guatemala, Judgment of 26 November 2008, IACtHR (Ser. C), No. 190 (2008). Xákmok Kásek Indigenous Community v Paraguay, Judgment of 24 August 2010, IACtHR (Ser. C), No. 214 (2010). Yakye Axa Indigenous Community v Paraguay, Judgment of 17 June 2005, IACtHR (Ser. C), No. 125 (2005). Yatama v Nicaragua, Judgment of 23 June 2005, IACtHR (Ser. C), No. 127 (2001). Yean and Bosico Children v the Dominican Republic, Judgment of 8 September 2005, IACtHR (Ser. C), No. 130 (2005).



International Centre for Settlement of Investment Disputes

Compañía de Desarrollo de Santa Elena SA v Costa Rica, icsid Case No. ARB/96/1, Final Award of 17 February 2000, 5 icsid Reports 153.

Table Of Cases

xxi

Glamis Gold, Ltd. v The United States of America, icsid Award under uncitral Rules, 8 June 2009. Parkerings-Compagniet AS v Republic of Lithuania, icsid Case No. ARB/05/8, Award of 11 September 2007. Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, icsid Case No. ARB/84/3, Award of 20 May 1992, 3 icsid Reports 189.



International Criminal Tribunal for Rwanda

Prosecutor v Akayesu, Case No. ICTR-96-4, Judgment of 2 September 1998.



International Criminal Tribunal for the Former Yugoslavia

Prosecutor v Blagojević & Jokić, Case No. IT-02-60-A, Judgment of 9 May 2007. Prosecutor v Blagojević & Jokić, Case No. IT-02-60-T, Judgment of 17 January 2005. Prosecutor v Blaškić, Case No. IT-95-14, Second Amended Indictment of 25 April 1997. Prosecutor v Blaškić, Case No. IT-95-14-T, Judgment of 3 March 2000. Prosecutor v Bralo, Case No. IT-95-17, Amended Indictment of 18 July 2005. Prosecutor v Brđanin, Case No. IT-99-36, Sixth Amended Indictment of 9 December 2003. Prosecutor v Brđanin, Case No. IT-99-36-T, Judgment of 1 September 2004. Prosecutor v Deronjić, Case No. IT-02-61, Second Amended Indictment of 29 September 2003. Prosecutor v Đorđević, Case No. IT-05-87/1, Fourth Amended Indictment of 2 June 2008. Prosecutor v Gotovina et al. Case No. IT-06-90-T, Judgment of 15 April 2011. Prosecutor v Hadžić, Case No. IT-04-75, Notice of Filling of Second Amended Indict­ ment of 22 March 2012. Prosecutor v Karadžić & Mladić, Case No. IT-95-5-R61, Review of the Indictments ­Pursuant to Rule 61 of the Rules of Procedure and Evidence of 11 July 1996. Prosecutor v Karadžić, Case No. IT-95-5/18-I, Prosecution’s Marked-up Indictment of 12 October 2009. Prosecutor v Kordić & Čerkez, Case No. IT-95-14/2, Amended Indictment of 30 Septem­ ber 1998. Prosecutor v Kordić & Čerkez, Case No. IT-95-14/2-T, Judgment of 26 February 2001. Prosecutor v Krajišnik, Case No. IT-00-39, Consolidated Amended Indictment of 7 March 2002. Prosecutor v Krajišnik, Case No. IT-00-39-T, Judgment of 27 September 2006. Prosecutor v Krstić, Case No. IT-98-33-A, Judgment of 19 April 2004. Prosecutor v Krstić, Case No. IT-98-33-T, Judgment of 2 August 2001.

xxii

Table of Cases

Prosecutor v Kupreškić et al., Case No. IT-95-16-T, Judgment of 14 January 2000. Prosecutor v Milošević, Case No. IT-02-54, Amended Indictment ‘Bosnia and Herzegov­ ina’ of 22 November 2002. Prosecutor v Mladić, Case No. IT-09-92, Fourth Amended Indictment of 16 December 2011. Prosecutor v Naletilić & Martinović, Case No. IT-98-34, Second Amended Indictment of 28 September 2001 Prosecutor v Popović et al., Case No. IT-05-88-T, Judgment of 10 June 2010. Prosecutor v Prlić et al., Case No. IT-04-74, Second Amended Indictment of 11 June 2008. Prosecutor v Šainović et al., Case No. IT-05-87, Third Amended Joined Indictment of 21 June 2006. Prosecutor v Šešelj, Case No. IT-03-67, Third Amended Indictment of 7 December 2007. Prosecutor v Stakić, Case No IT-97-24, Fourth Amended Indictment of 10 April 2002. Prosecutor v Stakić, Case No IT-97-24-T, Judgment of 31 July 2003. Prosecutor v Stanišić & Župljanin, Case No. IT-08-91, Second Amended Consolidated Indictment of 10 September 2009. Prosecutor v Tadić, Case No. IT-94-1-T, Judgment of 7 May 1997. Prosecutor v Talić, Case No. IT-99-36/1, Fourth Amended Indictment – Corrected ­Version of 10 December 2001. Prosecutor v Vasiljević, Case No. IT-98-32, Amended Indictment of 12 July 2001. Prosecutor v Vasiljević, Case No. IT-98-32-T, Judgment of 29 November 2002.



International Court of Justice

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, icj Reports 2010, 403. Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Judg­ ment of 24 May 2007, icj Reports 2007, 582. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 18 November 2008 (preliminary objections), icj Reports 2008, 412. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015; . Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v Greece), Judgment of 5 December 2011, icj Reports 2011, 644. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, icj Reports 2005, 168. Asylum case (Colombia v Peru), Judgment of 20 November 1950, icj Reports 1950, 266.

Table Of Cases

xxiii

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, icj Reports 2007, 43. Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Judgment of 1 April 2011 (preliminary objections), icj Reports 2011, 70. Case Concerning East Timor (Portugal v Australia), Judgment of 30 June 1995, icj Re­ ports 1995, 90. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment of 27 June 1986, icj Reports 1986, 14. Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Judgment of 11 June 1998 (preliminary objections), icj Re­ ports 1998, 275. Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras: Nicaragua Intervening), Judgment of 11 September 1992, icj Reports 1992, 351. Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, icj Reports 2009, 213. Frontier Dispute (Burkina Faso v Niger), Judgment of 16 April 2013, icj Reports 2013, 44. Frontier Dispute (Burkina Faso v Republic of Mali), Judgment of 22 December 1986, icj Reports 1986, 554. Kasikili/Sedudu Island (Botswana v Namibia), Judgement of 13 December 1999, icj Re­ ports 1999, 1045. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, icj Reports 2002, 303. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, icj Reports 1971, 16. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, icj Reports 2004, 136. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, icj Reports 1996, 226. The Minquiers and Ecrehos Case (France v United Kingdom), Judgment of 17 November 1953, icj Reports 1953, 47. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgement of 11 November 2013, icj Reports 2013, 281. Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Order of 18 July 2011 (request for the indication of provisional measures), icj Reports 2011, 537.

xxiv

Table of Cases

Right of Passage over Indian Territory (Portugal v India), Judgment of 12 April 1960, icj Reports 1960, 6. South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Second Phase, Judgment of 18 July 1966, icj Reports 1966, 6. Temple of Preah Vihear (Cambodia v Thailand), Judgment of 15 June 1962, icj Reports 1962, 6. Territorial Dispute (Libyan Arab Jamahiriya v Chad), Judgement of 3 February 1994, icj Reports 1994, 6. Western Sahara, Advisory Opinion of 16 October 1975, icj Reports 1975, 12.



International Military Tribunal at Nuremberg

Hermann Goering et al., Indictment (6 October 1945), Count 4 (B) imt, Judgment of 1 October 1946



Permanent Court of International Justice

German Minority Schools in Upper Silesia, Advisory Opinion of 15 May 1931, pcij Ser. A/B, No. 40. German Settlers in Poland, Advisory Opinion of 10 September 1923, pcij Ser. B, No. 6. Greco-Bulgarian communities, Advisory Opinion of 31 July 1930, pcij Ser. B, No. 17. Minority Schools in Albania, Advisory Opinion of 6 April 1935, pcij Ser. A/B, No. 64. Rights of Minorities in Upper Silesia (Minority Schools), Judgment of 26 April 1928, pcij Ser. A, No. 15.



United Kingdom

Bumper Development Corporation v Commissioner of Police of the Metropolis and Others (C.A.) [1991] wlr 1362. R (on the application of E) v The Governing Body of jfs and the Admissions Appeal Panel of jfs Others [2009] uksc 15, [2010] 2AC 728.



United States

Brown v Board of Education of Topeka, Shawnee County et al. 347 us 483 (1954), 74S. Ct. 686.

Table of Instruments International Additional Protocol to the American Convention on Human Rights in the Area of ­Economic, Social and Cultural Rights, 17 November 1988. Additional Protocol to the European Social Charter Providing for System of Collective Complaints, 5 May 1988. African Charter on Human and Peoples Rights, 27 June 1981. American Convention on Human Rights, 21 November 1969. asean Human Rights Declaration, 18 November 2012. Central American Convention for the Restitution and Return of Archaeological, ­Historical and Art Objects, 29 August 1995. Charter of Fundamental Rights of the European Union, 7 December 2000. Charter of the Association of Southeast Nations, 20 November 2007. Charter of the International Military Tribunal, 8 August 1945. Charter of the Organization of American States, 30 April 1948. Charter of the United Nations and Statute of the International Court of Justice, 26 June 1945. Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent ­Countries, 27 June 1989. Convention (No. 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957. Convention between Germany and Poland Relating to Upper Silesia, 15 May 1922. Convention Concerning the Protection of World Natural and Cultural Heritage, 16 ­November 1972. Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954. Convention for the Protection of the Architectural Heritage of Europe, 3 October 1985. Convention for the Safeguarding of the Intangible Cultural Heritage, 7 October 2003. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 28 June 1998. Convention on Biological Diversity, 5 June 1992. Convention on the Elimination of All Forms of Discrimination against Women, 18 ­December 1979. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948.

xxvi

Table of Instruments

Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005. Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations, 16 June 1976 (Convention of San Salvador). Convention on the Rights of the Child, 20 November 1989. Convention Relating to the Status of Refugees, 28 July 1951. Council Directive 93/7/EEC on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State, 15 March 1993. Council Regulation (eec) No 3911/92 on the Export of Cultural Goods, 9 December 1992 Covenant of the League of the Nations, 28 June 1919. Declaration Concerning the Protection of Minorities in Albania, 2 October 1921. Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State and Amending Regulation (eu) No 1024/2012 (Recast). European Convention for the Protection of Human Rights and Fundamental ­Freedoms, on 4 November 1950. European Cultural Convention, 19 December 1954. European Landscape Convention, 20 October 2000. European Parliament Resolution on Community Policy in the Field of Culture, 20 ­January 1994. European Parliament Resolution on Preserving the Architectural Heritage and Protect­ ing Cultural Assets, 12 February 1993. Framework Convention for the Protection of National Minorities, 1 February 1995. Framework Convention on the Value of Cultural Heritage for Society, 27 October 2005 (Faro Convention). International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Family, 19 December 1990. International Covenant on Civil and Political Rights, 16 December 1966. International Covenant on Economic, Social and Cultural Rights, 16 December 1966. International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilisation to the Convention on Biological Diversity, 29 October 2010. North American Free Trade Agreement, 8, 11, 14 and 17 December 1992. oas Declaration on the Rights and Duties of Man, 2 May 1948.

Table Of Instruments

xxvii

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 10 December 2008. Peace Treaty between the Holy Roman Emperor and the King of France and Their Re­ spective Allies, 24 October 1648 (Treaty of Westphalia). Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established thereby, 11 May 1994. Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, 16 September 1963. Protocol of Amendment to the Charter of the Organization of American States, 27 ­February 1967 (Protocol of Buenos Aires). Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 9 June 1998. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Prop­ erty in the Event of Armed Conflict, 26 March 1999. Statute of the Council of Europe, 5 May 1949. Statute of the Inter-American Court of Human Rights, 1 October 1979. Statute of the International Criminal Court, 17 July 1998 (Rome Statute). Statute of the International Criminal Tribunal for Rwanda, 8 November 1994. Statute of the International Tribunal for the Former Yugoslavia, 25 May 1993. Statute of the Permanent Court of International Justice, 16 December 1920. Treaty Establishing the European Community (Nice Consolidated Version 2002), 24 December 2002. Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 26 February 2001. Treaty of Peace between the Allied and Associated Powers and Austria together with Protocol and Declarations, 10 September 1919 (Treaty of Saint Germain). Treaty on the Functioning of the European Union (Consolidated Version 2012), 26 ­October 2012. unesco Declaration Concerning the Intentional Destruction of Cultural Heritage, 17 October 2003. United Nations Declaration on the Elimination of All Forms of Intolerance and of ­Discrimination Based on Religion or Belief, 25 November 1981. United Nations Declaration on the Right to Development, 4 December 1986. United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007. United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 18 December 1992.

xxviii

Table of Instruments

Universal Declaration of Human Rights, 10 December 1948. Universal Declaration of the Rights of Peoples, 4 July 1976 (Algiers Declaration). Universal Declaration on Cultural Diversity, 2 November 2001. United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960. Vienna Convention on the Law of Treaties, 23 May 1969.

National Bangladesh

International Crimes (Tribunals) Act, Act No. XIX of 1973, 20 July 1973.

Benin

Constitution of the People’s Republic of Benin, 11 December 1990.

China

Constitution of the People’s Republic of China, 4 December 1982. Law of the People’s Republic of China on the Protection of Cultural Relics, 19 Novem­ ber 19 1982. People’s Republic of China Intangible Cultural Heritage Act, 25 February 2011.

Congo

Constitution of Congo (Brazzaville), 15 March 1992.

Guatemala

Constitution of the Republic of Guatemala, 31 May 1985

Iran

Constitution of the Islamic Republic of Iran, 28 July 1982.

Myanmar

Constitution of the Republic of the Union of Myanmar, 10 May 2008.

Norway

Constitution of the Kingdom of Norway, 17 May 1814.

Paraguay

Constitution of the Republic of Paraguay, 20 June 1992.

Table Of Instruments

xxix

Penal Code of Paraguay (Codigo penal de Paraguay), Ley 1.160/97, 26 November 1996.



São Tomé and Príncipe

Constitution of the Democratic Republic of São Tomé and Príncipe, 5 November 1975.

Serbia

Constitution of the Republic of Serbia, 8 November 2006.



South Africa

Constitution of the Republic of South Africa, 18 December 1996.

Thailand

Act on Ancient Monuments, Antiques, Objects of Art and National Museums B.E. 2504 2 August 1961. Constitution of the Kingdom of Thailand (Interim), Buddhist Era 2557, 22 July 2014. Constitution of the Kingdom of Thailand, Buddhist Era 2550, 19 August 2007.

Uganda

Constitution of the Republic of Uganda, 8 October 1995.



United States

Declaration of the Rights of Man and Citizen, 26 August 1789. United States Bill of Rights, 15 December 1791. United States Constitution, 21 June 1788.

Vietnam

Final Constitution of the Republic of Vietnam, 28 November 2013. Law of the Socialist Republic of Vietnam on Cultural Heritage, 29 June 2001. Law on the Protection and Preservation of Cultural Heritage Regions, 10 September 1998 (The State Peace and Development Council Law No. 9/1998).

Miscellaneous Concluding Document of the Vienna Follow-up Meeting of Representatives of the Participating States of the Conference on Security and Cooperation in Europe, 17 ­January 1989. Declaration of San José (unesco and the Struggle against Ethnocide), 11 December 1981.

xxx

Table of Instruments

Draft Code of Crimes against the Peace and Security of Mankind, 26 July 1996. Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights in Bangkok, 2 April 1993 (Bangkok Declaration). Fribourg Declaration on Cultural Rights, 8 May 2007. icomos Nara Document on Authenticity, 6 November 1994. Manila Declaration of the International Conference on Conflict Resolution, Peace Building, Sustainable Development and Indigenous Peoples, 8 December 2000. Parliamentary Assembly of the Council of Europe, Recommendation 1990: The Right of Everyone to Take Part in Cultural Life, 24 January 2012. Proposed American Declaration on the Rights of Indigenous Peoples, 26 February 1997. Quito Declaration on the Enforcement and Realization of escr in Latin America and the Caribbean, 24 July 1998. Vienna Declaration and Programme of Action of the World Conference on Human Rights, 25 June 1993.

Notes on Contributors Janet Blake is Associate Professor of Law at the University of Shahid Beheshti in Tehran where she teaches International, Environmental and Human Rights Law. She is also a member of the unesco Chair for Human Rights, Peace and Democ­ racy based at this university. Her main specialization is in cultural heritage law.  She  worked in the Cultural Heritage Division of the Council of Europe (1993–1994) while researching her Ph.D. in International Law and, since 1999, has worked closely with unesco as an International Consultant. In that ca­ pacity, she has written Preliminary Studies on (1) the advisability of develop­ ing a standard-setting instrument for intangible cultural heritage and (2) safe­ guarding ­endangered and indigenous languages that were submitted to the General Conference (2001) and Executive Board (2008), respectively. She also acted as Rapporteur for the Restricted Drafting Group that prepared the initial draft of the 2003 Convention on Intangible Cultural Heritage. She has pub­ lished three books on intangible cultural heritage and one on cultural rights and diversity, and her research monograph International Cultural Heritage Law was published in 2015 by oup. Yvonne Donders is Professor of International Human Rights and Cultural Diversity and Head of the Department of International and European Law of the University of Amsterdam. She has graduated from Utrecht University in international rela­ tions and has done her Ph.D. at the Law Faculty of Maastricht University on cultural human rights and the right to cultural identity. Her research interests include public international law, international human rights law, in particular economic, social and cultural rights and human rights and cultural diversity. She was Executive Director of the Amsterdam Center for International Law at the Faculty of Law until August 2015 and served as temporary project man­ ager at the Netherlands Institute for Human Rights (2011–2012), assisting the transformation from Equal Treatment Commission to the nhri. Before joining the University of Amsterdam Yvonne Donders worked as Programme Special­ ist on Economic, Social and Cultural Rights in the Division of Human Rights and Struggle against Discrimination of unesco’s Secretariat in Paris. She is currently a member of the National Commission for unesco, member of the Human Rights Committee of the Dutch Advisory Council on International Affairs, member of Editorial Board of the Netherlands Quarterly of Human

xxxii

Notes on Contributors

Rights, member of the Board of the Dutch International Law Association (kn­ vir) and member of the European Expert Network on Culture (eenc). Francesco Francioni (Dr Juris, Florence, and LL.M Harvard) is Professor of International Law at the European University Institute, Florence (Emeritus) and at luiss Univer­ sity, Rome. He has been Professor of International Law at the University of Siena (1974–2003) and Visiting Professor at the Universities of Oxford, Cornell, Columbia, and Texas. He has represented Italy in many international nego­ tiations and diplomatic conferences, especially in the field of international environmental law and cultural heritage law. In 1997–1998, he served as the President of the unesco World Heritage Committee. He is a member (asso­ ciate) of the  Institut de droit international, a member of Editorial Board of the European Journal of International Law, and General editor of the Italian Yearbook of I­ nternational Law. He has published extensively in the field of pub­ lic international law. His most recent publications include ‘Public and Private in the International Protection of Global Public Goods’ (2012) 23(3) ejil 719, War by Contract (oup, 2011) and Enforcing International Cultural Heritage Law (oup, 2013). Kristin Hausler is the Dorset Senior Research Fellow in Public International Law at the Brit­ ish Institute of International and Comparative Law, London. Her expertise lies primarily in international human rights law, cultural heritage and Indigenous rights. She is a member of the Cultural Heritage Committee of the Internation­ al Law Association. Kristin holds law degrees from Switzerland and Canada, where she wrote on the resolution of cultural property disputes. Before joining the Institute, she worked for several years in Vancouver on the ‘Journey Home’, a repatriation project involving Indigenous communities. She also worked in museums and studied art at Christie’s in New York. Kamrul Hossain is Associate Professor, currently working as the Director at the Northern Insti­ tute for Environmental and Minority Law (niem) of the Arctic Centre, Uni­ versity of Lapland. He also serves as Adjunct Professor of International Law. Previously, he held Public International Law Professorship at this university. At present he leads a research project entitled ‘HuSActic: Human Security as a promotional tool for societal security in the Arctic’, funded by the Academy of Finland. Dr. Hossain has authored numerous research studies primarily in the areas of international environmental law, human rights and sustainable

Notes On Contributors

xxxiii

development, indigenous rights (with particular focus on the rights of Arctic indigenous communities), maritime security and law of the sea.​ Andrzej Jakubowski is an Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences (Warsaw). He holds a Ph.D. in International Law from the Euro­ pean University Institute and MA in art history from the University of War­ saw. Andrzej is the author of State Succession in Cultural Property (oup, 2015), and co-editor (with Karolina Wierczyńska) of the volume Fragmentation vs the Constitutionalisation of International Law – A Practical Inquiry (Routledge, 2016). He also serves as a member of the editorial board of the Polish Yearbook of International Law and a theme editor of a new law journal Santander Art & Culture Law Review. Miodrag Jovanović is a Full Professor in the Introduction to Jurisprudence Faculty of Law, Univer­ sity of Belgrade. His internationally published books include Collective Rights – A Legal Theory (CUP, 2012); Constitutionalizing Secession in Federalized States: A Procedural Approach (Eleven, 2007); (with Slobodan Samardžić) Federalism and Decentralisation in Eastern Europe: Between Transition and Secession (Insti­ tut du Fédéralisme/LIT Verlag, 2007). He has also edited Constitutional Review and ­Democracy (Eleven, 2015); (with Bojan Spaić) Jurisprudence and Political Philosophy in the 21st Century: Reassessing Legacies (Peter Lang, 2012); (with Ivana Krstić) Human Rights Today – 60 Years of the Universal Declaration (Eleven, 2010); (with Kristin Henrard) Sovereignty and Diversity (Eleven, 2008). His areas of interest are in jurisprudence, theory of state, ­philosophy of inter­ national law, legal theory of collective rights, political theory of multicultural­ ism, federalism, as well as legal and political nature of the eu. Federico Lenzerini was born in Poggibonsi (Italy) on October 7, 1968. He is Juris Doctor magna cum laude, University of Siena (Italy), 1998, and Ph. D., International Law, Uni­ versity of Bari (Italy), 2003. He is Professor of Public International Law and European Union Law at the University of Siena (Italy). He is Consultant to unesco. He has been Legal Advisor of the Italian Ministry of Foreign Affairs at international negotiations concerning the protection of cultural heritage. He was a member of the Committee on Biotechnology of the International Law Association (ila) and Rapporteur of the ila Committee on the Rights of Indigenous Peoples, and is currently a Member of the ila Committee on Cul­ tural Heritage Law and Rapporteur of the ila Committee on Implementation

xxxiv

Notes on Contributors

of the Rights of Indigenous Peoples. He has been visiting Professor in a number of foreign universities, including the Tulane University of New Orleans and the St. Thomas University Law School, Miami (fl), usa. He also taught at the Academy of European Law, European University Institute, Session on Human Rights Law, June-July 2011. William Logan is Professor Emeritus at Deakin University, Melbourne, where he was found­ ing director of the Cultural Heritage Centre for Asia and the Pacific. He is a Fellow of the Academy of Social Sciences in Australia and has been President of Australia icomos and Member of the Heritage Council of Victoria. His re­ search focuses on World Heritage, heritage and human rights, the heritage of war, and Asian heritage, especially the urban heritage of Vietnam, Laos and Myanmar and the management of intangible cultural heritage in Southeast Asia’s borderlands with China. He is co-editor of the Routledge ‘Key Issues in Cultural Heritage’ book series and the Wiley-Blackwell Companion to Heritage Studies (2016). Elisa Novic is a Senior Research Fellow at the Max Planck Foundation for International Peace and the Rule of Law (Heidelberg). She holds Master degrees in Inter­ national Relations and European law from the University of Paris I Panthéon-­ Sorbonne and a Ph.D. in Law from the European University Institute (­Florence). Her research interests include international justice and human rights, in which she has gained expertise through various positions within both governmen­ tal and non-governmental organisations, such as the International Center for Transitional justice and the Case Matrix Network. Eleni Polymenopoulou is Lecturer in Law at Brunel University London. She has been awarded her Ph.D. after the completion of a doctoral thesis in Human Rights Law (Univer­ sity of Grenoble/Athens co-supervising) on the topic of ‘clashes’ between artis­ tic freedom and religious beliefs. Her research focuses on the intersections be­ tween culture, religion and the law, as well as on the adjudication of social and cultural rights. Alongside her academic appointment, she has been working as a practicing lawyer and has collaborated with a number of ngos in Greece, France and the uk, including the Greek Council for Refugees, Article 19 and the International Press Institute (ipi). Eleni is also a children literature writer and has most recently published Fotis’s Voyage to the Land of Colours (Patakis, 2013).

Notes On Contributors

xxxv

Folarin Shyllon obtained degrees in law from King’s College London. From 1975 to 2005 he taught at the University of Ibadan. He was Dean of the Faculty of Law 1984 to 1991. He was also Dean of the Faculty of Law, Olabisi Onabanjo University, AgoIwoye in south-west Nigeria 2007 to 2009. He now teaches post-graduate stu­ dents at the University of Ibadan. He is currently Chairperson of the Nigerian chapter of unesco Memory of the World Committee. He is a member of the editorial board of International Journal of Cultural Property and Art Antiquity and Law. Ana Filipa Vrdoljak is a Professor of Law, Faculty of Law, University of Technology, Sydney and Vis­ iting Professor, Legal Studies Department, Central European University, Buda­ pest. She is the author of International Law, Museums and the Return of Cultural Objects (cup, 2006) and editor of Culture and Human Rights (oup, 2013) and International Law for Common Goods: Normative Perspectives in Human Rights, Culture and Nature with F. Lenzerini (Hart, 2014). She is co-General Editor, with Francesco Francioni, of the new Oxford University Press book series entitled Cultural Heritage Law and Policy. Lorenzo Zucca is Professor in Law & Philosophy, King’s College London. He holds the degrees of Maitrise from Paris II Panthéon-Assas, DEA from Paris I Panthéon-Sorbonne, Mjur from the University of Oxford and a Ph.D. from the European University Institute. His research interests are in jurisprudence, constitutional theory, EU constitutional law and human rights. He is the author of Constitutional Dilemmas – Conflicts of Fundamental Legal Rights in Europe and the USA (OUP, 2007) and numerous articles on European human rights law and theory. His last book is entitled A Secular Europe: Law and Religion in the European Constitutional Landscape (OUP, 2012). This is a study of one of the most pressing legal social and political problems in Europe and includes issues such as the ECHR protec­ tion of religious freedom, EU policies against Islamic terrorism, EU enlarge­ ment to Turkey and a wider debate on European identity. He is now working on a project entitled ‘Shakespeare’s Justice’, which examines the law, politics, religion and philosophy of Shakespeare’s plays.

Introduction Andrzej Jakubowski Human existence involves both individual and collective dimensions which have always posed serious difficulties for international law. While the stateindividual dichotomy has been comprehensively framed within the theory and law of human rights, the ‘recognition of collectiveness and collective rights’ is sometimes described as ‘one of the most contested issues of international law and politics’.1 On the one hand, the existence of collective rights is often challenged by the traditional liberal approach to human rights, which perceives them as individual rights. Accordingly, collective rights cannot be ‘truly’ accepted as human rights since they are group-differentiated rather than universal to all people just by virtue of being human.2 On the other hand, international law has long referred to the international community as a society of states, overlooking or excluding collective rights or interests that do not belong to states. In other words, the state-focused system of international law and international law scholarship have viewed them as a threat to states’ internal and external stability. In particular, concerns have been voiced in relation to cultural rights as they may belong to individuals as well as to groups and peoples, thus transcending the traditionally individualistic framework of human rights regimes, as well as nation-state-oriented notions of culture and cultural heritage as fostered by the vast majority of international law instruments. Collective rights are often described as claims based essentially on cultural distinctiveness (and exclusivity) but not on shared human traits.3 Thus, cultural rights are usually conceptualized as group or community rights.4 The collective features of culture and cultural life have made cultural rights the most neglected or least developed category of human rights with respect to their 1 Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (cup, 2007) 13. For further discussion see Corsin Bisaz, The Concept of Group Rights in International Law: Groups as Contested Right-Holders, Subjects and Legal Persons (Nijhoff, 2012). 2 Cf Ephraim Nimni, ‘Collective Dimensions of the Right to take Part in Cultural Life’, 9 May 2008, un Doc. E/C.12/40/17. 3 Peter Juviler, ‘Are Collective Rights Anti-Human? Theories on Self-Determination and Practice in Soviet Successor States’ (1993) 11 Netherlands Quarterly of Human Rights 267, ­268–269; cf Eric J. Mitnick, Rights, Groups, and Self-Invention: Group-Differentiated Rights in Liberal Theory (Ashgate, 2006). 4 Francesco Francioni, ‘Culture, Heritage and Human Rights: An Introduction’ in Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Nijhoff, 2008) 1, 4.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_002

2

Jakubowski

scope, legal content, and enforceability.5 Arguably, the fierce debate over the exclusion of group rights and minority rights in relation to culture from the text of the 1948 Universal Declaration of Human Rights (UDHR),6 and the simultaneous failure of broadening the legal notion of ‘genocide’ beyond its biological dimension, have long cast a shadow on the entire cultural rights’ debate.7 The provisions addressing the protection of such rights can only be found in a few international human rights treaties. References to group or community cultural rights are even less present. Thus, it may seem that most international measures for the protection and realisation of human rights currently in force leave collective cultural rights in the exclusive realm of state sovereignty and its cultural policies. This has also been reflected in the practice of the international human rights bodies, which to date have not explored in sufficient depth the nature and content of such rights in relation to specific rights holders. Moreover, the vast international law literature – in contrast to theoretical debates on cultural rights prominently featured in the area of anthropology, and, perhaps more importantly, in the realm of political sciences – has dedicated scarce attention to this topic in comparison to other human rights issues.8 However, today, the role of culture and the collective rights attached to it has increased significantly. Indeed, the realisation of such rights is made even more complex with the current tensions arising from global, regional and interstate politics and societal circumstances (including globalization of

5 Janusz Symonides, ‘Cultural Rights: A Neglected Category of Human Rights’ (1998) 50 International Social Science Journal 559. 6 unga Res 217 A(iii), adopted on 10 December 1948, un Doc A/810, 71. 7 See Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (Nijhoff, 2007); also Elsa Stamatopoulou, ‘Monitoring Cultural Human Rights: the Claims of Culture on Human Rights and the Response of Cultural Rights’ (2012) 34 hrq 1170, 1173–1176. 8 Only two monographs in the area of human rights have been exclusively dedicated to international cultural rights: Stamatopoulou, Cultural Rights in International Law (n 7); Yvonne Donders, Towards a Right to Cultural Identity? (Intersentia, 2002). However, it is worth to mention that there might be a great potential in an ongoing regional human rights research project ‘Culture and Human Rights – The Wroclaw Commentaries’ – a comprehensive handbook written by over ninety experts and designed to bridge the gap ‘between dispersed, partly unspecific, references to “culture” (in the wider sense) in the human rights literature, in legal instruments, or in court cases and the daily needs of decision or law-making on different juridical, administrative and political levels in Europe’. The publication of the handbook has been scheduled for November 2016 in the framework of Wroclaw’s role as European Capital of Culture 2016. Some of the handbook’s editors have also contributed to this book (Yvonne Donders, Janet Blake, Federico Lenzerini and Andrzej Jakubowski). More information on the project available at accessed on 26 April 2016.

Introduction

3

culture, the North/South tensions, multicultural dilemmas and cultural rights, culturally driven extremism and international terrorism, peace and security, international trade and investment vs. local community rights, culture and development, asylum-seeking, racism and migration, cultural relativism etc.). The complex process of culturalisation of political life has also become gradually visible in the practice of international law as well as in international law literature, notwithstanding the reticence of states in recognizing collective cultural rights. The increasing role of culture has led to a re-interpretation of the legal understanding of culture towards the protection and promotion of the plurality of various cultural manifestations on an equal footing. A multicultural global society in which various groups can claim and enjoy their rights is now more often perceived as having an inherent value for the organization of social relations.9 The influence of modern anthropology which embraces the notion of ‘cultures’ in the plural sense, and thus eliminates the tendency to hierarchise particular forms of living, can be gradually observed in the practice of international organizations and human rights monitoring bodies. Seen through such a lens, more and more voices can be heard proclaiming the need for recognition and observance of certain cultural rights, vested in communities.10 The cultural determinations of human existence are increasingly recognised as crucial for human well-being, both individually and collectively, and people’s enjoyment of culture as part of their basic human rights. This has led to a renewed academic focus on this area of international human rights law with the evolution of the interpretation of Article 15 of the International Covenant of Economic, Social and Cultural Rights (ICESCR) (the right of everyone to participate in cultural life)11 and Article 27 of the International Covenant on 9

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Cf Alexandra Xanthaki, ‘Multiculturalism and International Law: Discussing Universal Standards’ (2010) 32 hrq 21; Dominic McGoldrick, ‘Multiculturalism and Its Discontents’ in Nazila Ghanea and Alexandra Xanthaki (eds), Minorities, Peoples and Self-­ Determination: Essays in Honour of Patrick Thornberry (Nijhoff, 2005) 211. On the criticism of the individual-state dichotomy in relation to cultural rights see, for instance, Mattias Åhren, ‘Protecting Peoples’ Cultural Rights: A Question of Properly Understanding the Notion of States and Nations?’ in Francesco Francioni, Martin Scheinin (eds), Cultural Human Rights (Nijhoff, 2008) 91; Ahmed Abdulqawi Yusuf, ‘Cultural Rights as Collective Rights in International Law’ in Kalliopi Koufa (ed), Multiculturalism and International Law: 2004 International Law Session (Sakkoulas, 2007) 49. unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3; CESCR, General Comment No. 21. Right of Everyone to Take Part in Cultural Life (Art. 15, para 1(a) of the Covenant), 21 December 2009, un Doc. E/C.12/GC/21. Also see CoE Parliamentary Assembly, Recommendation 1990: The Right of Everyone to Take Part in Cultural Life, adopted on 24 January 2012; available at accessed on 18 April 2016.

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Civil and Political Rights (ICCPR)12 (ethnic, religious or linguistic minorities).13 Moreover, the link between cultural heritage, cultural diversity and cultural rights has also strengthened with the emergence of a number of references to cultural heritage in international treaty law.14 This phenomenon, touching upon the broader problem of the ‘culturalisation of human rights’,15 has also contributed to a systematic re-interpretation of existing human rights guarantees which would encompass certain cultural rights, including those relating to cultural heritage. In fact, the protection and preservation of cultural heritage is more often perceived as part of the safeguarding of human dignity, and ‘an 12

unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171; here one should mention the works of, inter alia, Isfahan Merali and Valerie Oosterveld (eds), Giving Meaning to Economic, Social, and Cultural Rights (University of Pennsylvania Press, 2001); Yash Pal Ghai and Jill Cottrell (eds), Economic, Social and Cultural Rights in Practice: The Role of Judges in Implementing Economic, Social & Cultural Rights (Interights, 2004); Mashood A. Baderin and Robert McCorquodale (eds), Economic, Social and Cultural Rights in Action (oup, 2007); Malcolm Langford, Wouter Vandenhole, Martin Scheinin, Willem van Genugten (eds), Global Justice, State Duties: the Extraterritorial Scope of Social, Economic and Cultural Rights in International Law (cup, 2013); Eibe Riedel, Gilles Giacca, and Christophe Golay (eds), Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (oup, 2014); Riedel, Eibe, Giacca, Gilles and Golay, Christophe (eds), Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (oup, 2014); Ben Saul, David Kinley, and Jaqueline Mowbray (eds), The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (oup, 2014). 13 See, inter alia, Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, 1993); Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2002); Jolan Hsieh, Collective Rights of Indigenous Peoples: Identity-Based Movement of Plain Indigenous in Taiwan (Routledge, 2006); Xanthaki, Indigenous Rights and United Nations Standards (n 1); William K. Barth, On Cultural Rights: The Equality of Nations and the Minority Legal Tradition (Nijhoff, 2008); Catherine Bell and Robert Paterson, Protection of First Nations Cultural Heritage: Laws, Policy, and Reform (ubc Press, 2009); Claudia Tavani, Collective Rights and the Cultural Identity of the Roma: A Case Study of Italy (Nijhoff, 2012); Federico Lenzerini (ed), Reparations for Indigenous Peoples: International and Comparative Perspectives (oup, 2012); and Lee Swepston, The Foundations of Modern International Law on Indigenous and Tribal Peoples, the Preparatory Documents of the Indigenous and Tribal Peoples Convention, and Its Development through Supervision, Vols. 1–3 (Nijhoff, 2015). 14 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted on 20 October 2005, entered into force on 18 March 2007, 2440 unts 346; Framework Convention on the Value of Cultural Heritage for Society (Faro Convention), adopted on 27 October 2005, entered into force on 1 June 2011, cets No. 199. 15 Federico Lenzerini, The Culturalization of Human Rights (oup, 2014).

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important component of the promotion and protection of all human rights, including the full realization of cultural rights’.16 In this regard, a remarkable role has been played by the UN Human Rights Council and its special procedure on cultural rights.17 Farida Shaheed, in her capacity of the Independent Expert (2009–2012) and UN Special Rapporteur (2012–2015) in the Field of Cultural Rights, published ten thematic reports dealing with various aspects of the operationalisation of cultural rights in their individual and collective dimensions, and offering recommendations on further implementation of such rights.18 The current mandate holder, Karima Bennoune, continues these tasks with particular focus on a human rights approach to the intentional destruction of cultural heritage.19 Importantly, a very strong input to the international recognition of collectiveness and collective cultural rights has been given by the development of minority rights and the rights of indigenous peoples. Although the claims of minority groups and indigenous peoples are generally based on individual rights, they are essentially of a collective nature. Moreover, their majority relate to culture, collective cultural identity and common cultural heritage. The most recent international human rights instruments recognise the collective nature of these rights. For instance, the 2007 UN Declaration on the Rights of Indigenous Peoples20 provides for a catalogue of collective cultural rights, including the right to maintain, control, protect and develop cultural heritage, traditions, laws and customs as well as to regain the cultural, intellectual, religious and spiritual property, which was taken from indigenous peoples against their consent or in violation of their laws, traditions, or customs.21 However, the development of collective cultural rights in international law has also highlighted the antagonism between such rights and other human rights, including other cultural rights. These clashes, real or alleged, may be 16 17 18

19 20 21

un hrc (2007), ‘Protection of Cultural Heritage as an Important Component of the Promotion and Protection of Cultural Rights’, 28 September 2007, un hrc Res.6/11. hrc, Resolution 10/23. Independent Expert in the Field of Cultural Rights, 26 March 2009, un Doc. A/HRC/RES/10/23. un Docs.: A/HRC/14/36, A/HRC/17/38, A/HRC/20/26, A/67/287, A/HRC/23/34, A/69/286, A/ HRC/28/57, A/68/296, A/HRC/25/49; A/HRC/70/279. The summary of thematic issues covered in the Special Rapporteur’s reports (until 2015) available at accessed on 25 April 2016. See un Doc. A/HRC/31/59. unga Res. 61/295, adopted on 13 September 2007, un Doc. A/RES/61/295. See, for example, Siegried Wiessner, ‘The Cultural Dimension of the Rights of Indigenous Peoples’ in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human (Hart, 2014) 175.

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identified in respect of various cultural rights, both collective22 and individual. A striking example of conflicts between different collective cultural rights concern the tension between religion and secularity or those related to the manifestations of cultural diversity.23 The antagonism between individual cultural rights and those of a collective nature may be exemplified with the conflicting interests between the right to freedom of artistic expression and its limitations arising from cultural (moral) inclinations.24 The group-orientated scope of cultural rights may also undermine the promotion and enforcement of other well-established human rights and freedoms, including the right to physical integrity, right to marriage or the right to use and enjoy one’s property. The conciliation between these conflicting and competing rights is not an easy task.25 Although it is generally understood that collective cultural rights encompass a group’s ability to preserve its traditional way of life, including with regard to child-rearing, the use of one’s own language, cultural self-determination, as well as access to and enjoyment of culture and cultural heritage, most international instruments do not clearly include those collective elements within their definition of cultural rights. Therefore, the catalogue of collective cultural rights may appear rather underdeveloped. However, the practice of international law shows that such a category of rights is exceptionally dynamic, reflecting the fact that cultures are living and constantly evolving. There is thus a need to define the term ‘collective cultural rights’, which is not self-explanatory.26 In addition to the rights mentioned above, it may also include ‘negative rights’, such as the right to protect a group’s cultural 22

23

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25 26

In fact, various conflicts may be identified in relation to cultural rights within groups, or ‘minorities within minorities’. See inter alia Avigail Eisenberg and Jeff Spinner-Halev (eds), Minorities within Minorities. Equality, Rights and Diversity (cup, 2005). Silvia Borelli, ‘Of Veils, Crosses and Turbans: The European Court of Human Rights and Religious Practices as Manifestations of Cultural Diversity’ in Silvia Borelli and Federico Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (Nijhoff, 2012) 55; Siobhãn Mullally, Gender, Culture and Human Rights: Reclaiming Universalism (Hart, 2006). David Keane, ‘Cartoon Violence and Freedom of Expression’ (2008) 30 hrq 845; Uladzislau Belavusau, Freedom of Speech: Importing European and us Constitutional Models in Transitional Democracies (Routledge, 2013) 201; Paul Kearns, Freedom of Expression: Essays on Culture and Legal Censure (Hart, 2014); Eleni Polymenopoulou, ‘Does One Swallow Make a Spring? Artistic and Literary Freedom at the European Court of Human Rights’ (2016) 16 Human Rights Law Review, forthcoming. See Peter Jones, ‘Group Threats to Human Rights’ in Cindy Holder and David Reidy (eds), Human Rights. The Hard Questions (cup, 2013) 100, 109–112. Ǻhren, ‘Protecting Peoples’ (n 10) 92.

Introduction

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identity and heritage by excluding non-members. Furthermore, collective cultural rights may also have conflicting connotations, for example, if they appear to support the concept of ‘globalisation’ or the ‘universalism’ of culture. Such collective cultural rights may include the right to have access to the culture of others and to cultural heritage deemed to be of universal value. Another key issue with the concept of collective cultural rights relates to the identification of their holders. Who are ‘cultural’ collectivities or communities under international law? Do international instruments define them in the same way as they define themselves? Who gets to speak on behalf of a cultural community? At present, these questions have been only partially answered under international law, mainly in relation to ethnic, linguistic and religious minorities, and, more recently, with regard to indigenous peoples. Yet, the international status and standing of a number of cultural groups still lack a comprehensive legislative and judicial definition. Clearly, the complexity of the notion of ‘collective cultural rights’, including the plurality of rights and rights holders associated with them, render such rights extremely difficult to be recognised and enforced under international law and international human rights mechanisms. The diverse contributions present in this volume reconstruct the content and legal nature of collective cultural rights as currently understood under international law and international human rights law in particular. They explore their conceptualisation and operationalisation as community rights, sometimes described as part of a ‘third-generation’ of human rights (or emerging human rights), analysing how such rights may collide with other human rights. Indeed, the issue of cultural rights as collective rights – vis-à-vis individual human rights – constitutes the central theme of this book and drives all the contributions. However, this book is not about specific categories of collective cultural rights holders, e.g. minorities or indigenous peoples. It is about the collective aspect of a particular category of human rights, i.e. cultural rights, analysed in relation to the theory and practice of international law. The three contributions in Part 1, Cultural Rights – Individual or Collective?, provide an overview of the legal nature of those rights labelled as ‘cultural’ because of their particular holders, in light of their individual or collective aspects. In Cultural Rights as Collective Rights, Miodrag Jovanović deals with the legal nature of various rights commonly considered as’cultural’, such as linguistic and educational rights or the right to cultural identity. Taking a legalphilosophical perspective, he seeks to identify which cultural rights are the most plausible candidates for the status of collective rights. In The Cultural Contingency of the Human Right to Freedom of Religion, Lorenzo Zucca focuses

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on one specific human right which has both an individual and collective dimension: the right to freedom of religion. He analyses whether it is possible to identify its proper location within the system of international protection of human rights vis-à-vis discrete constitutional histories, thus mapping difficulties in adopting universal notions of certain human rights due their cultural content and interpretation. In the third chapter of this volume, Individual and Collective Cultural Rights Considered in the Light of Recent Developments in Cultural Heritage Law, Janet Blake discusses the complex relationships between different layers of cultural rights providing for the right of access to and enjoyment of cultural heritage. She explores the challenge in defining collective cultural rights, that is, whether they consist of collective (cultural) human rights, or simply collective legal rights with a cultural dimension. These matters are investigated in the context of the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage,27 which responds to collective claims to cultural heritage by protecting the dignity of individuals and communities on the one hand, and encouraging mutual respect for other ways of life on the other. Part 2, Collective Cultural Rights and International Human Rights Law, contains contributions dealing with developments within the body of international human rights law, from the viewpoint of collective cultural claims and entitlements. In Collective Cultural Rights and International Human Rights Law, Yvonne Donders analyses intrinsic relations between two categories of rights: collective rights and cultural rights. She explains that, while both are distinct categories of rights within international human rights law, their content is rather vague. Consequently, different lists can be drawn up from international human rights law provisions, which may fall within one or the other or both categories. This contribution examines those human rights which may encompass both categories and thus be considered ‘collective cultural rights’, before analysing them within the system of international human rights law. Kamrul Hossain deals with a similar range of issues in Protection of Community Culture as a Part of Human Rights in International Law, in which he explores the notion of culture in international law and identifies the holders of collective cultural rights. After examining how the notion of ‘collectivity’ is understood under international law (‘community’, ‘group’, ‘people’, ‘minority’ and ‘indigenous peoples’), his contribution focuses on the collective cultural rights of indigenous communities, which are inherently linked to their ability to exercise their right of self-determination. In The Safeguarding of Collective Cultural Rights through the Evolutionary Interpretation of Human Rights Treaties and Their Translation 27

Adopted on 17 October 2003, entered into force on 20 April 2006, 2368 unts 3.

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into Principles of Customary International Law, Federico Lenzerini analyses the new understanding and legal recognition of collective cultural rights in international human rights instruments. He asserts that such instruments do not devote the necessary attention to collective rights, which in turn do not enjoy the same level of protection enjoyed by individual rights, civil and political rights in particular. Next, he considers how this deficiency is progressively addressed by the evolutionary approach followed by international human rights monitoring bodies today and explains how they have extended the scope of some provisions concerning individual rights so as to cover certain collective cultural rights as well. Finally, he explains that this practice goes beyond the context of international treaty law, also providing evidence of opinio juris supporting the conclusion that the core collective cultural rights have already developed into principles of customary international law. Part 3, Collective Cultural Rights – Regional Perspectives, considers how ­collective cultural rights are perceived and implemented at the regional level, with a special focus on the jurisprudence of the regional human rights bodies. The four chapters therein also map out some of the regional peculiarities which may have an impact on the interpretation of collective cultural rights and actual legal solutions. My chapter, Cultural Heritage and the Collective Dimension of Cultural Rights in the Jurisprudence of the European Court of Human Rights, deals with the topic of cultural collective rights within the legal framework of the Council of Europe and its cultural policies. It offers a panorama of the jurisprudence of the European Court of Human Rights in the area of tangible cultural heritage, assessing how this regional human rights body has approached the complex twin issues of balance and hierarchy between different collective cultural rights versus other (mainly) individual human rights in relation to cultural heritage. It focuses on the conflict between the objectives of protecting both cultural heritage and individual rights, especially in respect of the right to the peaceful enjoyment of one’s possessions. In turn, William Logan, in Collective Cultural Rights in Asia: Recognition and Enforcement, seeks to outline the content, legal status and enforcement of collective cultural rights in China and Southeast Asia (with particular focus on Myanmar, Thailand and Vietnam). He explains that human rights, with their emphasis on the individual, are sometimes regarded as Western in origin and character, while collective cultural rights have been closely associated with New World indigenous peoples, who have been reduced to minority groups on their lands since European settlement. In this regard, he analyses selected Asian legislative and doctrinal constructions of cultural rights and discusses specific ways in which such discourses may influence the development of cultural rights scholarship in the West and thus contribute to the universality of human rights. In Collective

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Cultural Rights as Human Rights Simpliciter: the African and African Charter Example, Folarin Shyllon explains that the concept of communal human rights and norms has always been part of the fundamental philosophy of life in African traditional societies. This also refers to the sphere of cultural rights, particularly the universality of the communal nature of cultural heritage. In fact, communal (corporate) ownership has always been attached to sacred objects, ancestral altars, shrines, sacred groves and other ‘material culture’ that may be labelled ‘cultural heritage’ or ‘cultural property’. Taking into account this traditional context, this chapter analyses the recognition of collective cultural rights at the constitutional level by certain African states, as well as within the regime of the African Charter on Human and Peoples’ Rights.28 It argues that the African belief in the unity of past, present and future generations makes the ‘generation of rights theory’ unacceptable in a Charter that provides for ‘human and peoples/rights’. In Collective Cultural Rights in the Inter-American Human Rights System, Kristin Hausler focuses primarily on the implementation of collective cultural rights within the Inter-American Human Rights framework. She examines Article 14 of the Protocol of San Salvador,29 which protects the rights to the benefits of culture, and Article XIII of the American Declaration of Rights and Duties of Man.30 She assesses the work of both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights with regard to these rights, as well as the impact of their activities and jurisprudence on the evolution of the collective component of human rights. She discusses regional obstacles to justice, on the one hand, and innovative approaches of the Inter-American Court in implementing collective cultural rights, on the other. The contributors in Part 4, Enforcement of Collective Cultural Rights, deal with the effectiveness and enforcement of collective cultural rights in international law. Francesco Francioni, in International Legal Framework for the Enforcement of Collective Cultural Rights, provides a broad overview of recent developments in public international law concerning the recognition and enforceability of such rights at both the substantive and procedural levels. In the following chapter, Standing and Collective Cultural Rights, Ana Filipa Vrdoljak focuses on the procedural question of the standing of communities in matters 28 29

30

Adopted on 27 June 1981, entered into force on 21 October 1986, oau Doc. CAB/LEG/67/3 rev. 5, 1520 unts 217. Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights. Adopted on 17 November 1988, entered into force on 16 November 1999, 28 ilm 156 (1989). Adopted on 2 May 1948, oas Doc. OAS/Ser.L/V/1.4rev.13 (2010).

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regarding their cultural rights. She argues that the scope of standing recognised at the international, regional, and national levels, reflects the recognition of this diversity of right holders and interests, of their right to be heard by the relevant court or tribunal, and of the increasing need for courts and human rights bodies to distinguish and arbitrate between them. In such a context, this contribution analyses the contours of existing cultural human rights, placing them at the cutting edge of disputes between individual and collective rights and exploring possible reparation regimes flowing from their breach. It is fitting that this volume concludes with two contributions that demonstrate the importance of the effective enforcement of collective cultural rights for the maintenance of peace and security, thus touching upon the core questions of the entire international law system. Eleni Polymenopoulou, in Collective Cultural Claims before the International Court of Justice, considers the role of culture in the case-law of this international tribunal. Although the ICJ has never explicitly addressed cultural rights, a closer look at its jurisprudence reveals that collective cultural claims have been brought before it on more than one occasion. In this vein, the chapter discusses to what extent the ICJ has approached the topics of ‘culture’ and ‘cultural identity’ in international disputes related to collective cultural claims (especially claims underlying the right to self-determination). The major contribution of the ICJ jurisprudence refers to the attempts to determine the role that culture can play not only in strengthening a group or nation’s right to a cultural identity, but also, and much more substantially, in building peace and friendly relations among these groups and nations in accordance with the way the United Nations and the UNESCO Constitution31 understand ‘peace’. In turn, the last chapter deals with the use of the crime of genocide as an instrument for the enforcement of cultural rights of vulnerable communities. Elisa Novic, in From ‘Genocide’ to ‘Persecution’: ‘Cultural Genocide’ and Contemporary International Criminal Law, discusses the progressive recognition of ‘culture’ as a distinctive feature of groups whose intentional destruction may fall within the notion of genocide under the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide.32 She explains that the concept of ‘cultural genocide’, despite having been rejected during the negotiations of the 1948 Convention, has never fully disappeared from the international legal discourse. The debate does not relate so much to the existence of a cultural dimension to genocide, but rather to the identification of adequate legal responses to this dimension, especially within 31 32

Adopted on 16 November 1945, entered into force on 4 November 1946 4 unts 275. unga Resolution 260 A (III) of 9 December 1948, entered into force on 12 January 1951, 78 unts 277.

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the field of international criminal law. In this respect, the author examines the evolution, in relation to ‘cultural genocide’, of legal concepts and norms which are aimed at identifying and remedying the gap that emerged in the 1940s. Special attention is devoted to the crime of persecution, a form of crime against humanity, since this crime may allow for a better legal response to the protection of persecuted groups’ cultural rights and heritage in international law, as well as foster a more holistic approach to the phenomena of attacks against a group’s culture. This volume considers how the current international legal framework and jurisprudence deal with a category of ‘collective cultural rights’ that has been dismissed for a long time. The reasons for this neglect are twofold: first, the system of international human rights law is based on individual rights. Second, their practical operationalisation is hampered by the legal and conceptual difficulties in dealing with the wide variety of rights deemed to be cultural in nature, both with respect to their individual and collective dimensions as well as their relationship with other rights. This volume aims to overcome this neglect by exploring the dimensions to collective cultural rights and identifying implementation gaps and challenges. It provides a set of responses on how the legal framework and jurisprudence have developed to include these rights and demonstrates the inherent holistic value of the peaceful enjoyment of such rights at a collective level for social stability, as well as for the full realisation of all human rights. Finally, it offers some insight into the possible ways of considering these rights so that they are upheld and strengthened in the future.

PART 1 Cultural Rights – Individual or Collective?

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chapter 1

Cultural Rights as Collective Rights Miodrag Jovanović 1 Introduction Despite the official doctrine of the United Nations, supported by the General Assembly and the Office of the High Commissioner for Human Rights, on the interdependence and indivisibility of human rights, the status of cultural, as well as of economic and social rights, in the family of human rights has been disputed by both political philosophers and legal practitioners for quite some time. Still today it remains possible to say that ‘in actual practice esc rights are accorded second-rank status as compared to civil and political rights.’1 A somewhat recently-emerged issue in the debate concerns the legal nature of some of the guaranteed cultural rights. Even though the International Covenant on Economic Social and Cultural Rights (icescr) seems to stipulate that only individuals are vested with cultural rights (using the formulation ‘the right of everyone’),2 recent expert-based initiatives, such as the 2007 Fribourg Declaration on Cultural Rights,3 employ the concept of ‘cultural communities’ as well, implicating that both individual members of those communities and the communities themselves can be the holders of said rights. This chapter will try to shed more light on the legal nature of various rights commonly considered as ‘cultural’. It first revisits certain terminological and conceptual indeterminacies surrounding ‘cultural rights’, which are a corollary of the various approaches of various disciplines to the subject-matter. In that respect, I will briefly tackle the specificities of the approaches taken by political philosophy, anthropology, and the legal analysis. Since this chapter focuses on the question whether some cultural rights can be treated, in the 1 Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (2nd edn; HartBloomsbury, 2009) 5. 2 unga Res. 2200A(xxi), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3. 3 The Fribourg Declaration on Cultural Rights was launched on 7 May 2007 at the University of Fribourg and 8 May 2007 at the Palais des Nations in Geneva. The text was presented by the Observatory of Diversity and Cultural Rights (headquartered at the Interdisciplinary Institute of Ethnics and Human Rights of the Fribourg University), together with the Organisation Internationale de la Francophonie and unesco. The text is available at accessed on 15 December 2015.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_003

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legal sense, as collective rights, in the next section the chapter provides a sketch of the defensible legal-theoretical foundations of such an approach. In doing so, I argue that collective rights primarily have to be differentiated from rights ‘exercised in community with others’, since this ‘exercising criterion’ cannot be definitional of a collective right. Furthermore, they have to be distinguished from the individual rights accorded to a particular subset of persons, such as, for example, ‘students’ or ‘law professors’, because these categories of persons cannot be equated with collective entities such as peoples, minorities, or indigenous peoples. Finally, I try to determine which cultural rights, if any, could qualify for the status of collective rights. This legal-philosophical treatment of the subject matter will not only help in the elucidation of the inconsistent practice in the relevant fields of law, but will also, ideally, provide useful guidelines for both policy makers and adjudicators. 2

‘Cultural Rights’ – Revisiting Terminological and Conceptual Indeterminacies

Talk of ‘cultural rights’ has gained currency in recent years, but often with the negative side-effect that participants in the debate use the same words to denote quite different phenomena. Part of the explanation lies in the contentious meaning of both composite elements of the phrase ‘cultural rights’. Yet, while it is true that a great deal of ink has been spilt in attempts to define ‘culture’ and ‘rights’, it seems that, when put in conjunction, these two words generate even more terminological and conceptual indeterminacies. The main reason for this state of affairs can be found in the distinctive disciplinary usages of the conjunction(s). Hence, in contemporary political philosophy, which deals with the politics of recognition and multiculturalism, it is a custom to use the phrase ‘cultural rights’ to denote various policies aimed at accommodating ethno-cultural pluralism. Jacob Levy, for instance, in his highly influential article ‘Classifying Cultural Rights’, argues that one may distinguish between eight categories of cultural rights-claims and special policies for accommodating ethnic and linguistic pluralism. They include: exemptions, assistance, self-government, external rules, internal rules, recognition/enforcement, representation, and symbolic claims.4 4 The eight categories can be explained in more detail and exemplified in the following way: exemptions from laws which penalize or burden cultural practices (e.g. Sikhs/motorcycle helmet laws); assistance to practices which a majority can undertake unassisted (e.g. multilingual ballots); self-government for ethno-cultural minorities (which might range from federalism to secession); external rules restricting non-members’ liberty to protect members’ culture (e.g. Quebec/restrictions on English language); internal rules for members’ conduct enforced by excommunication (e.g. disowning children who marry outside the group);

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From the anthropologists’ point of view, the rise of this robust talk of cultural rights, which has often treated culture in a highly essentialized form, came as no small surprise at the moment when the discipline had already started questioning the usefulness of the very concept of culture.5 Thus, Jane Cowan and the co-editors of the acclaimed Culture and Rights were inclined to outline the framework of the discourse by identifying historical and contemporary juxtapositions of the concepts of ‘rights’ and ‘culture’. They came up with four distinctive conjunctions. The first – rights versus culture – historically emerged as an antagonism between the individual universalism of the French Enlightenment and the group particularism of German Romanticism. Even nowadays, this is a typical stance in the universalism-cultural relativism dispute over human rights.6 The second conjunction – the right to culture – can already be traced in Herder’s philosophy of Romantic nationalism, but it was more forcefully reinvigorated in the human rights revolution of the un era. In the most relevant human rights instruments, this conjunction was framed primarily in the form of the right of an individual to ‘belong to’ and to ‘enjoy’ a culture.7 The third conjunction – rights as culture – was devised by anthropologists, who started to treat law in general, and rights in particular, as objects of their analysis. Within this paradigm, ‘law is conceived as a worldview or structuring discourse which shapes how the world is apprehended’.8 There is a fourth conjunction, which the co-editors of Culture and Rights initially named – culture as analytic to rights.9 Although Cowan subsequently noted that this concept was ‘imprecisely phrased’, this conjunction was meant to differentiate between object and method, thereby underlying ‘that rights could be grasped through methods of and orientations to cultural analysis.’10

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recognition/enforcement of traditional legal codes (e.g. indigenous land rights regimes); representation of minorities in government bodies (e.g. Maori voting roll for Parliament); and symbolic claims to acknowledge the worth, status, or existence of various groups (e.g. disputes over names of polities or national holidays). Jacob T. Levy, ‘Classifying Cultural Rights’ in Ian Shapiro and Will Kymlicka (eds), Ethnicity and Group Rights (New York University Press, 1997) 22, 24–25. Jane K. Cowan, Marie-Bénédicte Dembour and Richard A. Wilson, ‘Introduction’ in Jane K. Cowan, Marie-Bénédicte Dembour and Richard A. Wilson (eds), Culture and Rights – Anthropological Perspectives (cup, 2001) 3. Ibid 4. Ibid 8. Ibid 12. Ibid 13. In other words, ‘one can approach rights practices armed with an anthropologist’s commitment to teasing out patterns and identifying relationships of meaning and practice between different domains of social life without necessarily taking on rights as a total

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Finally, one may approach cultural rights equipped with the methodological apparatus of legal analysis. In Thornberry’s words, the necessary analytical structures for any human right, including the right to culture, ‘involve a conception of right-holder or right-holders, a subject-matter for the right and contexts for its exercise, and limitations on the right: notably structural limitations in relation to other human rights in the instrument in question.’ That is, no single right exists in a vacuum, but will always operate as a constituent part of the larger family of human rights. This, then, implies ‘a set of interconnections with other rights and that the right is capable of providing “added value” to the corpus of human rights’. Moreover, this also means that other members of the human rights family ‘can provide interpretative “signposts” to resolving questions as to the applicability of the right in specific situations.’ The importance of this feature comes to the fore when one has to make concrete the respective obligations of both state and non-state actors. Finally, the process of interpretation and norm clarification needs to be conducted within the confines of General Assembly Resolution 41/120,11 which sets out standards in the area of human rights by stipulating that the end result of this process should, inter alia: (a) be consistent with the existing body of international human rights law; (b) be of fundamental character and derive from the inherent dignity and worth of the human person; (c) be sufficiently precise to give rise to identifiable and practicable rights and obligations.12 3

What Are ‘Collective Rights’?

As already indicated, the purpose of this chapter is to investigate whether some rights falling in the category of ‘cultural rights’ could be additionally qualified as collective ones. The completion of this task within the aforementioned methodological ambit of conceptual analysis depends, however, upon the crucial prior assumption that the concept of collective rights itself is

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ideological-practical apparatus, or assuming that they constitute anything so coherent as a culture’. Jane K. Cowan, ‘Culture and Rights after Culture and Rights’ in Mark Goodale (ed), Human Rights: An Anthropological Reader (Wiley-Blackwell, 2009) 305, 306–307. Adopted on 4 December 1986, un Doc. A/RES/41/120. Patrick Thornberry, ‘Cultural Rights and Universality of Human Rights’, 9 May 2008, un Doc. E/C. 12/40/15, at 2.

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incontestable. In this regard, one may take as a starting point the statement of Joseph Raz regarding the existence of legal concepts: ‘I know what it is for a concept to be a legal concept. Legal concepts are those used primarily to express the content of legal norms and their applications, and only secondarily and derivatively in other contexts.’13 Viewed from this perspective, whether collective rights could be conceptualized directly from the content of respective legal norms or from the outcomes of adjudicative processes of their implementation, is far from clear. Simply put, the relevant legal practice provides an inconclusive and somewhat contradictory record as to whether it is possible to speak of a novel legal concept, or whether the phrase ‘collective rights’ should be used merely as a synonym for some other more conventional legal concepts. In this situation, where there is enough legal material (statutory and treaty norms, judicial decisions, expert opinions, etc.) to work with and yet there are serious doubts as to whether this leads to the emergence of some new general legal concept, legal theory has to actively get involved. That is, it can no longer rely solely on the existing methods of description and conceptual analysis, but has to be more proactive – to take sides and give preference to the normativemoral point of view that would render the respective legal practice more intelligible. Since the entire debate regarding collective/group rights14 revolves around the question whether entities other than individual human beings can possess such rights, and Jones rightly argues that this question ‘turns upon the attribution of moral standing’,15 then the case in favour of collective rights ultimately depends upon the plausibility of a normative justification of moral standing for certain collective entities. I have extensively argued elsewhere that the existent legal practice, supportive of the case for collective rights, 13

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Joseph Raz, ‘Theory and Concepts: Responding to Alexy and Bulygin’ in Una Discusion Sobre la Teoria del Derecho (Marcial Pons, 2007) (in Spanish); English version is available at accessed on 20 April 2016, at 5. I use these terms interchangeably, since I do not find enough theoretical or practical justification to treat them differently, as some participants in the debate do. Jones says: ‘Questions of who or what can have rights are typically raised against a background assumption that rights can be possessed, uncontroversially, by “persons” that is, by adult human beings in full command of their faculties. The issue is whether beings or entities other than persons can possess rights.’ He adds that: ‘to violate a right is to wrong the holder of the right. It is to fail to do what is owed to the right holder’. Consequently: ‘someone or something can hold rights only if it is the sort of thing to which duties can be owed and which is capable of being wronged’. Put differently: ‘moral standing is a precondition of right-holding’. Peter Jones, ‘Group Rights and Group Oppression’ (1999) 7 Journal of Political Philosophy 353, 361–362.

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would be rendered more intelligible if the rights in question were treated as grounded in the philosophical standpoint of value collectivism.16 This is based on the moral-philosophical view according to which ‘a collective entity can have value independently of its contribution to the well-being of individual human beings’.17 The most important implication of value collectivism is that collective rights can at times override the individual rights of group members, a viewpoint which is patently clear in certain instances of existing legal practice.18 Although most of the aforementioned remarks are methodological in character, some are also relevant for the substantive issue of the nature of collective rights. There are at least four frequent conceptual mistakes made by participants in the debate, but here I will concentrate on the two most common ones. The first mistake is to confuse collective rights with the concept of jointly exercised individual rights, that is, to take the form of exercising a right as the defining criterion for the nature of said right. The second mistake is to confuse collective rights with individual rights accorded to a particular subset of persons, that is, to all those who fit a particular description, such as ‘tax-payers’, ‘construction workers’, ‘military officers’, etc.19 The first type of mistake can be found, for instance, in a rather unique provision of the 2006 Constitution of Serbia, which tries to define the nature of collective rights. After stipulating in Article 75, para 1 that, in addition to the rights guaranteed to all citizens by the Constitution, ‘[p]ersons belonging to national minorities shall be guaranteed special individual or collective rights’, the constitution drafters proceeded to state: ‘Individual rights shall be exercised individually and collective rights in community with others, in accordance with 16 17 18

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Miodrag Jovanović, Collective Rights – A Legal Theory (cup, 2012). Michael Hartney, ‘Some Confusions Concerning Collective Rights’ (1991) 4 Canadian Journal of Law and Jurisprudence 292, 297. Most of the authors that proceed from the standpoint of value individualism, according to which collective entities can have only instrumental and not the inherent value, end up defending the possibility that at times collective rights outweigh individual group members’ rights. Cf Allen Buchanan, ‘Liberalism and Group Rights’ in Jules L. Coleman and Allen Buchanan (eds), Harm’s Way – Essays in Honour of Joel Feinberg (cup, 1994) 1–15; Will Kymlicka, Multicultural Citizenship – A Liberal Theory of Minority Rights (Clarendon Press, 1995) 43–44. This outcome, however, is tenable only when grounding collective rights in the rival standpoint of value collectivism. The other two mistakes are: (1) to argue that the notion ‘collective right’ is simply a designation for the accumulation of all the individual rights of the group members; and (2) to equate this concept with the so-called ‘class action’ procedures which emerged in us litigation law.

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the Constitution, law and international treaties.’20 Individual rights, however, can be exercised in any of three ways: individually, by the holder of the right; individually, yet through the right-holder’s agent; or jointly, by a group of individuals, such as in the cases of fundamental rights to assemble, strike, or freely associate.21 Conversely, rights held by juristic persons, e.g. corporations, are always exercised through their legally authorized representatives. Accordingly, the way a right is exercised can in no way serve as a plausible criterion for determining its nature.22 Moreover, the fact that some rights can be exercised only jointly does not, in and of itself, deny the individual nature of the right; and vice versa – the fact that some rights can be exercised only individually is not conclusive proof that they are not collective rights. As a consequence, collective rights can also be exercised in three ways: by an individual member of the right-holding collective (e.g. the right to use one’s mother tongue in communication with local authorities); by a collective entity as such (e.g. the right to self-determination); or, by a representative body of the right-holding collective (e.g. the right of a minority to design educational programs conducted in the minority language).23 The most controversial claim is probably the one regarding the individual exercise of the allegedly collective right. Yet, what makes such rights collective is the fact that they are directly vested in the group qua group, in order to

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Constitution of the Republic of Serbia, 8 November 2006, English translation available at accessed on 5 April 2016. Cf Hartney ‘Some Confusions Concerning’ (n 17) 310; Mihály Samu, ‘The Collective Rights of the Minorities and their Quality as Constituent of the State’ in Kálmán Kulscar and Denis Szabo (eds), Dual Images – Multiculturalism on Two Sides of the Atlantic (The Royal Society of Canada and Institute for Political Science of the Hungarian Academy of Sciences, 1996) 180. This follows also from the Explanatory Report of the CoE Framework Convention for the Protection of National Minorities (adopted on 1 February 1995, entered into force on 1 February 1998, cets No. 157, 2151 unts 243), which states that the possibility of jointly exercising certain individual rights ‘is distinct from the notion of collective rights’. Framework Convention for the Protection of National Minorities – Explanatory Report, 1 February 1995, ets no. 157, at 37. Interestingly enough, the Serbian Constitution’sbo drafters proved to be inconsistent in their attempt to define collective rights according to ‘the exercising criterion’. Namely, para 3 of the aforementioned Article 75 provides for the establishment of ‘national councils’ of national minorities as representative bodies designed precisely with the aim of exercising the minority right ‘to self-governance in the field of culture, education, information and official use of their language and script’. In this way it is explicitly acknowledged that some minority collective rights can be exercised in the third abovementioned way.

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protect its interest,24 and an individual can exercise it provided he/she can prove his/her membership in the group (note that the group membership has to be recognized as such by other members of the group, and not simply through the process of self-identification).25 Unlike corporations and other juristic persons, peoples, minorities, or indigenous peoples are ‘genuine collectives’,26 that is, ‘de facto, pre-legally existing non-reducible collectivities, having collective interests’.27 Accordingly, what distinguishes such groups from juristic persons as a distinctive type of right-holders is, first, that they ‘do not come into being by way of association but are simply given, and, second, in order for them to be capable of bearing rights, they need to be officially recognized by the state’.28 Hence, in the aforementioned example, it is the interest of the linguistic minority qua group to preserve one of the features of its cultural identity that is protected by the corresponding right of an individual to 24

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One of the key strategies for denying the sustainability of the collective rights concept proceeds from the argument of the non-existence of genuine, non-reductive group interests. However, a number of authors from the liberal camp disagree. Margalit and Raz, for instance, state that: ‘Group interests cannot be reduced to individual interests. It makes sense to talk of a group’s prospering or declining, of actions and policies as serving the group’s interest or of harming it, without having to cast this in terms of individual interests.’ Consequently, although the interests of a group are conceptually connected to the individual members’ interests, ‘such connections are nonreductive and generally indirect’. Avishai Margalit and Joseph Raz, ‘National Self-Determination’ in Will Kymlicka (ed), The Rights of Minority Cultures (oup, 1995) 87. In his critical review of my book, Newman argues that while collective interests are indeed the distinctive foundation for collective rights, this element can be kept separate from value collectivism. Dwight G. Newman, ‘Value Collectivism, Collective Rights, and Self-Threatening Theory’ (2013) 33 ojls 197. As previously argued, only from the moral philosophical standpoint of value collectivism is it conceivable that collective rights at times override rights of group members, which is a significant feature of the very concept, noticeable in some instances in the existing legal practice. As noted by Kis, these groups are simply ‘given for members and non-members alike, by the signs used and identified, by mutual recognition paid by members to each other, and by regard of outsiders’. Janos Kis, ‘Beyond the Nation State’ (1996) 63 Social Research 191, 221. In other words, in the case of these collectives, ‘[t]here are no regulated admission and exit procedures, no membership card, no membership fee’. Susanne Boshammer, Gruppen, Rechte, Gerechtigkeit (De Gruyter, 2003) 122. Cf Michael McDonald, ‘Should Communities Have Rights? Reflections on Liberal Individualism’ (1991) 4 Canadian Journal of Law and Jurisprudence 217, 218–219. Otfried Höffe, Demokratie im Zeitalter der Globalisierung (ch Beck, 1999) 385. Marlies Galenkamp, ‘Collective Rights: Much Ado About Nothing?’ (1991) 9 Netherlands Quarterly for Human Rights 291, 297. Kis, ‘Beyond the Nation State’ (n 25) 221; Höffe, Demokratie im Zeitalter (n 26) 385–386.

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communicate with local authorities in his or her mother tongue. It is only by virtue of belonging to such a group that an individual can exercise the given right. This brings us to the second common mistake in the debate. It is best exemplified in Berry’s discussion about certain religious exemptions for Sikhs in English law. He says that these exemptions can be called collective rights ‘only in the uninteresting sense in which any rule (e.g. free entry to museums for students and pensioners) may be said to be a group right for all those covered by it’.29 Yet what Berry overlooks is that there is a profound distinction between, say, a ‘group of students’ and a linguistic group. As noted by Miller, in the former case we speak of ‘a category of persons, understood to mean all those people who fit a particular description, such as being under twenty-one or having red hair’, while in the latter case, we speak of ‘group proper, understood to mean a set of people who by their shared characteristics think of themselves as forming a distinct group’.30 In other words, notions like ‘student’ or ‘pensioner’ are used in a legal system to denote a particular legal status that is completely defined by respective legal provisions. Throughout our lives we change dozens of different legal statuses. On the other hand, a linguistic group exists as such, prior to and independently of legal recognition of it as a group.31 A linguistic group can become a right-holder only with the authorization of a given legal system, but group membership would still be defined according to extra-legal, sociological criteria. Let me summarize at this point. Jurisprudence traditionally operates with two types of right-holders: natural and juristic persons. Legal personality has long ago been extended from human beings to other entities, such as states, corporations, non-governmental organizations, football clubs, etc. The aforementioned discussion demonstrates, however, that it is conceptually possible 29 30 31

Brian Berry, Culture and Equality – An Egalitarian Critique of Multiculturalism (Polity Press, 2001) 112. David Miller, ‘Group Rights, Human Rights and Citizenship’ (2002) 10 European Journal of Philosophy 178, 178. This approach is also taken in the Human Rights Committee’s General Comment No. 23 regarding Article 27 of the International Covenant on Civil and Political Rights (iccpr), unga Res. 2200A(XXI), signed on 16 December 1966, entered into force on 23 March 1976, 999 unts 171. As is very well known, this article confers rights on persons belonging to minorities that ‘exist’ in a State party to the Covenant. The Committee, nonetheless, underlines that ‘[t]he existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria’. Human Rights Committee, General Comment No. 23: The Rights of Minorities (Art. 27), un Doc. CCPR/C/21/Rev.1/Add.5, para 5.2.

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to distinguish ‘genuine collectives’ as a new type of right-holders. Public international law vests rights in three categories of such collectives: peoples, minorities and indigenous peoples. These groups share with natural persons a pre-given, largely constituted social identity and the capacity for moral standing, while with juristic persons they share the need for the recognition by public law.32 Nevertheless, they possess sufficient distinctive features to be recognized as a separate jurisprudential concept in its own right. 4

Cultural Rights as Collective Rights

Use of the term ‘cultural rights’ (in plural) implies that one can actually refer to the existence of more than one single right aimed at protecting culture. For instance, it is palpable that both educational and linguistic rights have a cultural content; one that, for that matter, could be easily subsumed under the heading ‘cultural rights’. However, it is also conceptually justified to analyse these rights separately,33 not least due to their distinctive treatment in the most important human rights instruments, such as the Universal Declaration of Human Rights (udhr)34 and the two International Covenants. The fact that both the udhr and icescr stipulate, in Articles 27 and 15 para 1(a) respectively, the right to participate in cultural life seems to vindicate the use of the singular when referring to the conjunction between ‘rights’ and ‘culture’. And yet, as rightly pointed out by Thornberry, no single human right exists in isolation from others belonging to a larger family of rights. The human right to take part in cultural life is not an exception in that respect, insofar as it ‘must depend upon, influence, and intersect with, a range of other human rights’, such as ‘rights to education, language, freedom of thought, conscience and religion, freedom of expression and association’, as well as ‘rights envisaged as applying to specific communities such as minorities and indigenous peoples’.35 All this leads to a further distinction between a narrower and a broader reading of the content of the right to take part in cultural life. According to O’Keefe, 32

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The latter similarity stems from the fact that not every social grouping will qualify as a plausible right-holder, just as not every group of people with certain assets will qualify for recognition as a juristic person. Cf Bipin Adhikari, Carlos Viver Pi-Sunyer, ‘Linguistic and Cultural Rights’, in Mark Tushnet, Thomas Fleiner and Cheryl Saunders (eds), Routledge Handbook of Constitutional Law (Routledge, 2013) 387. unga Res 217 A(III), adopted on 10 December 1948, un Doc A/810, 71. Thornberry, ‘Cultural Rights and Universality of Human Rights’ (n 12) 5.

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in the narrower sense this right relates to ‘the external manifestations, tangible and intangible, of human self-expression and creativity’. These manifestations may range from those of ‘high culture’, such as art, literature, theatre, music, architecture, to the more pluralist and ‘popular culture’ phenomena of ‘the mass media, contemporary and folk music, arts and crafts, hobbies and sports’.36 In the broader sense, derived from social anthropology, culture as the object of a right denotes ‘a characteristic worldview and way of life’. Whereas the former reading goes hand in hand with the general intention of international instruments to treat this right as belonging to individuals (‘the right of everyone’), the latter reading ‘poses the question whether the right to take part in cultural life is also a group right’.37 O’Keefe himself takes a somewhat cautious stance, arguing that the right in question remains individual ‘but, to the extent that it protects cultural identity, one which presupposes the existence of a group and is commonly exercised in the context of that group.’38 Some other participants in the debate, however, more readily concede to the thesis of collective rights. Hence, after noting that cultural rights have recently been ‘attracting greater interest, particularly with reference to the right of minorities to a cultural identity’, Coomans concludes that ‘[c]ultural rights encompass both individual and collective rights’.39 Proceeding from the aforementioned understanding of culture as ‘a way of life’, Nimni argues in a similar fashion that ‘the collective dimensions to the right to take part in cultural life are crucial for the accommodation of national and ethnic minorities in multinational or multiethnic settings’.40 If we return to the linguistic formulations of the relevant international legal sources, we find small but significant differences in the wording of the respective provisions. Firstly, all international instruments, be they of general or regional scope, seem to explicitly vest the right to participate in cultural life in individuals. The broadest formulations are used in the icescr, which 36

Roger O’Keefe, ‘Cultural Life, Right to Participate in, International Protection’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (oup, 2008) [online edition, available at accessed on 29 April 2016] 2. For a detailed discussion of the content of the right, depending on different conceptions of ‘high culture’, ‘popular culture’, and culture as a ‘way of life’, see Roger O’Keefe, ‘The “Right to Take Part in Cultural Life” Under Article 15 of icescr’ (1998) 47 iclq 904. 37 O’Keefe, ‘Cultural Life, Right to Participate in, International Protection’ (n 36) 2. 38 Ibid. 39 Fons Coomans, ‘Economic, Social and Cultural Rights’ (1995) 16 Studie- en Informatiecentrum Mensenrechten (sim) 3, 4. 40 Ephraim Nimni, ‘Collective Dimensions of the Right to take Part in Cultural Life’, 9 May 2008, un Doc. E/C. 12/40/17, 3.

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r­ ecognizes ‘the right of everyone to take part in cultural life’ (Article 15(a)), as well as in the conventions for the elimination of racial discrimination and discrimination against women, which however use rather neutral wording (‘the right to equal participation in cultural activities’ (Article 5e(vi) of the International Convention on the Elimination of All forms of Racial Discrimination));41 ‘the right to participate in (…) cultural life’ (Article 13(c ) of the Convention on the Elimination of All Forms of Discrimination against Women).42 Article 17(2) of the African Charter of Human and Peoples Rights (achpr) uses a more specific language, stating that ‘every individual may freely take part in cultural life of his community’.43 Finally, the most stringent formulation is used in Article 27(1) of the Universal Declaration of Human Rights (udhr), which stipulates that ‘everyone has the right freely to participate in the cultural life of the community’, which is reproduced with a slight difference (‘the right of everyone to take part in the cultural and artistic life of the community’) in Article 14(1) of the regional instrument – Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.44 Let me proceed from the above-mentioned formulation of the udhr. In his remarkable treatise on the origins, drafting and intent of the UDHR, Morsink argues that, similar to Article 17 which asserts that everyone has the right to own property ‘alone as well as in association with others’, Article 27 of the udhr ‘presents us with a similar duality’. Whereas in its first paragraph, Article 27 speaks of ‘a shared kind of ownership’ of culture, in the second paragraph it stresses ‘a private kind of ownership of culture’, by stating that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’.45 In the sub-chapter entitled ‘The Omission of a Special Minority Rights Article’, Morsink argues that, unlike in the articles on religion and education, where the drafters displayed greater understanding towards minorities, ‘Article 27 does not exhibit a similar appreciation of the diversity of cultural traditions’. Moreover, the previously italicized ‘double use of the definite article “the” in the first paragraph is ground for suspicions’, insofar as it 41 42 43 44

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International Convention on the Elimination of All Forms of Racial Discrimination, adopted on 21 December 1965, entered into force on 4 January 1969, 660 unts 195. Adopted on 18 December 1979, entered into force on 3 September 1981, 1249 unts 13. Adopted on 27 June 1982, entered into force on 21 October 1986, oau Doc. CAB/LEG/67/3 rev. 5, 1520 unts 217. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, signed on 17 November 1988, entered into force on 16 November 1999 28 ilm 156 (1989). Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press, 1999) 217.

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assumes ‘that “the community” one participates in and with which one identifies culturally is the dominant one of the nation-state’. In that respect, this article seems to blur the line ‘between the state as a political entity and the nation or community as a cultural unit’, thereby giving ‘no hint here of multiculturalism or pluralism’. Had the drafters of the udhr framed the right as the right of everyone ‘to participate in the cultural life of his or her community’, as was subsequently done by the drafters of the achpr, such ‘pluralistic wording would have allowed for the possibility and the likelihood that being a citizen of a certain state and participating in the cultural life of one’s community are for some people not one and the same thing’.46 In spite of general reluctance of international law drafters to vest cultural rights directly and openly in groups,47 the collective dimension of the rights granted explicitly to individuals came to the fore in the subsequent work of monitoring bodies, individual experts, and adjudicative tribunals. Hence, the cescr Guidelines for State reports envisage, with respect to Article 15, that States are obliged, inter alia, to [i]ndicate the measures taken to protect cultural diversity, promote awareness of the cultural heritage of ethnic, religious or linguistic minorities and of indigenous communities, and create favourable conditions for them to preserve, develop, express and disseminate their identity, history, culture, language, traditions and customs.48 46 47

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Ibid 269. In that respect, Bisaz’s recent treatise on the subject matter proceeds from a potentially misleading research question: ‘is the reluctance to provide group rights in international law justified?’ Corsin Bisaz, The Concept of Group Rights in International Law: Groups as Contested Right-Holders, Subjects and Legal Persons (Nijhoff, 2012) 2. This question might potentially generate two equally incorrect conclusions – that legal concepts exist somehow independent of legal practice, or that they owe their existence to the will of lawmakers. While the emergence of a legal concept decisively depends upon some prior work of legal practice, be it legislative or judicial, its existence with the status of a distinctive legal concept critically depends on the works of jurisprudence. Accordingly, once it is possible to acknowledge the existence of a legal concept – and Bisaz claims in the rest of the book that jurisprudence is able to detect such an existence of collective rights in international law – lawmakers are neither able ‘to provide’, nor ‘to disallow’ these rights. What they can, and often do in current international law is to nomotechnically formulate provisions so as to vest such rights in individuals rather than in collectives. However, the fact that they do so (on ‘ideological grounds’, as claimed by Bisaz) cannot affect the legal nature of said right – it will remain a collective right. Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, 24 March 2009, un Doc. E/C.12/2008/2, para 68.

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Furthermore, in its General Comment No. 21, regarding the right to take part in cultural life, the Committee on Economic, Social and Cultural Rights reiterates the stance, taken already in Comment No. 17 regarding Article 15, para 1(c), that ‘the term “everyone” (…) may denote the individual or the collective’.49 Accordingly, both individuals – acting individually or in a group with others – and collectives, acting qua collectives, may ‘participate in’, have ‘access to’, and ‘contribute to’ cultural life, which are all aspects of the broader concept of ‘participation’.50 Moreover, the Committee is of the opinion that Article 15, para 1(a) ‘also includes the right of minorities and of persons belonging to minorities to take part in the cultural life of society, and also to conserve, promote and develop their own culture’. This right encompasses the obligation of States ‘to recognize, respect and protect minority cultures as an essential component of the identity of the States themselves’. As a consequence, ‘minorities have the right to their cultural diversity, traditions, customs, religion, forms of education, languages, communication media (press, radio, television, Internet) and other manifestations of their cultural identity and membership’.51 The collectivist dimension of cultural rights is also stressed in the first report of the Independent Expert in the Field of Cultural Rights. According to her opinion, it is not only that the debate about collective cultural rights ‘constantly arises in international human rights law’, but that it can be safely argued that the term ‘the community’ from Article 27 of the udhr must be now interpreted by its plural ‘communities’, which is, furthermore, vindicated by other relevant international legal instruments, such as the un Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic 49 50 51

cescr, General Comment No. 21. Right of Everyone to Take Part in Cultural Life (Art. 15, para1(a) of the Covenant), 21 December 2009, un Doc. E/C.12/GC/21, para 9. Ibid para 15. The Committee, furthermore, states that: ‘[m]inorities, as well as persons belonging to minorities, have the right not only to their own identity but also to development in all areas of cultural life. Any programme intended to promote the constructive integration of minorities and persons belonging to minorities into the society of a State party should thus be based on inclusion, participation and non-discrimination, with a view to preserving the distinctive character of minority cultures’. Ibid, paras 32–33. Yuspanis praises this Comment for being ‘an innovative and breakthrough approach which, as regards the minority dimensions of the right, goes far beyond the classical approach of the international and regional minority texts, which grant in principle rights to the members of minorities and not to the minorities per se.’ Athanasios Yuspanis, ‘The Meaning of “Culture” in Article 15 (1)(a) of the icescr – Positive Aspects of cescr’s General Comment No. 21 for the Safeguarding of Minority Cultures’ (2012) 55 gyil 345, 361.

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Minorities,52 the un Declaration on the Rights of Indigenous Peoples,53 as well as by the aforementioned General comments No. 17 and 21 of the Committee on Economic, Social and Cultural Rights.54 Finally, the case for collective cultural rights can be supported by the jurisprudence of regional courts and adjudicative bodies. For instance, the 2011 report of the Research Division of the European Court of Human Rights on Cultural rights in the case-law of the European Court of Human Rights illustrates that, although the European Convention does not explicitly protect cultural rights as such, ‘the Court, through a dynamic interpretation of the different Articles of the Convention, has gradually recognised substantive rights which may fall under the notion of “cultural rights” in a broad sense’. Some of the recognized rights are of vital importance for the protection of minorities, in particular, those ‘concerning the right to maintain a minority identity and to lead one’s private and family life in accordance with the traditions and culture of that identity’.55 The African Commission on Human and Peoples’ Rights was the first adjudicative body56 at either an international or national level which handed down a recommendation on the right to take part in cultural life. In the case Centre for Minority Rights Development (cemiride) and Minority Rights Group International (mrg) v. Kenya, the Complainants alleged violations resulting from the displacement of the Endorois community, an indigenous community, from their ancestral lands, the failure to adequately compensate them for the loss 52 53 54

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unga Res. 47/135, adopted on 18 December 1992, un Doc. A/RES/47/135. unga Res. 61/295, adopted on 13 September 2007, un Doc. A/RES/61/295. Report of the Independent Expert in the Field of Cultural Rights, Ms Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, un Doc. A/HRC/14/36, para 10. Hence, she ‘proposes to explore further the relationship between individual and collective cultural rights, taking into consideration the practice of human rights mechanisms at the national, regional and international level’. ECtHR, Research Division, ‘Cultural Rights in the Case-law of the European Court of Human Rights’, January 2011, para 1; available at accessed on 10 April 2016. For a collectivist dimension of recognized cultural rights, see particularly the chapters on Right to Cultural Identity, Linguistic Rights and the Right to Education. This body is, however, of a quasi-legal nature, since its recommendations and conclusions are legally non-binding on the State parties, which causes a great many problems in their implementation. This general problem is briefly summarized in Sheila B. Keetharuth, ‘Implementation of Decisions of The African Commission on Human and Peoples’ Rights’, 8 September 2009; available at accessed on 29 April 2016. Also see Chapter 9 by Folarin Shyllon in this volume.

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of their property, the disruption of the community’s pastoral enterprise and violations of the right to practice their religion and culture, as well as the impeding of the overall process of development of the Endorois people. One of the Commission’s findings was that the aforementioned paragraph 2, as well as paragraph 3 of Article 17 of the African Charter57 was violated. The Commission stated that the obligations stemming from Article 17 include, inter alia, ‘the duty of the state to tolerate diversity and to introduce measures that protect identity groups different from those of the majority/dominant group’.58 It appears from the previous discussion that ‘cultural rights’ shall be treated as a cluster of various Hohfeldian liberties, claims, powers and immunities,59 which, depending on the predominantly protected interest, may take the form of either individual or collective rights. In that respect, the right to take part in cultural life, which is guaranteed in the udhr, icescr and other international legal instruments, is only one, albeit the central, element of that cluster, which nonetheless has to be interpreted in conjunction with other relevant provisions. For instance, just as the reading of Article 27 of the udhr needs to take into account both its paragraphs, so too Article 15, para 1(a) of the icescr cannot be separated from para 1(c), which stipulates ‘the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. As already indicated, in the General Comment No. 17 the Committee on Economic, Social and Cultural Rights stated that ‘[a]lthough the wording of article 15, paragraph 1 (c), generally refers to the individual creator (…) the right (…) can, under certain circumstances, also be enjoyed (…) by communities’.60 This particularly applies to indigenous peoples and, thus, the Committee felt it necessary to emphasize that ‘States parties should adopt measures to ensure the effective protection of the interests of indigenous peoples relating to their productions, which are often expressions of their cultural heritage and traditional knowledge’.61 57 58 59 60

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This paragraph states as follows: ‘The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.’ Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, AfCHPR, Comm. No. 276/03, 2 February 2010, para 246. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (Yale University Press, 1919). cescr, General Comment No. 17, The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art. 15, para 1 (c) of the Covenant), 12 January 2006, un Doc. E/C.12/GC/17, para 8. Ibid para 32. This comment essentially reaffirms Thornberry’s argument that Article 15, para 1 ‘has many dimensions; for indigenous peoples it appears to open possibilities of

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Furthermore, it is patently clear that once the protected object of ‘cultural rights’ is disentangled from the usage of the expression ‘(cultural) community’ in the singular, the adopted ‘twin track approach’ also implies that ‘members of cultural communities should be able to effectively enjoy the fruits of their cultural life, whilst enjoying access to the broader culture of the national community in a non-discriminatory manner’.62 Put differently, cultural rights have to be additionally seen as an enabling environment for cultural diversity, particularly in the policy fields concerning identity, language and education.63 This, in turn, means that the ‘minority-culture aspect’ of the right to participate in cultural life necessarily has to overlap with the minority rights protected by Article 27 of the International Covenant on Civil and Political Rights.64 Finally, ‘people’, as the third collective actor recognized in international law, can be also said to benefit from ‘cultural rights’, insofar as it is the obligation of a state ‘to nurture the distinctive identity of the national culture as a whole’.65 This obligation stems also from the right to self-determination, guaranteed by

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preservation and promotion of their own culture, while safeguarding access to the “outer world” on a non-discriminatory basis’. Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2004) 197. Thornberry, ‘Cultural Rights and Universality of Human Rights’ (n 12) 9. This is confirmed in Art. 5 of the unesco 2001 Universal Declaration on Cultural Diversity, which, inter alia, stipulates that ‘[t]he flourishing of creative diversity requires the full implementation of cultural rights as defined in Art. 27 of the udhr and in Art. 13 and Art. 15 of the icescr. All persons should therefore be able to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue; all persons should be entitled to quality education and training that fully respect their cultural identity; and all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms’. unesco Universal Declaration on Cultural Diversity, adopted on 2 November 2001, 47 ilm 57 (2002). O’Keefe, ‘Cultural Life, Right to Participate in, International Protection’ (n 36) 4. Nimni is even more explicit in stating that ‘the recognition of the collective right to take part in public life is not only a vital human need, but a sine qua non step for the integration of national and ethnic minorities in multicultural states’. Nimni ‘Collective Dimensions’ (n 40) 7. O’Keefe, ‘Cultural Life, Right to Participate in, International Protection’ (n 36) 4. As rightly pointed out by Crawford: ‘[i]f the phrase “rights of peoples” has any independent meaning, it must confer rights on peoples against their own governments’. Otherwise, if these rights should be exercised only vis-à-vis other states, there would be no real sense in conceptualizing them as ‘peoples’ rights’. In such a case: ‘the familiar’ concept of the rights of States would pretty much do the job itself. James Crawford, ‘The Rights of Peoples: “Peoples” or “Governments”?’ in James Crawford (ed), The Rights of Peoples (Clarendon Press, 1988) 56.

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Article 1 of both human rights covenants, one of the constitutive entitlements of which is the right of peoples to ‘freely pursue their (…) cultural development’. The right, as well as the duty, of every people ‘to develop its culture’ is also stipulated in Article 1, para 2 of the 1966 unesco Declaration of Principles of International Cultural Co-operation. The understanding of a national culture, however, today has to accommodate the intercultural dictate of crosscultural dialogue and interaction between different cultures (majority and minority, host and immigrant, mainstream and alternative).66 Only under such a reading does it become possible, for instance, to treat Fatih Akin’s movies as part of German cinematography or Amin Maalouf’s novels and essays as part of French literature. 5 Conclusion Imagine an ethno-cultural community X, which is globally well-known for its extraordinary pieces of folk art, such as pottery, paintings and wooden sculptures. It inhabits a multicultural state in which no single ethno-cultural group constitutes a majority. The capital of the state is one of the favourite tourist destinations in this part of the world, and the national museum is among the most oft-visited sightseeing attractions. A new museum management has been recently appointed by the government, dominated by the country’s largest ethno-cultural group Y, which constitutes 43% of the total population. One of the first decisions of the new management was to change the conception of the museum’s permanent exhibition. Instead of having a separate exhibition room for each of the country’s ethno-cultural communities, the management decided to exhibit all the so-far displayed pieces of the national art by placing them into different historical epochs. Can it be argued that ‘cultural rights’ are violated in the aforementioned case? If so, whose right is violated – the right of individual members of the ethno-cultural community X; of artists belonging to that group, whose pieces are exhibited in the national museum; or the right of the ethno-cultural community as such? The most compelling case seems to be the one in favour of the violated collective cultural right of the ethno-cultural community X. While 66

In this regard, the relation between ‘interculturalism’ and ‘multiculturalism’ is a much debated question in contemporary political theory. See, e.g., Charles Taylor, ‘Interculturalism or Multiculturalism’ (2012) 38 (4–5) Philosophy and Social Criticism 413. Nasar Meer and Tariq Modood, ‘How Does Interculturalism Contrast with Multiculturalism?’ (2012) 33 (2) Journal of Intercultural Studies 175.

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no individual member of the group or artist belonging to the community may claim that his or her individual right, guaranteed in Article 15, para 1(a) and (c), is violated by the new museum’s conception, the group may claim that its right to nurture its distinctive cultural identity in a composite, multicultural state is infringed upon by the management’s decision to re-conceptualize the exhibition so as to emphasize the totality of the national art. Moreover, such a claim may even outweigh a counterclaim of an artist belonging to the community X whose individual interest might be better served in the management’s new conception. Whether such a claim would indeed be upheld by the competent international adjudicative body is disputable,67 not least due to the fact that a right to cultural representation of ethno-cultural groups – be they in the status category of peoples, minorities, or indigenous peoples – in national museums and art galleries is not stipulated as such in any legally binding international legal instrument. Hence, a putative decision upholding the infringement claim would have to be based on the systemic interpretation of the broader cluster of rights, which we know under the label ‘cultural rights’. For some participants in the debate, the main source of uncertainty regarding the end result of the processes of interpretation and adjudication in cultural matters arises from the fact that ‘cultural rights’ belong to a group of ‘“spacious” concepts of international law’. According to this criticism, a preferable option would be ‘a version of conceptual “subsidiarity”’, which would ‘bring the concepts closer to base, closer to the essence of what is required in order to address a situation in terms of human rights’.68 While Thornberry partly sympathizes with this argument, he rightly points out that the language of human rights instruments needs to stay ‘“open” to a great extent’, so that 67

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O’Keefe rightly notes that cultural rights at the international level are rarely enforced ‘through litigation and adjudication, but via the more supple and holistic constructive dialogue which characterizes the system of State reports under the icescr’. Consequently, ‘it might be expected that only relatively clear-cut and serious violations – those, for example, involving a complete absence of or discriminatory denial of access to cultural facilities or the obviously unjustifiable censorship of cultural works – would be litigated (…) and would ultimately ground a ruling against the State or government’. O’Keefe, ‘Cultural Life, Right to Participate in, International Protection’ (n 36) 6. Thornberry exemplifies this argument by mentioning McGoldrick, who cites Eriksson’s words that instead of ‘invoking culture, if one talks about, say, local arts, one could simply say local arts; if one means language, ideology, patriarchy, children’s rights, food habits, ritual practices or local political structures, one could use those equivalent terms instead of covering them up in the deceptively cosy blanket of culture’. Quoted from Thornberry in ‘Cultural Rights and Universality of Human Rights’ (n 12) 5–6.

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these instruments can be interpreted within the ‘living tree’ paradigm, that is, ‘in line with changing circumstances which include fresh developments in human rights, often the result of uncovering new situations, demands, or foci of oppression’.69 The aforementioned example testifies to the validity of this thesis. One of the potentially negative corollaries of the open language of the provisions on cultural rights is the threat of interpreting and applying them so as to fix collective cultural identity too rigidly and, thus, oppressively for individual members of the groups. However, while a legal-theoretical grounding of collective rights in value collectivism leaves room in principle for the possibility that those rights, under certain circumstances, can outweigh the rights of individual members of the group,70 this certainly does not imply giving preference to some overtly essentialized or conservative reading of culture. On the 69

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Ibid 6; Marmor is right in noting that any interpretative dispute, including one on the ‘living tree’ doctrine, ‘is as much about political morality as it is about language and interpretation’. Andrei Marmor, ‘Textualism in Context’ (2012) Legal Studies Research Paper Series No 12–13, 16; accessed on 5 April 2016. Elsewhere I have tried to demonstrate that, in international law, normative arguments in favour of different interpretative techniques depend on the objectives and the subject-matter of a specialized legal regime; on the nature of the respective adjudicative body and the scope of its jurisdiction; as well as the actors eligible for initiating the adjudicative procedure. Hence, in a ‘self-contained’ international legal regime of human rights law, courts could be more easily legitimized in advancing interpretative techniques, such as the ‘living tree’ doctrine, that more robustly restrict the state sovereignty for the sake of protecting individual rights and liberties, than would necessarily be the case with, for example, arbitral bodies dealing with the international investment law. Miodrag Jovanović, ‘Interpretation in International Law and International Rule of Law – Any Lesson for Jurisprudence?’ in Miodrag Jovanović and Kenneth Einar Himma (eds), Courts, Interpretation, the Rule of Law (Eleven, 2014) 33–55. As I argued elsewhere, at the abstract level this theory cannot offer conclusive criteria for delineating the sphere of individual rights that has to be treated as inviolable. What it can is to point to the entrenched judicial techniques for balancing conflicting interests of relevant subjects, such as the test of proportionality, according to which restrictions on individual rights and liberties are legitimate only if a state can prove it has a compelling interest, and that the realization of such interest could not be achieved by taking some less restrictive measures (minimum impairment analysis). Recognizing the equal status of relevant groups in this balancing process would imply that they have to demonstrate that their interest in maintaining a certain cultural practice, rite or lifestyle is vital for the existence and flourishing of the group, and that, as such, it outweighs conflicting claims of individual members of group and/or a state. Only under these conditions would a collective right override individual rights, even the ones of group members themselves. Jovanović, Collective Rights – A Legal Theory (n 16) 151–152.

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contrary, legal practitioners should always bear in mind that ‘communities and cultures are not static’ and, thus, that ‘the interplay of identity, difference and rights should not be arbitrarily terminated for the sake of some hegemonic interpretation of community’.71 An additional impetus for this direction comes sometimes, although probably not too often, from the cultural communities themselves. For instance, in the 2000 Manila Declaration, the gathered representatives of indigenous peoples solemnly accepted to revalidate their traditions and to ‘honestly deal with those ancient practices, which may have led to the oppression of indigenous women and children’.72 In doing this, indigenous peoples should be offered ‘a wealth of knowledge and insight’ from social anthropologists. This ‘new kind of civil service’ of this discipline would also be of immense help in dealing with collective cultural rights.73 71 72

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Michael Freeman, ‘Are There Collective Human Rights?’ (1995) 43 (1) Political Studies 25, 39. Yet the Declaration also underlines that ‘the transformation of indigenous traditions and systems must be defined and controlled by indigenous peoples, simply because our right to deal with the legacy of our own cultures is part of the right to self-determination’. Manila Declaration of the International Conference on Conflict Resolution, Peace Building, Sustainable Development and Indigenous Peoples, 8 December 2000; available at accessed on 20 April 2016. Marcus Colchester, ‘Indigenous Rights and the Collective Conscious’ (2002) 18 (1) Anthropology Today 1, 3.

chapter 2

The Cultural Contingency of the Human Right to Freedom of Religion Lorenzo Zucca 1 Introduction On February of 313 A.D, almost exactly 1700 years ago, the Emperor Constantine signed the edict of Milan that put an end to the persecution of Christians in the Roman Empire. It was the first official proclamation of freedom of religion. To be more precise, since Constantine himself was Christian and actively promoted the Christian religion in the Empire, it came to be regarded as a union between power and religion. Religion, that is Christian religion, was not just made ‘free’ in the empire but came to dominate the entire moral and political space. One paradoxical effect was the denial of religious freedom for dissenters. This paved the way for religious schisms, and in fact promoted brutal confrontations between various groups of Christians themselves. Many Christians, persecuted by their fellow brothers, left Europe to establish a polity with a greater freedom for differing religious views. Those who remained gradually decided to distance themselves from the idea of religion being intertwined in politics. The modern secular state was born out of the necessity to create a distance between power and religion. The led to the obvious risk that religious people be persecuted again, this time by the secular state. The right to freedom of religion was a local response against the possibility of new persecution. The human right to freedom of religion is interpreted in radically different ways in the West. Some insist that religious people should be protected from external interferences, while others insist that non-religious people should be protected from the interference of religion in public affairs. The problem is that it is impossible to accurately define the human right to freedom of religion (hrfr), even though the hrfr features in most international human rights documents. The Universal Declaration on Human Rights (udhr),1 for example, encapsulates it in Article 18. Thus the question here is not whether the hrfr is recognized as such, but rather what its status is in an international system of human rights. 1 unga Res 217 A(III), adopted on 10 December 1948, un Doc A/810, 71.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_004

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Significantly, the hrfr is not equally recognized in western secular states. Some constitutions give it a prominent place, others a very limited position. The French Declaration of the Rights of the Man and the Citizen (fdrmc),2 for example, contains a very limited recognition of it,3 while the first amendment contained in the Bill of Rights of the American Constitution4 gives a much more generous place to freedom of religion and attaches a very articulated protection to it.5 While the American Bill of Rights carves out a clear place for religion in the constitution, the French Declaration laconically acknowledges that opinions, even religious ones, benefit from the protection against prosecution. And, it is only by way of analogy that we can infer that freedom of expression of thought and opinions also covers religious people. It is important to stress that this freedom of opinion, while critically important, in no way amounts to an independent hrfr. How is it possible – or is it possible? – to distil from these disparate understandings of freedom of religion a coherent right that is common for everyone at the international level? The question is not merely theoretical, but it is of very great practical significance since a common understanding of the hrfr could constitute the basis for intervention in the domestic affairs of national sovereign states, at least in cases of major violations. However, I find it difficult to pin down a precise enough meaning of the hrfr to create such a basis, and as a consequence my suggestion is that the hrfr has a very limited role to play at the international level. There are several reasons for this. To begin with, the nature of freedom of religion heavily depends on historical contingencies at the domestic level (Section  2). Moreover, the practice of freedom of religion shows that the scope and strength of the right can only be determined in relation to the local 2 Declaration of the Rights of Man and Citizen, 26 August 1789; available at accessed on 29 April 2016; United States Constitution, 21 June 1788; available at accessed on 29 April 2016. 3 Art. x: No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law. Art. xi: The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law. 4 United States Bill of Rights; ratified on 15 December 1791; available at accessed on 29 April 2016. 5 ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances’.

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understanding of religion and what it means to be free to practice a religion. As a result, supranational institutions that adjudicate on these issues display a great deference to national institutions, which are better positioned to evaluate local practices (Section 3). One has to add to that that at the international level, where an institutional system that can resolve all disputes is lacking, the role of human rights in general and that of the hrfr in particular is limited, and has to take into account the respect for national sovereignty which is so important in practice. The way in which national sovereignty is limited vis-à-vis religion depends on the way religious freedom is conceived, and it would seem impossible to conceive of the imposition of such limitations at the international level without imposing a unilateral understanding of what amounts to religion (Section 4). It is therefore concluded that even if the hrfr is emphatically declared at the international level, it has a very limited status in practice. 2

The Nature of Freedom of Religion

Few dispute the status of freedom of speech, and everyone can understand the importance of letting everyone express herself in a democracy, even if we don’t know exactly where the protection of free speech ends. With religion the situation is different, because people disagree as to whether religion deserves special protection, and nobody agrees on what exactly religion covers. In other words the questions ‘why that freedom?’ and ‘freedom of what?’ remain highly contested. To those questions one can add ‘freedom for whom?’ Is it freedom for religious people in general, or is it freedom of religion for neglected minorities? The fourth question is ‘what kind of freedom’ – is it freedom from religion – to protect the secular state from interference by a church, or is it freedom for religion – to help religion maintain a place and role within society? Theories of freedom of religion attempt to answer all these questions. They attempt to give an account of the status of freedom of religion in a state.6 The answers to the questions thus depend on highly contingent factors, such as the outlook of the society and the precise constitutional history of a country. It is difficult to distil from local experiences a theory of freedom of religion that could be applied to the international community at large. Philosophical sophistication and abstraction do not cut much ice in this area, since freedom of religion poses fundamental questions that are fraught with contingent assumptions concerning the nature of religion and the cognitive realm of 6 Cecile Laborde, ‘Equal Liberty, Non-establishment and Religious Freedom’ (2012) 20 Legal Theory 52.

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theology. In this section I will explore to what extent freedom of religion is dependent on contingent factors that raise doubts about the possibility of a human right to freedom of religion at the international level. 2.1 Society The status of freedom of religion in a state closely depends on the way in which religion is perceived and practiced in the society. From a religious viewpoint, the American and French movements for human rights were coming from deeply different societies. American pilgrims fled Europe to escape religious persecutions. The embryo for pluralistic religious society existed from the nation’s birth. France on the other hand was trying to break away from the ties of the Ancien Regime, which had entrenched one religion as part of its own aristocracy. Thus in a multi-religious society, the special status of freedom of religion is simply assumed, whereas it is deeply contested in a society that wants to break free from the domination of one religion. Thus in the us freedom of religion is paramount, while it is at best secondary in France. One thing is clear, though. Freedom of religion is not a central preoccupation of theocratic regimes. It was not a central preoccupation for absolutist France, nor was it for Britain in the xvii century. When the state supports one religion, it also tries to demote other religions; at best other religions will be tolerated, at worst they will be banned. And it is not a central preoccupation of modern theocracies such as Iran. So, for example, the Iranian Constitution7 entrenches the immutable establishment of Islam (Article 12),8 and only recognizes a handful of other religions as official minority religions which have a qualified freedom to perform their rites and ceremonies (Article 13).9 Interestingly, the Iranian Constitution recognizes that non-Muslims are owed respect of their human rights (Article 14).10 But if you read Articles 13 and 14 together, 7

8 9

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Constitution of the Islamic Republic of Iran, enacted on 28 July 1982, as amended; accessed on 15 April 2016. Art. 12: The official religion of Iran is Islam and the Twelver Ja’fari school [in usual al-Din and fiqh], and this principle will remain eternally immutable […]. Art. 13: Zoroastrian, Jewish, and Christian Iranians are the only recognized religious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education. Art. 14: In accordance with the sacred verse (‘God does not forbid you to deal kindly and justly with those who have not fought against you because of your religion and who have not expelled you from your homes’ [60:8]), the government of the Islamic Republic of Iran and all Muslims are duty-bound to treat non-Muslims in conformity with ethical

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you can conclude that only a few official religious minorities have a qualified freedom of religion. Other non-Muslims may see their human rights respected, but we have to infer that the hrfr has at best a very limited place amongst these rights. Freedom of religion has for long been a Euro-Atlantic preoccupation. There is however a crucial difference between Europe and the us: in Europe, the presence of religion in a society has traditionally been organized along the lines drawn by the Treaty of Westphalia, which engineered religiously homogeneous societies with a dominant religion.11 Where one religion was dominant, all the others were at best tolerated. This artificial device led to a slow but progressive secularization of societies, which became disaffected from the one dominant religion. Freedom of religion was just a dormant concern from the past, which was rekindled only very recently because of the presence of new religious minorities. In the us, the society aspires to be religiously plural, albeit not perfectly so. The point of religious freedom is to protect and promote a plurality of religious faiths in the society, while keeping the state free from the interference of any one religion in particular. It is only recently that Europe has had to reconsider the status of freedom of religion, precisely because of the major social changes accompanying massive immigration. Thus, each European state has had to grapple with various claims from diverse minorities from North Africa, South America, the Middle East, and Asia. When minorities do not integrate into the mainstream society, they become highly motivated to use their religious identity as an explanation of their diversity. Freedom of religion thus becomes an individual and collective right through which religious minorities claim autonomy from what they perceive as a highly secularized mainstream society. Despite the differences between the American and the European models, it is clear that freedom of religion is relevant when a society displays great religious plurality. In these pluralistic societies, the status of freedom of religion is assumed to be important, and hence is not always explicitly justified. There is no real attempt to answer the four questions I sketched above (freedom of what?/why that freedom?/freedom for whom?/what kind of freedom?), since answers to those questions depend on contingent societal factors and on constitutional practice.

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norms and the principles of Islamic justice and equity, and to respect their human rights. This principle applies to all who refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran. Peace Treaty between the Holy Roman Emperor and the King of France and Their Respective Allies, 24 October 1648; available at accessed on 15 April 2016.

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2.2 Religious Freedom and Constitutional Assumptions The American Constitutional experiment was the first attempt to separate religion from politics, not with the intent of removing religion from society, but on the contrary with the intent of protecting freedom of conscience for every individual.12 In contrast with that project, France attempted to separate religion from politics in order to free the whole society from religious influence in the public sphere.13 Thus we have two different models of separation: one is bilateral separation with the intent of preserving religion from the interference of politics (us), and the other is unilateral, with the intent of preserving the state from the interference of religion (France). Within the first model, freedom of religion is dominant. Within the second model, freedom of religion is residual. The way in which freedom of religion is conceived thus depends on the complex relation between societies and politics on one hand, and church and state on the other. The separation between state and church is chiefly a historical doctrine, but happens to have major consequences. First of all, the idea of separation implies the existence of two separate cognitive domains working independently from one another. To recognize the existence of an independent domain is tantamount to acknowledgment that that domain is important and worthy of special consideration. Moreover, the religious domain is the last arbiter of one’s dignity. So there’s a paradoxical consequence in any form of separation: the state does not presume to know the reasons behind religion, but respects them as such, refraining from interference.14 Constitutional theories of freedom of religion do not address the four questions posed directly, but do so implicitly.15 To begin with, the mere fact of mentioning freedom of religion in a constitutional text assumes that freedom of religion is special and important – in us constitutional history not only is freedom of religion is mentioned, but it is in the first amendment (i.e., the opening article of the Bill of Rights), leading to the belief that it is amongst the most important freedoms. Unfortunately, the text does not explain why religion deserves special protection in comparison to other human activities. Moreover, the text does not say what amounts to religion, so the only way of working that out is by looking at constitutional practice, in particular 12 13 14 15

Martha Nussbaum, Liberty of Conscience – In Defense of America’s Tradition of Religious Equality (Basic Books, 2008). Cecile Laborde, Critical Republicanism – The Hijab controversy and Political Philosophy (oup, 2008). See Robert Audi, Democratic Authority and the Separation of Church and State (oup, 2011). Christopher Eisgruber and Lawrence Sager, Religious Freedom and the Constitution (hup, 2007).

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adjudication. This point corroborates the idea that freedom of religion is highly dependent on contingent factors and is quite difficult to export. Finally, the way in which constitutional practice works is coherence-oriented rather than critical. This means that constitutional actors and theorists try to make sense of past decisions with an eye toward preserving and explaining the values that constitute society from the outset, which are typically declared in constitutions. The mere fact that freedom of religion features in the constitutional text is a strong enough reason to consider it as special and important from the constitutional viewpoint. Thus, in practice judges often treat freedom of religion in a special way, without knowing what religion is and without asking why it is special.16 If you show that your claim is religious, then you have a pro-tanto reason to have your claim protected. The main way to establish what amounts to a religious claim as opposed to any other claim is by way of analogy with mainstream conceptions of religion within a society. Freedom of religion is especially important, and for that reason its nature cannot be investigated. Some constitutional theories of freedom of religion attempt to challenge the paradigm of freedom of religion as an individual human right that can provide pro tanto reasons to defeat governmental policies.17 They argue instead that freedom of religion should be understood equally as freedom of conscience, that is to say that whoever has a strong enough claim of conscience – be it a religious or non-religious person – should have a defence against discrimination of their belief. In that case you don’t have to show that your claim is religious, but that your claim is deep enough and is vulnerable.18 The problem with these constitutional theories is that they merely shift the burden of presumption concerning the nature and role of religion.19 Indeed, practice shows that there is a presumption that religious people have deep and vulnerable claims, whereas non-religious people have to prove why that is the case with their claims. Constitutional theories deal, implicitly or explicitly, with two separate and inescapable queries: firstly, is religion special? Secondly, what kind of treatment does it deserve? There is no answer to the first question; it is simply assumed that freedom of religion is in some way special, since it is mentioned 16 17 18

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Laborde, ‘Equal Liberty’(n 6). Eisgruber & Sager, Religious Freedom (n 15). The claim is deep when it is part of a worldview that the individual follows in a consistent way. It is vulnerable when it is a minority view, which is not shared by the mainstream society. Laborde, ‘Equal Liberty’ (n 6).

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in most constitutions. This of course influences its treatment, which amounts at times to qualified privilege and at other times to qualified burden. The two issues heavily depend on local assumptions, and this creates an obvious problem for those who want to distil an international human right to freedom of religion which requires international protection, as that would have to be based on universally shared premises. 2.3 The Ontology and Epistemology of Religion Philosophical explanations of freedom of religion seem to suffer from the same problem as constitutional theories. They are not capable of distilling one definition of religion that explains, in non-religious terms, the special importance of religion that requires its special protection. Indeed, many believe that we ought not delve into the trap of defining religion, since a definition would most likely be under- or over-inclusive. Many attempts have been made, but with very limited success: it is in fact frequently suggested that no definition is possible.20 Most lawyers and philosophers agree that a definition of religion is a thankless exercise. Instead, they usually propose criteria or paradigmatic cases to use in analogical fashion. By doing so, they also implicitly accept that religion should be apprehended on a case-by-case basis and with an eye to the local contingencies that shape its practice. In this regard, Brian Leiter is nearly unique in his effort to provide a simple, straightforward definition of religion that aims to capture all possible religious phenomena. i.e. a universally valid, and simple, definition of religion.21 Hence it is worth examining his proposed definition. Leiter offers two elements which he regards as central: categoricity of belief and insulation from evidence.22 Categoricity refers to the stringency of beliefs in guiding behaviour. Insulation from evidence addresses the way in which religion relates to the knowledge of the world that we have on the basis of common sense or science. Leiter argues that religion, being based on faith, is not responsive to reason, and that this insulates religion from the requirement of evidentiary proof. There is not enough space here to address this view extensively, but a few comments are in order. Leiter assesses religion from the viewpoint of an exclusively naturalistic worldview, which presupposes a conflict between science and religion. To assess the cogency of this conflict one would have to provide

20 21 22

Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (pup, 2007). Brian Leiter, Why Tolerate Religion? (pup, 2012). This began as a reply to Martha Nussbaum’s avowedly local ‘liberty of conscience’, Nussbaum, Liberty of Conscience (n 12). Ibid 9.

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an accurate account of the naturalistic worldview,23 that is a view according to which the world described by scientific laws is all there is to know. This assumption creates a fundamental problem for Leiter’s definition, as it presents faith is necessarily fallible, as if to suggest there is scientific evidence to prove that claim. In Leiter’s account, faith is the source of unwarranted beliefs, and as they cannot be supported by scientific evidence, indeed they are insulated from it. But this assumes too much, namely that all the beliefs we hold on the basis of faith are incompatible with scientific evidence. This cannot be true, in particular in relation to moral beliefs that are inherited from religious convictions. It also assumes wrongly that those religious beliefs that are incompatible with scientific evidence cannot be revised or put aside. But people of faith and religious institutions are prepared, albeit at times reluctantly, to change their beliefs on the strength of contrary scientific evidence. It should also be noted that Leiter’s definition is consistent with the idea of the separation between theology and other domains of knowledge. In other words, Leiter’s definition preserves an epistemic integrity to the domain of religion, by isolating faith as the source of religious knowledge. Epistemic integrity postulates a distinction between public reason and religious reason.24 Integrity as thus conceived cuts both ways. On one hand, it excludes religion from participation in the discussion of public policies. On the other, it recognizes the dignity of religious reasons as being different in nature from public reasons. Since religious reasons are sovereign in their domain according to this perspective, it follows that philosophy has a very limited role to play in providing a definition of a practice that defines itself. Moreover, the question – ‘what is religion?’ – is, for the purpose of determining the right holders and the content of the right, an altogether different question from ‘what is speech?’ Secular institutions are notoriously ill-equipped to answer the former question. Partly this is because secular institutions do not have the theological training required to examine the problem, and partly it is because secular law encapsulates an understanding of evidence that is not compatible with the ‘proofs’ that religious people may put forward to establish the genuineness of their beliefs. On top of all this, the question (‘what is religion?’) can be broken down into many difficult quandaries. The broadest underlying problem concerns the kind of object that religion is, that is its nature, or ontology, so to speak. 23

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Alvin Plantinga, Where the Conflict Really Lies – Science, Religion & Naturalism (oup, 2012). Plantinga, for example, shows that the conflict as presented by holders of a naturalistic worldview is only apparent, and it is not real after careful examination. Laborde, ‘Equal Liberty’ (n 6).

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But even assuming that domestic secular institutions can come up with a working definition of religion so as to guarantee the respect of freedom of religion, that definition is based on local contingencies that militate against the possibility of a universal definition of religion. These brief considerations highlight the puzzles that one necessarily faces when trying to pin down the meaning of the hrfr in Western states. And this is not to mention the difficulties related with non-Western states, which are even greater. When a policy maker has to grapple with problems of religious freedom, she is bound to face two extraordinarily complicated problems: 1. 2.

what is the nature of the right to freedom of religion? how does one know what counts as religion across the world, if one begins with one’s own local conception of religion.

The practice surrounding the human right to freedom of religion highlights that each legal-political system has its built-in assumptions, which depend on historical contingencies. Moreover, as will be seen in the next section, this constitutes sufficient reason for supranational and international institutions to display a great degree of caution in matters that have to do with the domestic treatment of freedom of religion. 3

The Practice of Freedom of Religion

What emerges so far is that freedom of religion is characterized by a very strong local contingency. This is a central consideration when we attempt to pin down the meaning of any international hrfr. The practice of freedom of religion also shows that domestic institutions are reluctant to enter into theological debates as to the nature of religion, for obvious reasons. They instead prefer to use sociological and anthropological criteria to grasp the question.25 The practice of freedom of religion also clearly shows that supranational and international judges adopt a very deferential stance towards domestic religious litigation. Freedom of religion is not an absolute right at the national level, even when it has pride of place, as in the us Constitution. Its treatment in practice displays a number of legal problems which confront both policy makers and the judiciary. In general, the legal treatment of freedom of religion presents three 25

R (on the application of E) v The Governing Body of jfs and the Admissions Appeal Panel of jfs Others [2009] uksc 15, [2010] 2 ac 728.

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distinct puzzles that contribute to its limitation in practice. These concern: (a) the scope of the protection, (b) the strength of the right, and (c) the way to deal with conflicts between freedom of religion and other rights. 3.1 Scope of the Protection To determine the scope of protection afforded to a human right one has to engage in several different steps. Firstly, one has to translate the broad statement of principle in deontic modalities (prohibitions/permissions/obligations).26 For example, the us Constitution prohibits, on one hand the making of laws that establish a religion, and on the other the making of laws prohibiting the free exercise of one’s own religion. In this latter instance however, the prohibition of a prohibition must be read as a broad permission. Secondly, one has to establish the correlative obligations imposed on other people by virtue of the existence of a right.27 At the constitutional level, generally speaking a liberty-right is correlated with a corresponding obligation on the part of other persons. Simply put, this means that if I have a right to exercise my religion in the private sphere, other persons have an obligation to respect my right, i.e. not to curtail my right by violating my private space. Surely the hrfr also implies a more general immunity on the part of the right-holder, which corresponds with a disability on the part of the state. For example, the American legislator is the prime duty-bearer of the hrfr, and this entails a constitutional disability to make laws that prohibit the free exercise of religion. Thirdly, and much more controversially, in order to decide the actual scope of prohibitions and the extent to which the legislator is disabled, one has to work out what kind of beliefs and behaviours are to be classified as religious. Looking at both the us and French texts, we can readily see that there is great difference as to the religiously-inspired behaviour that is covered by the constitutional articles. In the us, free exercise forms the core of the protection, while in France what is protected is religious belief. If we compare the two, there is a striking difference between the protection of religious thought and the protection of acts based on religious thinking. So the distinction between speech and act is an important dividing line between the regime of protection in France and in America. Another possible dividing line, perhaps even more important, is between freedom of religion understood as an individual or as a collective/group right. The idea of free exercise has been interpreted as leaning towards the protection 26 27

Georg Hendrik von Wright, ‘Deontic Logic’ (1951) 60 Mind, New Series 1, 1–15. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (edited by David Campbell and Philip Thomas) (Ashgate, 2001).

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of individual conscience rather than the protection of religious groups. In fact, on this point it is clear that the American state attempts to avoid support of any religious group insofar as possible, even if they obviously have the freedom to gather together to celebrate their religious rituals. Hence the basis of religious assembly is based on the individual act of conscience, rather than being a derivative of the special status of religious organizations. Thus in the us, religious conscience is the basic element underlying the recognition and protection of some religious beliefs and acts. In revolutionary France, the fdrmc only mentions religious opinions. In both cases there seems to be an accent on the individual experience, but we have to draw an important distinction between conscience on one side, and thought and opinion on the other. Conscience clearly covers both belief and action, while opinions can hardly be stretched to cover actions. There is a big difference between conscience and thought (or opinion); the former functions like a sword, whereas latter is more of a shield. In other words, once the existence of a religious claim of conscience can be established, it seems as if an exemption from ordinarily applicable laws might be requested. In the case of religious opinion, the only concern seems to create a private space shielded from the interference of ordinary law, but in no way does religious opinion seem to be entitled to claim an exemption from ordinary law. It is only in more recent human rights treaties that the scope of the right to freedom of religion includes a collective aspect. In particular Article 9 of the European Convention of Human Rights states: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private to manifest his religion or belief, in worship, teaching, practice and observance. (emphasis added) The European formulation gives religion a dimension beyond conscience and thought (which are listed separately), and from that individual dimension expands to a more collective one (‘in community with others’). It also moves beyond the private sphere to cover the public aspect of religion. 3.2 Strength of the Right In determining the strength of the hrfr, one has to compare the strength of other rights in abstracto, single out the importance of religious practices within a society, and finally compare the freedom of different religious groups between themselves.

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Some American commentators note a paradoxical treatment of religion.28 Free exercise receives special protection, and thus religious conscience has special force in comparison to other claims of conscience, whereas special burdens are placed on establishment, and therefore religion as a collective enterprise has less strength than other collective activities. In France, according to the fdrmc religious opinions are protected at the same level as other opinions, but certainly not better. So in this sense, religious opinions receive equal treatment. As far as religious groups are concerned, France allows itself the possibility to interfere with them whenever the legislator deems suitable. In both cases we talk about separation between church and state, but in fact in America it is bilateral separation while in France it is a unilateral separation. The European Convention on Human Rights (echr)29 acknowledges the principles of separation and establishment, so the strength of the interest protected by freedom of religion should be evaluated in different contexts. But it is important to note one thing at the outset: if one religion is established de jure then it goes without saying that there is a presumption of more favourable treatment of that religion over others. Establishment does not promote equality between religions, and can easily undermine the freedom of all other religions. So another interesting problem is the following: when a state establishes one religion, it may very well undermine the freedom of other religions. Kokkinakis, the first case to reach the Strasbourg court (ECtHR), is precisely about asserting the freedom of religion of Jehovah Witnesses in Greece, where the Orthodox Church is constitutionally established. In this specific case, one side effect of that establishment was a prohibition on proselytism, which constituted a criminal offence.30 De jure establishment, however, does not automatically mean that only one religion enjoys the benefit of constitutional protection. In the uk, de jure establishment goes hand in hand with a constant concern to offer equal benefits to a vast array of other religions.31 Conversely, de jure separation between church and state does not prevent altogether the possibility of de facto 28 29

30 31

Eisgruber & Sager, Religious Freedom (n 15). European Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950, entered into force on 3 September 1953, ets No. 5, 213 unts 222. Kokkinakis v Greece, Application No. 14307/88, Judgement of 25 May 1993, echr, Series A/260-A (1993). Julian Rivers, The Law of Organized Religion. Between Establishment and Secularism (oup, 2010).

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establishment, or at least a strict collaboration between the state and one church, as is the case in Italy between the state and the Vatican. This means that one religion enjoys very special benefits, while others may be treated comparatively much worse. For example, freedom of religion for Muslims in Italy does not meet with either great legal protection nor with public enthusiasm, has resulted in the imposition of a series of administrative burdens to prevent them from building religious places of worship.32 Hence an important concern one faces when determining the strength of the interest protected by religious freedom is the issue of whether or not we are talking about equal freedom for all religions, or whether one religion can be treated better than others.33 The main concern, though, is about the strength of the interest of religious freedom within a system of plural rights. Religious freedom in the us seems at first glance to be a central concern of the Constitution, since it is placed at the very front of the Bill of Rights and is the object of an elaborated set of judicial norms. In the French fdrmc, there is no article devoted to religious freedom, and religion is only mentioned in passing, so it is clear that its status, and the strength of the interest resulting from it, is much less important. In the echr, freedom of religion has an independent place amongst derog­ able rights. We know that other rights, such as freedom from torture and the right to life, have a greater strength, at least insofar that they are considered to be non-derogable, which is to say there is no interest that can prevail over them. A contrario, it is clear that there may be a number of interests that can prevail over the interest protected by freedom of religion, and paragraph 2 of Article 9 echr is evidence of this: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Freedom of religion as embedded in the echr has a very broad scope, since it covers ‘thought, conscience and religion’. It covers both individual and collective beliefs, and behaviour based on those beliefs. However, the strength of the right is limited and limitable on the grounds of paragraph 2 of the same 32 33

The ECtHR is going to soon hear the Swiss case on the administrative prohibition to build minarets. Eisgruber & Sager, Religious Freedom (n 15).

50 Table 2.1

Zucca Summarizes the various possible combinations, showing the protean nature of freedom of religion

Strength/scope

Individual

Collective

High strength

Conscience (e.g. usa)

Low strength

Thought (France drmc)

Group Right (echr para 1) Group Right with limitations (echr para 2)

Article 9. The strength of the interest protected by freedom of religion can be limited on the basis of public safety interests, for the protection of public order, health or morals, and finally – last but not least – for the protection of the rights and freedoms of others. It is important to note at this stage that scope and strength are linked in a relationship of inverse proportionality: the wider the scope of protection, the lesser the strength, and vice-versa. If the scope was very narrow, then one could always argue that it was a matter of preserving the very core of the right. 3.3 Conflicts with Other Rights The most difficult cases of limitations relate to conflicts between the right to freedom of religion and other rights. As pointed out above, and as a matter of law, freedom of religion can be limited in order to guarantee the promotion and protection of other rights. Examples of such conflicts are numerous, and here we can only sketch the contours of the problem. Freedom of religion can conflict with other freedoms, such as for example freedom of expression. It may be argued that in plural democratic societies, people are free to express negative judgments about religious practices, including judgments that are offensive. After all, if protected expression only concerned positive expression, then there would not be any need to proclaim such freedom. But it can also be argued that offensive opinion concerning religious minorities can undermine the respect of the society at large towards those particular religious minorities, as well as undermining the status of that minority within the wider society. In other words, offensive speech can easily polarize societies and create fierce social tensions, both within and outside the national territory. the Mohammed cartoon saga was a much-discussed example of this scenario. This issue is, I think, all the more exacerbated if we look at the case law of the ECtHR, which for example limited the artistic expression of a movie

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director in the Otto Preminger Institute case on the grounds that the movie in question could offend the religious majority in the Tyrol region.34 The court reasoned that interference with the applicant association’s freedom of expression was proscribed by law, but the seizure and forfeiture of the film were aimed at ‘the protection of the rights of others’, namely the right to respect another’s religious feelings, and at ensuring religious peace. The Court examined the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, and concluded that the Austrian authorities did not overstep their margin of appreciation. It is not clear whether the same protection would be afforded to the religious feelings of a minority, as in the case of the Mohammed cartoons. In any event, here it is necessary to highlight that we have two specific problems: first, one has to determine whether the right to have one’s religious feelings respected is within the scope of freedom of religion. If so, is that right is strong enough to prevail over freedom of expression? Both questions are determined by the judge(s), who can only rely on his or her (or their) own assumptions about the nature and value of religion. Another set of conflicts more closely concerns the very nature of freedom of religion. It is a matter of determining whether religion can be used as the grounds to discriminate against some categories of persons that are normally protected against discrimination. The abstract conflict is between equality and liberty. This conflict is especially difficult as it may put great pressure on religions to adapt to the very societal standards that religion may be desperately trying to resist. The conflict takes place in different settings, however the workplace is an excellent example of a domain where the fight against discrimination has been strong, at least recently in Europe.35 So if religion enters the workplace, the tension between non-discrimination and liberty of religion is heightened. There are in fact various sources of tension. The employer may be secular, and employees may assert the right to wear religious symbols;36 in this case the discrimination, assuming such symbols were prohibited, is against religious persons. Or the employer may be the state or a public authority, and the 34 35 36

Otto-Preminger-Institut v Austria, Application No. 13470/87, Judgment of 20 September, echr, Series A/295-A (1994). In the usa, the doctrine of ministerial exception bars the possibility of applying antidiscrimination laws. The cases of Eweida and Chaplin dealt with the restriction on wearing Christian crosses in the working environment, Eweida and Others v the United Kingdom, Application Nos. 48420/10, 59842/10, 51671/10, 36516/10, Judgement of 15 January 2013, echr (2013).

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employee may be in a situation in which she refuses to carry out basic public functions that are at odds with her religious precepts that are discriminatory in nature.37 Or the employer may be a religious organization and dismiss an employee who does not meet certain religious standards.38 Assuming that churches can employ whomever they want, is it possible for them to fire people who no longer meet some religious precepts that would normally be seen as discriminatory? In other words, when religion plays a role in a secular employment contract, does that make the religious workplace free from the constraint applicable to the non-religious workplace? Once again we have a problem of scope – to what extent does freedom of religion protect the activities which religion engages in? – and a problem of strength – to what extent does the special protection of freedom of religion prevail over other constitutionally entrenched interests, such as non-discrimination? The judicial responses to these questions cut in both directions and are not written in stone, and they heavily depend on very contingent and local understandings of the nature and value of religion in a particular society. This important fact must caution us against the temptation of acting ‘abroad’ in the name of our own contingent and local convictions about the human right to freedom of religion. It also explains the cautious attitude of supranational courts, which display a great deference when it comes to freedom of religion. 3.4 Margin of Appreciation The upshot of the previous discussion is that international institutions that adjudicate on matters of religious freedom face considerable problems that derive from the contingent and local nature of that freedom. It is clear that domestic institutions are seen as being better positioned to evaluate the attitude that the state should take vis-à-vis religion. Even when there is an established regional system of protection of human rights (such as the echr), the human right to freedom of religion seems to be one of the most controversial issues. European states accept interference to a limited extent. The European Court of Human Rights began to make use of Article 9 only in 1993, i.e. in the last two decades, 37 38

The case of Ladele (grouped with Eweida and Others) deals with the dismissal of Ladele following her refusal to register civil unions for homosexual people. Several cases have reached the ECtHR in the last 5 years. I cite here the case of Luigi Lombardi Vallauri, a professor of legal philosophy whose employment contract at the catholic university of Milan was terminated on the ground that the Congregation of Catholic Education refused its approval after 20 years of employment; Lombardi Vallauri v Italy, Application No. 39128/05, Judgment of 20 October 2009, echr (2009).

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while all the other rights contained in the Convention have been adjudicated upon since the very creation of the Court. It can be argued that the ECtHR is attempting to set up a marketplace of religions by countering obvious obstacles to religious pluralism. This postulate might be reflected in the first ECtHR case on religious freedom, Kokkinakis (1993), where the Greek Constitution prohibited any form of proselytising. Strasbourg intervened to lift the ban in order based on the principle that other religions should not be restricted in their freedom. The underlying idea behind the ‘marketplace of religion’ approach is to lessen the monopolistic hegemony of one religion, especially when it exercises its domination in a coercive way, i.e. through criminalization. But it certainly does not involve the promotion of equal liberty, in the sense of protecting all religions at the same level. To do so, it would have to engineer a profound change in society, which cannot be done through law. The example of Turkey shows that even when the constitution attempts to engineer secular change, a religious backlash is always possible. The latest ECtHR decision seems to recognize a great freedom on the part of the state to decide to what extent its identity is dependent on religious symbols.39 If anything, the Court has taken a very deferential stance towards national sovereignty. The core principle, as far as it can possibly be distilled, is that the national state is sovereign when it comes to the definition of its symbols of identity. Hence the human right to freedom of religion in practice has only a very limited protection at the supranational level. Given this very clear stance, it is very hard to square this position with the idea of having an aggressive foreign policy in the name of freedom of religion. If that were the case, it would amount to another double standard, according to which European nations will have their sovereignty respected, while non-European nations can be the object of intrusive interventions under the moralizing banner of the human right to freedom of religion. 4

The Status of the Human Right to Freedom of Religion

We have seen that: (1) the definition of the hrfr is deeply local and contingent, and (2) at best, international judicial institutions display great deference in matters of freedom of religion, and at worst there is no centralized institution that has the power to interpret that right so as to apply it in the international context. Moreover, any reason for intervention grounded on the hrfr 39

Lautsi v Italy, Application No. 30814/06, Judgment of the Grand Chamber of 18 March 2011, echr (2011).

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must be weighed against the interest of any state to have its national sovereignty respected. In light of this we have to try to make sense of the fact that the hrfr is the object of many international declarations, while as a matter of practice its status amongst other human rights is very limited. 4.1 Freedom of Religion as an International Human Right Freedom of religion features prominently in international documents. The Universal Declaration of Human Rights (udhr) makes it one of the core rights in Article 18: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’ The udhr is followed by a host of international documents that deal with freedom of religion. The International Covenant on Civil and Political Rights (iccpr)40 reiterates the same formula used in the udhr, and adds other dispositions that cover prohibition against discrimination on religious grounds and the right of parents to control the religious education of their children. The iccpr also offers a catch-all definition of freedom of religion that includes both theistic and non-theistic religions, which is obviously over-inclusive since any form of conviction can pass that muster. Perhaps the most lavish text on freedom of religion is the 1981 un Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981 un Declaration).41 Articles 1 and 6 protect a wide panoply of actions of worship and religious behaviour, which are too long to report here in detail.42 Finally the 1989 Concluding Document encapsulates recommendations from the udhr, the iccpr and the 1981 un Declaration.43 There is hardly another human right that receives more textual recognition. However, it must be made clear at the outset that none of these documents are legally binding on states unless they are formally incorporated in domestic law. The us, for example, has not made them legally binding. These texts have 40 41 42

43

unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171. Adopted on 25 November 1981, un Doc. A/RES/36/55 (1981). For a useful guide see Derek H. Davis, ‘The Evolution of Religious Freedom as a Universal Human Right: Examining the Role of the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief’ (2002) Brigham Young University Law Review 217. Concluding Document of the Vienna Follow-up Meeting of Representatives of the Participating States of the Conference on Security and Cooperation in Europe, 17 January 1989, 28 ilm 527 (1989).

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at best a moral force of persuasion, but without any legal sanctions attached. Moreover, it is hard to pin down exactly the force of the moral argument, since religion is defined very broadly in the iccpr and is not defined at all in the un 1981 Declaration, which brings us back to square one: that domestic states have considerable freedom in managing the way in which they understand and treat religion. Indeed practice shows that religious people are still very much the object of all types of discrimination in many countries. We saw that in some states freedom of religion is central to the constitutional project, while it is clearly not in other states. It is therefore impossible to claim that freedom of religion is universally recognized as a strong right at the national level. Hence it follows that it is impossible to claim that the hrfr should be regarded as fundamental to the international project of human rights, and even more so it follows that the protection of a hrfr can hardly be regarded as a strong ground for intervention at the international level. International Human Rights are a widely used currency, but they only apply in a limited way. When we try to make sense of the rapidly-developing practice of human rights, it is possible to distinguish between human rights that have an impact on national sovereignty and those that are only a matter of noble declaration, without serious sanctions or precise moral pressure attached to them. The hrfr falls in the second category: the panoply of texts and good intentions is not followed by a precise international regime of protection that is capable of identifying with precision those instances in which the right should be protected and sanctions attached to its violation. 4.2 Foundations The relationship between international human rights and religion is ambivalent, starting with the grounding for human rights. There seem to be two broad families of theories that attempt to ground human rights – one is secular and the other religious. Both theories explain human rights as those rights we all have simply by virtue of being a human being, although they often seem to fail in this respect.44 In other words, they defend an ethical conception of human rights according to which it does not matter whether or not human rights already make a difference, what matters is that they ought to make a difference. But in order to make a difference they must provide reasons that are strong enough to outweigh arguments based on national sovereignty, and this implies that the ethical conception of human rights should provide a minimum threshold beyond which intervention is justified.45 The problem with ethical 44 45

James Griffin, On Human Rights (oup, 2008). Joseph Raz, ‘Human Rights without Foundations’ in Samanth Besson, John Tasioulas (eds), Philosophy of International Law (oup, 2010) 321–337.

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conceptions is that they are not substantive enough to provide a clear, applicable understanding of what that minimum threshold is.46 Ethical conceptions of human rights may point to what it is impermissible to do to religious people, but they never give a full account of the kinds of violations of the hrfr which would warrant the limitation of national sovereignty. So, for example, a theocratic regime may not be compatible with the hrfr, but this is hardly an argument for intervention at the international level. Respect for national sovereignty is compatible with the idea of having a theocratic regime. If democracy means anything, then the people of one nation can surely decide to have their decisions vetted by religious leaders. This is not to say that this is a desirable thing, but that it is compatible with what people can choose. Religious theories of human rights start from similar premises, but they argue that we are entitled to protection by virtue of being human beings because we have been made in the image of god. But these theories often fail to account for the fact that some human beings have lost their god-like image and therefore are not worthy of being right-holders anymore.47 Other candidates are offered: Religion claims to provide a universal ethical foundation to human rights in the name of the love of god. Others claim that an ethical/religious foundation can coincide with a secular one, such as for example brotherhood.48 However, the problem does not lie with the difference between secular and religious foundations; the problem lies with the very idea of there being an ethical foundation that is universal and that explains all human rights in an unequivocal way. Therefore, ethical foundations are unlikely to explain the emerging practice of human rights and they also seem to lack the necessary critical punch to improve on the practice as it evolves. Besides foundational theories of human rights that attempt to ground human rights in a secular or religious argument, there are theories that deny the need for foundations, which I find more promising at this level of the debate and practice of human rights.49 These theories do not deny that there may 46

Even at the national level, human rights do not usher in a conclusive ethical worldview. If anything, they bracket it out of the picture. So it is not possible to claim that human rights are important because they have – or they provide – a strong ethical foundation. The protection of the hrfr in each society is a political question, not ethical, and this is all the more true at the international level. 47 Nicholas Wolterstorff, Understanding Liberal Democracy – Essays in Political Philosophy (oup, 2012). 48 Michael Perry, The Morality and Law of International Human Rights (Routledge, forthcoming). 49 Charles R. Beitz, The Idea of Human Rights (oup, 2011).

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be ethical foundations to human rights, but they claim that given the present practice of human rights, it is not possible to spell out one precise ethical foundation that illuminates the practice or provides a helpful critical standard.50 The practice of human rights is evolving at a fast pace and does not point to any conclusive argument as to their moral status. Human rights protect important interests, which receive legal protection to the extent that they are not limited by other more important interests. Human rights have two levels, one of which is domestic and the other of which is international. The hrfr is more stringent at the national level for all the reasons advanced above. To a large extent the meaning of freedom of religion is deeply dependent on the social role of religion at the national level. It is therefore a deeply contingent relationship between a society and its state, and cannot be evaluated fairly from an external standpoint. In addition, as Raz correctly points out, human rights themselves are very much dependent ‘on the contingencies of the current system of international relations.’51 It is in this sense that human rights lack a foundation, in the sense that their practice cannot be described as being grounded in a fundamental moral concern. If you put the contingency with respect to the relation between religion and society in every state together with the contingency due to the place of human rights in international relations, then one comes up with a very fragile picture of the human right to freedom of religion. To this it must be added that religion as an object can hardly de defined universally in any meaningful way. Religion seems to escape any definition, or if defined the definition relies on very specific assumptions. Freedom of Religion and Foreign Policy Western states often justify military intervention on the grounds of a breach of human rights, without acknowledging that the understanding of a human right may be very much dependent on a contingent presupposition. There is a difference between the human right against being tortured and the human right to freedom of religion. The former can be defined and nobody (or at least hardly anybody) would object to the need for the prohibition. The latter is not objectively definable and not all violations are likely to be strong enough grounds for intervention. As we have seen, this is very much the view of international judicial bodies, which give a considerable margin of appreciation to national authorities.

50 51

Raz, ‘Human Rights’ (n 45). Ibid 336.

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Zucca

Moreover, more serious violations of the hrfr, such as those which involve persecutions and killings, are covered by less controversial universal human rights, such as the right to life or the right to freedom of expression. The point is that unless the hrfr is precisely defined in scope and strength, it cannot add very much either at either the moral or legal level. And in addition, a biased conception of the hrfr has many risks, starting from the highly polarizing politicization of the role of religion in politics. The eu is hardly capable of managing religious diversity within its territory, so it is really unthinkable that it would proclaim itself as promoter of freedom of religion in the world. If what the eu wants to achieve is a secular world, they should say so. Regional and international systems of protection of human rights contain different approaches to the way in which national sovereignty is respected. The highly organized system of European Human rights allows for the intervention of the ECtHR as a means of sanctioning member states. Human rights in general are those rights which can justify international intervention against violators.52 But what is fundamentally flawed is the attempt to launch a foreign policy that attempts to promote a very skewed understanding of freedom of religion, one which rides roughshod over local understandings and practices. Nonetheless, the us and Europe are often very keen to use freedom of religion as a ground for intervention in foreign policy. Since the Constantinian union between the church and state in 313 a.d., religion has been used for various political endeavours, and in particular to give a moral justification to the interventions of the Empire. Colonialist interventions were often justified on the grounds of ‘spreading Christianity’, and examples continue until today; it is enough to recall the military intervention in Mali to counter the religious extremists. Today’s imperialist powers have supported some of the worst dictators in the name of freedom of religion. The Assad family, Saddam Hussein, Mubarak and Gaddafi have all been supported by the West because they could guarantee more or less secular regimes that would fight against the alleged threat of religious extremists. The us has tried to play a strong role in the area of religious freedom as a matter of international policy. The most obvious problem in its endeavours is that it is guided not by an international, universal understanding of the hrfr, but by a very domestic one. The result is that foreign policy and international relations are based on very local and contingent understandings of human rights, and are likely to divide rather than to unite. 52

I agree with Raz, ‘Human Rights’ (n 45), that a violation of human rights justifies international intervention of various types, but not necessarily armed intervention.

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5 Conclusions The hrfr has a limited place within a system of international human rights, for several reasons. Firstly, the meaning of religious freedom is deeply dependent on contingent factors, such as constitutional history, the social outlook of the society, and the presence of religious minorities. Secondly, judicial actors at the supra-national level are keen to show deference to national institutions when faced with the complex issues involving freedom of religion. Thirdly, any international actor will have to factor in the strong deference to national sovereignty when deciding whether or not to intervene on the basis of the hrfr. There is no easy way to understand the role of religion in other societies, and there is no steadfast definition of religion for that purpose. The way in which each state comes up with a cocktail of these different factors is a matter of its own national sovereignty, which can hardly be interfered with without suspicion of new imperialism. The hrfr is not a strong concern in the system of international human rights, even if some would like to present it as such. It is just one human right amongst many others, and it always has to be weighed against many other considerations. It may be that the practice of human rights will come to resemble something altogether different one day. For the moment, it is not desirable to claim that human rights stand for a univocal set of moral demands at the international level. They are rights to be claimed against national sovereigns; for this reason they have to be used with great caution in order to avoid the worst suspicions of a new imperialism. This is particularly the case for the human right to freedom of religion, which is for the moment a limited right in the system of international human rights.

chapter 3

Collective Cultural Rights Considered in the Light of Recent Developments in Cultural Heritage Law Janet Blake 1

Introduction – The Wider Context

Recent treaty-making in the cultural heritage, in particular the Convention for the Safeguarding of Intangible Cultural Heritage (unesco, 2003)1 has made it imperative to consider not only the personal rights to heritage asserted over heritage but also whether, how and how far cultural communities are in a position to claim collective rights with regard to their heritage.2 However, both cultural rights and heritage are extremely complex areas that throw up a number of theoretical problems and so, inevitably, the point at which they intersect poses important challenges to commentators of both legal and non-legal disciplines. Heritage is ‘a value-laden concept that can never assume a neutral ground of connotation’3 while, despite both explicit and implicit references to cultural rights in a range of international instruments and in the practice of the human rights mechanisms, cultural rights remain under-conceptualized and poorly understood, both by the rights- and duty-holders. Recent developments in both heritage studies theory as well as the aforementioned treatymaking have moved our understanding of heritage beyond sites, monuments and other physical spaces towards valuing the process of heritage-making and an associated recognition of the social significance of cultural expression and their related objects (intangible cultural heritage). In this view, heritage is a social construction and one whose management as directed by Smith’s ‘Authorized Heritage Discourse’4 that throws up important questions relating to 1 Adopted on 17 October 2003, entered into force on 20 April 2006, 2368 unts 3. 2 As Kuutma notes, ‘[d]issonance and intangibility form the core qualities that channel and guide the perception of the nature of heritage and its effects; this fundamentally concerns the domain of cultural rights’. Kirstin Kuutma, ‘Between Arbitration and Engineering: Concepts and Contingencies in the Shaping of Heritage Regimes’ in Regina F. Bendix, Aditya Eggert and Arnika Peselmann (eds), Heritage Regimes and the State (University of Göttingen, 2012) 22. 3 Ibid 21. 4 Laurajane Smith, The Uses of Heritage (Routledge, 2006) 299.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_005

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subjectivity and agency (of communities as well as individuals)5 that are analogous to the human rights discussion on collective rights in important ways. With regard to cultural rights, it is important that we understand what they are and how they can be made operational and an examination of the interactions between safeguarding intangible cultural heritage (ich) and the cultural rights of the ‘Communities’ given such prominence in the 2003 Convention may help to shed some light on this. First, we must distinguish cultural rights from other human rights that do not expressly refer to culture but are important for its protection, and recognize the importance of both.6 In addition to these rights, the non-discrimination principle constitutes an important legal basis for defending the cultural practices and identities of minorities and other groups in society.7 Beyond this, a further challenge posed by cultural rights is their potentially collective character – they represent a set of rights that, on the whole, can only logically be enjoyed by groups and communities etc., and that relate to collectively-held goods. One key question that this raises is whether cultural communities can be the direct holders of these rights or are simply the beneficiaries of them.8 5 As Arantes notes with regard to inventorying heritage items, a fundamental activity of heritage management, which is rarely undertaken on the initiative of the cultural communities themselves and is carried out through external ‘intermediaries’ who are usually governmentappointed experts Antonio Arantes, ‘Heritage as Culture: Limits, Uses and Implications of Intangible Cultural Heritage Inventories’ in Toshiyuki Kono (ed), Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development (Intersentia, 2009) 62. 6 These rights are mainly derived from Arts. 13, 14 and 15 of the International Covenant on Economic, Social and Cultural Rights (icescr), unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3, and Art. 27 of the International Covenant on Civil and Political Rights (iccpr), unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171. See Patrice Meyer-Bisch (ed). Les droits culturels, une catégorie sous-développée de droits de l’homme, Actes du VIIIe Colloque interdisciplinaire sur les droits de l’homme (Fribourg Editions Universitaires, 1993). 7 According to a number of international instruments and to the interpretation of the relevant oversight bodies, discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination (including language, religion and ethnicity) which has the intention or effect of nullifying or impairing the recognition, equal enjoyment or exercise of human rights. See un Committee on Economic, Social and Cultural Rights (cescr), General Comment No. 20. Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, un Doc. E/C.12/GC/20. 8 See Janusz Symonides, ‘The Legal Nature of Commitments Related to the Question of Minorities’ (1995) 3(4) International Journal on Minority and Group Rights 301.

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Over the last two decades, important developments have occurred in areas of international law lying outside human rights law (discussed below), especially in the fields of cultural heritage and environmental law, which have further supported the existence of collective cultural rights of groups and communities. As a result of the stronger voice of developing states in the international arena,9 the essential importance of culture and cultural rights to national policy-making in areas such as development planning is increasingly appreciated and the aforementioned legal evolutions demonstrate a noticeable shift of priorities within the international community. It is also of relevance here to add that the increasingly powerful voice of developing countries in international fora has contributed directly to the discussion on collective rights (cultural or related to genetic resources, for example) as is well illustrated by the work undertaken in the mid-1980s by the African Union (then the Organization of African States) to develop a regional instrument on community-based rights.10 It is no accident that this impetus from Africa has come from a region in which the notion of a shared, communal ‘African’ culture or civilization has been promoted in official statements and even legal instruments.11 The African Charter (1981), for example, contains an unusual provision in Article 29(7) which enjoins each citizen of the African States ‘[t]o preserve and strengthen positive African cultural values in his (sic) relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society.’ Although not directly asserting any specific right(s) held by the collective – ‘African society’ – since it is couched as a duty, it can however be interpreted as depicting a social context within which the balance struck between the individual and the community is of a different order from that which is assumed in the liberal ‘western’ interpretation of human rights. Similarly, Muslim societies have tended to address the question of rights within a social, religious and intellectual context of communitarian values, in which the good of the individual is perceived 9

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This was clearly evident at the un Conference on Environment and Development held in Rio de Janeiro in 1992, and subsequent diplomatic conferences and other intergovernmental discussions. This was aimed at developing a set of community-based rights related, specifically, to plant genetic resources. As in the African Charter on Human and Peoples’ Rights, adopted on 27 June 1981, entered into force on 21 October 1986, oau Doc. CAB/LEG/67/3 rev. 5, 1520 unts 217 (African Charter), which refers in its Preamble to: ‘…the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights’.

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as being inextricably tied to that of the religious community and the wider society. Several global treaties that have been adopted during the last twenty years have typified the new approach taken towards group rights. Importantly for this paper, what their relevant provisions have in common is some connection with culture and, hence, with rights that have a cultural dimension. For example, the un Convention on Biological Diversity (1992) explicitly recognises the importance of protecting the knowledge, practices and innovations of local and indigenous communities.12 The Food and Agricultural Organization’s treaty on plant genetic resources (2001)13 addresses the rights of farmers, such as their right to continue traditional farming methods reliant on re-using seeds from one crop to another. unesco’s Convention on Intangible Cultural Heritage, adopted in 2003, places at its centre the duty of the Parties to ensure the involvement of groups and communities, as well as individuals, in identifying, safeguarding and managing their own cultural heritage.14 This can be seen as an expression that the right to participate in cultural life (icescr Article 15(1)) is enjoyed not only by individuals, but also by groups and communities related to a specific cultural expression. In a similar vein, Article 11 of unesco’s 2005 Convention on Diversity of Cultural Expressions15 encourages the ‘active participation of civil society’ in efforts to achieve the objectives of the treaty. This Convention has as its primary subject ‘those expressions that result from the creativity of individuals, groups and society and have a cultural content’ 12

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un Convention on Biological Diversity, adopted on 5 June 1992, entered into force on 29 December 1993, 1760 unts 79, 31 ilm 818 (1992). Art. 8(j) requires each Contracting Party, as far as possible to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustained use of biological diversity …’ International Treaty on Plant Genetic Resources for Food and Agriculture, adopted on 3 November 2001, entered into force on 29 June 2004, 2400 unts 303. ‘Intangible cultural heritage’ as defined in Art. 2(1) with direct reference to the ‘communities, groups and individuals’ to which it belongs: ‘means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognise as part of their cultural heritage. This intangible cultural heritage … provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity…’ (Emphasis added). Arts. 11(b) and 15 of the Convention directly address community involvement in the Convention’s implementation and this remains an important objective, as evidenced in the periodic reporting of States Parties to the Convention. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted on 20 October 2005, entered into force on 18 March 2007, 2440 unts 311.

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(Preamble, paragraph 16, emphasis added).16 It is also worthy of note that a Human Rights Council study from 201217 has, in places, employed the terminology ‘individuals, families and communities’, which rather closely reflects the ‘communities, groups and … individuals’ of unesco’s 2003 Convention and the aforementioned ‘individuals, groups and society’ of the 2005 Convention. In the hrc study, this is with reference to the emphasis, in the Asian Confucian tradition, placed on the responsibility of individuals, families and communities in caring for others ‘which is consistent with the notions of respect and solidarity in the culture of certain indigenous peoples.’18 This study also quotes the seven un experts who served as special procedures mandate holders, who declared that: ‘States should adopt measures conducive to the creation and preservation of open spaces necessary for the exercise of cultural freedoms and for enabling individuals and groups to address and manage cultural changes in a participatory way and to safeguard, develop and transmit their cultural heritage.’19 We can also identify a growing recognition in more recent cultural heritage law of the importance of the notion of solidarity. The common interest or concern of humanity in safeguarding Intangible Cultural Heritage (ich) is a major justification for the 2003 ich Convention, as is the role it plays in ensuring truly sustainable development (Preamble), both reflecting aspects of solidarity. The 2005 Convention not only supports cultural diversity as a common heritage of humanity,20 but takes this further by calling for the creation of a fair and equitable international system within which cultural products are distributed and marketed. This would appear to be invoking international solidarity towards achieving this goal, which would require states across the 16

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Art. 7 of the 2005 Convention requires Parties to create an environment that encourages individuals and groups to create, produce, disseminate, distribute and have access to their own cultural expressions. It also explicitly demands effective public/private sector/civil society cooperation, both nationally and internationally, to achieve its objectives. Also relevant are Arts. 6, 7, 12, 15 and 19 of the Convention. Human Rights Council (hrc), ‘Study of the Human Rights Council Advisory Committee on Promoting Human Rights and Fundamental Freedoms through a Better Understanding of Traditional Values of Humankind’, 6 December 2012, un Doc A/HRC/22/71. Ibid para 30. ‘Human Rights are essential tools for an effective intercultural dialogue’, statement by a group of United Nations experts on the World Day on Cultural Diversity for Dialogue and Development, 21 May 2010. Cited in hrc, ‘Study of the Human Rights Council Advisory Committee on Promoting Human Rights’ (n 17) para 60. Preamble and Art. 1 of unesco’s Universal Declaration on Cultural Diversity, adopted on 2 November 2001, unesco Doc. 31C/Res.

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globe to cooperate in a spirit of partnership. It also adds an international dimension to the notion of social justice and intra-generational equity in calling for solidarity in ‘enhancing the capacities of developing countries … to protect and promote the diversity of cultural expressions.’21 Since solidarity rights are a group of human rights that have a more obviously collective character than the previously adopted civil, political, economic, social and cultural rights, and inasmuch as the notion of solidarity here is being directed towards a primarily cultural objective, we can see a further movement towards recognition of the collective dimension of rights operating in a cultural context. Without doubt these developments will, over time, have an influence on the approach taken within the domain of human rights towards the question of collective rights, especially with regard to rights with a cultural dimension. Another way in which we can understand these evolutions in international law from 1990 to 2005 is in the notion of the shared character of cultural heritage, human rights and the environment as common goods. According to Vrdoljak22 the rise of this notion challenges the dominance of states that has, until recently, prevailed in the international order: ‘[Common goods] may prove to be more fundamental and enduring in our conception of an international community. Whether they are common values (like human rights, rule of law, etc.) or common domain (including cultural heritage, environment, space, and so forth), they speak to an emergent international community beyond the society of States and the duties and obligations of non-State actors.’ In this same volume, Lixinski23 addresses the interplay between and sometimes competing roles of communities and states in international cultural heritage protection and how human rights may contribute towards resolving the resulting tensions. Hence, we can see how conceiving of cultural heritage as a common good in international law not only fundamentally shifts the relationship between states and communities but also involves human rights related to communities with regard to their heritage. 21

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Art. 1(i) reads in full: ‘to strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions’. Ana Filipa Vrdoljak, ‘Introduction’ in Ana Filipa Vrdoljak and Federico Lenzerini (eds), International Law for Common Goods – Normative Perspective son Human Rights, Culture and Nature (Hart, 2014) 1. Part i is on Human Rights and Part ii concerns Cultural Heritage. Lucas Lixinski, ‘Heritage for Whom? Individuals’ and Communities’ Roles in International Cultural Heritage Law’ in Ana Filipa Vrdoljak and Federico Lenzerini (eds), International Law for Common Goods – Normative Perspectives on Human Rights, Culture and Nature (Hart, 2014) 193.

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Despite all these developments, cultural rights remain legally underdeveloped, their content and scope uncertain and their implementation often neglected.24 A major difficulty is presented by the fact that ‘culture’25 is not a static or a fixed notion and any attempt to translate cultural issues in terms of rights is problematic.26 The transversal or cross-cutting character of cultural rights may also be a source of further confusion, since they continuously overlap with other categories of human rights.27 Moreover, cultural rights comprise not only rights that explicitly refer to culture, but ‘include all human rights that protect or promote components of the cultural identity of individuals and communities as part of their dignity.’28 The last phrase points to a much deeper question – and one that is central to the subject of this essay – namely, the role cultural rights play in protecting aspects of identity that are essential to protecting the dignity of both individuals and communities. This, in turn, leads us to three central questions: How should we conceptualize the collective character of cultural rights? How do discussions on cultural rights inform and affect, and how much are they affected by, different conceptions of human dignity? 24

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Janusz Symonides, ‘Cultural Rights’ in Janusz Symonides (ed), Human Rights, Concept and Standards (unesco, 2000) 175, 175. See also Stephen A. Hansen, ‘The Right to Take Part in Cultural Life: Towards Defining Minimum Core Obligations Related to Article 15(1)(A) of the International Covenant on Economic, Social and Cultural Rights’ in Audrey R. Chapman and Sage Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, 2002) 279, 281–282. ‘Culture’ is defined very broadly in cescr, General Comment No. 21. The Right of Everyone to Take Part in Cultural Life (Art. 15, para 1(a) of the Covenant), 21 December 2009, un Doc. E/C.12/GC/21, para 13. See Halina Nieć, ‘Casting the Foundation for the Implementation of Cultural Rights’ in Halina Niec (ed), Cultural Rights and Wrongs (unesco/Institute of Art and Law, 1998) 176, 181. Niec notes that: ‘Cultural rights have an exceptional internal dynamic due to the fact that culture is a living and growing organism, constantly manifesting itself in new ways’. Patrice Meyer-Bisch, ‘Le droit à l’interdépendance et au développement des libertés’ in Johanne Bouchard, Stefania Gandolfi and Patrice Meyer-Bisch (eds), Les droit de l’homme: une grammaire du développement (Harmattan, 2013). See Yvonne Donders, ‘The Legal Framework of the Right to Take Part in Cultural Life’ in Yvonne Donders and Vladimir Volodin (eds), Human Rights in Education, Science and ­Culture – Legal developments and Challenges (unesco, 2007) 231, 236. Donders observes that ‘… the broad concept of culture, including not only cultural products but also process-oriented aspects such as association, language, religion and education, implies that cultural rights include many different human rights which may have a civil, cultural, economic, political or social origin … Cultural rights are consequently more than those rights that explicitly refer to culture, but include all human rights that protect or promote components of the cultural identity of individuals and communities as part of their dignity’.

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Must cultural rights inevitably lead to a culturally relativistic position, and how does this impact on the universality of human rights as a whole? 2

Collective Cultural Rights – Human Dignity and Cultural Relativism

Cultural rights have been variously described as ‘collective’, ‘communal’ or ‘communitarian’ rights, while others view them as rights of individuals exercised as members of a collective.29 The latter formulation is regarded as expressing ‘classic’ human rights theory and is the one taken by the Human Rights Committee in its General Comment on Article 27 of the iccpr.30 Most commentators would agree that, at a minimum, cultural rights should help protect the group; otherwise the individual could not protect his or her own rights as a member of that group.31 However, writing as early as 1986, Charles Taylor asserted that certain rights may have to be claimed on behalf of communities in contrast to the ‘strictly atomistic view of society’ of Enlightenment thinking. He reminded us in that paper that languages and cultures belong to specific communities and cannot be created or preserved by isolated individuals; any right to do so must be attributed to the community itself.32 Howard,33 in contrast, sought to draw a distinction between the concepts of ‘rights’ and those of ‘dignity’, whereby modern human rights represent a radical break 29

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See, for example: Douglas Sanders, ‘Collective Rights’ (1991) 13 HRQ 368; Paul Kuruk, ‘Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the United States’ (1998–1999) 48 American University Law Review 769; Tom Hadden, ‘Human Rights: The Pendulum Theory of Individual, Communal and Minority Rights’ (2000) 3(1) Critical Review of International Social and Political Philosophy (Special Issue: Human Rights and Global Diversity) 77; Abdullah An-Na’im (ed), Human Rights in Cross-Cultural Perspectives. A Quest for Consensus (University of Pennsylvania Press, 1992); Lynda S. Bell, Andrew James Nathan and Ilan Peleg, Negotiating Culture and Human Rights (Columbia University Press, 2001); and Nieć, ‘Casting the Foundation for the Implementation of Cultural Rights’ (n 26) 176. hr Comm, General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5. See also Chapter 5 by Kamrul Hossain in this book. Lyndel V. Prott, ‘Understanding one Another on Cultural Rights’ in Halina Nieć (ed), Cultural Rights and Wrongs (unesco/Institute of Art and Law, 1998) 161, 167. Charles Taylor ‘Human Rights: The Legal Culture’ in Philosophical Foundations of Human Rights (unesco, 1986) 49. Rhoda K. Howard, ‘Dignity, Community and Human Rights’ in Abdullah An-Na’im (ed), Human Rights in Cross-Cultural Perspectives (University of Pennsylvania Press, 1992) 81.

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from status-based and non-egalitarian societies, within which human beings hold rights not only against the state, but also against ‘society’. Claims to cultural rights are essential to assertions of cultural identity and the protection of these identities, whether conceived as individual or collective. As such, they lie at the heart of the dignity of each human being and, hence, of human rights. As the un Special Rapporteur on cultural rights has noted: ‘In many aspects, cultural rights are pivotal to the recognition and respect of human dignity, as they protect the development and expression of various world visions – individual and collective – and encompass important freedoms relating to matters of identity.’34 Shaheed has also accepted that this identity (or identities) – ‘world visions’ – can be held collectively as well as individually, stating that ‘the existence of collective cultural rights is a reality in international human rights law today …’35 Calls for the formal recognition of certain collective cultural rights reflect the sense that a purely individual conception of human rights does not respond adequately to the cultural norms of societies, in which individual identity and dignity are closely bound up with membership of the community. It is, therefore, no surprise that many of the international law developments that reflect such thinking have occurred within the framework of indigenous peoples’ rights. Anaya, for example, has described a notion of human dignity predicated on a group-based (indigenous), rather than individual, sense of identity as ‘cultural integrity.’36 Such a position leads to the assertion of collectively held rights to ancestral lands and their resources and to the cultural heritage, in order to protect the cultural integrity and consequently the collective dignity of indigenous populations.37 This idea is unequivocally expressed in 34

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Human Rights Council (hrc), Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, un Doc. A/HRC/14/36, para 3. See also Donders, ‘The Legal Framework of the Right to Take Part in Cultural Life’ (n 28) 231: ‘All over the world, peoples, communities, groups and individuals are striving for the preservation and protection of their cultural identity, to which they attach great value because they consider it an important part of their human dignity… In order to preserve and develop cultural identities, there is increasing demand for better promotion and protection of cultural rights as an integral part of human rights’. un Doc. A/HRC/14/36 (n 34) para 10. S. James Anaya, Indigenous Peoples in International Law (2nd edn. oup, 2004). Howard, ‘Dignity, Community and Human Rights’ (n 33) regards indigenous claims for the recognition of their collective or communal rights as being primarily concerned with their collective dignity, and so not related to the human rights of the individual members of their groups.

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Article 1 of the un Declaration on the Rights of Indigenous People (undrip),38 which states that ‘Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms’ (emphasis added). As set out in the 2007 Declaration, this right is of course closely connected to the right to self-determination (provided in Article 3) and to the special relationship they have with their ancestral lands. For this reason, there is no direct analogy between the collective (special status) rights enjoyed by indigenous peoples and to the position of cultural minorities since the latter do not have the right to self-determination. This can, however, be taken as a formal acceptance of the fact that there are culturally and/or ethnically defined groups, albeit indigenous ones, that enjoy certain collective rights in order to preserve their human and collective dignity. The question then arises as to whether other non-indigenous groups can enjoy collective cultural rights in particular, in the context of this essay, the cultural communities of the 2003 Convention. For a liberal political philosophy in which the individual is placed at the centre (upon which human rights are classically predicated), the notion that collectives can hold rights is a difficult one to accept.39 Some commentators reject the idea that group (collective) rights, if they exist, could be human rights40 while others would argue that groups are not able to exercise the agency or do not have the capacity for sentiment necessary for holding rights.41 Supporters of collective rights as human rights would insist, on the contrary, that some of the goods that are of fundamental importance to human well-being can only be enjoyed collectively; as a corollary to this, in order to have a notion of human rights that adequately responds to the realities of the human condition we must accept collective rights.42 Jones43 argues that the collective conception upon which individual 38 39 40 41

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un Declaration on the Rights of Indigenous Peoples, unga Res. 61/295, adopted on 13 September 2007, un Doc. A/RES/61/295. Miodrag Jovanović, Collective Rights: A Legal Theory (cup, 2012) 5. For example, Jack Donnelly, Universal Rights in Theory and Practice (2nd edn; Cornell University Press, 2002). Edmund Wall, ‘The Problem of Group Agency’ (2000) 31 Philosophical Forum 187; George Rainbolt, ‘What are Group Rights?’ in Christine Sistare, Larry May, and Leslie Francis (eds), Groups and Group Rights (University of Kansas Press, 2001). Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (OUP, 2001). See also Neus Torbisco Casals, Group Rights as Human Rights: A Liberal Approach to Multiculturalism (Kluwer, 2006). Peter Jones, ‘Group Rights’ in Edward N. Zalta (ed), The Stanford Encyclopedia of Philosophy (Spring 2014 Edition); available at accessed on 15 April 2016.

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members of a group jointly hold their right to such goods means that that right does not have to be grounded on an interest that an individual qua individual could have: in some cases, goods such as that constituted by the group’s culture take a collective form and it is not possible for them to be made available to individuals separately from other community members. It is important to state here that there is no need to regard this as a necessarily strict dichotomy between individual and collective rights since, ‘even those who ascribe to a value individualistic approach accept that collective rights may and often do prevail over individual members’ rights’.44 Jones puts this point rather forcefully as follows: It would seem strangely arbitrary, given the moral significance that we give to rights, to insist that the objects of rights can be only goods that individuals can enjoy as independent individuals and never goods they can enjoy only in association with others… There is no reason why individual rights and group rights should not both figure in our moral thinking. Indeed, they commonly do. For example, it would be entirely commonplace to hold that a people, as a political unit, has a collective right to be self-determining but only within the limits set by individuals’ human rights.45 Moreover, in some cases, it is actually an individual right that forms the basis for ascribing a collective right since, without a thriving community, some of the goods to which individuals have rights cannot be realised. This view would accord closely with the notion of ensuring the viability of ich in the ‘safeguarding’ of the 2003 Convention46 since it assumes (in most cases) that a viable and healthy cultural community exists for the heritage element to be viable. Which collective entities, then, can enjoy such rights? They would include ethnic and religious groups but would not encompass such professional and social groups as university students or trades unionists. This is interesting in relation to the use of the phrase ‘communities, groups and…individuals’ in various places in the text of the 2003 Convention since it means that it is only cultural communities to which such collective rights could attach and not

44 Jovanović, Collective Rights: A Legal Theory (n 39) 10. 45 Jones, ‘Group Rights’ (n 43). 46 As defined in Art. 2(3).

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the ‘groups’ which are perceived primarily as social and professional.47 It is worth noting also that collective rights do not always have to be exercised by the group, but may equally be exercised by an agent acting on behalf of the group and even by individual members of the group, as in the case of an individual using their own (minority) language in court proceedings. According to Jovanović, the main issue is not whether but under what circumstances can a collective right override an individual right and he suggests that this can only happen when the collective right protects an interest of the right-holding entity of sufficient strength to outweigh the conflicting interests of an individual member of the group. However, such collective claims must have limitations placed on them and they cannot ever be used to override the most fundamental human rights.48 In many ways, then, the international community’s ‘project’ to safeguard the intangible cultural heritage of cultural communities and groups and, in some cases, individuals can be seen as an attempt to translate the aforementioned evolutions in international cultural policy-making into a legally binding framework. Of course, this does not immediately remove the challenges that such approaches pose for human rights theory and the potential dangers that collective cultural rights may pose to other, individually-held, human rights. This question is discussed further below with reference to the 2003 Intangible Heritage Convention of unesco. The classic theoretical position of the priority of individual rights over collective rights was again set out in 2012 by the seven un experts who served as special procedures mandate holders, who declared that: No one may invoke cultural diversity as an excuse to infringe on human rights guaranteed by international law or limit their scope, nor should cultural diversity be taken to support segregation and harmful traditional practices which, in the name of culture, seek to sanctify differences that run counter to the universality, indivisibility and interdependence of human rights.49 47

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At a unesco Expert Meeting on Community Involvement in Safeguarding Intangible Cultural Heritage held in Tokyo, Japan, 13–15 March 2006, ‘Groups’ for the purposes of the Convention were defined as: ‘[comprising] people within or across communities who share characteristics such as skills, experience and special knowledge, and thus perform specific roles in the present…[with regard to ich]…as, for example, cultural custodians, practitioners or apprentices’. This takes a similar approach to that of Dworkin cited below (n 73). Statement by a group of United Nations experts (2010) (n 19) which reflects the position taken in the General Comment to Art. 27 of the iccpr.

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Of course, some degree of internal tension should be expected between universalism and relativism in human rights standards in the domain of cultural rights, since cultural differences form the basis for relativist arguments.50 This, then, leads to the following question: Is it really feasible to take a rights-based approach to culture that can apply equally to everyone in all societies? Interestingly, the Vienna Declaration (1993)51 statement of universality was leavened by an acceptance of ‘the significance of national and regional particularities and various historical, cultural and religious backgrounds.’ Here, then, we see some recognition that differences in cultures and systems require universal human rights standards to be implemented in appropriate ways, thus allowing for a degree of ‘contextualization’ of the right in its national implementation.52 Thus understood, we can say that human rights are and must be the same everywhere in the substance of the right, but may be implemented nationally in ‘culturally influenced forms’.53 Moreover, the ideas contained in international human rights instruments are not limited to Western thinking or Western intellectual antecedents.54 The drafting history of the 1948 uhdr55 would appear to bear this out, in view of the attempt to identify values commonly held

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This is suggested by Elsa Stamatopoulou ‘The Right to Take Part in Cultural Life,’ submission to the Committee on Economic, Social and Cultural Rights’ as one reason why human rights commentators have generally avoided addressing cultural rights, (9 May 2008) un Doc E/C.12/40/9, at 7. Vienna Declaration and Programme of Action of the World Conference on Human Rights (adopted on 25 June 1993) states in Art. 5 that: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’. However, this position is limited, as is made clear in cescr, General Comment No. 21. The Right of Everyone to Take Part in Cultural Life (n 25). Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals: Text and Materials (Clarendon Press, 1996) 192. They give as an example the right to a fair trial which may require a jury trial in one system and an investigating judge in another. Wolfgang Schmale and Sami Awad Aldeeb Abu-Sahlieh (eds), Human Rights and Cultural Diversity: Europe, Arabic-Islamic World, Africa, China (Keip Publishing, 1993). See also Michelle R. Ishay, ‘What are Human Rights? Six Historical Controversies’ (2004) 3 Journal of Human Rights 359. unga Res 217 A(III), adopted on 10 December 1948, un Doc A/810, 71.

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by various cultures and religions of the world, as described by Glendon.56 Indeed, a stronger case might be made for the lack of women’s and children’s voices in this exercise than for a failure to take account of the global diversity of religious and cultural traditions.57 3

Collective Rights – The Case of Intangible Cultural Heritage

The 2003 Intangible Heritage Convention is a particularly good example of a development within another field of international legal that may impact the future evolution of human rights law with regard to collective rights, in view of the central safeguarding role it accords to the cultural communities and groups associated with the ich. It is useful here to remind ourselves that: …rights that are now frequently asserted as group rights include the right of a cultural group that its culture should be respected and perhaps publicly supported; the right of a linguistic group that its language should be usable and provided for in the public domain; and the right of a religious group that it should be free to engage in collective expressions of its faith and that its sacred sites and symbols should not be desecrated. In each of these cases, the right, insofar as it is a group right, is a right held by the relevant group qua group, and the duties generated by the right are duties owed to the group as a whole rather to its members severally.58 Hence, a significant number of rights now being claimed as ‘group’ or ‘collective’ rights are ones that relate directly to the subject-matter of the 2003 Convention. However, Kymlicka seeks to draw a distinction between ‘group differentiated’ and ‘group’ rights, typifying the former as a right that is ‘accorded to a particular group but not to the larger society within which the group exists’.59 This might be the right held solely by the members of an ethnic or indigenous 56 57

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Mary-Anne Glendon, The World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2001). Some feminist commentators have claimed that the approach taken towards equality in human rights betrays a heavily masculine view and that they would not wish to claim the strict equality of human rights, but rather a form of equality that allows for women to fulfil all their aspirations (including motherhood as well as professional and public roles). See Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000). Jones, ‘Group Rights’ (n 43). Will Kymlicka, Multicultural Citizenship- A Liberal Theory of Minority Rights (OUP, 1995) 45.

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minority to fish in certain waters and which is vested in, and is exercisable by, the individual members of that minority. The approach taken by the Convention towards safeguarding cultural heritage is a response to the very specific character of a heritage that exists primarily in its practice and enactment by the cultural group and/or community concerned, the very survival of which depends on their willingness and ability to continue to do this. Under the terms of the 2003 Convention, states are required to ensure the active participation of communities in the definition, identification, inventorying and management of intangible cultural heritage.60 This participatory approach to safeguarding ich creates a much more complex and politically-charged environment for the protection of cultural heritage than was traditionally the case. This has significant implications for the relationship between local cultural communities (and even individual practitioners) and the state. The inclusion of explicit references to community involvement in safeguarding ich in the 2003 Convention (in particular the principle of consultation) can be viewed as a counter-weight to the ‘sole discretion’ to decide how and when to protect cultural heritage accorded to the State Parties under the 1972 World Heritage Convention.61 In its provisions regarding community involvement the 2003 Convention raises important questions about ‘ownership’ of the ich, and also of the proc­ ess by which it is officially recognised. Shaheed’s Report on the right of access to and enjoyment of cultural heritage, adopted by the Human Rights Council in March 2011,62 presented the various stakeholders with an interest in cultural heritage and its safeguarding (ranging from the state and its organs to local communities and businesses), and their respective rights and duties. This exercise immediately raises the following important questions: Whose cultural heritage deserves protection? Who defines the cultural heritage and its significance? To what extent do individuals and communities have access to and 60 61

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Arts. 11(b) and 15 of the 2003 Convention. Paul Kuruk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights: an Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage’ (2004) 1 Macquarie Journal of International and Comparative Environmental Law 111. Convention Concerning the Protection of World Natural and Cultural Heritage, adopted on 16 November 1972, entered into force on 17 December 1975, 1037 unts 151. hrc, Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, Access to Cultural Heritage, 21 March 2011, un Doc. A/HRC/17/38, para 77: ‘As reflected in international law and practice, the need to preserve/safeguard cultural heritage is a human rights issue. Cultural heritage is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and communities and their identity and development processes’.

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enjoy it? How can conflicts and competing interests over cultural heritage be resolved? What are the possible limitations on the right to a cultural heritage? On the deficit side, however, the 2003 Convention fails to specify how cultural communities are to influence government policy, and they cannot easily initiate safeguarding measures on their own or block state-sponsored programmes to which they are opposed,63 as would be their right if Article 15 of the icescr is interpreted as having a collective dimension. The question thus arises whether it is necessary for ich expressions or practices to be highly valued outside the cultural community that creates, maintains and practises them in order to be officially defined officially as a ‘cultural heritage’. Moreover, the mere act of defining the ‘community’ with regard to a heritage element is problematic in relation to an international treaty that is, by definition, seeking to set out universal(ist) standards. Communities may be linked through shared social and cultural experiences and the criteria for identifying ‘the community’ range from objective ones (language, dress, ethnicity etc.) and subjective ones (self-identification, a sense of shared history and solidarity etc.) and, so, it becomes a question as to whether this identification is through an outside determination (based purely on objective criteria) or from within.64 However, even if it is a subjective choice by the community itself (its members), this may either be predicated simply on a sense of their common affiliation or, especially within the heritage domain, in response to some safeguarding agenda related to an institutional, legal and administrative heritage framework. Indeed, it can be argued that heritage itself is used to define communities65 which may actually develop in response to a need to interact with government agencies in

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Kuruk notes that the 2003 Convention ‘leaves the impression that the State has exclusive rights to intangible cultural heritage found within its territories and ignores the rights of others, including indigenous groups’; see Kuruk, ‘Cultural Heritage, Traditional Knowledge and Indigenous Rights’ (61) 128. As Deborah Kapchan asks, ‘Do definitions of community arise organically from within or are they imposed from without? Who will advocate for women and minority interests? And is advocacy necessary, or even desirable? In short, what are the political fictions that drive the race for heritage?’ See Deborah Kapchan (ed), ‘Introduction’ in Deborah Kapchan, Cultural Heritage in Transit: Intangible Rights as Human Rights (University of Pennsylvania Press, 2014) 6. Notably, Art. 2(1) of the 2003 Convention which defines ‘intangible cultural heritage’ for the purposes of that treaty not only defines the heritage with reference to the related communities (groups and individuals) but also makes clear that they are defined with reference to their heritage.

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cultural policy-making.66 The heritage politics within which these safeguarding agendas are developed are not neutral and involve selection of symbolic elements by oppositional interest groups and, moreover, the relationship between community and heritage is not always an easy one.67 Neither communities nor heritage are homogeneous and this often gives rise to lack of consensus in heritage claims. Thus the human rights dimension to safeguarding ich under the 2003 Convention is an explicit one, although this is present in other areas of cultural heritage protection as well.68 We can understand this as operating in two fundamental ways: (1) by regarding the safeguarding of ich as a human right per se of the cultural community and its members; (2) through the fact that human rights are generally necessary for fostering an enabling environment within which ich can flourish. This second point is particularly germane to ich since it can only continue to exist if the human bearers are able to enact, practice and/or express it. A further and complex question associated with safeguarding ich is whether a human rights ‘filter’ be should be applied to the process of safeguarding and officially recognizing ich. The drafters of the 2003 Convention sought to apply such a filter by building into the definition of ich a requirement that the heritage in question should comply with international human rights standards.69 However, making decisions as to which ich elements to leave outside the remit of the Convention’s safeguarding framework is an extremely tricky question – if every single ich element that contravened 66

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Valdimir T. Halfstein, ‘Cultural heritage’ in Regina F. Bendix and Galit Hasan-Rokem (eds), A Companion to Folklore (Wiley-Blackwell, 2012) 506: ‘population groups objectify their practices and expressions as “intangible heritage” and at the same time they subjectify themselves as “communities” within (and sometimes across) states. Governments can then act on the social field through communities and by means of, among other things, heritage policies’. Laurajane Smith and Emma Waterton, Heritage, Communities and Archaeology (Duckworth Publishing, 2009). See, for example, Janet Blake, ‘Why Protect the Past? A Human Rights Approach to Cultural Heritage Protection’ (2011) 4(2) Heritage and Society 199. The relevant part of Art. 2(1) reads: ‘This intangible cultural heritage … is constantly re­ created by communities and … provides them with a sense of identity and continuity … For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development. Moreover, the criteria for inscription of elements on the Representative and Urgent Safeguarding Lists of the Convention share the common criterion 1, as follows: “The element constitutes intangible cultural heritage as defined in Article 2 of the Convention”’.

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a strict test of non-discrimination and/or equality were excluded, this would deny the possibility of safeguarding a large proportion of the world’s ich and, consequently, the cultural identity of cultural communities worldwide. Inevitably, there are questions about the validity of claims to preserve traditional cultural practices and performances that may include and even promote non-egalitarian elements. When such claims are made, they should be measured against the rights of women, children and others who are often marginalised and disempowered within communities.70 This raises the case of unequal minorities within minorities71 whose rights may be violated by such cultural traditions as denying girls education which are, on the face of it, much less extreme than slavery. Where an individual choice (such as the choice of one’s marriage partner or matters of dress or behaviour) conflicts with the norms of the community to which a person belongs, the right of an individual to choose in such matters is generally given priority in human rights over that of the collective of which they are a member.72 As a high priority norm, this is seen as a ‘trump’73 which overrides other group-based considerations.74 Conversely however, it is also possible to argue that the interests and well-being of other individual members of the community are highly interdependent, and can be significantly harmed by allowing such ‘cultural dissent’. Cases such as these require us to find a means to balance the three key liberal values of equality, toleration and autonomy since, if we give too much autonomy to cultural communities, individual autonomy and equality are likely to be seriously undermined.75 It is, therefore, necessary to impose limitations on the right of 70

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Art. 5 of the Convention on the Elimination of All Forms of Discrimination against Women, unga Res. 34/180, adopted on 18 December 1979, entered into force on 3 September 1981, 1249 unts 13, 19 ilm 33 (1980) clearly states that States Parties ‘shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.’ For an important discussion on this question, see Avigail Eisenberg and Jeff SpinnerHalev (eds), Minorities Within Minorities: Equality, Rights and Diversity (cup, 2005). As the wording of Art. 27 of the iccpr itself suggests, since it is couched in terms of an individual right held by members of ethnic, linguistic and religious minority communities. To use Ronald Dworkin’s terminology from Law’s Empire (Fontana Press, 1986), in which he suggests that individual human rights act as a ‘trump’ card that defeats all other rights in such a situation. See James W. Nickel, Making Sense of Human Rights (2nd edn; Blackwell Publishing, 2007). Equally, too much emphasis on equality may threaten toleration and autonomy by allowing state to dictate to parents how to educate their children. Jeff Spinner-Halev,

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everyone to take part in cultural life, in particular in the case of harmful cultural traditions that infringe upon other human rights. However, any such limitations must be proportionate and, when there is a choice between them, the least restrictive measures should be taken.76 To decide which cultural traditions should be supported and which should not77 is thus an extremely complicated matter, and we can add to this the question: who is qualified to make such a decision?78 This issue is highly relevant to the challenge facing the Intangible Cultural Heritage (ich) Committee when selecting an ich for inscription on the Representative List under unesco’s 2003 Convention. The definition of ich given in Article 2(1) of the Convention places a human rights’ qualification on the elements of heritage that should be safeguarded and accorded international recognition under it.79 Thus the challenge facing the ich Committee is how to apply a human rights ‘filter’ to a range of heritage practices and manifestations that may commonly contravene, to differing degrees, the fundamental principles of equality and nondiscrimination. This challenge is made more complicated by the fact that these elements are, mostly, collectively-held and practised by a specific cultural community, for whom they are an important source of identity. The Committee’s response, thus far, in developing the Operational Directives to the Convention is simply to refer to the Convention’s definition of ich, which requires it to conform to international human rights standards in order to fall within the Convention’s purview.80

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‘Autonomy, Association and Pluralism’ in Avigail Eisenberg and Jeff Spinner-Halev (eds), Minorities Within Minorities: Equality, Rights and Diversity (cup, 2005) 157. cescr, General Comment No. 21. The Right of Everyone to Take Part in Cultural Life (n 25) para 19. Donders suggests that ‘an appropriate criterion could be that cultural practices should not be in conflict with the value of human dignity’. This would, however, require a common understanding of human dignity. See Donders, ‘The Legal Framework of the Right to Take Part in Cultural Life’ (n 28) 241. Shaheed, Independent Expert in the Field of Cultural Rights, suggests a national-level identification process founded upon a legal framework that indicates the principles on the basis of which cultural rights may be limited. un Doc. A/HRC/17/38 (n 62) para 36. Art. 2(1) reads, in part: ‘…For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development’. Criterion R.1 for inscription of an element on the Representative List requires that ‘[t]he element constitutes intangible cultural heritage as defined in Article 2 of the Convention’ in the Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage adopted by the General Assembly of the States Parties

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The problem with this, however, is that there are a large number of cultural traditions that appear to discriminate against one section of society or another but which, on a deeper analysis, provide social or other benefits to the persons apparently discriminated against.81 Of course there are certain practices that can never be condoned – such as infanticide, bodily mutilation82 or cannibalism – but many others lie in a ‘grey area’ where it is difficult to quantify the degree of harm to individuals. An interesting example of practices that fall into this grey area is the institution of hlonipha in sub-Saharan Africa.83 This is the traditional practice that governs the expression of respect between married women and their in-laws, in which a new bride is given a name by her in-laws, required by them to dress in a particular way and is excluded from the kraal in which all social and cultural rituals take place. Although this is, obviously, a much more benign example of a discriminatory practice than that of female genital mutilation, it does still raise important questions as to whether such cultural practices should ever be officially recognized under the 2003 Convention (either through identification and inventorying at the national level or through international listing), and if they are recognized, whether they should be ‘sanitised’ in some way? The potentially troubling aspect of this practice is the apparently unequal power relationship that it reveals between the new bride and her family in-laws, although this would need much deeper examination to be fully understood. Mahajan notes that simply providing community members with the right to opt out of the community in such cases is not sufficient, especially if their identity and personal security depends on group membership; a much more appropriate response is to seek deliberative consensus within the community.84 In the case of ich elements, this brings us to the issue of the need for negotiation between the various stakeholders (including the international community as well as the cultural community and others) in order to find ways in which

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to the Convention at its second session (unesco Headquarters, Paris, 16 to 19 June 2008), amended at its third session (unesco Headquarters, Paris, 22 to 24 June 2010), its fourth session (unesco Headquarters, Paris, 4 to 8 June 2012) and its fifth session (unesco Headquarters, Paris, 2 to 4 June 2014), para 1.2. This is discussed in detail in Janet Blake and Nasserali Azimi, ‘Women, Gender and Intangible Cultural Heritage’ in Janet Blake (ed), Safeguarding Intangible Cultural Heritage (Institute of Art and Law, 2007) 175. Male circumcision is a notable exception to this rule. See Harriet Deacon, Luvuyo Dondolo, Mbulelo Mrubata and Sandra Prosalendis, The Subtle Power of Intangible Heritage (hsrc Publishers, 2004). Gupreet Mahajan, ‘Can Intra-group Equality Co-Exist with Cultural Diversity? Reexamining Multicultural Frameworks of Accommodation’ in Avigail Eisenberg and Jeff Spinner-Halev (eds), Minorities Within Minorities: Equality, Rights and Diversity (cup, 2005).

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given cultural traditions may be transformed so that they can receive official sanction without their significant aspects being essentially changed or lost. As earlier indicated, the question of who is qualified to make such determinations is an extremely sensitive one too. Here, a clear distinction needs to be drawn between the cultural needs of the community – their ‘collective dignity’ – and the rights of individual members. While continuing to promote individual human rights, we must also accept that protecting a community’s cultural traditions can be of enormous importance to the well-being and sense of dignity of the majority of its members. Many examples of gendered ich can be found that are both female- and male-exclusive. In Western and Central Asia, for example, women play a central role in life-cycle rituals, pilgrimages and traditional holidays (such as nowrooz, the Persian New Year)85 and are the custodians and performers of pre-Islamic healing traditions and oral epics.86 In Arab countries, women are the primary actors in rituals associated with the preparation of brides (such as painting henna) and birth, as well as teachers of religion and recitation of the Qur’an to girls and other women.87 At the same time, many more public and ‘official’ rituals (such as the Tazi’eh Mystery Plays88 and the Pahlevani and Zoorkhane Rituals89 in Iran) are almost exclusively male in terms of their performers and participants. On the face of it, such traditional practices may appear to reinforce segregation rules within a society which might, therefore, damage individuals’ human rights. However, although the Pahlevani and Zoorkhane Rituals generally involve segregation (women rarely attend these and the practitioners are exclusively male), they also have a positive social 85

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Inscribed on the Representative List in 2009 by Azerbaijan, India, Iran (Islamic Republic of), Kyrgyzstan, Pakistan, Turkey and Uzbekistan under the title of “Novruz, Nowrouz, Nooruz, Navruz, Nauroz, Nevruz”. Marfua Tokhtahodjaeva, Women, Intangible Heritage and Development – Central Asia (Iranian National Commission for unesco, 2001). Hoda Elsadda, Women, Intangible Heritage and Development – An Agenda for the Arab Region (Iranian National Commission for unesco, 2001). Inscribed on the Representative List of ich of Humanity by Iran in 2010 as ‘The ritual dramatic art of Ta‘zīye’, mystery plays associated with the mourning rites for Imam Hossein during the Islamic holy month of Muharram. Inscribed on the Representative List of ich of Humanity by the Islamic Republic of Iran in 2011, this is a form of ancient Iranian martial art that combines elements of Islam, Gnosticism and ancient Persian beliefs, performed by 10–12 men and comprising a ritual collection of gymnastic and callisthenic movements with Gnostic poetry, accompanied by the beat of a drum. Women do not generally enter the zoorkhaneh where the ritual takes place.

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value that goes beyond the participants themselves: The Pahlevani and Zoorkhane Rituals teach the male participants ethical and chivalrous values and the participants come from all social strata, aspects which can be regarded as having positive outcomes for all of society, regardless of sex or other distinction. This, then, advises caution in applying a human rights/non-discrimination filter too strictly or simplistically. Instead, it is important to understand the wider social context of the ich element in question and the ways in which it may provide both social benefits as well as losses. Some apparently discriminatory cultural practices may have both for certain groups (gender, age, social class, professional etc.) as well as for society as a whole. In addition, some traditional cultural practices and performances that are female-exclusive may also provide avenues of self-expression for women, and they are sometimes used by women to express themselves in ways they could not otherwise do, as well as conferring social status on them. The Naqqāli in Iran,90 for example, is a performance in which the ‘Naqqāl’ recounts stories, in verse or prose, accompanied by special gestures and movements. The fact that female Naqqāls perform before mixed audiences is significant, since usually solo women singers or dancers may not do so in contemporary Iran. Like their male counterparts, they enjoy a special social status and function both as entertainers and as bearers of Persian literature and culture, including traditional music. In Arab countries, storytelling has often provided women with the means of finding a public voice otherwise denied to them.91 Hence, as these examples demonstrate, gendered forms of ich may serve important social and cultural needs for individuals and groups (including women) as well as the wider community. A further fascinating example of a traditional cultural performance that clearly provides its women-only practitioners with a much-needed outlet for expression, as well as other social benefits, is that of the Landays, a form of oral poetry of the Pushtun women of Afghanistan.92 This oral poetry is composed by illiterate women and recited among them (not only in live gatherings, but also through the media of telephone, radio and 90

Inscribed on the Urgent Safeguarding List of ich from the Islamic Republic of Iran in 2011, it is the oldest form of dramatic performance in Iran and has long played an important role in society, from the courts to the villages. 91 Elsadda, Women, Intangible Heritage and Development (n 87) 3. 92 Eliza Griswold and Seamus Murphy, ‘Landays: poetry of Afghan women’; available at accessed on 20 December 2015. These poems have twenty-two syllables: nine in the first line, thirteen in the second and they end with the sound ‘ma’ or ‘na’. Sometimes they rhyme, but more often they do not. These women number ca. 20 million, living on the border with Pakistan, most in extreme poverty and in a highly patriarchal society.

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Internet), and can serve as a source of education for women who otherwise have no access thereto, as well as allowing them a space within which to express important experiences in their lives. It should be stressed that the women who compose and share these poems are frequently unable to access the public sphere, and that this may represent virtually the only social outlet they enjoy. It should be noted that cultural traditions also have the potential to shore up existing social arrangements (such as sexual segregation, social disempowerment of one group, or caste boundaries) that individuals experience as discriminatory. What is therefore vital from a human rights perspective is that a space for ‘cultural dissent’ is created, which allows for those individuals to opt out of the social/cultural tradition in question.93 In addition, with regard to the choices facing the ich Committee when deciding whether to inscribe an element of ich that may contain ostensibly discriminatory aspects, it is of crucial importance that there should be a dialogue in these cases that allows for a diversity of voices to be heard. Only through such dialogue can one hope to reach a form of social consensus that allows for the practice to continue, possibly in a modified form, while avoiding damage to the rights of individual community members who do not accept it in its current form. As Gunning94 notes with regard to the debate over female genital mutilation, the choice is not limited to two options, namely universal standards and ‘everything else is relative’. It is important to encourage dialogue among all stakeholders so that a process is put in place through which shared values can become universal ones. In addition, it is vital to the equitable resolution of such matters that a policy-making environment exists which allows for debate to take place within the society and/or community concerned. An objective of such discussions would be to encourage the modification of harmful cultural patterns or practices by raising awareness of the oppressive nature of certain practices through a process of ‘cultural negotiation’, involving families, intellectuals and community leaders.95 This approach is highly relevant to the challenge facing the Intangible Cultural Heritage (ich) Committee in selecting ich elements for inscription on the Representative List under unesco’s 2003 Convention. 93 94

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Madhavi Sunder, ‘Cultural Dissent,’ (2001) 54 Stanford Law Review 495. Isabelle Gunning, ‘Arrogant Perception, World Travelling and Multicultural Feminism: the Case of Female Genital Surgeries’ (1991–2) 23 Columbia Human Rights Law Review 189, 238. See Committee on the Elimination of Discrimination against Women, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, Yakin Ertürk’, 26 December 2003, un Doc E/CN.4/2004/66, para 55(b).

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4 Conclusions We have seen developments in international law over the last 20 years, especially in the domains of cultural heritage and environmental law, which suggest growing support for the existence of a collective dimension to the cultural rights of groups and communities. This has been driven in large part by indigenous movements and the developing states, especially in Africa, and demonstrates a noticeable shift of priorities in the international community. unesco’s Convention on Intangible Cultural Heritage (2003) is a prime example of this shift, placing at its centre the duty on Parties to involve groups and communities, as well as individuals, in identifying, safeguarding and managing their heritage. With regard to solidarity rights, the common interest of humanity in safeguarding ich is another fundamental justification for the 2003 ich Convention, as is the role it plays in ensuring truly sustainable development. Cultural rights play an important role in protecting aspects of identity that are essential to protecting the dignity of both individuals and communities, and cultural heritage is a key element in this paradigm. However, cultural rights remain legally under-developed and their implementation is frequently neglected. Two significant challenges posed by cultural rights are: their collective character as a set of rights that, on the whole, can only logically be enjoyed by groups, communities etc.; and the challenge they appear to pose to the universalism of human rights standards. The 2003 Convention provides a good illustration of both these theoretical challenges and how they may be confronted. The Convention responds to collective rights through the central safeguarding role it accords to the cultural communities and groups associated with ich. This is in response to the rather specific character of this heritage, the existence of which depends on its continued practice and transmission by the cultural group and/or community. This recognition of the collective character of much, if not most, ich and of the related cultural rights that arise from it inevitably raises the question of traditional cultural practices that are important to the group, but that certain individual members view as discriminatory. Hence, the core tension between universal standards and cultural relativism is an inevitable aspect of the Convention’s implementation, at both the national and international levels. It is not easy to reach decisions about which ich elements to recognise and which to leave outside the remit, and it would be counterproductive to apply too strict a test of non-discrimination and/or equality, as this would result in leaving unprotected a large proportion of the world’s ich and, consequently, the cultural identity of cultural communities worldwide.

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When claims are made to safeguard traditional ways of life that include, and even promote, non-egalitarian elements, these should be measured against the rights of women, children and others who are often marginalised and disempowered by traditional cultural practices. At the same time, a large number of traditional cultural practices may appear to discriminate against one section of society or another, but actually provide social or other benefits to the individuals or group(s) apparently discriminated against. This then raises the question: Should they be ‘sanitised’ in some way in order to be recognised as ich under the Convention? In such cases, negotiation is essential between the various stakeholders, and especially within the cultural community, to find ways of transforming the cultural practice without stripping it of its essence. With reference to gendered ich practices, it should be understood that the simple fact of being sexually segregated is not in itself a form of discrimination, and that such cultural practices may have benefits for specific groups based on gender, age, social class, professional etc., as well as for society as a whole. It is therefore essential to understand the wider social context of these practices and the ways in which they may provide social benefits, as the example of the Landays (oral poetry of Pushtun women of Afghanistan) demonstrates.

PART 2 Collective Cultural Rights and International Human Rights Law

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chapter 4

Foundations of Collective Cultural Rights in International Human Rights Law Yvonne Donders 1 Introduction Although collective cultural rights are included in international human rights law, their precise place and their nature and significance are not well-explored or understood. This chapter aims to show where collective cultural rights can be found in international human rights instruments and explore how these rights fit in the general body and framework of international human rights law. While aware that there is a lot to be said about collective cultural rights from non-legal points of view, the starting point in this chapter is international human rights law. This implies that the analysis of collective cultural rights is framed by positive law and international legal instruments, such as treaties and conventions, as well as by soft law instruments, such as declarations, recommendations and resolutions. In Section 2, the two categories of the rights at the centre of this chapter – collective rights and cultural rights – are defined. Although collective rights and cultural rights are part of international human rights law, these terms remain rather imprecise and unspecified. Consequently, different lists can be drawn up of rights that can fall within one, or both, categories. Below a distinction is drawn between (a) different types of collective rights, including rights for collectivities as such, rights for individuals as members of collectivities, and rights with a collective interest or object; and (b) between different types of cultural rights, including rights that explicitly refer to ‘culture’ and rights that relate to culture or have a cultural dimension. Sections 3 and 4 analyse various contentious issues surrounding collective rights and cultural rights in international human rights law. The question is, for instance, whether collective rights fall within the category of human rights, which are traditionally viewed as individual rights. Also the lack of clarity on the subject of collective rights and the possible tension between collective rights and individual rights are addressed. Interestingly, in much of the debate on collective rights, cultural rights are used as examples of such collective rights. Cultural rights, it is argued, are rights that clearly demand a collective approach, since cultures are formed and changed by the joint history and

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activity of and within cultural communities. At the same time, culture is a concept of which the dynamics are not easily translated into substantive legal rights. Section 5 outlines the different forms of collective cultural rights in international human rights law. This chapter does not intend to provide an extensive overview of all collective cultural rights included in international human rights law. It rather provides examples of legal provisions in international human rights instruments that can be classified as collective cultural rights to show the different forms these rights may take. Section 6 elaborates on how collective subjects and collective interests are integrated in international human rights law and analyses how and to what extent collective cultural rights provisions provide answers to the above-noted issues. It explains the rationale of the inclusion of collective cultural rights, but also notes that the two central components of collective cultural rights, namely ‘community’ and ‘culture’, remain difficult to define. Moreover, they are not static notions, which makes their translation into substantive rights a complex matter. Some of these issues could be solved in practice, as is shown in the case law. This chapter however focuses on the explication and classification of collective cultural rights provisions, leaving the issue of supervision of these rights at the national and international levels to other chapters in this volume.1 2

Explaining Terminology: Collective Rights and Cultural Rights

2.1 Collective Rights The term ‘collective rights’ has taken the form of a basket into which different sorts of human rights can be placed, all of which have some kind of collective dimension. The terminology used in the academic and professional literature to describe human rights with a collective dimension is very inconsistent. Terms such as collective rights, peoples’ rights, minority rights, group rights and community rights are intermixed to describe: rights for collective entities as such, rights for individuals as members of such collective entities, and rights with a collective interest or object.2 1 See, for instance, the contributions of Francioni and Lenzerini in this volume (Chapters 11 and 6). 2 For an overview of their usage, including a distinction between subjects, beneficiaries and legal persons, see Corsin Bisaz, The Concept of Group Rights in International Law – Groups as Contested Right-Holders, Subjects and Legal Persons (Nijhoff, 2012) 7–12. Compare also the different usage in various handbooks: A. Belden Fields, ‘Collective or Group Rights’ in David

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In this chapter ‘collective rights’ is used as an umbrella notion that covers: – Community rights, which are human rights provisions of which the subject or rights-holder is a collective entity, such as a people or a community.3 Examples of community rights are common Article 1 of the International Covenant on Civil and Political Rights (1966, iccpr)4 and the International Covenant on Economic, Social and Cultural Rights (1966, icescr)5 on the right of peoples to self-determination, as well as several provisions of the un Declaration on the Rights of Indigenous Peoples (2007) setting forth the rights of indigenous peoples to self-determination and cultural autonomy; – Communal rights, which are human rights provisions of which the subject or rights-holder is an individual recognized as a member of a collective entity, and in which this membership is often explicitly referred to. A prominent example is Article 27 iccpr setting forth the right of members of minorities to enjoy their own culture ‘in community with the other members of their group’. A similar provision is in Article 30 of the Convention on the Rights of the Child (crc, 1989).6 Another example is Article 12 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Family (crmw, 1990),7 containing the right of migrant

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Forsythe (ed), Encyclopaedia of Human Rights, Vol. 1 (oup, 2009) 345; Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals: Text and Materials (2nd edn; oup, 2000) 1290; Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (oup, 2010) 366; Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (oup, 2009) 32. While these rights are often referred to as group rights, I prefer the term community rights. The term ‘community’ implies some form of a continuous structure and social or cultural bond. A community is supposed to be more than the sum of its members, and is based on common values and beliefs carried by its members, which refer to past history, the present and future. The historical and cultural ties are crucial; we do not refer to other social groups such as women, homosexuals, disabled people etc., who may share a distinct lifestyle, but not a history and culture, as communities. See Miodrag Jovanović, ‘Recognizing Minority Identities through Collective Rights’ (2005) 27 HRQ 625, 636–637. unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171. unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3. unga Res. 45/25, adopted on 20 November 1989, entered into force on 2 September 1990, 1577 unts 3. unga Res. 45/158, adopted on 19 December 1990, entered into force on 1 July 2003, 2220 unts 93.

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workers to manifest their religion, ‘either individually or in community with others’; – Individual rights with a collective dimension, which are human rights provisions of which the subject or rights-holder is an individual and no explicit reference is made to a collective entity, but whereby the enjoyment of the right has a clear collective dimension, such as the right to take part in cultural life as included in Article 15(1)a icescr, the right to freedom of assembly and association (Articles 21 and 22 iccpr) and the right to education (Articles 13 and 14 icescr). The collective dimension in this categorisation primarily refers to the subject of the right or the rightsholder. The collective dimension can also be found in the object of the right, being a collective interest.8 Without fully anticipating the following paragraphs, it can be argued that in the case of cultural rights, the subject as well as the object of these rights have a collective dimension. It is therefore understandable that cultural rights are considered to reflect ‘real’ collective rights.9 2.2 Cultural Rights The categorisation of human rights, including cultural rights, stems from the titles of two international human rights treaties that were adopted in 1966: the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr). Although cultural rights are included in the title of the icescr, the text of this treaty does not make clear which provisions in the treaty belong to the category of cultural rights. In fact, none of the international legal instruments provides a definition of ‘cultural rights’, and consequently different lists could be compiled of international legal provisions that could be labelled as ‘cultural rights’.10 Cultural rights can be broadly defined as human rights that directly promote and protect the cultural interests of individuals and communities, and that are meant to advance their capacity to preserve, develop and change their 8 9

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Raz also made this distinction between rights held by collective agents and rights related to collective interests, in Joseph Raz, The Morality of Freedom (Clarendon Press, 1986) 166. Marlies Galenkamp, Individualism versus Collectivism – The Concept of Collective Rights (Quint, 1998) 21–25; Marlies Galenkamp, ‘Collective Rights: Much Ado about Nothing? A Review Essay’ (1991) 3 Netherlands Quarterly of Human Rights 291. Yvonne Donders, ‘Do Cultural Diversity and Human Rights Make a Good Match?’ (2010) 199 International Social Science Journal 15, 18–20.

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cultural identity.11 In this chapter, cultural rights is used as an umbrella notion that covers provisions containing: – Rights that explicitly refer to culture – The prime examples are the right of everyone to take part in cultural life (Article 15(1)(a) icescr), the right of members of minorities to enjoy their own culture, practise their own religion and speak their own language (Article 27 iccpr) and the right to freely pursue cultural development as part of the right to self-determination (Article 1 iccpr and icescr). – Rights that have a direct link with culture – In theory it might be defensible to claim that almost every human right can be linked to culture. However, the rights with the most direct link with culture are the right to selfdetermination (Article 1 icescr and iccpr), the rights to freedom of religion (Article 18 iccpr), freedom of expression (Article 19 iccpr) freedom of assembly and association (Articles 21 and 22 iccpr) and the right to education (Articles 13 and 14 icescr). Apart from these rights explicitly or directly related to culture, it appears that many human rights have a cultural dimension. Although some human rights may at first glance appear to have no direct link with culture, most of them have important cultural implications. For instance, the right to health (Article 12 icescr) may have important cultural connotations insofar as certain ways of treatment or the use of certain (traditional) medicines are concerned. Culture also plays a decisive role in sexual and reproductive health.12 The Committee on Economic, Social and Cultural Rights (cescr), the international independent supervisory body of the icescr, has specifically acknowledged that an important element of the right to health is accessibility, which implies that ‘… all health facilities, goods and services must be…culturally appropriate, i.e., respectful of the culture of individuals, minorities, peoples and communities.’13 Another example is the right to adequate food (Article 11 icescr). The preparation and consumption of food have clear cultural connotations. The 11

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Yvonne Donders, ‘Cultural Rights and the unesco Convention: More than Meets the Eye?’ in Christiaan De Beukelaer, Miikka Pyykkönen and J.P. Singh (eds), Globalization, Culture and Development – The unesco Convention on Cultural Diversity (Palgrave MacMillian, 2015) 117. Yvonne Donders, ‘Exploring the Cultural Dimensions of the Right to the Highest Attainable Standard of Health’ (2015) 18(2) Potchefstroom Electronic Law Journal 179. cescr, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, un Doc. E/C.12/2000/4, para 12c.

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importance of the cultural dimension of food is reaffirmed by the fact that several food traditions, such as French cuisine, the Mediterranean diet, and the traditional Mexican kitchen, have been recognized as intangible cultural heritage.14 The Committee on Economic, Social and Cultural Rights has also stated that the guarantees concerning the right to food should be culturally appropriate and acceptable.15 Civil and political rights may also have a cultural dimension. For instance, the right to a fair trial includes the right to be informed of the charges in a language that one can understand, as well as the right to free assistance of an interpreter if a person cannot understand or speak the language used in court.16 Specific ways of living related to culture, such as living in a caravan, which is the traditional way of living of gypsies, may fall within the scope of the right to respect for one’s private life and home.17 3

Collective Rights in International Human Rights Law

Although collective rights have been included in international human rights law, their place remains rather contested and controversial. Disagreement over whether collective rights can or should be designated as human rights, the relationship between collective and individual rights, and the definition of the subject and the object of collective rights are the main issues in this controversy. Karel Vašák, one of the initiators of the international debate on collective rights, divided human rights into three ‘generations’. The first generation contained civil and political rights, the classic freedom rights, which were based on state-abstention. The second generation consisted of economic, social and cultural rights, also called ‘rights of credit’, requiring an active role of the state. According to Vasak, a third generation of human rights was to be added in the 14

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These have been added to the list of intangible heritage in 2010 under the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted on 7 October 2003, entered into force on 20 April 2006, 2368 unts 3. cescr, General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant), 12 May 1999, un Doc. E/C.12/1999/5, paras 7, 8 and 11. See Article 14 iccpr and Article 6 echr and Kamasinski v Austria, Application No. 9783/82, Judgment of 19 December 1989, echr, Series A/168 (1989), para 74. Buckley v the United Kingdom, Application No. 20348/92, Judgment of 25 September 1996, echr 1996-IV; Chapman v the United Kingdom, Application No. 27238/95, Judgment of 18 January 2001, echr 2000-I; Winterstein and Others v France, Application No. 27013/07, Judgment of 17 October 2013, echr (2013).

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form of collective rights, based on fraternity and solidarity. These latter rights were required to overcome the inequalities in the world which impeded the enjoyment of the first two categories of rights. Vasak mentioned the following rights as examples of the third generation of human rights: the right to development, the right to environment, the right to peace, the right to co-ownership of the common heritage of mankind, and the right to communicate.18 Vasak’s terminology, employing the notion of ‘generations’, was not well chosen.19 The term ‘generation’ is confusing, since it suggests that one generation precedes and replaces the other, while, in fact, all three generations are meant to mutually strengthen each other. Furthermore, dividing human rights into strictly separate categories is not only difficult – is the right to freedom of religion a civil right or a cultural right? – but it is also no longer tenable. Freedom rights, i.e. civil and political rights, may also demand state action, for instance the right to vote, the right to a fair trial and the right to demonstrate, while economic, social and cultural rights can require the non-interference by the state, for instance the freedom to choose education and the freedom to form trade unions. Moreover, it is broadly agreed that all human rights are indivisible, interdependent, interrelated and of equal importance.20 The strict division between individual rights and collective rights can also be challenged. As argued above, collective rights include different types of rights with a collective dimension, reflected in the subject and/or the object of the right. There are also several grades of ‘collectiveness’ of the subject. Many individual rights are perhaps formally conferred upon individuals, but are to be enjoyed or exercised as members of a collective entity or jointly with others. Furthermore, there are rights that are conferred upon individuals which can procedurally be asserted by a collective agent. Communities or organisations can bring a claim to defend the rights of individuals via a ‘class action’ or ‘collective action’.

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Karl Vasak, ‘Pour une troisième génération des droits de l’homme’ in Christophe Swinarski (ed), Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Nijhoff, 1984) 837, 839–840; Stephen P. Marks, ‘Emerging Human Rights: A New Generation for the 1980s?’ (1981) 33 Rutgers Law Review 435. See, for example, Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 1989) 144–145; Pieter H. Kooijmans, ‘Human Rights – Universal Panacea? Some Reflections on the So-Called Human Rights of the Third Generation’ (1990) 37 Netherlands International Law Review 315, 316–317. As reaffirmed by States in the Vienna Declaration and Programme of Action, adopted after the World Conference on Human Rights, Vienna, 25 June 1993, un Doc. A/CONF.157/23, Art. 5.

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Despite the lack of agreement on various aspects, the idea of recognising collective rights has become more widely shared. Supporters of collective human rights emphasize that the codification of human rights had focused too much on an individualistic outlook of the world and of human nature. They argue that the individualistic approach of human rights fails to address collective global issues, such as the promotion of development and protection of the environment, as well as the specific needs of communities. Accordingly, two different sorts of collective rights have come to be developed: rights that concern a collective interest, such as peace, development or a clean environment; and rights for certain collective entities, such as peoples or minorities.21 Discussions on collective rights have often focused on a strict yet wide division between, on the one hand, purely individual rights and on the other purely community rights. These debates broadly concern the following, sometimes overlapping, issues.22 The first issue is whether or not community rights can be called ‘human’ rights. Critics of community rights argue that human rights stem from natural rights that are meant to defend the individual against the state. Human rights are those rights that human beings possess simply because they are human beings, based on the protection of human dignity and individual freedom. Protection of collective entities does not fit the individual nature of human rights. Some have argued that there may be ‘person-like’ collective entities that have rights, such as families, associations, parliaments and corporations, but these rights cannot be human rights, which are considered to be, by definition, individual rights.23 Supporters of community rights argue, however, that the 21

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Leighton McDonald, ‘Can Collective Rights and Individual Rights Coexist?’ (1998) 22 Melbourne University Law Review 310, 312; Chandran Kukathas, ‘Are There Any Cultural Rights?’ (1992) 20 Political Theory 105, 108. It should be noted that one such collective right was already included in international legal instruments, namely the right of peoples to self-determination (Arts. 1 iccpr and icescr). For a more extensive analysis of these arguments, see Peter R Baehr and Koo van der Wal, ‘Human Rights as Individual and as Collective Rights’ in Jan Berting et al. (eds), Human Rights in a Pluralist World (Meckler, 1990) 33, 33–37; Jack Donnelly, ‘Human Rights, Individual Rights and Collective Rights’ in Jan Berting et al. (eds), Human Rights in a Pluralist World (Meckler, 1990) 39, 42–43, 48–49; Donnelly, Universal Human Rights (n 19) 144–145; Kooijmans, ‘Human Rights – Universal Panacea?’ (n 19) 316–317; McDonald ‘Can Collective Rights’ (n 21) 354; Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 110; Jovanović, ‘Recognizing Minority Identities’ (n 3) 630–645; also see Chapter 1 by Miodrag Jovanović in this volume, at Section 4. James Griffin, ‘Group Rights’ in Lukas H. Meyer, Stanley L. Paulson, and Thomas W. Pogge (eds), Rights, Culture and the Law. Themes from the Legal and Political Philosophy of Joseph Raz (oup, 2003) 161, 162–163.

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natural rights theory was not entirely alien to these rights and that community rights could also be human rights. Main argument is that individuals do not live in isolation, but need communities to give their lives meaning and value. Not only individual freedom, but also solidarity could be a basis for human rights.24 A second issue concerns the possibility of conflicts between individual rights and community rights. An argument against community rights is that the development and promotion of community rights might lead to the neglect or violation of individual rights. For instance, community rights may be abused by leaders of oppressive regimes who wish to justify their disrespect of individual human rights. Community rights may give dominant or power elites in (cultural) communities the tools to strengthen dominant sub-groups and disadvantage or suppress individual dissenters or ‘minorities within minorities’.25 On the other hand, it is argued that there may also be conflicts between individual rights and that, in principle, all human rights can be abused. Thus the fact that there can be a conflict between individual and community rights or potential abuse of rights is no reason to ban community rights from the human rights discourse. The conflict between rights is mostly a matter of balancing.26 A third issue is whether a collective entity can be an agent with inherent value independent from their contribution to the well-being of individual members and with independent moral standing to claim rights that could not be reduced to individual rights.27 Which collective entities are eligible to be the subject of collective rights and how can they be identified and defined? Opponents of community rights emphasize that communities do not have a distinct existence and identity separate from their members. Moreover, communities do not have fixed boundaries and there are no rigid distinctions between them. This lack of a clear separate identity leads to a lack of agency, and therefore communities cannot be the proper subjects of rights.28 Some supporters of 24 25

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Jeremy Waldron, ‘Can Communal Goods be Human Rights?’ in Jeremy Waldron, Liberal Rights (cup, 1993) 339, 356–359. Avigail Eisenberg and Jeff Spinner-Halev (eds), Minorities within Minorities: Equality, Rights and Diversity (cup, 2005); Yael Tamir, ‘Against Collective Rights’ in Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge (eds), Rights, Culture and the Law. Themes from the Legal and Political Philosophy of Joseph Raz (oup, 2013) 183, at 185 and 189. Miodrag Jovanović, Collective Rights: A Legal Theory (cup, 2012) 144. Ibid; Jovanović, ‘Recognizing Minority Identities’ (n 3) 630–633. Bisaz argues that there is no principle or conceptual reason why communities could not be rights-holders, even if the communities cannot be defined and membership is flexible. See Bisaz, The Concept of Group Rights (n 2) 12–20, 32. Darlene M. Johnston, ‘Native Rights as Collective Rights: A Question of Group Preservation’ in Will Kymlicka (ed), The Rights of Minority Cultures (oup, 1995) 179, 182–183;

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community rights make a distinction between informal, unorganized collective entities with so-called pre-legal existence, such as minorities, nations and peoples, and organized collective entities that are legally constituted, such as corporations and trade unions. While the latter is only entitled to individual rights of their members, the former may be the holders of collective rights.29 Supporters of community rights argue that these rights are meant for those collectivities or communities which have some kind of ‘substantive connection’. This connection is, unlike the case of associations and companies, not so much based on a common aim to which the members are willingly committed. The communities that could be subjects of community rights must exist independently of such a common aim and members should identify themselves with the community in a non-trivial way. Possible collective subjects are peoples, indigenous peoples, minorities or other communities connected by race, ethnicity, religion, culture, language, or history, and seized with a collective interest.30 Indeed these communities are included in international law as legal subjects.31 However, no legal definition of any of them has been accepted by states. While definitions have been proposed and used by international bodies and academics – for instance the famous definition of ‘minorities’ by Capotorti and of ‘indigenous peoples’ by Cobo32 – these have not been legally accepted Michael Walzer ‘Pluralism: A Political Perspective’ in Will Kymlicka (ed), The Rights of Minority Cultures (oup, 1995) 139, 149–150; James W. Nickel ‘Group Agency and Group Rights’ in Will Kymlicka and Ian Shapiro (eds), Ethnicity and Group Rights (New York University Press, 1997) 235, at 235–238, 241, 253; Tamir, ‘Against Collective Rights’ (n 25) 192–193, 197–198. 29 Jovanović, Collective Rights: A Legal Theory (n 26) 125–131; Vernon Van Dyke, ‘The Individual, the State and Ethnic Communities in Political Theory’ in Will Kymlicka (ed), The Rights of Minority Cultures (oup, 1995) 31, 32–33. Tamir criticizes the idea that such unorganized, informal collectivities should have rights, see Tamir ‘Against Collective Rights’ (n 25) 190. 30 Bisaz, The Concept of Group Rights (n 2) 28–29; Dwight G. Newman, ‘Collective Interests and Collective Rights’ (2004) 49 American Journal of Jurisprudence 127, 128. 31 For instance in Art. 1 (peoples) and Article 27 (minorities) of the iccpr, the un Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (unga Res. 47/135, adopted on 18 December 1992, un Doc. A/RES/47/135), the un Declaration on the Rights of Indigenous Peoples (unga Res. 61/295, adopted on 13 September 2007, un Doc. A/RES/61/295), the ilo (No. 169) Convention on Indigenous and Tribal Peoples (adopted on 27 June 1989, entered into force on 5 September 1991, 1650 unts 383) and the Council of Europe Framework Convention for the Protection of National Minorities (signed on 1 February 1995, entered into force on 1 February 1998, cets No. 157, 2151 unts 243). 32 According to Francesco Capotorti, Special Rapporteur of the United Nations SubCommission on Prevention of Discrimination and Protection of Minorities, a minority is:

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by states. The lack of agreement on a suitable definition is caused by the fact that any definition chosen implies that some collective entities would fall within the definition and others would fall outside the definition. States prefer to take the decision on the definition of these collective entities themselves, not by force of international law, since such recognition may have important legal, political and social implications. The issues described above mainly concern the collective subject of rights. There is however also debate on whether community rights are justified because of the collective good or interest that they protect, which cannot be reduced to an individual interest, or are an aggravation of individual interests, or represent a shared interest.33 Interests are relations specifying something that makes people’s lives better. A collective interest ‘…is something that makes a collectivity’s life go better’.34 According to some, there are collective interests contributing to the common good of communities that in turn contribute positively to the lives of the individual members. The collective interest comes first; the individual interest comes second. Or in other words, the individual interest depends upon the collective interest and the latter therefore amounts to collective rights.35 Others argue that there are no such collective interest,

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‘A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language’, un Doc. E/CN.4/Sub.2/384/Rev.1 (1977) para 568; also see Chapter 5 by Kamrul Hossain in this volume, at Section 4. ‘Indigenous Peoples’ were defined by José R. Martínez Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, as follows: ‘Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system’, ‘Study of the Problem of Discrimination against Indigenous Populations’, un Doc. E/CN.4/Sub.2/1986/7 and Add. 1–4, paras 379–382. See Jovanović, Collective Rights: A Legal Theory (n 26) as discussed by Dwight G. Newman, ‘Value Collectivism, Collective Rights, and Self-Threatening Theory’ (2013) 33 ojls 197, Newman, ‘Collective Interests’ (n 30) 131–133. Newman, ‘Collective Interests’ (n 30) 129 and 140–141. Ibid 146, 158–159; Newman, ‘Value Collectivism’ (n 33) 202. However, Newman emphasizes that these collective rights can not be fully separated from individual rights.

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because they can all be eventually reduced to individual interests or interests of individuals as members of a community. Consequently, individual rights or communal rights suffice to protect such collective interests.36 Different types of collective rights – community as well as communal rights, as well as rights concerning collective objects such as self-determination – have been incorporated in international human rights law. This demonstrates that although not all legal issues have been solved there is no doubt that communities as entities and collective interests play an important role in the wellbeing of individuals and that community membership is an important component of human dignity. There is broad agreement that individuals do not enjoy their human rights in total isolation, but also as community members. Many individual human rights specifically protect the individual as a member of a community, for example, the ban on discrimination on the basis of one’s belonging to a particular community. They also protect the community as such in an indirect manner, for example, through freedom of speech, religion and association. Some argue that individual rights offer sufficient justice to collective entities and their interests as well.37 Others, however, continue to advocate for community rights.38 4

Cultural Rights in International Human Rights Law

In recent years, it can no longer be argued that cultural rights are neglected,39 at least not by scholars and international monitoring bodies. Many academic 36

Chandran Kukathas, ‘Cultural Toleration’ in Will Kymlicka and Ian Shapiro (eds), Ethnicity and Group Rights (New York University Press, 1997) 69, 77–78, 88; Avishai Margalit and Moshe Halbertal, ‘Liberalism and the Right to Culture’ (1994) 61(3) Social Research 491, 503–505; Avishai Margalit and Jospeh Raz, ‘National Self-Determination’ in Will Kymlicka (ed), The Rights of Minority Cultures (oup, 1995) 79, 87; Tamir ‘Against Collective Rights’ (n 25) 183, 200–202. 37 Donnelly, Universal Human Rights (n 19) 150–151; Donnelly, ‘Human Rights, Individual Rights’ (n 22) 43–44, 49–50; Griffin, ‘Group Rights’ (n 23) 161–182; Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 107; David Miller, ‘Group Rights, Human Rights and Citizenship’ (2002) 10 European Journal of Philosophy 178, 188–192. 38 Michael Freeman, ‘Are there Collective Human Rights?’ (1995) 43 Political Studies 25, 28–29; McDonald ‘Can Collective Rights’ (n 21) 352–362; Newman, ‘Collective Interests’ (n 30) 158–161; Raz, The Morality of Freedom (n 8) 208. 39 For a long time, it was argued that the category of cultural rights was, compared to the other categories of civil, political, economic and social rights, underdeveloped or neglected. See Janusz Symonides ‘Cultural Rights’ in Janusz Symonides (ed), Human Rights:

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studies have been conducted on cultural rights.40 Furthermore, a group of academics has adopted the Fribourg Declaration on Cultural Rights, containing a list of existing cultural rights provisions, as well as an extensive commentary on the content and obligations of states with respect to these rights.41 At the un level, the Committee on Economic, Social and Cultural Rights has adopted a General Comment on a prominent cultural right, namely the right to take part in cultural life (Article 15(1)a icescr).42 Another important development in the further elaboration of cultural rights is the mandate of the Special Rapporteur in the Field of Cultural Rights, which was extended in March 2015 by the Human Rights Council.43 The elaboration of cultural rights by scholars and monitoring bodies does not, however, imply that all legal issues surrounding these rights have been resolved. An important remaining issue is the fact that culture is a concept, the dynamics and complexity of which do not easily translate into legal terms. Concept and Standards (unesco, 2000) 175. Special Rapporteur Danilo Türk also argued that cultural rights had received ‘by far the least amount of serious attention’. See un Doc. E/CN.4/Sub.2/1992/16, 3 July 1992, para 187 at 49; paras 198–199 at 51–52. 40 See Yvonne Donders, Towards a Right to Cultural Identity? (Intersentia, 2002); Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Nijhoff, 2008); Stephen A. Hansen, ‘The Right to Take Part in Cultural Life: Towards Defining Minimum Core Obligations Related to Article 15(1)(A) of the International Covenant on Economic, Social and Cultural Rights’ in Audrey Chapman and Sage Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, 2002) 279; Stephen Marks, ‘Defining Cultural Rights’ in Morten Bergsmo (ed), Human Rights and Criminal Justice for the Downtrodden – Essays in Honour of Asbjørn Eide (Nijhoff, 2003) 293; Patrice Meyer-Bisch (ed), Les Droits Culturels, une catégorie sous-développée de droits de l’homme, Actes du VIIIe Colloque interdisciplinaire sur les droits de l’homme (Fribourg Editions Universitaires, 1993); Laura Reidel, ‘What are Cultural Rights? Protecting Groups with Individual Rights’ (2010) 9 Journal of Human Rights 65; Ana Filipa Vrdoljak (ed), The Cultural Dimension of Human Rights (oup, 2013). 41 Fribourg Declaration on Cultural Rights, drafted by the Fribourg Group of experts and launched in Geneva on 8 May 2007; available at accessed on 28 April 2016. Patrice Meyer-Bisch and Mylène Bidault, Déclarer les droits culturels, commentaire de la Déclaration de Fribourg (Fribourg Editions Universitaires, 2010). 42 cescr, General Comment No. 21. Right of Everyone to Take Part in Cultural Life (Art. 15, para 1(a) of the Covenant), 21 December 2009, un Doc. E/C.12/GC/21. Also see CoE Parliamentary Assembly, Recommendation 1990: The Right of Everyone to Take Part in Cultural Life, adopted on 24 January 2012; available at accessed on 18 April 2016. 43 See hrc, Resolution 28/9. Mandate of the Special Rapporteur in the Field of Cultural Rights, 26 March 2015, un Doc. A/HRC/RES/28/9.

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Culture is not a static notion, but a dynamic one which can develop and change over time. It is less a product than a process, which has no well-defined boundaries and is influenced by internal and external interactions. Culture can refer to many things, varying from cultural ‘products’ per se, such as arts and literature, to culture as a way of life, with all of life’s multi-faceted dimensions. Culture has both an objective and a subjective dimension. The objective dimension is reflected in visible characteristics such as language, religion, or customs, while the subjective dimension is reflected in shared attitudes, ways of thinking, feeling and acting. In addition, culture has both an individual and a collective dimension. Cultures are developed and shaped by communities. Individuals can identify with one or several of these cultural communities – ethnicity, nation, family, religion, etc. – and in that way shape their own individual cultural identity. The broadness and complexity of the concept of culture has implications for the legal definition of cultural rights and for their implementation and protection.44 It should be noted that many studies and reports treat the category of cultural rights as a whole instead of focusing on one or more substantive provisions. This gives the false impression that cultural rights form one comprehensive category of rights and that it is clear which rights belong, and which do not belong, to this category. As shown above however, it is not fully clear which rights belong to the category of cultural rights. Moreover, some human rights, for instance the rights to freedom of religion and freedom of expression, are cultural rights, but they could also be considered political or civil rights. If the aim is to improve the promotion and protection of cultural rights, this can best be done by further analysis and elucidation of specific cultural rights provisions. They differ too much in terms of scope, normative content and corresponding state obligations to consider them all as one package. 5

Collective Cultural Rights in International Human Rights Law

Cultural rights have a special position in the discussion on collective rights. While most individual human rights refer in principle to individuals, separate from their communities, cultural rights refer directly to individuals as members of communities. Cultural rights protect the individual within the cultural community against the state or against other communities, and cultural rights also protect cultural communities as such. Cultural rights not only have 44

Donders, ‘Do Cultural Diversity and Human Rights’ (n 10) 15.

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collective subjects, but the object of cultural rights, such as culture or cultural heritage, is a collective good or interest. Some have argued that cultural rights are inherently collective. Indeed it is clear that all cultural rights have a collective dimension apart from an individual dimension.45 For some, however, this collective dimension does not have to be translated into cultural rights for collective entities, in other words, community rights.46 Others, however, regard cultural rights as prime examples of community rights, because of the collective cultural interest that is linked to joint membership.47 In tracing the development of collective cultural rights in international human rights law, two rights can be considered to be at the very basis of the protection of cultural communities: the right to exist as a (cultural) community and not be subjected to cultural genocide, and the right to equality and nondiscrimination. Other collective cultural rights can be roughly grouped as follows: individual rights with a collective cultural dimension, which can mainly be found in the instruments on human rights for all; communal cultural rights, which can mainly be found in instruments for minorities; and community cultural rights, which are mainly included in instruments for indigenous peoples. 5.1 Cultural Genocide One of the prime examples of a community cultural right is the right of a community to exist and to be protected from cultural destruction, i.e. cultural genocide.48 The term ‘cultural genocide’ has been used to describe situations where 45 46 47

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Margalit & Halbertal ‘Liberalism and the Right to Culture’ (n 36) 491, 497–499. Griffin, ‘Group Rights’ (n 23) 161–182; Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 114; Tamir ‘Against Collective Rights’ (n 25) 183–204 . Marlies Galenkamp, Individualism versus Collectivism (n 9) 119 and Chapter 7; MeyerBisch, ‘Les Droits Culturels’ (n 40) 38–39. Jean Bernard Marie, ‘Les Droits Culturels: Interface entre les Droits de l’Individu et les droits des Communautés’ in Patrice Meyer-Bisch (ed), Les Droits Culturels, une catégorie sous-développée de droits de l’homme, Actes du VIIIe Colloque interdisciplinaire sur les droits de l’homme (Editions Universitaires Fribourg, 1993) 197, 203–207, 213; Lyndel V. Prott, ‘Cultural Rights as Peoples’ Rights in International Law’ in James Crawford (ed), The Rights of Peoples (Clarendon Press, 1988) 95–97; Miller, ‘Group Rights, Human Rights’ (n 37) 180. For a more extensive analysis of the concept of cultural genocide in international law, see Chapter 14 by Elisa Novic in this volume. Also see Yvonne Donders, ‘Old Cultures Never Die? Cultural Genocide in International Law’ in Ineke Boerefijn et al. (eds), Human Rights: Pre-Conflict, In Conflict, and Post-Conflict. Essays in Honour of Bas de Gaay Fortman (Intersentia, 2012) 278; Ana Filipa Vrdoljak, International Law, Museums, and the Return of Cultural Objects (cup, 2006) 162.

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the culture of a community – including language, religion, customs, cultural expressions and/or cultural institutions – is systematically attacked, restricted, prohibited, or destroyed by a state or state organs.49 Cultural genocide is not the same as physical genocide and therefore does not fit within the current legal usage of the word ‘genocide’ in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).50 Genocide presupposes the intent to physically destroy, in whole or in part, a certain biological group. If a culture is destroyed, the individuals may physically survive, but the community may cease to exist, because its existence depends on the shared consciousness of its members, manifested through culture, including inter alia language, religion and customs.51 Genocide is not only prohibited by the Genocide Convention, but its prohibition is also recognized as a ius cogens norm and as international customary law, which is binding upon all states. Although the Genocide Convention does not give substantive rights to communities and is directed instead at the possible perpetrators of genocide, i.e. states, it is clear that communities can be seen as right-holders.52 Some, however, question whether the protection against cultural genocide is indeed a community cultural right, because the right to be free from cultural destruction is nothing more than the corollary of the right to life of individuals making up the community.53 Cultural genocide, or rather the prohibition thereof, is as such not included in international law instruments. However, as the prohibition of genocide is a non-derogable norm, even of a ius cogens nature, it is hard to dismiss the prohibition of cultural genocide as devoid of legal meaning. Moreover, the protection against cultural destruction is part of international human rights law, international humanitarian law, international criminal law, as well as the international treaties on the protection of cultural heritage.54

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The Canadian Truth and Reconciliation Commission concluded in 2015 that Canada’s aboriginal policy ‘can best be described as cultural genocide’, see Truth and Reconciliation Commission of Canada, Final Report of the Truth and Reconciliation Commission of Canada. Honouring the Truth, Reconciling for the Future, Vol. 1 (Summary) (Lorimer, 2015) 1. 50 unga Res. 260A(III), adopted on 9 December 1948, entered into force on 12 January 1951, 78 unts 277. 51 Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, 1991) 57. 52 Bisaz, The Concept of Group Rights (n 2) 96–97. 53 Miller, ‘Group Rights, Human Rights’ (n 37) 183–184. 54 Donders, ‘Old Cultures Never Die?’ (n 48) 278–304.

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5.2 Equality and Non-discrimination Discrimination is often related to community membership and to the characteristics of a community, which gives the prohibition of discrimination a collective dimension. At the same time, the basis of cultural rights, or more broadly of respect for cultural differences, also lies in the right and principle of non-discrimination and equality. It is now broadly recognized that non-discrimination and equality also mean the right to be different. Indeed, equality and non-discrimination not only imply that equal situations should be treated equally, but also that unequal situations should be treated unequally. At the international level, it is understood that ‘the enjoyment of rights and freedoms on an equal footing… does not mean identical treatment in every instance.’55 Consequently, not all differences in treatment constitute discrimination, so long as the criteria for differentiation are reasonable and objective and serve a legitimate aim.56 Difference in treatment may also involve positive action to remedy historical injustices, social discrimination, or to create diversity and proportional group representation.57 This right to affirmative action can be seen as a collective 55

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Human Rights Committee (hr Comm), General Comment No. 18: Non-Discrimination, 10 November 1989, un Doc. HRI/GEN/1/Rev.1, 26 (1994), para 8. The European Court of Human Rights has reaffirmed this in many cases, including the cases of Thlimmenos v Greece, Application No. 34369/97, Judgment of the Grand Chamber of 6 April 2000, echr 2000IV, para 44 and D.H. and Others v the Czech Republic, Application No. 57325/00, Judgment of the Grand Chamber of 13 November 2007, echr 2007-IV, para 44. Legal doctrine generally distinguishes between differentiation, distinction and discrimination. Differentiation is difference in treatment that is lawful; distinction is a neutral term which is used when it has not yet been determined whether the difference in treatment is lawful or not; and discrimination is difference in treatment that is arbitrary and unlawful. Consequently, only discriminatory treatment is prohibited. See Marc Bossuyt, Prevention of Discrimination – The Concept and Practice of Affirmative Action, 17 June 2002, un Doc. E/CN.4/Sub. 2/2002/21, para 91, at p. 20. See, also, Art. 1(4) of the International Convention on the Elimination of Racial Discrimination, unga Res. 2106(XX), adopted on 21 December 1965, entered into force on 4 January 1969, 660 unts 195: ‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’ The Human Rights Committee has further stated that the principle of equality under Art. 26 iccpr may sometimes require States parties to take affirmative action to diminish or eliminate

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right, but it should be noted that this right is of a temporary character, aimed at restoring past injustices or disadvantages, which is not the same as a permanent collective right to non-discrimination and equality.58 Apart from respect for diversity within the equality principle, collective cultural rights provisions, including community, communal and individual rights specifically promoting and protecting cultural diversity, have been included in international human rights instruments. The state approach towards cultural rights has been mainly individual. Cultural rights were reduced to the rights to freedom of expression, including language and artistic creation, as well as the rights to freedom of religion and association and the right to education. In relation to the rights of minorities and indigenous peoples, however, a broader and more collective approach has been adopted, often pressured by the communities themselves asking for the recognition of their collective cultural rights. 5.3 Individual Cultural Rights with a Collective Dimension Most cultural rights in international human rights instruments, just like other rights, are defined as individual rights. These rights are, however, for the most part enjoyed in connection with other individuals or within the context of communities. For instance, the individual right to take part in cultural life, although not containing a reference to shared enjoyment, can only be enjoyed together with other members of a cultural community. This approach is confirmed in the General Comment on this provision adopted by the Committee on Economic, Social and Cultural Rights. The Committee stated that the term ‘everyone’, as the subject of the right to take part in cultural life, refers to the individual or the collectivity. ‘[C]ultural rights may be exercised by a person (a) as an individual, (b) in association with others, or (c) within a community or group, as such.’59 The rights to freedom of expression, association and religion also have a strong collective dimension in relation to both the object of the rights as well as their enjoyment. However, formally speaking, these rights are defined as individual rights. 5.4 Communal Cultural Rights for Members of Minorities Article 27 iccpr is the main example of a communal cultural right. It guarantees the right of members of minorities to enjoy their culture, explicitly conditions which cause or help to perpetuate discrimination prohibited by the iccpr. hr Comm, General Comment No. 18: Non-Discrimination (n 55) para 10. 58 Bisaz, The Concept of Group Rights (n 2) 70–75; Jovanović, ‘Recognizing Minority Identities’ (n 3) 638–639. 59 See cescr, General Comment No. 21. Right of Everyone to Take Part in Cultural Life (n 42) para 9.

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referring to the right to do so ‘in community with other members of their group’. This line was also followed in the un Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted in 1992. The title, as well as most of the provisions, speak of the rights of members of minorities. Article 3(1) of the Declaration stipulates, however, that ‘[p]ersons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination.’ In other words, the provisions of the Declaration are communal rights. In some provisions of the Declaration the minority as such is mentioned, for instance in Article 1(1): ‘States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.’ This provision is not drafted as a substantive right of individuals, but as a recommendation to states. Although such provisions recognize a minority as a collective entity, the community is not the subject of a right, but more its beneficiary. The Declaration, unlike Article 27 iccpr, is not legally binding. 5.5 Community Cultural Rights for (Indigenous) Peoples One of the first community rights adopted in international human rights law was the right of peoples’ to self-determination, including the right to freely pursue their economic, social and cultural development, as incorporated in the iccpr and the icescr as the common first Article. This right has an important cultural component linked to the internal dimension of self-determination.60 A proper implementation of the right to internal self-determination, including a peoples’ right to preserve its cultural, ethnic, historical and territorial identity, may imply some form of self-government or autonomy in the economic, social and/or cultural field.61 Indigenous peoples mainly use the right 60

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Yvonne Donders, ‘The un Declaration on the Rights of Indigenous Peoples: a Victory for Cultural Autonomy?’ in Ineke Boerefijn and Jenny Goldschmidt (eds), Changing Perceptions Of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman (Intersentia, 2008) 99. On the right of self-determination, including the external and internal dimension see, inter alia, Pekka Aikio and Martin Scheinin (eds), Operationalising the Right of Indigenous Peoples to Self-Determination (Åbo/Turku Institute for Human Rights Åbo Akademi University, 2000); Kristen Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination (Nijhoff, 2000); Hurst Hannum, Autonomy, Sovereignty and Self-Determination. The Accommodation of Conflicting Rights (rev. edn; University of Pennsylvania Press, 1996). Lauri Hannikainen, ‘Self-Determination and Autonomy in International Law’ in Markku Suksi (ed), Autonomy: Applications and Implications (Kluwer Law International, 1998) 79, 90; Hannum, ‘Autonomy, Sovereignty’ (n 60) 474; Kristian Myntti, ‘The Right of

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to (internal) self-determination to demonstrate their desire to exist freely and to develop as distinct communities. They wish to live according to their own values and beliefs, and to be respected by states and other communities.62 Based on the importance of the right to self-determination, indigenous peoples have always demanded to be recognized as collective entities and advocated for community rights. One of the treaties where this played a significant role is the Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries (ilo Convention 169), adopted by the International Labour Organisation in 1989.63 This treaty was a revision of the Convention No. 107 on Indigenous and Tribal Populations (Convention 107) adopted in 1957,64 which was criticized for its paternalistic approach to assimilating indigenous peoples into the non-indigenous community. ilo Convention 169, in contrast to ilo Convention 107, uses the term ‘peoples’ instead of ‘members of populations’, thus incorporating a community rights approach. This approach does not, however, take the form of substantive community rights for indigenous peoples as such, but instead reflects states’ obligations towards those peoples. For instance, Article 4 provides that states shall take special measures ‘for safeguarding the… institutions…cultures and environment of the peoples concerned’ and Article 5(a) provides that ‘the social, cultural, religious and spiritual values and practices of these peoples shall be recognized and protected…’ Indigenous peoples are not the subjects of these provisions, but they are the beneficiaries.

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Indigenous Peoples to Self-Determination’ in Pekka Aikio and Martin Scheinin (eds), Operationalising the Right of Indigenous Peoples to Self-Determination (Åbo/Turku Institute for Human Rights Åbo Akademi University, 2000) 85, 128–129. Erica-Irene Daes, Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples, 19 July 1993, un Doc. E/CN.4/Sub.2/1993/26.Add. 1, para 28; S James Anaya, Indigenous Peoples in International Law (2nd edn; oup, 2004) 103–106; Benedict Kingsbury, ‘Reconstructing Self-Determination: A Relational Approach’ in Pekka Aikio and Martin Scheinin (eds), Operationalising the Right of Indigenous Peoples to SelfDetermination (Åbo/Turku Institute for Human Rights Åbo Akademi University, 2000) 24; Myntti (n 61) 128; Erica-Irene Daes, ‘The Spirit and Letter of the Right to Self-Determination of Indigenous Peoples: Reflections on the Making of the United Nations Draft Declaration’ in Pekka Aikio and Martin Scheinin (eds), Operationalising the Right of Indigenous Peoples to Self-Determination (Åbo/Turku Institute for Human Rights Åbo Akademi University, 2000) 67, 79–80. ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989, entered into force on 5 September 1991, 1650 unts 383; ilo Convention 169 has a limited number of 20 States Parties. ilo Convention (No. 107) concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, adopted on 26 June 1957, entered into force 2 June 1959, 328 unts 247.

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Article 1(3) of ilo Convention 169 furthermore makes clear that, ‘[t]he use of the term “peoples” in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.’ In other words, the use of the term ‘peoples’ has no implications regarding the right of self-determination as understood in international law. The right of self-determination was not included in ilo Convention 169 because states were opposed to its incorporation in the final text.65 The un Declaration on the Rights of Indigenous Peoples, adopted in 2007, includes true community rights. The title of the Declaration, as well as several provisions, give rights to indigenous peoples as such, at the same time recognising that individual members also have these rights. As stipulated in Article 1: ‘Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.’ Apart from the right to self-determination, the Declaration includes several community cultural rights. For instance, Article 5 provides that ‘[i]ndigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.’ Article 8(1) stipulates that ‘[i]ndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture’. The Declaration, as a soft law instrument, is not legally binding upon states. 6

Integrating Collective Subjects and Collective Interests in International Human Rights Law

As shown above, collective cultural rights in various types and forms are included in international human rights law. These different types of collective cultural rights exist alongside each other and do not have to be mutually exclusive. The rationale of collective cultural rights is the recognition of the value and worth 65 Anaya, Indigenous Peoples (n 62) 60; Howard R. Berman, ‘The International Labour Organisation and Indigenous Peoples: Revision of ilo Convention No. 107 at the 75th Session of the International Labour Conference, 1988’ (1988) 41 Review of the International Commission of Jurists 48, 52–54. In fact, the ilo Manual on the Convention explains that this formulation does not mean that self-determination is denied by the Convention, but ‘…it is left to the United Nations to decide how the term should be interpreted in general international law’. Lee Swepston and Manuela Tomei, A Guide to ilo Convention 169 on Indigenous and Tribal Peoples (International Labour Office, 1995) 10.

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of cultures and cultural identities for human dignity, and of the fact that cultural communities are crucial in shaping these identities and therefore important for individuals’ dignity, well-being and development. Cultural communities are valuable for their role in shaping the personality and identity of individuals by providing choices and opportunities. Individual identity and freedom are strongly connected to a sense of belonging to a cultural community.66 Collective cultural rights are incorporated in instruments containing human rights for all, but they have been more prominently included in instruments dedicated to the rights of minorities and indigenous peoples. Although cultural rights always have a collective dimension, they are not always formulated as community rights. In international human rights law, some cultural rights provisions are truly community rights, others are communal rights, and yet others are individual rights with the potential to be collectively enjoyed. Looking at the object of the rights, it may be said that some rights protect a collective cultural interest, whereas others protect an individual cultural interest, and some protect both. Collective cultural rights confirm that some collective cultural interests cannot be reduced to merely individual interests. This makes collective cultural rights important first and foremost as claims for collective cultural interests, even if these rights are exercised by individuals.67 These collective interests, such as culture, language, religion, land or custom, remain, however, difficult to define and they are also dynamic and heterogeneous, which makes them unspecified as objects of substantive rights. Collective cultural rights, in particular community cultural rights, should therefore respect the dynamic character of the community and its culture and not ‘absolutise’ collective cultural identities or ‘lock’ individuals into their community culture.68 Protection should not imply that cultural communities or cultures are ‘fenced in’. Involving the cultural community itself in the process of implementing cultural rights is therefore critically important. 66 67 68

Margalit & Halbertal ‘Liberalism and the Right to Culture’ (n 36) 503–505. See also Margalit & Raz ‘National Self-Determination’ (n 36) 87. McDonald, ‘Can Collective Rights’ (n 21) 320. Jeremy Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’ in Will Kymlicka (ed), The Rights of Minority Cultures (oup, 1995) 93, 95, 105–108; Michael Walzer, ‘Comment on Taylor’s Politics of Recognition’ in Amy Gutman (ed), Multiculturalism – Examining the Politics of Recognition (pup, 1994) 99, 100–101. Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 231–232, 234, 236, 238–239; Kukathas, ‘Cultural Toleration’ (n 36) 77–78, 88; Margalit & Halbertal ‘Liberalism and the Right to Culture’ (n 36) 503–505; Margalit & Raz ‘National Self-Determination’ (n 36) 87; Will Kymlicka, Multicultural Citizenship – A Liberal Theory of Minority Rights (Clarendon Press, 1995) 108–109; Johnston, ‘Native Rights as Collective Rights’ (n 28) 181, 187–188, 194.

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The question remains, however, to what extent collective cultural rights, in particular community rights, are needed to appreciate the value of cultural communities. In light of the legal difficulties posed by the concept of community rights, it is understandable that states have often chosen to adopt individual rights or communal rights. It remains, however, disputed whether cultural communities are sufficiently protected by individual rights and communal rights, or whether they need community cultural rights. The above shows that the inclusion of community cultural rights in international human rights law has not solved all legal and conceptual issues. It is still disputed to what extent collective entities can be the subjects of cultural rights, and whether a community can be an independent agent with the capacity to exercise such rights. And even if collective entities are accepted as possible subjects of rights, the lack of internationally-agreed definitions of peoples, minorities and indigenous peoples implies that it is not clear which collective entities can enjoy these rights. The issue of the relationship between the community and its individual members, and the fear that community rights may suppress individual freedoms, remains present. Community cultural rights are meant to protect the collective cultural identity of a community. The cultural identity of a community is, however, made, developed and changed by the members of the community. To what extent are all members truly able to participate in the decision-making processes? What if the collective interest and the individual interest conflict? Is there some kind of hierarchy between community cultural rights and the individual cultural rights of members of these communities? Is, for instance, the integrity of the community to be considered more important than individual autonomy? The potential conflict between various human rights, whether individual and/or collective, is not a unique phenomenon. The general rule is that there is no strict hierarchy between human rights and therefore there is no strict order of giving preference to certain (individual or collective) rights. It therefore cannot be argued that collective rights always prevail, for example because of the numbers of persons that benefit therefrom. Neither will individual rights always prevail; everything depends on the concrete situation and context at hand. Not only lawmakers and policy makers, but also courts and supervisory bodies are accustomed to reconciling different rights by balancing the various interests involved.69 The tension and potential conflict between community and individual interests also raises another important issue, namely that of the possible 69

McDonald, ‘Can Collective Rights’ (n 21) 324, 366, 373–374; Freeman, ‘Are there Collective Human Rights?’ (n 38) 30, referring to Raz, The Morality of Freedom, 250–257, 308–313; Newman, ‘Value Collectivism’ (n 33) 205.

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negative sides of cultures. Culture is not an abstract or neutral concept. It is shaped by its instrumentalisation, in which negotiation, contestation and power structures play a role. Culture is not necessarily intrinsically dignified. It may be a mechanism for exclusion and control. Cultures may harm or oppress people and hinder their personal development. Some cultural practices are very questionable from a human rights perspective. Community cultures are dynamic, not fixed and homogeneous, and there may be internal differences in the interpretation of the culture of the community, for instance between subcommunities or between the elite and the masses.70 The important question thus arises: who decides what the culture of a community is composed of, and which cultural aspects and practices should be protected? From a human rights perspective, imposing cultural identities and values upon individual members who no longer share these values should be avoided. In other words, individual rights should prevail in cases where the community is oppressive or imposes a cultural identity on individuals. Because communities derive their existence from the members they are comprised of and need the voluntary support of (the majority of) their members, they should only be able to survive if their members sufficiently value its survival.71 This position rests on the assumption that the basis of cultural communities is formed by the individual right to associate, and that cultural communities ultimately matter to the extent that they give value and meaning to individuals.72 In other words, community cultural rights can be supported only to the extent that individuals remain autonomous and free to develop their own cultural identity. Accordingly, communities may be subject to a normative evaluation and some criteria should be elaborated for collective entities to be eligible for community rights. Cultural communities may have a certain amount of freedom to arrange their internal structure and institutions and they may also put limited pressure on their members to follow the cultural norms of 70

Freeman, ‘Are there Collective Human Rights?’ (n 38) 34; Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 113. 71 Freeman, ‘Are there Collective Human Rights?’ (n 38) 34; Bhikhu Parekh, Rethinking Multiculturalism – Cultural Diversity and Political Theory (Macmillan Press, 2000) 169; Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 113; Tamir, ‘Against Collective Rights’ (n 25) 188. 72 Donnelly, Universal Human Rights (n 19) 151; Donnelly, ‘Human Rights, Individual Rights’ (n 22) 51; Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 112, 116. Kymlicka also argues that communities may have collective rights as external protection against the majority, but may never impose internal restrictions upon its members, see Kymlicka, Multicultural Citizenship (n 68).

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the community. However, cultural communities should always guarantee and respect the rights and freedoms of their individual members. They should not only refrain from cruel, inhuman and degrading treatment of their members, but communities should also respect the right of their members to take part in the decision-making processes that determine and develop the community’s cultural life. Moreover, the community should be based on non-coercive membership and respect the individual’s right and freedom to leave the community. In order to be able to make informed choices about membership in the community, communities should also respect the rights of their members to participate in society at large, e.g. through education, expression, information, election processes and labour.73 Collective cultural rights reflect the integration of collective subjects and collective interests in international human rights law. It is now broadly accepted that human rights are seldom enjoyed in complete isolation and that human rights, even those formulated as individual rights, should benefit communities as well. The call for the recognition of collective interests, including culture and cultural heritage, and collective subjects, including cultural communities and peoples, is accepted by the inclusion of collective cultural rights in international human rights law. While the inclusion of collective cultural rights in international legal instruments is of important symbolic value, nevertheless the legal significance of these rights lies in their actual implementation and enforcement. Collective cultural rights, in particular community cultural rights, continue to pose complex and difficult issues. The two central components of collective cultural rights, namely a community and a culture, are difficult to define and they are not – and should not be – static notions. Both are dynamic, changeable concepts, which makes their translation into substantive rights a difficult matter. Can the culture of a community be sufficiently determined and agreed upon by the community as a whole so as to give a determinate scope and normative content to a collective cultural right? Will 73

Michael Ado, ‘Practice of United Nations Human Rights Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights’ (2010) 32 HRQ 601, 624–625; Eva Brems, ‘Reconciling Universality and Diversity in International Human Rights: A Theoretical and Methodological Framework and Its Application in the Context of Islam’ (2004) 5 Human Rights Review 5, 18; Eva Brems, ‘Reconciling Universality and Diversity in International Human Rights Law’ in A Sajo (ed), Human Rights with Modesty: the Problem of Universalism (Brill, 2004) 227, 229; Donders, Towards a Right to Cultural Identity? (n 40) 103–105, 338; Reidel, ‘What are Cultural Rights?’ (n 40) 70–74, 78; McDonald, ‘Can Collective Rights’ (n 21) 372; Kukathas, ‘Are There Any Cultural Rights?’ (n 21) 117, 128, 133–134.

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communities, even without a legal definition, be able to claim rights while fully respecting the individual rights of their members? Some cases adjudicated in international tribunals, discussed in other parts of this volume, indeed show that collective cultural rights can be enjoyed by communities and that states have obligations to respect and implement these rights.74 74

For instance, the African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, AfCHPR, Comm. No. 276/03, 4 February 2010; Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tigni Community v Nicaragua, Judgment of 31 August 2001, 79 IACtHR (Ser. C), No. 79 (2001). For more on this point, see the Chapter 6 by Federico Lenzerini, Chapter 9 by Folarin Shyllon, Chapter 10 by Kristin Hausler and Chapter 11 by Francesco Francioni in this volume.

chapter 5

Protection of Community Culture as Part of Human Rights in International Law Kamrul Hossain 1 Introduction Generally culture consists of certain habits attached to a particular society to which a group of individuals belong. While the body of human rights law has endorsed the right of an individual to participate in the cultural life of the community to which he or she belongs, it has not however precisely defined the terms ‘culture’ and ‘community’. With the emergence of modern human rights law during the inter-war period between the two World Wars, individuals belonging to a minority received a special status/protection – not to be discriminated against in the enjoyment of their rights, particularly concerning the right to enjoy a particular culture. The term ‘minority’ has also not been defined with any precision. Yet, in most cases the term ‘minorities’ has applied to ethnic, linguistic and religious groups. Indeed culture goes hand in hand with ethnicity, with the language a group of people (community) speaks, and with the religious practices they carry out. Culture therefore is integrated in the very core of the community itself. Consequently, protection of culture and cultural rights has a sense of a collective entitlement. Despite the terminology used in the body of human rights law – that an individual’s right to culture is protected, for example, by employing Article 27 of the International Covenant on Civil and Political Rights (iccpr)1 – apparently the collective rights of a community as a whole is not what human rights law formally protects. It is thus still not clear how international law may be used to advocate for the protection of a community’s right to culture. However, if a ‘community’ is defined as a distinct ‘people’ with unique cultural attachments, such as in the case of an indigenous community, then the right to culture can be interpreted as a collective entitlement, creating a need for a ‘holistic response of the law to the human condition and its vulnerabilities’.2 1 unga Res. 2200A(xxi), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171. 2 Siegfried Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’ (2011) 22 ejil 121, 126; also see Siegfried Wiessner, ‘Indigenous SelfDetermination, Culture, and Land: A Reassessment in Light of the 2007 un Declaration on © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_007

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Enjoyment of the right to self-determination is a fundamental part of such response. Inasmuch as exercise of the right to self-determination as it has been developed remains a continuing right rather than having lost its applicability at the end of decolonisation process, it should guarantee the protection of a community’s right to culture insofar as the right belongs to a people, not to an individual. This chapter examines the collective entitlement to cultural rights and their protection regime within international human rights law. In the process of this examination, it intends to present, in the first place, an overview of cultural rights and show the community connection to such rights. In this regard, in order to facilitate a better understanding of cultural rights as a community entitlement, this chapter endeavours to define the term ‘community’, for which culture forms a significant component for its survival. It argues that unlike many other minority communities, indigenous communities have stronger collective entitlements. The protection of the cultural rights of a community as a collective entitlement requires both an ‘effective agency’ as well as a ‘clear identity’. The former is about the ability collectively to form goals and act deliberately, while the latter is about formation of a group membership.3 In a legal sense these concepts – agency and identity – reflect the community as a ‘person’ holding the rights. Thus, the main focus of this chapter is to examine: (a) whether the indigenous communities form such a ‘person’ in international law and hold cultural rights as collective rights; and if so, (b) how the human rights framework protects such rights. The chapter, while investigating the above-mentioned questions, looks into the legal developments that have so far taken place by way of exploring the body of academic literature, existing international legislation and the interpretation of such legislation carried out by both the treaty-monitoring bodies as well as by academics, as well as in case law jurisprudence etc. 2

Culture as a Collective Entitlement

Generally the term ‘culture’ is conceived of as having a broad meaning, consisting, for example, of the beliefs, practices and rituals held or observed by specific human groups living in a particular geographical region that have been passed down from their ancestors and the society around them through generations. Culture includes a dimension of identity, either ethnic or on the basis of language and/or religion. According to some scholars culture is understood as a the Rights of Indigenous Peoples’ in Elvira Pulitano (ed), Indigenous Rights in the Age of the un Declaration (cup, 2012) 31. 3 Kimberlee Weatherall, ‘Culture, Autonomy and Djulibinyamurr: Individual and Community in the Construction of Rights to Traditional Designs’ (2001) 64 Modern Law Review 215, 230.

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product, a process and a way of life, and sometimes it is deemed to include references even beyond ethnicity, language and religion.4 It is about the maintenance of a particular way of life and the traditional activities that require certain skills and knowledge that are traditionally rooted in a community, and developed and sustained through generations. These provide the mechanisms for cultural internalization, which shape cultural values, ethics, and the fundamental social norms and rules.5 Over time they essentially become part of the culture. For certain communities, such as for indigenous communities, culture also includes the maintenance of traditional knowledge and other ecological and local knowledge concerning land use management and bio-diversity conservation. The preservation of a traditional subsistence economy, for example, in the context of indigenous peoples also forms part of their culture.6 While there is an element of traditional orientation in the understanding of the very notion of ‘culture’, this does not necessarily mean that a culture is static or archaic. Rather, a tradition transmits new knowledge and behaviour along a cultural continuum.7 As societies change over time and develop new approaches and practices, culture incorporates these transformations. Even the adaptation of new and modern technology to traditional practices very much constitutes a part of the ‘culture’.8 While a right to participate in cultural life has been embodied in many human rights instruments, the term ‘culture’ itself has not been conceptualized in these instruments. But there is a great deal of analysis as to what ‘culture’ means from the viewpoint of human rights, reflected in various authoritative interpretations given by un-designated special rapporteurs as well as by human rights treaty-monitoring bodies. For example, the un Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Francesco Capotorti, asserted that ‘culture’ should be interpreted 4 See, for example, Rodolpho Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights. A Textbook (2nd edn; Nijhoff, 2001) 85. 5 Fulvio Mazzocchi, ‘Analyzing Knowledge as Part of a Cultural Framework: The Case of Traditional Ecological Knowledge’ (2008/9) 36 Environments 39, 46. 6 See, Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment of 13 July 2009, icj Reports 2009, 213, paras 134–144. 7 See Mazzocchi (n 5) 43. 8 This is especially the way it is interpreted by the Human Rights Committee (hr Committee) concerning the right to enjoy a particular culture within the meaning of Art. 27 of the iccpr. See I. Länsman et al. v Finland, hr Comm. No. 511/1992, 8 November 1994, un Doc. CCPR/C/52/D/511/1992, para 9.3. The Committee argued that ‘The right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context … that the authors may have adapted their methods … and practice it with the help of modern technology does not prevent them from invoking Article 27 of the Covenant.’

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broadly to include customs, morals, traditions, rituals, types of housing, eating habits, as well as the arts, music, cultural organizations, literature and education.9 The authoritative interpretation given by the Human Rights Committee, while interpreting Article 27 of the iccpr in its General Comment No. 23, states that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples, which may include traditional activities such as fishing and/or hunting etc.10 The most recent General Comment produced by the Committee on Economic Social and Cultural Rights states that: Culture, for the purpose of implementing article 15 (1) (a) [of the International Covenant on Economic Social and Cultural Rights] encompasses, inter alia, ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view representing their encounter with the external forces affecting their lives.11 It is thus apparent that ‘culture’, within the framework of existing human rights law, has been interpreted broadly, and cultural rights are argued to be the ‘soft part’ of human rights12 due to their generality. A broad view of culture can exist only in a collective sense of community entitlement. A community connection to culture can be found in the communal nature of interests, for example, in traditional designs, which excludes individual ownership. The role of customary law defines those interests, which are central to, for instance, indigenous communities, which view cultural and cultural heritage as ‘a communal right, associated with a family, clan, tribe or other kinship group.’13 The debate over cultural rights therefore demonstrates an understanding of a collective 9 un Doc. E/CN.4/Sub.2/384/Rev.1, 99–100. 10 See hr Comm, General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5, para 3.1. 11 cescr, General Comment No. 21. Right of Everyone to Take Part in Cultural Life (Art. 15, para 1(a) of the Covenant), 21 December 2009, un Doc. E/C.12/GC/21, para 13. 12 See Elsa Stamatopoulou, ‘Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and the Response of Cultural Rights’ (2012) 34 hrq 1170, 1171. 13 un Special Rapporteur, Erica-Irene Daes, Protection of the Heritage of Indigenous Peoples (un Publications, 1997) 26, 28.

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dimension of such rights, referring to the ‘collective exercise of individual rights on the one hand, and the existence of collective rights per se – understood as group rights – on the other hand.’14 To the extent that ‘culture’ has received attention in the human rights context, it is mainly perceived as referring to a community and as warranting the strengthening of the right to enjoy one’s own culture in a community by recognizing a right to cultural identity.15 According to Charles Taylor, the collectivity of rights lies in such an identity formation.16 Even though enjoyment of culture has been perceived as an individual right in human rights treaties, because of the nature of ‘culture’ as a holistic agenda (discussed above), without reference to the group as a whole (or a particular identity held in common by the members of a community), the right as such cannot be meaningfully identified. The ‘practice of culture’ by an individual must conform to certain norms that the particular society prescribes or preserves. Moreover, an individual’s enjoyment of culture not only includes an essential right to take part in cultural life, but it also includes rights to access and to contribute to the development and the formation of culture, making the culture a basis for the community identity. A view similar to this is found in the unesco report, which suggests that the right to culture is presented not only as a right to enjoy a way of life, but also to enjoy cultural freedom as a collective freedom, referring to the right of a group or people to follow a way of their choice.17 Such a group component or collective dimension has been, and is, an integral part of understanding the right to culture as an entitlement. Ever since the adoption of Article 27 of the Universal Declaration of Human Rights (udhr),18 which refers to taking part in the cultural life of ‘the community’, a number of other international instruments19 have endorsed such rights, as well as a right to equal enjoyment and participation in cultural activities, 14

15 16 17 18 19

Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, un Doc. A/HRC/14/36, para 10. Dana Irina, ‘A Culture of Human Rights and the Right to Culture’ (2011) 1 Journal of Communication and Culture 30, 42. Charles Taylor, ‘The Politics of Recognition’ in Amy Gutmann (ed) Multiculturalism: Examining the Politics of Recognition (pup, 1994), 25. Report submitted to unesco and the United Nations in November 1995: World Commission of Culture and Development, Our Creative Diversity (unesco, 1998). unga Res 217 A(iii), adopted on 10 December 1948, un Doc A/810, 71. See International Covenant on Economic, Social and Cultural Rights (icescr), unga Res. 2200A(xxi), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3, Art. 1; International Convention on the Elimination of All Forms of Racial Discrimination, unga Res. 2106(xx), adopted on 21 December 1965, entered into force on 4 January 1969, 660 unts 195.

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including among others, the right of children to participate freely in cultural life and the arts.20 With respect to the collective nature of the right, the Council of Europe’s Framework Convention for the Protection of National Minorities (fcnm)21 asserts that the purpose of the right to culture is to protect aspirations shared by the members of a national minority ‘to develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’.22 This reference to the recognition of a cultural right as part of a collective right can be found for example in the un Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities.23 The most recent instrument – United Nations Declaration on the Rights of Indigenous Peoples (undrip)24 – is a remarkable example of a collective entitlement to a whole bundle of human rights arising out of a group’s distinct cultural history and identity. It however excludes groups other than indigenous peoples. Apart from the above articulations in the human rights instruments, the monitoring bodies of some of the treaties, as well as un-designated special rapporteurs, have clearly supported the collective dimension of cultural rights. General Comment No. 21 of the cescr, for example, illustrates that a cultural right may either be exercised alone, in association with others, or as a community.25 According to the Report of the Independent Expert in the field of Cultural Rights, the right to participate or to take part in cultural life has three interrelated components – participation, access to, and contribution to cultural life, which extends the understanding of a community culture26 as giving rise to collective entitlements. This affirmation of collective entitlements of cultural rights in international human rights law has now come to comprise a variety of more specific rights, including the right to cultural development, the right to cultural identity and, occasionally, the right to cultural integrity,27 with a focus on an entire community.

20 21 22 23 24 25 26 27

Convention on the Rights of the Child, unga Res. 45/25, adopted on 20 November 1989, entered into force on 2 September 1990, 1577 unts 3, Art 31. Signed on 1 February 1995, entered into force on 1 February 1998, cets No. 157, 2151 unts 243. Art. 5 of the fcnm. unga Res. 47/135, adopted on 18 December 1992, un Doc. A/RES/47/135, Art. 3. unga Res. 61/295, adopted on 13 September 2007, un Doc. A/RES/61/295. cescr, General Comment No. 21 (n 11) para 15(a). un Doc. A/HRC/14/36 (n 14) para 13. Irina (n 15) 41.

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Who is a ‘Community’

An individual’s sense of belonging to a community is a natural phenomenon, in particular in the context of cultural orientation. This is because of one’s birth into certain ethnic and societal categories, their upbringing in certain social settings, as well as their conscious choices to be the members of certain social groups.28 Despite the reference to the term ‘community’ in human rights literature,29 and recognition the a ‘community’ is a bearer of a culture and/ or cultural heritage,30 human rights law has hardly conceptualized the term. The notion of ‘community’ can nevertheless be found in other fields of science, which might be beneficial in the understanding of community in human rights law as well. Generally, ‘community’ refers to a sense of belonging together owing to a number of reasons constitutive of solidarity and an understanding of shared identity of the members who form such a community.31 In most of the literature, ‘community’ has been loosely interpreted as applicable either to a place or to a collection of people.32 This broad and subjective interpretation highlights two basic major characteristics – structural and functional – in the understanding of community. While the former suggests a people within their physical environment, the latter refers to social networks generated in everyday community life as a result of structural patterning.33 In this sense a community is understood as a group of people living in a specific geo­ graphical place within a larger society, having a mutually beneficial relationship which shares common characteristics and interests.34 They are generally 28 29

Wiessner, ‘The Cultural Rights’ (n 2) 124. See, for example, Art. 27 of the udhr: ‘… persons belonging to … minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture’ (emphasis added). See also the Preamble of the unesco Declaration on the Intentional Destruction of Cultural Heritage, adopted on 17 October 2003, unesco Doc. 32 C/Res. 33 (2003), which stresses that: ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’ (emphasis added). See Chapter 1 by Miodrag Jovanović in this volume. 30 See Art. 2 of the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted on 7 October 2003, entered into force on 20 April 2006, 2368 unts 3. 31 James Brow, ‘Notes on Community, Hegemony and the Use of the Past’ (1990) 63 Anthropological Quarterly 1. 32 Ibid. 33 Isabel García, Fernando Giuliani, and Esther Wiesenfeld, ‘Community and Sense of Community: The Case of an Urban Barrio in Caracas’ (1999) 27 Journal of Community Psychology 727, 728–729. 34 Ibid 728–729.

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a pre-existent social group which shares common territories, common resources, and a common history, culture and values that interact frequently. The common interests and values could, however, cross geographic boundaries. The members of the group may engage in joint actions in the form of informal common activities such as sharing tasks and helping neighbours, without necessarily intentionally designed cohesion. The members of the group maintain certain social ties that involve relationships which create an on-going sense of cohesion. These elements make them a part of a social group defined as a ‘community’.35 The crucial issue is that the members mutually recognize each other as belonging to the same specific community. Such a recognition gives, on the one hand, a sense of emotional bonding, belonging, and an identity and, on the other hand, it gives a sense of integration and collectiveness.36 Common denominators that shape a community include organization, interrelation, coexistence, integration, functionalism, identity consciousness, some common direction in collective actions, etc.37 The creation of a community also involves political and social motives in the formation of communal groups, which stems from the collective recognition that a particular problem is not an individual one, but rather a social problem common to a group as a whole.38 It is therefore argued that the vulnerability of groups concerning the enjoyment of a minority culture creates the need for their collective entitlements and protection.39 When addressing an individual’s right to culture – the individual belonging to a group, such as minority – human rights law has used the wording ‘in association with other members of the community’,40 giving a sense of a community entitlement of rights. Such a community may encompass a variety of different groups, such as national, ethnic, linguistic, and religious minorities, including migrant workers and indigenous people as well as minority children.41 In order to understand community entitlements, the term ‘minority’ has been conceptualized, for example, by Francesco Capotorti, the Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, as: 35 Ibid. 36 David W. McMillan and David M. Chavis, ‘Sense of Community: A Definition and Theory’ (1986) 14 Journal of Community Psychology 6, 14. 37 García, Giuliani & Wiesenfeld (n 33) 728–729. 38 Donald Patrick and Thomas Wickizer, ‘Community and Health’ in Ben Amick, Sol Levine, Al Tarlov, and Diana Chapman Walsh (eds), Society and Health (oup, 1995) 46–92. 39 See Wiessner, ‘The Cultural Rights’ (n 2) 125. 40 See Art. 27 of the iccpr. 41 Irina (n 15) 41.

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A group, numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.42 A quite similar approach has been adopted by the Special Rapporteur to the Commission on Human Rights, Jules Deschenes. According to him, a minority community is ‘[a] group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law’.43 These two definitions of the concept of ‘minority’ clearly indicate an identity formation akin to the idea of ‘community’, applicable to a minority group. Insofar as the framework of international human rights law recognizes a collective dimension of cultural rights, the minority as a ‘community’ has the right to enjoy their culture. A strong sense of community applies to indigenous peoples because of the distinctive cultural characteristics which distinguish them from the prevailing society in which they live. For indigenous peoples, their distinct cultural identity gives them the status of a ‘people’ who co-exist within a state.44 Despite the subtle interpretation in the understanding of ‘people’ in international law,45 in 42

43

44

45

See Sub-Commission on the Promotion and Protection of Human Rights, ‘Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities’, un Doc. E/ CN.4/Sub.2/384/Rev.1 (1979). See Sub-Commission on the Promotion and Protection of Human Rights, ‘Proposal Concerning a Definition of the Term “Minority”’, un Doc. E/CN4./Sub.2/985/31 (1985). For a general treatment on this issue, see Eyassu Gayim, The Concept of Minority in International Law: A Critical Study of the Vital Elements (27 Juridica Lapponica, University of Lapland Press, 2001) 14. See Martin Scheinin, ‘The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of Land’ in Theodore S. Orlin, Allan Rosas, Martin Scheinin (eds), The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach (Åbo Akademi University Institute for Human Rights, 2000) 159, 163–172. The Human Rights Committee, in its Concluding Observations based on the reports submitted by countries, has observed that at least certain indigenous groups qualify as ‘peoples’ under Art. 1 of the iccpr. See John B. Henriksen, ‘Oil and Gas Operation in Indigenous Peoples Lands and Territories in the Arctic: A Human Rights Perspective’ (2006) 4 Journal of Indigenous Peoples Rights 26.

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some countries as well as in some legal literature indigenous peoples are given the status of a ‘people’.46 The Norwegian constitution, for example, recognizes its Sámi indigenous community as a ‘people’47 who enjoy certain substantial rights connected to the traditional lands, which broadly form their culture. For indigenous groups therefore, a community entitlement of rights, particularly the right to collective enjoyment of culture, is argued within the framework of international human rights law48 by way of attaching a right to self-determination, particularly within the meaning of common Article 1(2) of the two un Covenants. Such a reference is missing for minority communities other than indigenous peoples. 4

Realizing a Community Right to Culture within the Human Rights Framework

Despite the reference to the recognition of cultural rights as collective rights of a community, international human rights law does not explicitly protect a community’s collective rights per se. Instead, individuals are referred to as subjects of international law to be protected within the framework of human rights law. One exception is probably the 1948 Genocide Convention,49 which implies the right of a group’s collective existence. But that only concerns the prohibition against the physical destruction of a group, and is not connected to group’s collective enjoyment of other rights.50 Nevertheless, in recent decades the growing awareness of a collective legal identity and rights of a group, especially for indigenous peoples, suggests that the perception of collective rights and their protection is essential for resolving many international tensions, and a move towards that direction is perhaps forthcoming within the evolving nature of group rights applicable to, for example, indigenous peoples.

46 47

48 49

50

For more discussion on this issue, see Section 4 below. For example, Art. 110a of the Constitution of Norway. See Constitution of the Kingdom of Norway, as laid down on 17 May 1814 by the Constituent Assembly and subsequently amended; available at accessed on 15 April 2016. Geir Ulfstein, ‘Indigenous Peoples’ Right to Land’ (2004) 8 Max Planck Yearbook of United Nations Law 1, 3. Convention on the Prevention and Punishment of the Crime of Genocide, unga Res. 260A(iii), adopted on 9 December 1948, entered into force on 12 January 1951, 78 unts 277. Cfr Chapter 14 by Elisa Novic in this volume.

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At the present time and setting in international human rights law, the protection of community’s collective right is complex, and the reality of cultural rights is even more complex.51 Amongst the binding human rights instruments, as mentioned earlier, Article 27 of the iccpr only gives to an individual the right to enjoy a particular culture, and reference to the communal nature of the right is inherent in the phrase – ‘in community with the other members.’ Given the fact that culture generally belongs to a community as a whole, and the enjoyment of the culture cannot be effectively exercised individually except through communal attachment, a protection regime for cultural rights would seem to require a collective approach. Although the complaint mechan­ ism contained in the Optional Protocol to the Covenant (iccpr) for alleging the violation of the right suggests that the hr Committee may receive and consider communications from individuals only,52 and not from communities, it has nonetheless supported the collective dimension in its interpretation of Article 27. The Committee has adopted a dynamic approach in its interpretation, i.e. that a right to culture can only be meaningfully realized when exercised ‘in a community’ – meaning as a group.53 While this does not clearly articulate it as a group right, in the case of Apirana Mahuika et al. v New Zealand the hr Committee stated: The Committee observes that the Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in Part iii of the Covenant, Articles 6 to 27, inclusive. As shown by the Committee’s jurisprudence, there is no objection to a group of individuals, who claim to be commonly affected, to submit a communication about alleged breaches of these rights.54 51 52

Stamatopoulou (n 12) 1171. Article 1 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, unga Res.63/117, adopted on 10 December 2008, entered into force 5 May 2013, un Doc. A/RES/63/117; International Covenant on Civil and Political Rights, unga Res. 2200A(xxi), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171. 53 According to the hr Committee, the right of enjoyment of culture, practice of religion, or use of language can only be realized meaningfully when exercised ‘in a community’, that is as a group. See Kitok v Sweden, hr Comm. No. 197/1985, 27 July 1988, un Doc. CCPR/C/33/D/197/1985, Lubicon Lake Band (Bernard Ominayak) v Canada, hr Comm. No. 167/1984, 26 March 1990, un Doc. CCPR/C/38/D/167/1984, Länsman (n 8), I. Länsman et al. v Finland, hr Comm. No.671/1995, 30 October 1996, un Doc. CCPR/C/58/D/671/1995. 54 See hr Comm. No. 547/1993, 27 October 2000, un Doc. CCPR/C/70/D/547/1993 (2000), un Doc. A/56/40 (Vol. ii), 11–29, para 9.2.

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A commonly affected group of individuals could thus perhaps join together and claim to be protected when their enjoyment of cultural rights has been violated. But it is not clear whether a number of individuals are capable of representing the group as a whole. Therefore, one cannot automatically interpret such actions as the protection of a group’s right to culture, even if the group can be benefited communally from the protection of an individual’s right to enjoy and exercise the culture. Regarding the protection of minorities, most human rights instruments are set on the basis of the principle of non-discrimination. In other words, while minorities cannot be denied basic rights, no positive protection of any collective rights of minorities is stipulated in the human rights instruments. Protection of collective rights must meet a two-pronged test – an ‘established identity’ and an ‘effective agency’. The former is about identifying a group as distinct, and the latter concerns the group’s capacity to establish effective control over the management of, for example, religious and social institutions, schools and other educational establishments within the right of a group’s own cultural entitlements, such as language and exercise of religion. In the context of minorities in Europe,55 the argument for ‘effective agency’ was recognized at the end of the First World War.56 However, international human rights law, development developed after the Second World War, rejects any notion of cultural rights as being positive and collective. Article 27 of iccpr, discussed above, is incapable of creating a group right because it implies no right for culturallydistinct communities to establish control and maintenance of institutions such as schools, cooperatives, and/or other social institutions. Thus, the protection of community culture as collective right requires not only an identity formation in the first instance, but also, and very importantly, an effective control over the group’s basic entitlements (effective agency),57 reflecting the idea of the group as a ‘person’ holding the rights. Consequently, the term ‘effective agency’ has a nuance in the concept of self-determination, which in international law has been developed as an established principle. A community with an effective right to self-determination 55

56

57

Minority concerns were regarded as ‘European issues’ in the drafting of the Universal Declaration of Human Rights. The United States, for example, led the opposition to the minority-related Article, which was supported by Latin American countries and Canada in the negotiation process of the Declaration, terming it as ‘European issues’. See Stamatopoulou (n 12) 1175–6. See Art. 67, Section v, Treaty of Peace between the Allied and Associated Powers and Austria together with Protocol and Declarations (Treaty of Saint Germain), signed on 10 September 1919, entered into force 8 November 1921, 226 Parry’s cts 8. See Weatherall (n 3) 231.

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is presumed to be capable of protecting its cultural rights as collective right, because the right to self-determination ensures all the other human rights a group necessarily deserves to enjoy58 as collective entitlements. The notion of ‘self-determination’ was popularized, and achieved considerable influence, in the process of decolonisation that started at the end of the Second World War, under the auspices of the United Nations. The un General Assembly adopted Resolution 1541 (xv) in order to facilitate the political independence of those nations that had been colonized by foreign powers. According to the Resolution, self-determination is meant to force a colonizing power to allow self-government in its colonies, through either the creation of independent states, autonomy under an existing independent state, or full integration with another state, based on the freely expressed will of the colonized population. The resolution requires the colonial power to ‘… transfer all powers to the people of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed, or colour, in order to enable them to enjoy complete ­independence and freedom.’59 This idea led some scholars to argue that selfdetermination applies to a population of a distinct territorial or administrative entity with its own external, internal or natural boundaries.60 In a­ ccordance with this understanding, the concept is only associated with territories that are listed as non-self-governing, rather than with peoples living in a particular territory.61 According to Alfredsson a geographical entity such as a colony 58 59 60

61

Héctor Gros Espiell, ‘The Right to Self-Determination; Implementation of United Nations Resolutions’, un Doc. E/CN.4/Sub 2/405/Rev. 1 (1980), 159. Declaration on the Granting of Independence to Colonial Countries and Peoples, unga Res. 1514(xv), adopted on 14 December 1960, un Doc. A/RES/1514(xv). See, for example, Gudmundur Alfredsson, ‘The Faroese People as a Subject of Public International Law’ (2001) 1 Faroese Law Review 45, 48; see also Gudmundur Alfredsson, ‘Access to International Monitoring Procedures: Choices between Self-determination and the Human Rights of Groups’ in Michael C. Van Walt Van Praag and Onno Seroo (eds), The Implementation of the Right to Self-determination as a Contribution to Conflict Prevention (Centre unesco do Catalunya, 1998) 198; Gudmundur Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Definition of Terms as a Matter of International Law’ in Nazila Ghanea and Alexandra Xanthaki (eds), Minorities, Peoples and Self Determination: Essays in Honour of Patrick Thornberry (Nijhoff, 2005) 163, 170. See the un Charter provisions on Trust and Non-Self-Governing Territories, signed on 26 June 1945, entered into force on 24 October 1945 (1 unts xvi), amended in 1963 (557 unts 143), in 1965 (638 unts 308), and in 1971 (892 unts 119); and unga Res. 1514(xv) (n 61). See also Aleksandar Pavković and Peter Radan, ‘In Pursuit of Sovereignty and Selfdetermination: Peoples, States and Secession in the International Order’ (2003) 3 Macquarie Law Journal 1; for the process as a whole, conducted primarily under the

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or an occupied territory is entitled to the right to self-determination, but a ­popular entity is not, an example being an ethnic group that is not identified as a distinct population surrounded by a reasonably recognized territorial boundary.62 There may be one or more such groups within a particular territory, yet as segments of the population at large they are not eligible to claim a right to self-determination. At least that has been the idea during the process of decolonisation.63 The post-World War ii era of decolonisation literally bypassed indigenous peoples with respect to their right to self-determination,64 given that the meaning and scope of the concept was put in a rather restricted form. Today, the idea of self-determination is understood as a dynamic and continuing right, not one that has been lost after a set of population or peoples has achieved independent statehood.65 It is a right that a ‘people’ is capable of ­exercising even when they are a segment of a population within a defined t­erritory.

62

63

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a­uspices of the un, accorded self-determination to territories rather than peoples, even though decolonisation was many times described as the exercise of the self-­ determination of peoples, further read Timo Koivurova, ‘Sovereign States and Self-­ Determining Peoples: Carving Out a Place for Transnational Indigenous Peoples in a World of Sovereign States’ (2010) 12 International Community Law Review 191, 194. See Alfredsson, ‘The Faroese People’ (n 60) 48; also see Alfredsson, ‘Access to International Monitoring Procedures’ (n 60) 198; Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples’ (n 60) 170. A segment of a state’s population, even if identified as a distinct group, was generally – and often vigorously – denied in the context of the decolonisation process, see Pavković & Radan (n 61). Lillian Aponte Miranda, ‘Introduction to Indigenous Peoples’ Status and Rights under International Human Rights Law’ in Randall S. Abate and Elizabeth Ann Kronk (eds), Climate Change and Indigenous Peoples: the Search for Legal Remedies (Edward Elgar, 2013) 39, 41. In the process of decolonisation, only economically or politically subordinate, culturally and geographically distinct groups from the state administering it have been identified as ‘people’ for the purpose of self-determination, and territory to which they live is connected to the concept of a ‘non-self-governing territory’. This fact leads to an understanding that if a colonizer remained a numerical minority, then the population – whether indigenous or non-indigenous – becomes a ‘people’ for the purpose of self-determination. On the other hand, where the colonizers multiplied and formed a new majority, the groups they control have been called indigenous or ethnic minorities rather than a ‘people’, and thereby have been denied a right to self-determination. See Russell Lawrence Barsh, ‘Evolving Conceptions of Group Rights in International Law’ (1987) 13 Transnational Perspectives 6.

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I­nternational human rights law recognizes the right to self-determination as a ‘people’s’ right. Common Article 1, paragraphs 1 and 2 of the two Covenants (iccpr, icescr) read as follows: 1. 2.

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual ­benefit, and international law. In no case may a people be deprived of its own means of subsistence.

The term ‘people’ presents some ambiguity, for no concrete definition of it can be found in international law. However, the generally agreed definition of ‘people’ today is characterized rather broadly,66 and so is the concept of self-determination. Therefore, the post-Cold War period employed a different meaning of ‘people’, together with an unorthodox concept of the right to self-determination as a right that develops over time.67 According to Klabbers, self-determination has evolved into a right of peoples to take part in decisions affecting their future,68 and ‘peoples’ may be segments of the population of 66 See unesco, ‘Final Report and Recommendations of the International Meeting of Experts on Further Study of the Concept of the Rights of Peoples’, 27–30 November 1989, unesco Doc. SHS-89/CONF.602/7. The definition of ‘peoples’ is as follows: ‘1. A group of individual human beings who enjoy some or all of the following common features: (a) Common historical tradition; (b) Racial or ethnic identity; (c) Cultural homogeneity; (d) Linguistic unity; (e) Religious or ideological affinity; (f) Territorial connection; (g) Common economic life; 2. The group must be of a certain number which need not be large but which must be more than a mere association of individuals within a State; 3. The group as a whole must have the will to be identified as a people or the consciousness of being a people – allowing that group or some members of such groups, through sharing the foregoing characteristics may not have that will or consciousness; and possibly; 4. The group must have institutions or other means of expressing its common characteristics and will for identity.’ 67 See John B. Henriksen, Martin Scheinin and Mattias Åhrén, ‘The Saami People’s Right to Self-Determination: Background Material for the Nordic Saami Convention’ (2007) (3) Gáldu Čála: Journal of Indigenous Peoples Rights 52, 67. 68 Jan Klabbers, ‘The Right to Be Taken Seriously: Self-Determination in International Law’ (2006) 28 hrq 186, 189.

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independent states.69 This is because the right to self-determination inheres in people, not states.70 Self-determination today includes those with the status of ‘a people’ living within the existing structure of a state. In the postcolonial world, self-determination consists of a different approach, one which recognizes it as a principle rather than a substantive right.71 Principles, as opposed to rules, are applied when cases appear to be unclear.72 This means a re-conceptualization of self-determination as a procedural norm that guarantees the right of a people to be informed, to be consulted, and to be given the right to ‘consent’ to decisions affecting them. Such ‘consent’ has today achieved the status of a legal norm known as ‘free, prior and informed consent (fpic)’, which is attached to the right to self-determination. With respect to its application to a ‘culture’, it should be noted that the norm is referred to in the most recent General Comment forwarded by the Committee on Economic, Social and Cultural Rights.73 While it is argued that both indigenous groups and other minority groups can form a ‘community’, the notion of ‘people’, endowed with an exercisable right to self-determination, can only fit in the context of indigenous peoples. The exclusion of minorities other than indigenous peoples is obvious, firstly because the former groups are artificially created as a consequence of interwar geographical divisions, while indigenous peoples are naturally formed groups with historic and inherent links to the lands on which they live. While both indigenous and non-indigenous minorities are non-dominant groups, minorities are identified only respect to numerical factors, while for indigenous peoples the identification is both numerical and geographical. Secondly, unlike with other minorities, the concept of ‘people’ as described above fits well with the situation of indigenous peoples. The famous Cobo’s definition74 of 69

See See Johan D. Van Der Vyver, ‘Self-Determination of the Peoples of Quebec under International Law’ (2000) 10 Journal of Translation Law & Policy 1, 17. 70 Koivurova (n 61) 194. 71 Klabbers (n 68) 195–197. In this context, Klabbers also referred to the icj’s judgment in the East Timor case (1995), where the Court noted that the principle of self-determination exists in positive international law and may be viewed as having an erga omnes character, which presupposes that the concept is a procedural principle rather than a substantive right. See Case Concerning East Timor (Portugal v Australia), Judgment of 30 June 1995, icj Reports 1995, 90, para 29. 72 David J. Galbreath, ‘Dealing with Diversity in International Law: Self-determination and Statehood’ (2005) 9 International Journal of Human Rights 539, 544. 73 See cescr, General Comment No. 21 (n 11) para 37. 74 According to José R. Martínez-Cobo, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities:

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indigenous peoples shows their distinct identity and traditional and customary way of making a livelihood, allowing making them continue to exist as peoples. This definition does not apply to the understanding of, for example, a linguistic minority. Thirdly, as mentioned elsewhere in this paper, a contingent ‘effective agency’ goes hand in hand in the right to exercise self-determination. Unlike other minorities, indigenous peoples are much more organized. They have formed their own organizations internally, through transnational networks75 as well as at the international level.76 They actively participate in both formal and informal processes of norm building and decision-making as concerns human rights,77 having collectively organized themselves institutionally to

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Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system. This historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: a) Occupation of ancestral lands, or at least of part of them; b) Common ancestry with the original occupants of these lands; c) Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, lifestyle, etc.); d) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language); e) Residence in certain parts of the country, or in certain regions of the world; f) Other relevant factors. See un Department of Economic and Social Affairs, Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Issues, Workshop on Data Collection and Disaggregation for Indigenous Peoples (New York, 19–21 January 2004), PFII/2004/WS.1/3 (2004), para 2; also see un Doc. E/CN.4/Sub.2/1986/7 and Add. 1–4, paras 379–382. Such as the Saami Council in Finnoscandenia, Inuit Circumpolar Council in Greenland and in the territories of North America. Such as the un Permanent Forum on Indigenous Issues, the un Working Group on Indigenous Populations (abolished in 2007 and replaced with the Expert Mechanism on the Rights of Indigenous Peoples) etc. These processes include the convening of effective dialogues on re-affirming a distinct way of life in the community, contributing to the enhancement of their status and rights,

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contribute to norm-making, as reflected in the unique role the Arctic indigenous peoples perform as ‘permanent participants’ in the Arctic Council – an intergovernmental forum composed of the eight Arctic states.78 For minorities other than indigenous peoples, while there were inter-war guarantees for the establishment of institutions for the promotion of culture, religion and language, an explicit right to self-determination is absent in the prevailing documents, such as in the 1992 un Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, or even in the 1995 fcnm – the first binding multinational and multilateral instrument dealing exclusively with minority protection. This latter document explicitly rejected the collective rights of a minority as a whole,79 let alone a right to self-determination. In contrast, the two human rights instruments, namely the iccpr and icescr, do not themselves clearly state whether indigenous peoples may exercise the right to self-determination, although the hr Committee interpretation, for example, finds a link between indigenous peoples and their right to self-determination. In its General Comment 12, the Committee re-iterated selfdetermination as a ‘people’s’ right, the realization of which constitutes an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.80 When interpreting Article 27’s measures for the protection of the cultural rights of indigenous peoples, the Committee has invoked Article 1 of the iccpr, in particular its paragraph 2, on many occasions.81 The right to self-determination, therefore, has evolved into a right of peoples to participate in decisions affecting their future,82 and these peoples may be segments of the population of independent states.83 A yet more specific utterance that the right to self-determination is for example, the convening of the World Council of Indigenous Peoples, International Non-governmental Organization Conference on Discrimination Against Indigenous Peoples of the Americas, the World Conference of Indigenous peoples on Territory, Environment, and Development etc. 78 The Arctic Council is a high level inter-governmental forum that addresses issues faced by the Arctic governments and indigenous peoples. More information about the Arctic Council can be found at accessed on 15 December 2015. 79 Art. 3(2) of the fcnm. 80 See hr Comm, General Comment No. 12: Article 1 (Right to Self-determination), The Right to Self-determination of Peoples, 13 March 1984, un Doc. HRI/GEN/1/Rev.1, 12 (1994), para 1. 81 See, for example, Leena Heinämäki, The Right to Be a Part of Nature: Indigenous Peoples and the Environment (Lapland University Press, 2010) 59, where she states that the Human Rights Committee has recognized indigenous peoples’ status within its practice by not only recognizing their right under Art. 27 of the iccpr, but also recognizing them as having a people’s right to self-determination. 82 Klabbers (n 68) 189. 83 See Van Der Vyver (n 69) 17.

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applicable to indigenous peoples is found in the undrip.84 The reference to the exercise of the right corresponds to self-government in matters relating to their internal and local affairs.85 The protection of culture certainly requires a holistic approach, calling for a form of self-government which is applicable only to the indigenous communities. While in the legal sense the undrip is a non-binding document, it has however significant normative value, as it has set a legal standard and the human rights monitoring bodies today frequently refer to it as a guiding legal document.86 In particular, in terms of recognizing cultural rights the undrip sets ‘international legal norms’.87 In that sense, the Declaration constitutes a fundamental document offering a collective dimension of rights applicable to the indigenous communities. The exercise of collective cultural right and their protection relate to exercise of the right to self-determination. The protection of this right is thus only applicable to indigenous peoples, not to other minority communities. 5 Conclusion The concept of a ‘right to culture’ has an intrinsic value in itself, which raises the fundamental question of identity. For minorities, denial of the right threatens their very existence as distinct groups. While the body of human rights law quite 84

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Article 3 of the undrip reads: ‘Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. Article 4 of the undrip. See, for example, the case of the Saramaka People v Suriname, Judgment of 28 November 2007, IACtHR (Ser. C), No. 172 (2007), where the Inter-American Court of Human Rights has recalled the undrip, in particular its Art. 32, as a legal source. This provision of the undrip requires that states consult and cooperate with indigenous peoples in order to obtain their free and prior consent for the approval of any projects affecting indigenous peoples’ lands, territories and other resources. Also see Committee on the Elimination of Racial Discrimination (cerd), Concluding Observations on the United States of America, 5 March 2008, un Doc. CERD/CUSA/CO/6, para 29, where the cerd, in mentioned ‘that the declaration be used as a guide to interpret the State party’s obligations under the Convention relating to indigenous peoples’. In the case of Ángela Poma Poma v Peru, hr Comm. No. 1457/2006, 27 March 2009, un Doc. CCPR/C/95/D1457/2006 (2009), para 7.6, where the Human Rights Committee applied the principle of free, prior and informed consent for the first time in 2009 – the principle embodied in the undrip. The Committee clearly pointed out that any justification for interfering in the enjoyment of an indigenous community’s culture must be based on the effective participation of that community in the decision-making process. Stamatopoulou (n 12) 1176.

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easily recognises the right to culture to be enjoyed ‘in community’ with other members of the group, it nevertheless does not explicitly provide any legal protection of the right as a collective entitlement. The two legally binding documents do not provide any effective obligations upon states to protect the right. One suggests a negative duty, i.e. to not to deny the right, while the other is about the simple recognition of an individual right ‘to take part in cultural life’, leaving the community concept entirely aside. Nevertheless, the holistic nature of culture has found community attachment to be a sina qua non, without which the individual enjoyment of culture is only hardly possible. While the various interpretations which developed later suggest a community connection and the requirement of proactive steps for its protection, they have been, however, limited to only protection of an individual right to culture. This paper has suggested that both national minorities as well as indigenous peoples form communities as far as identity formation is concerned, which is recognized within the framework of human rights law. However, the protection of a community’s collective right to culture can only be addressed in the case of indigenous peoples inasmuch as only they, as communities, are capable of exercising the right to self-determination, a concept which has achieved a dynamic interpretation in recent years.

chapter 6

The Safeguarding of Collective Cultural Rights through the Evolutionary Interpretation of Human Rights Treaties and Their Translation into Principles of Customary International Law Federico Lenzerini 1 Introduction As is well known, international human rights treaties, both at the ‘universal’ and regional levels, are centred on an understanding of human rights as prerogatives generally recognized in favour of individuals. In this respect, the only exceptions to this approach are represented by the right of self-determination of peoples, as enshrined in common Article 1 of the two 1966 Covenants on human rights,1 and by a few rights of a collective character included in the African Charter on Human and Peoples’ Rights (achpr).2 Such an approach is the result of the Western point of view of human rights, the view which prevailed at the time when human rights standards began to be elaborated and transfused into international legal instruments. In reality, this is a minority point of view, which not only is at odds with the perception of human rights prevailing in the rest of the world, but today is no longer shared even by many Western human rights thinkers and institutions. In terms of positive law, however, the fact remains that international instruments do not devote the necessary attention to collective rights, which therefore enjoy a level of protection which is far below, if even comparable, to that enjoyed by individual rights, especially civil and political rights. Fortunately, in contemporary times the approach of the international community is progressively shifting toward a different attitude, characterized by a growing attentiveness toward collective rights, based on the awareness of their 1 International Covenant on Civil and Political Rights (iccpr), unga Res. 2200A(xxi), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171; International Covenant on Economic, Social and Cultural Rights (icescr), unga Res. 2200A(xxi), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3. 2 African Charter on Human and Peoples Rights, adopted on 27 June 1981, entered into force on 21 October 1986, oau Doc. CAB/LEG/67/3 rev. 5, 1520 unts 217.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_008

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decisive role in ensuring the realization of human beings’ aspirations, which is the ultimate purpose of human rights. The adoption, in 2007, of the United Nations Declaration on the Rights of Indigenous Peoples (undrip)3 and its nearly universal support4 constitute formidable evidence of this new approach.5 At the same time, although it remains true that human rights treaties are not adequately equipped – in terms of the provisions included in their texts – to fulfil the goal of properly safeguarding collective rights, this deficiency is today being at least partially overcome by the evolutionary approach followed by international human rights monitoring bodies, particularly the Human Rights Committee and other un Committees, as well as, at the regional level, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights. The most significant aspect of this practice is the fact that these bodies have proven capable to extend the scope of certain provisions concerning individual rights to cover collective cultural rights as well. As will be explained below in this chapter, the significance of the said practice goes beyond the context of international treaty law, also providing evidence of opinio juris supporting the conclusion that the core collective cultural rights have today developed into principles of customary international law. At this preliminary stage, it is important to emphasize that the natural source of collective rights is culture. Indeed, the ‘community’ is the expression of a complex of elements which characterize its peculiarity and make it different from any other group. These elements are countless in character – e.g. anthropological, linguistic, social, political, ethnological, economic, etc. – but as a whole form the cultural identity of the community. As a consequence, it is exactly the cultural element which represents the mainspring determining the expectations to be fulfilled in order for a community to realize itself, both as a unique entity and as a congregation of people. The legal tools serving the purpose of allowing both individuals and groups to realize their expectations are actually human rights, and the expectations of groups, as determined by their cultural specificity, give rise to collective rights, which normally take the form of cultural rights. The practice of relevant international bodies which will be examined below (with no pretence of exhaustiveness, due to the limited space available) confirms this assumption. It follows, among other things, that most 3 unga Res. 61/295, adopted on 13 September 2007, un Doc. A/RES/61/295. 4 The undrip was adopted with 143 votes in favour, 4 votes against, and 11 abstentions. Subsequently, all the four states originally voting against (Australia, Canada, New Zealand and United States) and two of the abstaining countries (Colombia and Samoa) officially endorsed the Declaration. 5 See Chapter 5 by Kamrul Hossain in this volume.

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human rights are susceptible of taking different forms and assuming different meanings – in terms of their specific content – depending on the particular cultural needs of the relevant communities and/or individuals, although it should be pointed out that such a ‘cultural relativity’ should not reach the point of completely denying the universality of human rights.6 2

The Practice of the Human Rights Committee

The Human Rights Committee (hr Committee) is established, as is well known, by Article 28 iccpr. As noted in the previous section, the iccpr includes only one provision – Article 1 common to the icescr – which contemplates a right of a collective character, i.e. the right of self-determination of peoples. However, the hr Committee has built its most interesting practice on collective rights not on Article 1, but rather on Article 27, which is the provision of the Covenant dealing with cultural rights. According to such a provision, ‘[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. The language used in the article (‘… persons belonging to…minorities…’) leaves no doubt that it contemplates rights of an individual character. This has been confirmed by the hr Committee in its General Comment No. 23, where it stated that Article 27 ‘establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant.’7 However, the Committee also pointed out that: [a]lthough the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group.8 6 For a more comprehensive assessment of this issue, see Federico Lenzerini, The Culturalization of Human Rights Law (oup, 2014). 7 See hr Comm., General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5. 8 Ibid, para 6.2 (emphasis added).

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In light of this, the Committee specified that Article 27 relates to rights whose protection ‘is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.’9 The hr Committee is, therefore, advocating a sort of ‘transitive relation’: Article 27 protects the right of members of minorities to enjoy and practice their cultural rights; in order for members of minorities to enjoy and practice their cultural rights it is essential that the cultural identity of the minority to which they belong is adequately safeguarded, in its communal dimension; hence, Article 27 safeguards in practice the collective right of minority groups to safeguard their own cultural identity and specificity. In addition, the hr Committee has also specified – in a statement which immediately became very famous among indigenous and minority rights’ activists – that, with respect to the exercise of the cultural rights protected under article 27 … culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.10 States are therefore required to establish ‘positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them’.11 This assertion brings with it at least two notable implications: (1) the concept of ‘minority’ to which Article 27 refers is a very broad one, including not only national minorities, but also indigenous peoples and any other group belonging to a minority culture; that is, any culture different from the one of the predominant part of the population of the state; (2) since, as previously noted, the ultimate purpose of Article 27 is to protect the cultural identity and specificity of minority groups, it follows that a state obligation exists to safeguard any kind of cultural manifestation which is essential for such an identity or specificity to be preserved, irrespective of the concrete form it takes (with the implicit exception of those cultural practices which are inconsistent with other fundamental human rights).

9 10 11

Ibid para 9 (emphasis added). Ibid para 7. Ibid para 7.

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The Practice of Other un Committees

The same position as that of the hr Committee has been taken by other committees established by human rights treaties adopted within the framework of the United Nations. First, the Committee on Economic, Social and Cultural Rights (cescr) has recognized, specifically with respect to indigenous peoples, the collective facet of the right to the highest attainable standard of physical and mental health proclaimed by Article 12 icescr. In this respect, the Committee has noted that ‘the health of the individual is often linked to the health of the society as a whole and has a collective dimension’. Therefore, ‘developmentrelated activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands’, have a deleterious effect on their health and consequently determine a breach of Article 12.12 The cescr has also added, in more general terms, that ‘States parties are bound by both the collective and individual dimensions of article 12. Collective rights are critical in the field of health; modern public health policy relies heavily on prevention and promotion which are approaches directed primarily to groups.’13 The cescr has also identified a collective dimension in Article 15 para. 1(a) icescr, affirming the right of everyone to take part in cultural life. According to the Committee: [t]he decision by a person whether or not to exercise the right to take part in cultural life individually, or in association with others, is a cultural choice and, as such, should be recognized, respected and protected on the basis of equality. This is especially important for all indigenous peoples, who have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law, as well as the United Nations Declaration on the Rights of Indigenous Peoples.14

12 See cescr, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, un Doc. E/C.12/2000/4, para 27. 13 Ibid para 59 (footnote 30). 14 See cescr, General Comment No. 21. Right of Everyone to Take Part in Cultural Life (Art. 15, para 1(a) of the Covenant), 21 December 2009, un Doc. E/C.12/GC/21, para 7 (emphasis added).

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The reference to the fact that indigenous peoples have the right to enjoy collective rights is res ipsa loquitur and does not need further clarification. However, there are two points in the statement which should be emphasized. The first is the reference to undrip, with respect to which the cescr expresses the view that indigenous peoples are legally entitled to enjoy the rights proclaimed in its text as a corollary of the right contemplated by Article 15 para. 1(a) icescr. This inference is particularly significant, because most of the rights provided for by undrip are actually collective rights (in particular, selfdetermination, the right to autonomy and self-government, cultural rights and land rights). The second point to be underlined is that the position in point has been taken to adapt the relevant human rights standard to the special cultural needs of indigenous peoples. In this respect, and consistently, although the cescr makes specific reference to indigenous peoples, its reflections are not necessarily limited to such peoples (as is also indicated by the use of the term ‘especially’), but they extend – mutatis mutandis – to all cultural groups which have cultural needs similar to those of indigenous peoples and, therefore, need their culture to be specially safeguarded in a way similar to the latter.15 This said, with respect to the collective rights of indigenous peoples, the Committee is even more explicit, stating that: States parties should take measures to guarantee that the exercise of the right to take part in cultural life takes due account of the values of cultural life, which may be strongly communal or which can only be expressed and enjoyed as a community by indigenous peoples. The strong communal dimension of indigenous peoples’ cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity. States parties must therefore take measures to recognize and protect the rights of indigenous peoples to own, 15

See, consistently, Will Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the un Declaration on the Rights of Indigenous Peoples (Hart, 2011) 183, 207, asserting that ‘[w]e need to recognize that indigenous peoples aren’t the only group in need of targeted rights – this is also true, in different ways, of national minorities, the Roma, Dalits, immigrants, and others’.

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develop, control and use their communal lands, territories and resources, and, where they have been otherwise inhabited or used without their free and informed consent, take steps to return these lands and territories. Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs, sports and traditional games, and visual and performing arts. States parties should respect the principle of free, prior and informed consent of indigenous peoples in all matters covered by their specific rights.16 This is clearly a culturally-based approach. The fact remains, however, that the implication that the right to take part in cultural life attains a collective dimension is not limited to indigenous peoples, but is indeed more general. In the words of the Committee, ‘the term “everyone” in the first line of article 15 may denote the individual or the collective; in other words, cultural rights may be exercised by a person (a) as an individual, (b) in association with others, or (c) within a community or group, as such’.17 At a first sight, the inclusion of the term ‘as such’ (following a comma) at the end of the sentence may appear quite sibylline; in reality its purpose is, in this writer’s opinion, to clarify that in substance it is the group as such which acts, although ‘represented’ by one (or more) of its members (the right to take part in cultural life being in principle an individual right). The practice of the Committee on the Elimination of Racial Discrimination (cerd), established by Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination,18 is also of interest for the purposes of this enquiry.19 The cerd has also developed its own discourse on collective rights with reference to indigenous peoples, especially in its General Recommendation No. 23 of 1997.20 While it is true that there is no explicit use 16 See cescr, General Comment No. 21 (n 14) paras 36–37 (footnotes omitted). 17 Ibid para 9. 18 unga Res. 2106(xx), adopted on 21 December 1965, entered into force on 4 January 1969, 660 unts 195. 19 See Claire Charters, ‘Reparations for Indigenous Peoples: Global Instruments and Institutions’ in Federico Lenzerini (ed), Reparations for Indigenous Peoples: International and Comparative Perspectives (oup, 2008) 163, 181ff. 20 cerd, General Recommendation No. 23: Indigenous Peoples, 18 August 1997, un Doc. A/52/18, Annex 5, 122.

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of the word ‘collective’ in this recommendation, its provisions are clearly divided between those which textually refer to ‘members of indigenous peoples’ and those which mention ‘indigenous peoples’ or ‘indigenous communities’ in general. Such a differentiation is not there by chance. On the contrary, it has the clear purpose of differentiating between the prerogatives to be exercised by individuals and those belonging to indigenous peoples as communities, i.e. collective rights. With respect to the latter, the cerd very significantly calls on States Parties to the Convention to ensure that ‘indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages.’21 In addition, the Committee especially calls upon States Parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.22 Even leaving aside the above consideration based on the wording of the Recommendation, this right is inherently collective, since indigenous peoples only know one manner ‘to own, develop, control and use their communal lands’, that is collectively. Collective rights have been recognized even more explicitly by the Committee on the Rights of the Child (crc), established by Article 43 of the Convention on the Rights of the Child,23 with respect to indigenous children. First of all, the crc has noted the linkage of Article 30 of the said Convention with Article 27 iccpr; the two provisions are indeed almost identical, with the only notable difference being that Article 30 of the Convention on the Rights of the Child deals specifically with children belonging to religious or linguistic minorities or who are indigenous.24 In this respect, the crc has asserted that the right established by Article 30: 21 22 23 24

Ibid para 4(e). Ibid para 5. unga Res. 45/25, adopted on 20 November 1989, entered into force on 2 September 1990, 1577 unts 3. Art. 30 of the Convention on the Rights of the Child affirms that ‘[i]n those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in

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is conceived as being both individual and collective and is an important recognition of the collective traditions and values in indigenous cultures, with the main implication that ‘the right to exercise cultural rights among indigenous peoples may be closely associated with the use of traditional territory and the use of its resources.’25 In addition, in interpreting the foremost requirement of the Convention on the Rights of the Child, that is the principle of the best interests of the child established in Article 3, the Committee has noted that this principle is also ‘conceived both as a collective and individual right, and that the application of this right to indigenous children as a group requires consideration of how the right relates to collective cultural rights’.26 It follows that, when states ‘seek to assess the best interests of an indigenous child, they should consider the cultural rights of the indigenous child and his or her need to exercise such rights collectively with members of their group’, and the determination of the best interests of the child must be realized ‘in a culturally sensitive way’.27 Consideration of ‘the collective cultural rights of the child is [therefore] part of determining the child’s best interests’.28 Hence, the concept of the best interests of the child attains a collective dimension for those children who have collective needs (including – but not necessarily limited to – indigenous ones). Finally, the crc has emphasized the need to promote the ‘restitution of collective and individual property’, in conjunction with safe return, in favour of indigenous children who have been displaced or become refugees.29 As a whole, the practice of un committees clearly shows that the duty to ensure the safeguarding of collective cultural rights, especially with regard to indigenous peoples, is today etched in the stone of international law as a state obligation which is part of customary international law. This aspect will be better explained below in this chapter.30 What is important to reiterate at this point is that, as previously noted, the fact that in the relevant practice the rights in discussion are mainly related to indigenous peoples does not mean that other communities do not have access to an equivalent level of protection, to the extent that they bear cultural needs similar to those of indigenous peoples. community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language’. 25 See crd, General Comment No. 11: Indigenous Children and Their Rights under the Convention, 12 January–30 January 2009, un Doc. CRC/C/GC/11, para 16. 26 Ibid para 30. 27 Ibid para 31. 28 Ibid para 32. 29 Ibid para 68 (emphasis added). 30 See Section 7 below.

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The Practice of the Inter-American Court of Human Rights

At the regional level, the practice of the Inter-American Court of Human Rights (IACtHR) is noteworthy,31 revolving around the right to the use and enjoyment of one’s property as contemplated by Article 21 of the American Convention on Human Rights (achr).32 Once again, this practice has been developed with special regard to indigenous peoples. In the leading Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua,33 relating to planned logging operations in the ancestral lands of an indigenous community, authorized by the national authorities without consulting the community’s representatives, the Court recognized the collective dimension of the right protected by Article 21, emphasizing the legal significance of the ‘communitarian tradition [existing among indigenous peoples] regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community’.34 In substance, although Article 21 is expressed in individual terms, it covers the collective property rights of indigenous peoples over their ancestral lands. In addition, a further element is highlighted by the Court: Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.35 This is a particularly significant point, as a direct link is established between land rights of indigenous peoples (of a collective nature) and their cultural integrity and identity, in the sense that an obligation exists to recognize and protect the former by reason of the fact that it represents an essential prerequisite in order to ensure proper preservation of the latter, i.e. their cultural integrity and identity. This assumption has been later confirmed and 31 For a comprehensive analysis see Chapter 10 by Kristin Hausler in this volume. 32 Signed on 21 November 1969, entered into force 18 July 1978, oasts No. 36, 1144 unts 123. 33 Judgment of 31 August 2001, 79 IACtHR (Ser. C), No. 79 (2001). 34 Ibid para 149. 35 Ibid.

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significantly enhanced by the IACtHR, through affirming that the collective title of indigenous and tribal communities to their traditional territories includes the right to their use and enjoyment,36 as well as through adopting a collective-rights-oriented approach when addressing the issue of the possible conflicts between indigenous peoples’ collective land rights and private property titles of other people over the same territories. With regard to the latter point, the Court has prudently affirmed that, whereas both rights fall within the scope of application of Article 21 of the American Convention,37 in order to assess which of them is to be considered as prevailing a balance needs to be drawn on a case-by-case basis, grounded on the principle of proportionality.38 This notwithstanding, the Court manifestly shows a general preference for the collective right of indigenous peoples, as it continues: indigenous territorial rights encompass a broader and different concept that relates to the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations. Property of the land ensures that the members of the indigenous communities preserve their cultural heritage.39 As a consequence, ‘[d]isregarding the ancestral right of the members of the indigenous communities to their territories could affect other basic rights, such as the right to cultural identity and to the very survival of the indigenous communities and their members.’40 It follows that ‘restriction of the right of private individuals to private property might be necessary to attain the collective objective of preserving cultural identities in a democratic and pluralist society, in the sense given to this by the American Convention; and it could be proportional, if fair compensation is paid to those affected’.41 This does not necessarily mean ‘that every time there is a conflict between the territorial interests of private individuals or of the State and those of the members of the indigenous communities, the latter must prevail over the former’;42 but the 36 See Moiwana Community v Suriname, Judgment of 15 June 2005, IACtHR (Ser. C), No. 124 (2005), para 209. 37 Ibid, para 143. 38 See Yakye Axa Indigenous Community v Paraguay, Judgment of 17 June 2005, IACtHR (Ser. C), No. 125 (2005), para 143ff., particularly para 146. 39 Ibid para 146. 40 Ibid para 147. 41 Ibid para 148. 42 Ibid para 149.

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collective right of indigenous peoples to their ancestral lands may only be sacrificed when the state is ‘unable, for concrete and justified reasons, to adopt measures to return the traditional territory and communal resources to indigenous populations’,43 and only upon compensation, which ‘must be guided primarily by the meaning of the land for them’.44 In the same judgment the IACtHR also stressed that the right of indigenous communities to their traditional lands, as associated with indigenous peoples’ culture, includes the right to the natural resources located in the land. In fact, the term ‘property’ in Article 21 encompasses ‘material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movable and immovable, corporeal and incorporeal elements and any other intangible object capable of having value’.45 Another very significant finding was that, according to the Court, not only land rights, but also the right to health of members of indigenous peoples attains a collective dimension, because it represents a basic condition ‘to exercise other human rights, such as the right to education or the right to cultural identity’.46 Finally, the collective nature of the rights of indigenous peoples affirmed by the Court also extends to the aspect of reparations, which itself ‘takes on a special collective significance.’47 As a consequence, the measures of satisfaction aimed at redressing non-pecuniary damage ‘are especially relevant…due to the collective nature of the damage caused.’48 In its subsequent case-law, the IACtHR has unremittingly reiterated the same approach, also taking the occasion to refine its position when it was offered the opportune occasion. In particular, basing it reasoning on Awas Tingni, it has specified that ‘indigenous communities might have a collective understanding of the concepts of property and possession…[which] does not necessarily conform to the classic concept of property, but deserves equal protection under Article 21 of the American Convention.’ In fact, ‘[d]isregard for specific versions of use and enjoyment of property, springing from the culture, uses, customs, and beliefs of each people, would be tantamount to holding that there is only one way of using and disposing of property, which, in 43 Ibid (emphasis added). 44 Ibid. 45 Ibid para 137 (quoting Mayagna (Sumo) Awas Tingni Community v Nicaragua (n 33) para 144). 46 Ibid paras 166–167. 47 Ibid para 188. See also, ultimately, Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their Members v Panama, Judgment of 14 October 2014, IACtHR (Ser. C), No. 284 (2014), para 212. 48 See Yakye Axa Indigenous Community (n 38) para 210.

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turn, would render protection under Article 21 of the Convention illusory for millions of persons.’49 It should be emphasized that, according to the iachr’s jurisprudence, the prerogative of being entitled to the enjoyment of collective property over traditional lands is not exclusive to ‘indigenous’ or ‘tribal’ communities. The reasoning of the Court is rather the opposite: a given community may be considered as ‘indigenous’ or ‘tribal’ because of the special relationship it has established with its own traditional lands (collectively held).50 Consistent with this reasoning, in a case concerning a local community living in Suriname (the Saramaka people) the Court, replying to the argument of the respondent state that such a community could not be considered as a tribal people, noted that its culture is: similar to that of tribal peoples insofar as the members of the Saramaka people maintain a strong spiritual relationship with the ancestral territory they have traditionally used and occupied. Land is more than merely a source of subsistence for them; it is also a necessary source for the continuation of the[ir] life and cultural identity.51 This contention is of special significance, because it confirms that, as asserted earlier in this enquiry, not only indigenous and tribal peoples are entitled in principle to the protection and enjoyment of collective cultural rights, but this also holds true with respect to any other group or community which has special cultural needs, which require the proper safeguarding of its collective rights in order to preserve its distinctive cultural identity and integrity. This has been confirmed in a later case, when the Court stated that Afro-descendants communities have close ties ‘to their land, as well as to the natural resources of the ancestral territories and the incorporeal elements related to them’, protected by Article 21 of the American Convention as it ‘is necessary to ensure 49 See Sawhoyamaxa Indigenous Community v Paraguay, Judgment of 29 March 2006, IACtHR (Ser. C), No. 146 (2006), para 120. See also Xákmok Kásek Indigenous Community v Paraguay, Judgment of 24 August 2010, IACtHR (Ser. C), No. 214 (2010), para 87; Kichwa Indigenous People of Sarayaku v Ecuador, Judgment of 27 June 2012, IACtHR (Ser. C), No. 245 (2012), para 145. 50 See, on this issue, ila, Committee on the Rights of Indigenous Peoples, ‘Interim Report, The Hague Conference (2010)’ and ‘Final Report, Sofia Conference (2012)’; available at accessed on 15 April 2016. 51 See Saramaka People v Suriname, Judgment of 28 November 2007, IACtHR (Ser. C), No. 172 (2007), para 82.

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their survival’, to the same extent of indigenous and other tribal peoples or communities.52 Also in the judgment concerning the Case of the Saramaka People v. Suriname, the Court confirmed two important points previously addressed, emphasizing that traditional territories belong collectively to the community,53 as well as that collective land rights include property rights to the natural resources located in the traditional territories of the relevant community. This is due to the fact that: the inextricable connection members of indigenous and tribal peoples have with their territory [presupposes that] the protection of their right to property over such territory, in accordance with Article 21 of the Convention, is necessary to guarantee their very survival. Accordingly, the right to use and enjoy their territory would be meaningless in the context of indigenous and tribal communities if said right were not connected to the natural resources that lie on and within the land. That is, the demand for collective land ownership by members of indigenous and tribal peoples derives from the need to ensure the security and permanence of their control and use of the natural resources, which in turn maintains their very way of life. This connectedness between the territory and the natural resources necessary for their physical and cultural survival is precisely what needs to be protected under Article 21 of the Convention in order to guarantee the members of indigenous and tribal communities’ right to the use and enjoyment of their property. From this analysis, it follows that the natural resources found on and within indigenous and tribal people’s territories that are protected under Article 21 are those natural resources traditionally used and necessary for the very survival, development and continuation of such people’s way of life.54 More recently, the jurisprudence of the IACtHR concerning collective rights has evolved even further. In particular, the Court affirmed that said rights 52 See Afro-descendant communities displaced from the Cacarica River Basin (Operation Genesis) v Colombia, Judgment of 20 November 2013, IACtHR (Ser. C), No. 270, para 346. 53 See Saramaka People (n 51) para 82 (footnote 66): ‘[b]y using the term “territory” the Court is referring to the sum of traditionally used lands and resources. In this sense, the Saramaka territory belongs collectively to the members of the Saramaka people, whereas the lands within that territory are divided among and vested in the twelve Saramaka clans’. See also paras 98, 165, 168 and 174 of the same judgment. 54 Ibid para 122.

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include not only land rights or other specific rights (like the right to health), but also the ‘composite’ right to cultural identity and all the concrete prerogatives whereby it finds realization. In the words of the judges, the right to cultural identity is a fundamental right – and one of a collective nature – of the indigenous communities, which should be respected in a multicultural, pluralistic and democratic society. This means that States have an obligation to ensure that indigenous peoples are properly consulted on matters that affect or could affect their cultural and social life, in accordance with their values, traditions, customs and forms of organization. Similarly, ilo Convention No. 169 recognizes the aspirations of indigenous peoples to ‘exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live’.55 This need to ensure proper protection of peoples’ cultural identity produces further implications, concerning for instance the right to personal liberty and security regulated by Article 7 of the American Convention. According to the Court, [i]n order to ensure effectively the rights established in Article 7 of the Convention…when interpreting and applying their domestic laws, State must take into consideration the inherent characteristics that differentiate members of the indigenous peoples from the general population and that constitute their cultural identity. The prolonged duration of pre-trial detention may have different effects on members of indigenous peoples owing to their economic, social and cultural characteristics and, in the case of community leaders, may also have negative consequences on the values, practices and customs of the community or communities in which they exercise their leadership.56 Last but not least, in Kichwa Indigenous People of Sarayaku, the Court also offered a statement which may be considered as a turning point in the evolution 55

Kichwa Indigenous People of Sarayaku (n 49) para 217 (footnotes omitted). See ilo Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989, entered into force on 5 September 1991, 1650 unts 383. 56 See Norín Catrimán et al. (Leaders, members and activist of the Mapuche Indigenous People) v Chile, Judgment of 29 May 2014, IACtHR (Ser. C), No. 279 (2014), para 357 (footnotes omitted).

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of international human rights law towards the definitive recognition of collective rights: international law on indigenous or tribal communities and peoples recognizes rights to the peoples as collective subjects of international law and not only as members of such communities or peoples. In view of the fact that indigenous or tribal communities and peoples, united by their particular ways of life and identity, exercise some rights recognized by the Convention on a collective basis, the Court points out that the legal considerations expressed or indicated in this Judgment should be understood from that collective perspective.57 5

The Practice of the African Commission and Court on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights (African Commission) is the international monitoring body with the easiest task in terms of recognition and enforcement of collective human rights, for the simple reasons that its treaty of reference, the achpr, includes some provisions explicitly contemplating rights of a collective character.58 However, the African Commission has also taken the opportunity to interpret provisions of the achpr dealing in principle with individual rights in an evolutionary manner, so as to extend their scope of application to cover rights of a collective nature. In particular, in a decision concerning an indigenous community of Kenya, the Commission has joined the IACtHR in recognizing the collective nature of indigenous peoples’ land rights as representing ‘the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands’.59 In addition, the African Commission has emphasized that: 57 See Kichwa Indigenous People of Sarayaku (n 49) para 231. 58 These provisions are the following: Art 19 (equality of all peoples); Art 20 (right to existence and to self-determination); Art 21 (right of peoples to freely dispose of their wealth and natural resources); Art 22 (right to economic, social and cultural development); Art 23 (right of peoples to national and international peace and security); Art 25 (right of peoples to a general satisfactory environment favourable to their development). See Chapter 9 by Folarin Shyllon in this volume. 59 See Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya, AfCHPR, Comm. No. 276/03, 4 February 2010, para 162 (Italics in the original text). This principle had previously been expressed by the African Commission’s Working Group of Experts on Indigenous Populations/Communities in

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Article 17 of the Charter is of a dual dimension in both its individual and collective nature, protecting, on the one hand, individuals’ participation in the cultural life of their community and, on the other hand, obliging the state to promote and protect traditional values recognised by a community.60 The Commission’s conclusion concerning Article 17 achpr is very plain, as it is the text of the provision itself which provides for the duty of states to promote and protect ‘morals and traditional values recognized by the community’. A case similar to the one just described has been recently brought before the African Court of Human and Peoples’ Rights. It concerns another indigenous people of Kenya – the Ogiek Community of the Mau Forest – with respect to which the government issued a short notice ordering eviction from their traditional land.61 At the moment of this writing the case is still pending. However, on 15 March 2013 the Court ordered provisional measures, commanding the respondent government to immediately reinstate the restrictions imposed on the land of the community concerned as well as to refrain from any act or thing that would or might irreparably prejudice the application, until its final determination.62 The order was grounded on the circumstance that a situation of extreme gravity and urgency existed, implying a risk of irreparable harm to the Ogiek Community with respect to, inter alia, their right to property over their traditional land, the enjoyment of their cultural rights and the protection of their traditional values.63 2005, when it asserted that ‘[c]ollective tenure is fundamental to most indigenous pastoralist and hunter-gatherer communities and one of the major requests of indigenous communities is therefore the recognition and protection of collective forms of land tenure’; see ‘Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, submitted in accordance with the “Resolution on the Rights of Indigenous Populations/Communities in Africa”’, adopted by the African Commission on Human and Peoples’ Rights at its 28th Ordinary Session (2003); available at accessed on 15 December 2015, at 21–22. 60 Centre for Minority Rights Development (n 59) para 241. 61 See African Commission on Human and Peoples’ Rights v the Republic of Kenya, ACtHPR, Application 006/2012 (received on 12 July 2012); available at accessed on 15 April 2016. 62 See ACtHPR, Order of Provisional Measures, 15 March 2013, para 25; available at accessed on 5 April 2016. 63 Ibid para 20.

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The Practice of the European Court of Human Rights

The European Court of Human Rights (ECtHR) has not yet been offered many opportunities to contribute to the debate on collective human rights,64 probably for the reason that the European one is ‘philosophically’ the most backward regional context in terms of recognition of rights of a communal character. This notwithstanding, on a few occasions the ECtHR has referred to the importance of safeguarding the cultural identity of peoples. For example, in a case concerning a family of Roma people living in the United Kingdom, the Court stressed that: there may be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle…, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.65 In a later case, concerning the effects of a marriage celebrated according to the traditional rites of the Roma community, the ECtHR found that the refusal to pay survivor’s pension to a member of the said community surviving her spouse produced a breach of Article 14 of the European Convention on Human Rights66 (concerning prohibition of discrimination), in conjunction with Article 1 of Protocol No. 1 (protection of property).67 In reaching this conclusion, the Court emphasized in particular that ‘the force of the collective beliefs of a community that is well-defined culturally cannot be ignored’.68 In a similar vein, in a case concerning the Silesian minority in Poland, the Court recognized that promoting ‘associations…protecting cultural or spiritual heritage, pursuing various socio-economic aims, proclaiming or teaching 64 See Chapter 7 by Andrzej Jakubowski in this volume. 65 See Chapman v the United Kingdom, Application No. 27238/95, Judgment of 18 January 2001, echr 2000-I, para 93. 66 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950, entered into force on 3 September 1953, 213 unts 222. 67 Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 20 March 1952, entered into force on 18 May 1954, ets No. 009. 68 See Muñoz Díaz v Spain, Application No. 49151/07, Judgment of 8 December 2009, echr (2009), para 59 (emphasis added).

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religion, seeking an ethnic identity or asserting a minority consciousness, [is]…important to the proper functioning of democracy’.69 These statements imply at least an indirect recognition of the worthiness of the collective prerogatives attached to cultural identity, although the contribution of the ECtHR to the advancement of collective rights is certainly not yet comparable to that provided by the other human rights monitoring bodies referred to above. 7

Collective Cultural Rights as Principles of Customary International Law: The Paradigmatic Case of Indigenous Peoples

As previously stressed,70 the practice of un committees and regional monitoring bodies provides evidence – as well as the required opinio juris – that the duty to ensure the safeguarding of collective cultural rights corresponds today to a state obligation existing under customary international law. In this respect, the situation of indigenous peoples represents a paradigmatic case showing how, in the presence of special cultural needs, a community is equipped, as a matter of general international law, with the rights that are necessary to ensure satisfaction of those needs. This conclusion has been recently supported by the revolutionary International Law Association (ila)’s Resolution 5/2012,71 affirming that ‘States are bound to recognise, respect, protect and fulfil indigenous peoples’ cultural identity (in all its elements, including cultural heritage) and to cooperate with them in good faith – through all possible means – in order to ensure its preservation and transmission to future generations. Cultural rights are the core of indigenous cosmology, ways of life and identity, and must therefore be safeguarded in a way that is consistent with the perspectives, needs and expectations of the specific indigenous peoples’. This resolution, which was adopted virtually unanimously and with no opposition, expresses a legal rule that is hardly confutable. Indeed, as affirmed by the ila 69 See Gorzelik and Others v Poland, Application No. 44158/98, Judgment of the Grand Chamber of 17 February 2004, echr 2004-I, para 92. 70 See Section 3 above. 71 ila, Resolution 5/2012, ‘Rights of Indigenous Peoples’, 30 August 2012, para 6; available at accessed on 15 April 2016. For a brilliant assessment of the legal significance of ila Resolution 5/2012 see Siegfried Wiessner, ‘The State and Indigenous Peoples: The Historic Significance of ila Resolution No. 5/2012’ in Marten Breuer, Astrid Epiney, Andreas Haratsch, Stefanie Schmahl, Norman Weiß (eds), Der Staat im Recht. Festschrift für Eckart Klein zum 70. Geburgstag (Duncker & Humblot, 2013) 1357–1368.

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Committee on the Rights of Indigenous Peoples, ‘there is a massive amount of highly significant international [and domestic] practice…affirming the right of indigenous peoples [under customary international law] to the recognition and safeguarding of their cultural identity, their cultural rights, land rights and their right to autonomy and participation in the decisions affecting them’.72 Such a practice has developed after the international community has become aware of the importance of preserving the cultural identity of indigenous peoples as fundamental prerequisite in view of ensuring their very physical survival as well as the enjoyment of internationally-recognized human rights in favour of their members. In this regard, it may not be useless to reiterate once again that the conclusion drawn with respect to indigenous peoples can plainly be extended to other cultural groups having cultural needs similar to those of such peoples. 8 Conclusions There are many different ways of seeing life, but in the end human aspirations have a basic nucleus in common: all human beings wish to achieve happiness and realize their dreams. Law should have the purpose of creating common rules in order to reconcile all the different dreams of the members of a society and help to make their contextual achievement a reality to the maximum extent possible (with the recognition that limitations and compromises are sometimes necessary in light of the fact that certain expectations and dreams of some members of the society may be in conflict with the legitimate expectations and dreams of other people). Within the cauldron of law, human rights law certainly represents one of the most powerful tools (at least in principle) available to realize people’s expectations and dreams and the pursuit of happiness. However, since the expectations and dreams of all people in the world do not necessarily correspond, human rights standards should be flexible enough to accommodate the philosophical, social and cultural differences characterizing the diverse visions of life in the world. For the purposes of this enquiry, there are two different visions of life which are of particular interest. The first, which may be roughly referred to as the ‘Western view’, is based on the idea of the self-realization of the individual. 72 See ila, Committee on the Rights of Indigenous Peoples, ‘Interim Report, The Hague Conference (2010)’ (n 50) 49; see Section 12 (pp. 43–52) of the Report for a more detailed assessment of the practice mentioned in the text.

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Consistent with this idea, human rights are conceived as individual prerogatives mainly of a ‘defensive’ nature, in the sense that they are especially used by individuals to defend themselves against the abuses of those who interact with them. The other view, which is common in non-Western societies, is based on the awareness that an individual can only find proper self-realization within the community of which he or she is part. This is an idea which conceives life in a holistic and intergenerational sense, and in this context human rights necessarily assume a collective dimension. In light of the foregoing, it is manifestly clear that the original approach of international law to human rights, basically conceived as almost exclusively individual prerogatives, covered only part of the picture, not even the broadest part. The practice of the human rights monitoring bodies described in the previous sections has brought about the development of collective human rights standards, including within the realm of customary international law, through an evolutionary and culturally-inspired interpretation of certain rules relating to individual human rights. Such a practice represents a crucial advancement in international human rights law towards the fulfilment in the real-world of the basic purpose of human rights, i.e. to allow persons and communities to pursue their happiness and to give a proper sense to their life according to the social and cultural reality characterizing their identity.

PART 3 Collective Cultural Rights – Regional Perspectives

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chapter 7

Cultural Heritage and the Collective Dimension of Cultural Rights in the Jurisprudence of the European Court of Human Rights Andrzej Jakubowski 1 Introduction Notwithstanding the ever-widening debates on managing cultural differences and cultural diversity, and the persistent affirmation of the indivisibility of all human rights, cultural rights continue to be treated as the ‘Cinderella’ of the human rights corpus.1 It is often argued that the cultural rights listed in relevant treaty provisions do not entail concrete obligations on their state parties, but rather impose certain political commitments with respect to legitimate cultural expectations of individuals and groups.2 Yet, as already highlighted in this volume, one can observe some ‘signs of a renaissance for culture, cultural rights, and a right to cultural identity or autonomy’.3 Arguably, this is also the case of the European Convention on Human Rights (echr) system.4 Generally speaking, the echr and its protocols, enforcing basic rights set out in the Universal Declaration of Declaration of Human Rights (udhr),5 do not provide for any explicit cultural guarantees. Moreover, the individual nature and scope of the rights protected by the echr seems to preclude their interpretation in a collective dimension.6 In fact, the idea of a new additional 1 Yvonne Donders, Towards a Right to Cultural Identity? (Intersentia, 2002) 65–68; also see Chapter 4 by Yvonne Donders in this volume. 2 See a critique of such argumentation in Francesco Francioni, ‘An Introduction’ Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Nijhoff, 2008) 1, 3. 3 Cfr. Dominic McGoldrick, ‘Culture, Cultures, and Cultural Rights’ in Mashood Baderin and Robert McCorquodale (eds), Economic, Social, and Cultural Rights in Action (oup, 2007) 447, 472. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950, entered into force on 3 September 1953, ets No. 005, 213 unts 222. 5 unga Res 217 A(iii), adopted on 10 December 1948, un Doc A/810, 71. 6 For example, see Opinion of 2 June 1999, Dec. 8433 (Rapporteur Mr Jurgens), Additional ­Protocol to the European Convention on Human Rights concerning fundamental social rights, para 36: ‘the Convention was intended for individuals, who have to prove that they have been “victims” of a violation of their rights…. even though certain individual

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protocol to the echr designed to guarantee individual rights in the cultural field (including access to cultural activities, access to information and the right to cultural heritage) was widely discussed in early 1990s. The post-Cold War initiatives in this regard were mostly focused on cultural rights of persons belonging to national minorities. Following the adoption of the Framework Convention for the Protection of National Minorities in 1995,7 the Member States of the Council of Europe (CoE) suspended these initial works.8 The decision not to extend the competences of the European Court of Human Rights (hereafter the ‘Court’ or ‘ECtHR’) in the field of individual cultural rights was driven by both the lack of political will and legal difficulties in defining such rights as substantive rights,9 whose protection would impose specific positive obligations on states. However, the echr system is a ‘living’, ever-evolving organism, and today it extends its net of protection over an increasingly wide range of rights, also contributing to the enhancement of collective rights. Importantly, several reports by the Research Division of the ECtHR have demonstrated that ‘through a dynamic interpretation of the different Articles of the Convention [the Court] has gradually recognised substantive rights which may fall under the notion of “cultural rights” in a broad sense’.10 The provisions most often invoked in relation to cultural rights are Article 8 (the right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the Convention, as well as Article 2 of Protocol

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rights – such as freedom of assembly or association – are necessarily exercised collectively. Think, for example, of the problems that would be thrown up by introducing a right of appeal for national minorities as such.’ On 1 February 1995, entered into force on 1 February 1998, cets No. 157, 2151 unts 243. CoE Committee of Ministers’ Decision 656/4.1 adopted on 26 January 1996. Further read María Amor Martín Estébanez, ‘Council of Europe Policies Concerning the Protection of Linguistic Minorities and the Justiciability of Minority Rights’ in Nazila Ghanea and Alexandra Xanthaki (eds), Minorities, Peoples and Self-Determination. Essays in Honour of Patrick Thornberry (Nijhoff, 2005) 269, 290. See Patrick Thornberry, María Amor Martín Estébanez, Minority Rights in Europe. A Review of the Work and Standards of the Council of Europe (CoE Publishing, 2004) 204–206. Similar considerations, as to the difficulties in defining of cultural rights as fundamental rights, have also been addressed in relation to the current initiative by Poland to include culture in a new additional protocol to the echr, launched in the occasion of the Wroclaw 2016 European Capital of Culture. See, for example, the website of the National Centre for Culture at accessed on 15 April 2016. See ECtHR, Research Division, ‘Cultural Rights in the Case-law of the European Court of Human Rights’, January 2011, at 4; available at accessed on 20 April 2016.

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No. 1 to the echr11 (the right to education). Accordingly, eight specific human rights addressed in the jurisprudence of the Court can be labelled as cultural rights or of cultural content: the right to artistic expression; access to culture; the right to cultural identity; linguistic rights; the right to education; the right to seek historical truth; the right to academic freedom; and finally the right to the protection of cultural and natural heritage. In addition, it also seems that the Court makes implicit references to cultural rights in dealing with cases brought by persons or entities belonging to national, cultural, linguistic or ethnic minorities. Such claims usually refer to problems relating to ‘the right to maintain a minority identity and to lead one’s private and family life in accordance with the traditions and culture of that identity’.12 Indeed, the resolution of these kinds of cases, involving intercultural dialogue, cultural identity and freedom of religion, can be arguably better framed in from the point of view of cultural rights than by approaching them within the context of the rights to self-determination or minority rights as such, since these are often very problematic for states. Moreover, the reference to cultural rights constitutes a logical extension of the multicultural society formed by the Contracting States of the echr, with their profound cultural and legal diversity. The Court thus has to deal with problems going far beyond the original concepts enshrined in the echr’s preamble, such as ‘a common heritage’ of political traditions, cultures and ideals. This chapter does not, however, deal with intercultural dialogue as such within the jurisprudence of the European Court of Human Rights. It focuses on the right to cultural heritage, as both an individual and collective right, in the Court’s practice. The cases examined in this chapter were selected because of their impact in the field of tangible cultural heritage. In fact, the Court has formulated certain standards in dealing with what Andrea Gattini describes as ‘inextricable contradictions’, i.e. the conflicts, both real and potential, between collective cultural rights and other (mainly) individual human rights.13 In particular,

11 12

13

Signed on 20 March 1952, entered into force on 18 May 1954, ets No. 009. ECtHR, Research Division, ‘Cultural Rights in the Case-law’ (n 10); also see Chapter 6 by Federico Lenzerini in this volume, at Section  6. For the jurisprudence of the Court in relation to enhancing collective rights of Roma minorities see, for example: Doris Farget, ‘Defining Roma Identity in the European Court of Human Rights’ (2012) 19 International Journal on Minority and Group Rights 291. For comments on indigenous rights see Julinda Beqiraj, ‘Indigenous Peoples’ Cultural Identity under eu Law and the echr: a Non-Trade Interest or a Human Right?’ in Francesca Ippolito and Sara Iglesias Sánchez (eds), Protecting Vulnerable Groups: the European Human Rights Framework (Hart, 2015) 159. Andrea Gattini, ‘The International Customary Law Nature of Immunity from Measures of Constraint for State Cultural Property on Loan’ in Isabelle Buffard, James Crawford, Alain

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these refer to inherent conflicts between the objectives of protecting both cultural heritage and individual rights, especially with respect to the right of ‘every natural or legal person to the peaceful enjoyment of his possessions’, enshrined in Article 1 of Protocol 1 to the echr.14 Accordingly, the Court has, in a series of judgments, agreed that the public (collective) interest in the protection of cultural heritage is a legitimate aim which the state may pursue even if it interferes with the individual right to property, albeit not unconditionally. This aspect of the Court’s jurisprudence has, however, been seen as lacking ‘judicial elaboration’ inasmuch as the Court has limited its adjudication to a strict application of the provision in Protocol 1 on the protection of the individual right to private property.15 Thus it has been said that the nature of ‘the public interest in the conservation of a collective cultural patrimony or of the public value of the landscape has been left in the shadow of the law’.16 Having the above in mind, the aim of this chapter is to argue that the Court’s recent case-law has shown some new trends toward balancing the collective interest in cultural heritage and the individual rights protected by the echr. By offering an analytical panorama of the Court’s jurisprudence in this area, this paper attempts to explore the sources, outcomes and shortcomings of these recent trends in the European human rights jurisprudence. 2

Cultural Rights and the Protection of Cultural Heritage within the Legal Framework of the Council of Europe

As already mentioned, the echr system, which also may be called the Council of Europe system, did not originally deal with cultural aspects of human rights protection. Yet, the evolution of cultural heritage law at both the

14

15

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Pellet, Stephan Wittich (eds), International Law between Universalism and Fragmentation: Festshrift in Honour of Gerhard Hafner (Nijhoff, 2008) 421, 425. It states that: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties’. Francesco Francioni, ‘The Human Dimension of International Cultural Heritage Law: An Introduction’ (2011) 22 ejil 9, 12; see also Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (oup, 2014) 163. Francioni, ‘The Human Dimension’ (n 15) 12.

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national and international levels has profoundly changed the definition of human rights guarantees with respect to their cultural dimension. The legal notion of ‘cultural heritage’ has evolved into a more human-oriented, holistic concept, comprising both tangible as well as intangible manifestations of human intellectual and spiritual achievements.17 Indeed, a number of references to cultural heritage have emerged in international human rights instruments, thus strengthening the link between cultural heritage, cultural diversity and cultural rights.18 This interplay may refer to both individual rights and collective rights.19 It appears however that, despite the long-time focus in human rights law on individual rights, the fundamental significance of cultural heritage for the creation and assertion of cultural identity places the issue more in the context of group and collective rights of ‘people’,20 and ironically may sometimes pit such rights against the individual’s right to peaceable enjoyment of his possessions. The linkage between cultural heritage and human rights can be observed in many aspects of international law and practice, which increasingly often recognize the protection of cultural heritage and its diversity ‘as a part of the safeguarding of human dignity’.21 Importantly, the 2005 unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions (binding on more than 130 states parties, including nearly all European states)22 recognizes cultural diversity as the common concern of humanity, and reaffirms its importance for the full realization of human rights and fundamental freedoms. Moreover, intentional acts against the cultural heritage of a group may serve as evidence of genocidal practices against a particular community,

17 18

19 20 21

22

Further see Janet Blake, International Cultural Heritage Law (oup, 2015) 323ff. See, for example, Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, Access to Cultural Heritage, 21 March 2011, un Doc. A/HRC/17/38, para 21; Janet Blake, ‘Why Protect the Past? A Human Rights Approach to Cultural Heritage Protection’ (2012) 4 Heritage & Society 199; Suzanne L. Schairer, ‘The Intersection of Human Rights and Cultural Property Issues under International Law’ (2001) 11 iyil 59. See Ana Filipa Vrdoljak, ‘Liberty, Equality, Diversity: States, Cultures and International Law’ in Ana Filipa Vrdoljak (ed), The Cultural Dimension of Human Rights (oup, 2013), 26. Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49 iclq 61, 79. Francioni, ‘An Introduction’ (n 2) 8; also see Pierre Marie Dupuy, ‘The Impact of Legal ­Instruments Adopted by unesco on General International Law’ in Abdulqawi Ahmed Yusuf (ed), Standard-setting in unesco. Normative Action in Education, Science and Culture: Essays in Commemoration of the Sixtieth Anniversary of unesco, Vol. 1 (unesco, 2007) 351. Adopted on 20 October 2005, entered into force on 18 March 2007, 2440 unts 346.

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as cultural heritage constitutes an inherent element of being human. Therefore, the protection of cultural heritage is nowadays ever more often perceived as ‘an important component of the promotion and protection of all human rights, including the full realization of cultural rights.’23 These tendencies can also be observed in various regional legal frameworks, including that of the Council of Europe.24 The founding documents of the CoE addressed the need to protect a ‘common heritage’ of the European nations as a means of protecting human rights, fostering democracy, rule of law and ensuring peace.25 According to the Statute of the CoE26 the aim of this regional international organization ‘is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’.27 In this guise, the European Cultural Convention,28 forming the ‘cultural constitution’ of this organization, as early as 1954 stressed the importance of the cultural heritage of Europe and the cultural development of the CoE member states and their nationals, and encourages joint action in cultural matters. This recognition resulted in the establishment of the Council for Cultural Cooperation (cdcc) in 1961, a committee of governmental representatives responsible for setting the agenda for action in the fields of education, culture, media, sport and youth, transformed in 2001 into four Steering Committees with a mandate to develop cultural co-operation programmes. In relation to cultural heritage, the CoE action has led to the adoption of a number of treaties dealing with cultural activities, industries and the protection and conservation of cultural heritage and cultural environment, driven by the joint interest and responsibility of European nations and their societies for their common heritage and cultural values. Moreover, in light of the political developments in South-Eastern Europe, the CoE became more ‘concerned with the protection of both individual cultural rights, the collective cultural 23

24 25 26 27

28

hrc, Resolution 6/11. Protection of Cultural Heritage as an Important Component of the Promotion and Protection of Cultural Rights, 28 September 2007, un Docs. A/HRC/ RES/6/1, un Doc. A/HRC/RES/6/11, Art. 8. See Rob Pickard, European Cultural Heritage, Vol. 2 (A Review of Policies and Practice) (CoE Publishing, 2002), 9–21; see also Blake, International Cultural (n 17) 325 ff. See Blake, International Cultural (n 17) 323. Signed on 5 May 1949, entered into force on 3 August 1949, cets No. 001, 87 unts 103. Art. 1(a); also see the Preamble in which the Parties to the Statue reaffirm ‘their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy’. Signed on 19 December 1954, entered into force on 5 May, cets No. 018, 218 unts 139.

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rights of vulnerable groups, the avoidance of conflict between majority cultures and minority cultures, and the importance of community through recognition of the cultural values of others.’29 Importantly, the CoE has developed a broad system of protection of minorities’ cultural rights, including the right to cultural heritage. The CoE 1995 Framework Convention for the Protection of National Minorities explicitly includes the preservation of cultural heritage in its list of minority rights. Accordingly, it states that the parties to this Convention shall undertake ‘to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’ (Article 5(1)). The same instrument provides for a complex monitoring system, including the participation of non-governmental actors, placing minority protection as one of the core activities of the CoE.30 Finally, the concept of a human right to cultural heritage has been explicitly included in the text of the 2005 CoE Framework Convention on the Value of Cultural Heritage for Society (Faro Convention),31 ratified by 17 CoE members. While other regional and international instruments in the area of cultural heritage refer to the means of protection and conservation of cultural goods, the Faro Convention addresses the questions why and for whom heritage is transmitted. This is based on the idea that knowledge and the use of cultural heritage form a part of the right vested in everyone, alone or collectively, to participate in cultural life as defined in the udhr and guaranteed by the 1966 International Covenant on Economic, Social and Cultural Rights (icescr).32 At the same time the Faro Convention employs an expanded and interdisciplinary concept of cultural heritage, at the centre of which are rooted people and human values. Thus, cultural heritage is presented as a resource for human development by its enhancement of cultural diversity and the promotion of intercultural dialogue. Within this framework, the Faro Convention sets out positive obligations upon the state parties, which are required, inter alia: to 29 Pickard, European Cultural Heritage (n 24) 11. 30 See further Tove H. Malloy and Ugo Caruso (eds), Minorities, Their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities. Essays in Honour of Rainer Hofmann (Nijhoff, 2013). 31 Adopted on 27 October 2005, entered into force on 1 June 2011, cets No. 199. 32 unga Res. 2200A(xxi), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3; For the commentary see Ugo Misfud Bonnici, ‘The Human Right to Cultural Heritage – the Faro Convention’s Contribution to the Recognition and Safeguarding of This Human Right’ in Council of Europe (ed), Heritage and Beyond (CoE Publishing, 2009) 53, 57–58; also Patrice Meyer-Bisch, ‘On the “Right to Heritage” – the Innovative Approach of Articles 1 and 2 of the Faro Convention’ in Council of Europe (ed), Heritage and Beyond (CoE Publishing, 2009) 59.

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protect cultural heritage situated under their respective jurisdictions, regardless of its origin; to promote cultural diversity; and to establish processes for conciliation to deal equitably with situations where contradictory values are placed on the same cultural heritage by different communities. It seems that these developments within international treaty law, including the evolving elaboration of the notion of cultural rights within the Council of Europe and various regional and international human rights bodies, have not gone unnoticed by the Court in Strasburg. 3

The Right to Freely Dispose of One’s Property and Art Market Restrictions

The controls placed on the transfer of cultural material, especially its exportation abroad, constitute one of the key areas where national and international regimes for the safeguarding and conservation of cultural heritage often clash with some individual and collective rights.33 Export controls, in particular, have long served mainly states’ interests, often vaguely justified by general objectives of the protection of national heritage, and thus sometimes labelled as ‘retentionist’.34 Yet, the evolution of cultural heritage law towards a broader area of human rights has led to a more careful reconsideration of export regulations’ purposes vis-à-vis the interests of individuals and communities. Accordingly it has been declared that ‘access to and enjoyment of cultural heritage as a human right is a necessary and complementary approach to the preservation/safeguard of cultural heritage’.35 Thus, the essential scope of limitations over the export of cultural objects, and other restrictions on the right to dispose freely of one’s property, are nowadays more often associated with the enforcement of the collective rights of access to and enjoyment of cultural heritage, rather than with the more state-oriented interest of preserving its cultural richness. By adopting such an axiological perspective, the discourse on the relationship between export controls or other art market controls and human rights has been directed from vertical relations (between individuals/ non-state communities and states) towards horizontal ones (between various cultural rights holders, both individual and collective). In the legal literature

33 34 35

See e.g. John Henry Merryman, ‘Cultural Property, International Trade and Human Rights’ (2001) 19 Cardozo Arts & Entertainment Law Journal 51, 64–67. John Henry Merryman, ‘A Licit International Trade in Cultural Objects’ (1995) 4 ijcp 13, 19. un Doc. A/HRC/17/38 (n 18) para 2.

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such complex relationships have usually been identified in relation to the right to property, to self-determination, to participate in cultural life, and to minority protection.36 The European Court of Human Rights has pronounced several times on the contradiction between restrictions on the free disposal of cultural material and the right of ‘every natural or legal person to the peaceful enjoyment of his possessions’ enshrined in Article 1 of Protocol 1. Under the regime of Article 1, the right to the protection of one’s property contains three distinct components. The first component is a rule of a general nature and enunciates the principle of peaceful enjoyment of one’s property. The second component relates to the deprivation/expropriation of possessions and subjects it to certain conditions (namely, the existence of a ‘public interest’ and the lawfulness of the expropriation). The third component is in the form of a principle that the Contracting States are entitled to control the use of property in accordance with ‘the general interest’. Thus the use of one’s property is not absolute. In determining whether restrictions placed on one’s use of property are compliant with the echr, the Court has applied two principles: (1) the measure in question must have a legitimate aim; and (2) the means undertaken to achieve such an aim must be proportionate. As Article 1 of Protocol 1 does not contain a catalogue of objectives which may justify such interferences, the Court has ascertained, on a case by case basis, whether a given interference with one’s right to enjoy property is in pursuit of a legitimate aim. Overall however, the Court has given a wide margin of appreciation to the Contracting States to define ‘the general interest’, and thus in deciding upon legitimate aims. In fact, the Court does not make distinctions between different policy choices and, in principle, treats them as prima facie legitimate. However, the Court also uses its judicial power to supervise the proportionality of the measures taken. In other words, all types of interference with property rights must respect the principle of proportionality, i.e. there must be a ‘fair balance’ between the interests of the individual affected (by a measure constituting an interference with the right to property) and the interests of the general public.37 The interference must not impose an excessive or disproportionate burden on the individual.

36

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Kevin Chamberlain and Ana Filipa Vrdoljak, ‘Control on the Export of Cultural Objects and Human Rights’ in James A.R. Nafziger and Robert Kirkwood Paterson (eds), Handbook on the Law of Cultural Heritage and International Trade (Edward Elgar, 2014) 532, 533, 538ff. Sporrong and Lönnroth v Sweden, Application No. 7752/72, Judgment of 23 September 1982, echr, Series A/52 (1983), para 69.

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In the much-discussed judgment of Beyeler v Italy,38 which concerned the pre-emption of Van Gogh’s ‘Portrait of a Young Peasant’ exercised by the Italian Ministry of Cultural Heritage, the Court pronounced on the legitimacy of the aim of ‘controlling the use of property in accordance with the general interest’. The Court considered that ‘the control by the State of the market in works of art is a legitimate aim for the purposes of protecting a country’s cultural and artistic heritage’.39 However, the question arose whether the Italian State had a legitimate public interest in acquiring a painting created by a Dutch artist in Saint-Rémy-de-Provence (France), a painting which did not have any particular link with Italian culture. The applicant/owner also argued that ‘as was the case with regard to the prohibition on exports of cultural property, the public interest should not be assessed from a purely nationalistic and egotistical standpoint, thereby disregarding another – no less worthy – interest, that of the free international movement of works of art and of international cultural exchanges, particularly in Europe.’40 The Court did not agree with this argumentation. It began by recalling the provisions of the unesco Convention of 197041 (to which Italy was a party) that ‘accords priority, in certain circumstances, to the ties between works of art and their country of origin’.42 While it acknowledged that the issue in question did not ‘concern the return of a work of art to its country of origin’,43 with respect to the public interest in acquiring a painting by a foreign painter the Court recognized that ‘in relation to works of art lawfully on its territory and belonging to the cultural heritage of all nations, it is legitimate for a state to take measures designed to facilitate, in the most effective way, wide public access to them in the general interest of universal culture’.44 Indeed, it is hard to find a more explicit formula for enforcing the collective right to access to cultural heritage via constraints on the art market. Notwithstanding these findings however, the Court ruled in favour of the applicant and found that a violation of the right to property had occurred because of the lack of a ‘fair balance’ in the way in which the right of pre-emption was exercised (emphasizing the delay, uncertainty and unjust enrichment). 38

Application No. 33202/96, Judgment of the Grand Chamber of 5 January 2000, echr 2000-I. 39 Ibid para 112. 40 Ibid para 84. 41 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, signed on 14 November 1970, entered into force on 24 April 1972, 823 unts 231. 42 Beyeler (n 38) para 113. 43 Ibid. 44 Ibid.

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The case of Ruspoli Morenes v Spain45 also concerned the exercise of a right of pre-emption to a painting, in this case by the Spanish Ministry of Education and Culture over the painting ‘The Countess of Chinchón’ by Francisco Goya. Here too the Court referred to the legitimate aim of controlling the use of private cultural property. The Court emphasised that the constraints over the art market imposed by the state had constituted a legitimate aim in the context of protecting a country’s cultural and artistic heritage. It also recalled that states were granted a very broad margin of appreciation in their decisions to interfere into the use of property declared as being of cultural interest or listed among the country’s historical heritage. Moreover, it found that the restrictions could be explained by the authorities’ concern to centralise, as far as possible, the conservation and display of cultural objects for the benefit of the wider general public, thus favouring the general interest of the community. The Court then assessed Spanish Ministry’s compliance with the requirement of fair balance and held that there had been no violation of Article 1 of Protocol 1. A similar reasoning was also applied by the Court in its decision in Buonomo Gärber and others v. Italy46 involving the right of pre-emption exercised by the public authorities over cultural real (immovable) property – the Castello di Firmiano/Schloss Sigmundskron in South Tirol – which was classified as being of particular importance for the cultural heritage of the region. Interestingly, to date the Court has not dealt with applications concerning the restrictions imposed by national laws on the export of cultural goods.47 Arguably, such controls may constitute a very intrusive interference into one’s right to use and enjoy property. Certain cultural objects may have a much higher pecuniary value abroad, thus a state ban on the exportation of cultural property can sometimes cause considerable financial damage to an individual owner. Moreover, the right to peaceful enjoyment of one’s possessions might be also interpreted in connection with Article 2 of Protocol No. 4 to the echr,48 which states that ‘everyone shall be free to leave any country, including its own’. Considering, inter alia, the Nazi restrictions on travel (which 45 46 47

48

Application No. 28979/07, Judgment of 28 June 2011, echr (2011). Application No. 63783/00, Decision of 20 May 2003, echr (2003). Although the question has been approached several times in national case law; see the French case Agent Judiciaire du Trésor v. Walter, Cour de Cassation, 29 February 1996, jcp 1996, ii, 22672; for an analysis see Timothy P. Ramier, ‘Agent Judiciaire du Trésor v. Walter; Fait du Prince and a King’s Ransom’ (1997) 6 ijcp 337. Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, signed on 16 September 1963, entered into force on 2 May 1968, cets No. 046.

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required Jews to ‘donate’ their property, often including priceless artworks, in order to obtain permission to leave Germany), it has been argued that the right to travel must include ‘the right to take along one’s goods’, including cultural objects.49 According, it may be argued a person is not free to leave a country if he is forced to leave his possessions behind. Thus when a state, with the aim of protection of national cultural heritage, does not permit the exportation of a privately owned cultural object and does not offer any kind of compensation or alternative solution which would alleviate the burden imposed on an individual, it may be argued that the fair balance between a legitimate aim and the means adopted to obtain it has not been achieved. One can expect that the proportionality of such measures will eventually be brought before the Court, as the legislation of several state members of the CoE does not provide for any form of compensation for constraints on the export of cultural objects. 4

The Right to the Use of Property and Other Restrictions

Another set of potential clashes arises between the right to property and various constraints on its use based on the general (collective) interests of protection and conservation of cultural heritage. Such restrictions usually refer to limitations on the use, development, conservation and management of land which is deemed to be cultural property of great importance to the cultural heritage of a state. The Court has dealt on several occasions with cases brought by individual applicants claiming that such measures placed an excessive burden on them and resulted in a disproportionate interference into their right to the peaceful enjoyment of property. For instance, in scea Ferme de Fresnoy v France50 the Court dismissed the application of a French company which sought compensation for constraints imposed on the development of its real (immovable) property due to its cultural, protected value. The applicant ran a farm, which comprised two old buildings listed by the state authorities as historical monuments with a public-interest value as examples of cultural heritage. The applicant intended to erect other agricultural facilities nearby the buildings listed as monuments. Such alternations in the vicinity of protected property were, however, subject to certain administrative restrictions. The applicant argued 49

50

John Henry Merryman, Stephen K. Urice and Albert E. Elsen (eds), Law, Ethics and Visual Arts (5th edn; Kluwer Law International, 2007) 140, after Erik Jayme, Nationales Kunstwerk und internationales Privatrecht (C.F. Müller, 1999) 201. Application No. 61093/00, Decision of 1 December 2005, echr (2005).

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that the listing of the buildings had prevented it from developing its agricultural infrastructure and that it was therefore entitled to compensation. The Court held that the interference into the property right protected under Article 1 of Protocol 1 constituted a measure controlling the property’s use for the purpose of safeguarding historic buildings which had ‘a public interest value in relation to the history of art, in view of the scarcity and authenticity of [their] architecture’. Therefore, the interference imposed was aimed at preserving the quality of the environment around protected national-heritage buildings by regulating construction or other work carried out in the vicinity. According to the Court, such means constituted a legitimate aim in terms of the protection of the country’s cultural heritage. The means taken to achieve the aim were deemed proportionate as the applicant was simply required to obtain the approval from state authorities whenever it wished to carry out construction, demolition or alteration work in the vicinity of the listed buildings. The Court also followed this approach in its recent decision in the case Albert Fürst von Thurn und Taxis v Germany,51 whereby it acknowledged the existence of certain responsibilities that an individual owner of a historic collection had towards a community’s cultural interests. In this case, the applicant was the owner of one of the most important German court libraries and archives accessible to the public, which dated back to the fifteenth century (St. Emmeram Castle in Regensburg). Until 1939, the property had been incorporated in a family trust fund (Fideikommis). After that date it was transformed into ordinary private property, although the authorities were allowed to impose certain protective and security measures with respect to objects of particular artistic, scientific, historical or patrimonial value. In fact, in 1943 the Nuremberg Court of Appeal placed the administration of different parts of the court library and archives under the supervision of different public bodies. The applicant acquired the property, together with the above-mentioned restrictions, by way of inheritance. In 2002, he lodged a request with the Nuremberg Court of Appeal to lift the restrictive measures, arguing that they deprived him of use of his property in a reasonable way. He claimed that he had to sustain considerable expenses while being denied any possibility of profiting from his property, and thus alleged that the limitations imposed resulted in a de facto illegal expropriation as he did not obtain any compensation therefor. However, the Court of Appeal’s refused to lift the 1943 restrictions imposed on the use of his property. Having exhausted other available domestic remedies, he filed an application with the ECtHR, alleging that Germany violated his right to the peaceful use and enjoyment of his property. In addition he argued that, 51

Application No. 26367/10, Decision of 14 May 2013, echr (2013).

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under Article 14 of the echr, he had been discriminated against because of his wealth and the circumstances of his birth. The Court rejected this argumentation. It reiterated that under the regime of Article 1 Protocol 1, Contracting States enjoy a wide margin of discretion to determine what type of control measures on the use of property would be ‘in accordance with the general interest […] particularly where environmental and cultural heritage issues are concerned’.52 It declared that ‘the preservation of an important object of cultural heritage may justify supervision by a competent State authority’.53 It also observed the applicant is not prevented from making use of his property, only that the acts of administration of the property are subject to prior authorisation by the state. Furthermore it stated that the costs of maintenance of the property, though expensive, ‘are also necessary to preserve the value of the applicant’s property’.54 The Court also underlined that the applicant was aware, at the moment of acquisition of the property, of the restrictions on its use and his situation did not change as a result of the Court of Appeal’s refusal to lift the restrictions imposed on the use of his property seventy years earlier. Importantly, the Court determined that the social and historical circumstances surrounding the applicant’s acquisition of the property, which formerly belonged to a family trust fund, put the applicant in a privileged position compared to that of an owner of ‘civil’ (i.e., ordinary) private property.55 Thus, the Court held that there was a fair balance between the state’s controls imposed on the use of private property having a social function (i.e., access to and conservation of cultural heritage) and the individual’s fundamental rights. Based on the above-mentioned judgments and decisions, it appears that the Court accepts that measures to control the use of private property may be a legitimate aim to enforce the general collective interest in the preservation and enjoyment of cultural heritage. The sole area in which the Court seems inclined to conduct a more thorough examination concerns the determination whether a ‘fair balance’ is struck between the demands of the general interest of the community and the individual’s fundamental rights. In particular, the Court has 52

53 54 55

Ibid para 23. The Court has stressed a number of times the protection of the environment or natural heritage can be considered as a legitimate aim for interference with the right to property; see e.g. Hamer v Belgium, Application No. 21861/03, 27 November 2007, echr 2007-V, para 73; Turgut and Others v Turkey, Application No. 1411/03, Judgment of 8 July 2008, echr (2008), para 90; Depalle v France, Application No. 34044/02, Judgment of the Grand Chamber of 29 March 2010, echr (2010), para 81. Albert Fürst von Thurn und Taxis (n 51) para 26. Ibid para 28. Ibid para 33.

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carefully examined the degree of state interference into the right to use one’s property, and also whether the applicants can actually exercise such a right. In this latter regard the case Potomska and Potomski v Poland56 is instructive. In that case the Court found that when private owners of cultural property were prevented from making any use of their property and were not compensated for such deprivation, the state’s actions constituted a violation of the applicants’ rights guaranteed by the echr. The facts of the case were as follows: In 1974 the applicants had purchased from the Polish state a property classified as farming land. They intended to build a house and workshop on the plot of land. In 1987 the regional authorities decided to list the property on the register of historic monuments, as it had been a Jewish cemetery since the beginning of the 19th century and was one of the few remaining vestiges of Jewish culture in the region. According to national regulations on the protection of cultural heritage, the applicants were under an obligation to preserve and protect the land and were prohibited from carrying out any work on it or developing even part of it unless they obtained official authorisation. Naturally no permits for construction works on the protected historical cemetery could be granted. As a result, the applicants made several requests to the local authorities to expropriate their property with compensation, or to provide them with an alternative plot of land. Their requests produced no result. Finally, they asked to resolve the matter by means of an exchange of land. The authorities made two offers of alternative land, but the applicants refused such offers on the grounds that the alternative land offered was made up of fields and swamps and did not correspond to the value of their property. In 2005, they learnt that the authorities had refused to grant a subsidy for the purchase of their land, hence as matters stood there was no longer any possibility of resolving the dispute. Moreover, a parallel application issued by the Union of Jewish Communities in Poland to the authorities to transfer ownership of the property in question, on the grounds that the land had formerly been used as a Jewish cemetery, was also dismissed since the property was owned by private individuals.57 Arguably therefore, the constraints on the property involved not only the rights of individuals but also the interests of a minority community. The ECtHR began by acknowledging that the listing of the property constituted a legitimate aim as ‘the conservation of the cultural heritage and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and 56 57

Application No. 33949/05, Judgment of 29 March 2011, echr (2011). Apparently the Union of Jewish Communities was not interested or lacked the funds to purchase the property itself.

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artistic roots of a region and its inhabitants’.58 However, the Court found that the lack of funds could not justify the authorities’ failure to remedy the situation. In addition, the applicants had no way to compel the authorities to purchase their property or to provide an alternative plot of land since domestic law did not provide a procedure by which they could bring their claim before a judicial body. Hence the Court found that a fair balance between the general interest of the community and the burden imposed on the individuals had not been struck, which constituted a violation of Article 1 of Protocol 1.59 In other words, an individual cannot be made to solely bear the expenses of the general (cultural) interest of a community. 5

Right to Property and Expropriation

The protections imposed by the echr with respect to the ‘deprivation’ of property as set out in the first sentence of Article 1 of Protocol 1 (‘no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law’) essentially refer to expropriation. In this respect, the Court has held that the requirement of ‘public interest’ must meet more stringent principles than those required in determining whether controls place over the usage of one’s property comply with the echr. Accordingly, any deprivation (i.e., expropriation) of property must be exercised only for a legitimate purpose, and there must exist a fair balance between the interest of community and the affected individual rights.60 While Article 1 does not expressly grant a right to compensation, such an entitlement can be implicitly deduced from the reference made to ‘the general principles of international law’. Indeed, the Court has held that the deprivation of property without compensation may be justifiable only in exceptional circumstances.61 58 59

60

61

Ibid para 64. Ibid paras 78–80. In 2014, the Court also found that the applicants had suffered both ­pecuniary damage ‘as a result of the restrictions on the use of their property following the issuance of the listing decision’, and non-pecuniary damage, ‘such as distress and frustration’. See Potomska and Potomski v Poland, Application No. 33949/05, Judgment of 4 November 2014, echr (2014), paras 23–26, 29. Lighgow and Others v the United Kingdom, Application Nos. 9006/80, 9262/81, 9263/81, 9265/81, 9266/81, 9313/81, 9405/81, Judgment of 8 July 1986, echr, Series A/102 (1986), para 120. See e.g. James and Others v the United Kingdom, Application No. 8793/79, Judgment of 21 February 1986, echr, Series A/98 (1986), para 54; Lingens v Austria, Application No.

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With reference to the ‘deprivation’ (expropriation) of property with the aim of preserving cultural heritage for the benefit of a wider community interest, the Court has applied a very strict test of proportionality. In Debelianovi v Bulgaria62 it held that the deprivation of individual owners of their property without any compensation constituted a violation of their right to peaceful enjoyment of their possessions. In March 1994 the applicants obtained a Bulgarian court order for the return of a house that had belonged to their father and had been turned into a museum in 1956 following expropriation under communist legislation. The building was regarded as the most important historic and ethnographical monument in the town of Koprivshtitsa, located in central Bulgaria. In June of the same year the Bulgarian National Assembly introduced a moratorium on restitution laws with respect to properties classified as national cultural monuments. On the basis of this moratorium, the courts dismissed an appeal by the applicants seeking to secure effective possession of their property. The moratorium remained in force until 2005. The ECtHR found that the purpose to preserve possession in the state of properties classified as historic monuments, whose ownership had been already returned to their former owners, pending the adoption of an appropriate statutory framework, would provide the best solution for the safeguarding of the interests of the community. Thus, the scope of the moratorium was to ensure the preservation of protected national heritage sites, which was a legitimate aim in the context of protecting a country’s cultural heritage.63 In this regard, the Court recalled the provisions of the Faro Convention and the Convention for the Protection of the Architectural Heritage of Europe (Grenada Convention).64 However, the Court held that the conduct of the state imposed an excessive burden on the applicants which did not strike a fair balance between the general interest of the community and the individual right to property. In Kozacıoğlu v Turkey,65 a case which concerned the way in which state authorities assessed the amount of compensation paid for the expropriation of a historic building, the Court, in its Grand Chamber judgment of 19 F­ ebruary 2009, found a violation of Article 1 of Protocol 1. The applicant was the owner .

62 63 64 65

9815/82, Judgment of 8 July 1986, echr, Series A/103 (1986), para 40; Former King of Greece and Others v. Greece, Application No. 25701/94, Judgment of 23 November 2000, echr 2000-XII, para 89. Application No. 61951/00, Judgment of 29 March 2007, echr (2007). Ibid para 54. Signed on 3 October 1985, entered into force on 1 December 1987, cets No. 121, 1496 unts 147. Application No. 2334/03, Judgment of the Grand Chamber of 19 February 2009, echr (2009).

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of a historic building in the sub-prefecture of Tarsus, in the İçel province. The property was expropriated by the Ministry of Culture on the grounds that it had been classified as a ‘cultural asset’, and compensation was paid. The applicant did not agree with the amount of compensation and lodged an application for increased compensation, requesting that a new panel of experts re-assess the property and take into account its historical value. He argued in particular that the building in question was featured on the Council of Europe’s inventory of cultural and natural heritage. Two different panels of experts found that, in view of the nature of the property, its value should be increased by 100%. However, the Turkish domestic courts in the end awarded the applicant a much lower sum in additional compensation, explaining that the building’s rarity and its architectural and historical features were not proper factors for consideration in the assessment of its value. Relying on Article 1 of Protocol 1, the applicant complained in particular of an infringement of his right to the peaceful enjoyment of his possessions. The Court recognized the expropriation measures as a legitimate aim.66 Moreover, it stressed that ‘the conservation of the cultural heritage and, where appropriate, its sustainable use, have as their aim, in addition to the maintenance of a certain quality of life, the preservation of the historical, cultural and artistic roots of a region and its inhabitants’.67 In this respect, the Court referred to the CoE Grenada Convention. Nonetheless, it found that the failure to take into account the special architectural or historical characteristics of a listed building when assessing the compensation for its expropriation amounted to a violation of Article 1 of Protocol 1, insofar as it had imposed an excessive and disproportionate burden on the applicant.68 Nevertheless these findings did not result in the applicant’s entitlement to compensation at full market value. The Court declared that ‘legitimate objectives of public interest’ may justify a reimbursement of less than the full market value of an expropriated property, and took the view that the protection of the historical and cultural heritage constituted such an objective.69 The Court has also dealt with cases in which the deprivation of property took the form of forfeiture (confiscation) according to national criminal rules. In the case Sud Fondi srl and Others v Italy70 the Court was confronted with a case brought by private investors against the Italian State for the confiscation 66 67 68 69 70

Ibid para 53. Ibid para 54. Ibid paras 72–73. Ibid paras 64 and 82. Application No. 75909/01, Judgment of 20 January 2009, echr (2009).

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of their land and high-rise buildings, constructed in a coastal area of the city of Bari. In 1993, they agreed on a building project with the municipality, and two years later planning permission was granted. In 1996, a public prosecutor started a criminal investigation. The development was considered illegal as the land was the subject of a total ban on construction, as well as to statutory restrictions designed to protect the environment and landscape. Thus a confiscation order was issued and the ownership of the land was transferred to the municipality. In 2006 the buildings erected by the applicants were demolished. The Court focused on the question whether the statutory basis for the offence (the construction of high rise buildings in a protected area) satisfied the criteria of clarity, accessibility and foreseeability.71 Referring to Article 7 of the echr (nullum crimen sine lege) it found that the regulations on the protection of environment and landscape were such that it had been impossible to foresee that a penalty would be assessed.72 Furthermore, it held that, for the purposes of Article 7, a legislative framework that does not enable an accused to know the meaning and scope of the criminal law is deficient not only as regards the general conditions pertaining to the quality of the law, but also as regards the specific requirements of legality in the criminal law. Consequently, the confiscation of the properties had not been prescribed by law and amounted to an arbitrary penalty, thus violating the rights guaranteed under Article 7 of the echr. In light of these findings, the Court held that the interference with the applicants’ right to the peaceful enjoyment of their possessions was also arbitrary and violated Article 1 of Protocol 1. Finally, the Court concluded that the ‘fair balance’ between the demands of the general interest of the community and the need to protect the fundamental rights of the individual had not been struck.73 It stressed that confiscation on that scale (ie of the entire property, while only 15% of the land had been occupied by the constructions) without compensation was not justified by the stated aim of bringing the land concerned into conformity with the urban development regulations. Moreover, the municipality itself had granted the illegal planning permission which, paradoxically, led to it becoming the owner of the confiscated land.74 What is striking in this argumentation is the fact that the Court completely disregarded any examination of the general interest of the community, beyond the mere question of urban development. Arguably, the protection of the environment 71 72 73 74

Ibid paras 111–118. Ibid para 114. Ibid paras 133–142. Ibid para 141.

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and cultural landscape against abusive constructions can be crucial in terms of the vital interests of the community.75 Perhaps the most complex elaboration of the relationship between collective and individual rights to access and enjoy cultural heritage can be found in the judgment of the ECtHR in the case of Nowakowski v Poland,76 concerning the confiscation of a private collection of historic weapons. The reasoning of the Court in this case is particularly significant in relation to interests other than the pecuniary interests of an individual to property that can be labelled as cultural in nature. The Court skilfully weighed them up against the general community interests, which consisted in regulation of the possession of firearms by individuals on the one hand, and access to cultural heritage on the other. The applicant was a Polish national, a veteran of the Polish Resistance during ww ii, and a former professional officer in the Polish Army. For fifty years the applicant collected antique arms, weapons and uniforms from the period of wwii and earlier. His unique collection was exhibited in different occasions in public museums, and he himself collaborated in construction of the Warsaw Uprising Museum in Warsaw, in the capacity of a specialist in old weaponry. The Court also found him to be a person rendering ‘outstanding services in the dissemination of knowledge about the history of Poland’ and playing ‘a significant role in teaching younger generations about the history of Poland and about the fight for the country’s independence’.77 However, irrespective of his merits in 2008 the police confiscated his entire collection of old weapons (199 pieces), which were considered dangerous, because he did not have a licence to possess weapons. In 2010 the prosecution ordered the return of small number of confiscated items, as their possession did not require a licence. That same year, criminal proceedings were initiated against him before a district court in Warsaw. The latter held that the offence was minor in nature and discontinued the proceedings against him. It also found that ‘no criminal intent to use the arms to anyone’s detriment could reasonably be ascribed to the applicant’.78 At the same time it decided to avail itself of its discretionary power to confiscate nearly the entire collection. It explained that ‘dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value’ and thus, considering its historical interest, the collection should be handed over to ‘an institution capable of

75 76 77 78

See Francioni, ‘The Human Dimension’ (n 15) 12. Application No. 55167/11, Judgment of 24 July 2012, echr (2009). Ibid para 11. Ibid para 16.

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securing appropriate storage and display conditions for it’.79 Once this decision was upheld in the court of second instance, most of the collection was transferred to the same Warsaw Uprising Museum with which the applicant had formerly cooperated.80 In assessing the case, the ECtHR found that the forfeiture of weapons was lawful and served a legitimate public aim. It also explained that the confiscation measure decreed in the context of criminal proceedings constituted a legitimate control over the use of property within the meaning of the second paragraph of Article 1 of Protocol 1, and noted that the Polish district court discontinued the criminal proceedings and found the seriousness of the alleged offence to be negligible. It concluded that under these circumstances, and the fact that the entire collection had been confiscated, a deprivation of property had taken place.81 Then it proceeded to examine whether a fair balance of interests had been struck. In its examination the Court noted that under Polish law the courts had no legal obligation to order the forfeiture of the collection. It also observed that Polish authorities had not registered any accident with the weapons in question and that the applicant’s collection was often publicly displayed. The Court found that the authorities had decided not to return any items to the applicant and to confiscate the collection in its entirety solely in order to maintain its historical value.82 In fact, the collection was subsequently made available to the public. It stressed that ‘no thought had been given by the courts to whether the confiscation of the collection in its entirety imposed an excessive burden on the applicant, either as regards the pecuniary or sentimental value the collection had for him’. Nor had they considered ‘alternative measures which could have been taken in order to alleviate the burden imposed on the applicant, including by way of seeking registration of the collection’.83 Moreover, a public museum obtained the collection for free at the expense of the applicant. The Court thus held that there had been a violation of Article 1 of Protocol 1 and concluded that, in the circumstances of the case, the most appropriate form of redress of the violation would be restitution to the applicant of those elements of the collection which could be lawfully restored to him.84 79 80 81 82 83 84

Ibid para 20. Ibid para 24. Ibid para 46. Ibid para 55. Ibid para 56. Ibid para 62. In fact, in 2014 the Warsaw District Court annulled the decision to conficate the collection. The applicant’s ownership of the collection was confirmed and the objects

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Final Remarks – Collective and Individual Rights and Responsibilities Towards Cultural Heritage

The examination of the case law of the European Court of Human Rights has illustrated how this regional human rights body has approached the complex issues of hierarchy and balance between different rights to tangible cultural heritage. In particular, this refers to those issues which arise when the right of the public (community) to access and enjoy cultural heritage comes into play in such a relationship. Generally speaking, the Court has almost entirely dealt with this equilibrium in relation to the right of ‘every natural or legal person to the peaceful enjoyment of his possessions’. In principle, the Court ‘can be seen as favouring a concept of good cultural governance, according to which the protection of cultural heritage is considered to be a public objective that is worthy of protection, so long as other human rights, including property rights, are not disproportionately and/or arbitrarily affected’.85 In fact however, in some cases (in particular Sud Fondi srl and Others) the Court has adhered to a rather strict application of Article 1 of Protocol 1, without exploring the nature of the collective right in question with respect to the protection and safeguarding of cultural heritage, while in many other cases it has accepted a priori the existence of a general community interest in protection of and access to cultural heritage as a legitimate aim of state inference into property rights, albeit without exploring the very nature of interest. On the other hand, in the Beyeler case, the Court recognized that it is legitimate for states to take measures, in the name of ‘the general interest of universal culture’, which facilitate the most effective public access to the cultural heritage of all nations. Thus, the right to property may be subject to derogation for the purpose of achieving such a universally recognized value. In addition, the Court has referred to the CoE treaties in the area of cultural heritage, including the Faro Convention. It can be argued that the reasoning of the Court in its Albert Fürst von Thurn und Taxis decision was inspired by this sophisticated regional treaty. There the Court suggested that the responsibility for protecting and ensuring access to cultural heritage should be shared at some level between public authorities and individual owners of cultural property with an important social function.

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were restored to him. Moreover, the applicant obtained a permit of the Ministry of Culture and National Heritage to run a private museum. See Nowakowski v Poland, Application No. 55167/11, Judgment of 22 July 2014, echr (2014), para 8. Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (cup, 2014) 47.

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Such a share must be proportionate, as the owner does not enjoy rights alone, but also bears certain responsibilities towards the larger community. In relation to fundamental or non-derogable rights, the Court’s practice to date unfortunately lacks judicial elaboration, as the Court has not had an occasion – in contrast to other regional human rights bodies86 – to pronounce on the cases involving such tensions. However, in its Nowakowski judgment it went beyond a mere application of Article 1 of Protocol 1 and acknowledged the existence of ‘sentimental’ value of cultural property owned by an individual. This, arguably, amounted to a recognition of the significance of an individual’s right to enjoy one’s cultural heritage against collective rights, including access to and the conservation of important cultural properties. The Court’s attempt to reconcile and balance these rights in the Nowakowski judgment constitutes one of its most significant contributions to date in its jurisprudence on this issue. 86

See Federico Lenzerini, ‘The Tension between Communities’ Cultural Rights and Global Interests: the Case of the Māori Mokomokai’ in Silvia Borelli and Federico Lenzerini (eds), Cutural Heritage, Cultural Rights, Cultural Diversity. New Developments in International Law (Nijhoff, 2012) 157; see also Chapter 6 by Federico Lenzerini in this volume.

chapter 8

Collective Cultural Rights in Asia: Recognition and Enforcement William Logan The twenty-first century seems set to be the ‘Asian century’. Economic and geopolitical power is shifting towards China; Japan and India are already established as world economic powers; and the ‘Asian tigers’ – Korea, Singapore, Taiwan – and countries like Malaysia, Vietnam and Indonesia are rising quickly. Cultural and intellectual influence is likely to follow this power shift. This means that Asian ways of dealing with rights – human rights, both individual and collective, as well as concepts of cultural and heritage rights – are likely to acquire greater importance within the international discourse. Unlike Europe, Africa and the Americas, Asia does not have a regional intergovernmental human rights charter. Efforts to protect and enhance human rights can only take place within states, and the record in Asian countries is very mixed. First and second generation human rights, with their emphasis on the individual, are sometimes regarded as Western in origin and character, while third generation collective cultural rights have been closely associated with Indigenous peoples, commonly living as minorities within European settler societies in the New World. Why is there no Asian charter and what would it look like if there was one? This chapter focuses particularly on how the notion of collective cultural rights is understood in Asia and how such rights are recognized in law and enforced through governmental policy. The discussion links the notions of cultural rights and cultural heritage, drawing inspiration from Farida Shaheed’s1 admonition that: Cultural heritage is linked to human dignity and identity. Accessing and enjoying cultural heritage is an important feature of being a member of a

1 Farida Shaheed was the un High Commission for Human Rights Independent Expert in 2009–2012 and Special Rapporteur in the Field of Cultural Rights in 2012–2015. On 26 March 2015, the mandate of Special Rapporteur was extended for another three years (UN  Doc. HRC/RES/28/9). Since October 2015, the mandate has been held by Karima Bennoune, Professor of International Law at the University of California, Davis School of Law.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_010

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community, a citizen and, more widely, a member of society. The importance of having access to one’s own cultural heritage, including linguistic heritage, and to that of others has been emphasized by the Committee on Economic, Social and Cultural Rights in general comment No. 21 on the right of everyone to take part in cultural life. As further stressed by the Committee, ‘the obligations to respect and to protect freedoms, cultural heritage and cultural diversity are interconnected.’2 1

Unpacking ‘Asia’

The vast and varied nature of the Asian continent, comprising 44 states stretching from Japan to Israel, Turkmenistan to Timor Leste, provides major cultural, economic and political barriers to reaching an ‘Asian’ agreement on most policy matters, let alone on one so sensitive as cultural and human rights. The commentary in this chapter focuses on four states – China and Vietnam, Thailand and Myanmar in mainland Southeast Asia. I have been working in and on the heritage of these countries since the late 1980s in a variety of capacities – as researcher, on unesco and icomos missions relating to World Heritage places, as an advisor to national authorities on heritage policy matters, and as a teacher and facilitator in training workshops. The four countries have significant ethnic minorities and it is the relationship between the state and the ethnic minorities that is the focus of this chapter. All four have considered the human rights of their ethnic minorities in different ways and for different reasons. This sample of countries will give a sufficient idea of the range of human rights issues across Asia, in particular the ways of understanding ‘collective’ as distinct from ‘individual’ human rights. Other collective forms that complicate the picture are not the focus of this chapter.3 These include women, children,4 the disabled and castes, particularly lower castes such as the Dalit in South Asia. Since the un’s Universal Declaration of Human Rights (udhr) of 1948,5 the various subsidiary human rights instruments have reaffirmed the inherent dignity of all people, the equal 2 hrc, Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, Access to Cultural Heritage, 21 March 2011, un Doc. A/HRC/17/38, para 2. 3 See Chapter 1 by Miodrag Jovanović and Chapter 5 by Kamrul Hossain in this volume. 4 William Logan, ‘Patrimonito Leads the Way: unesco, Cultural Heritage, Children and Youth’ in Kate Darian-Smith and Carla Pascoe (eds), Children, Childhood and Cultural Heritage (Routledge, 2013) 31–35. 5 unga Res 217 A(III), adopted on 10 December 1948, un Doc A/810, 71.

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rights of all people and their right to freedom. The udhr gives human rights precedence over the power of the state;6 that is, while states are permitted to regulate rights, they are prohibited from violating them. With regard to the last mentioned collective form – the lower castes – it is a sad truth that, despite the fact that the national governments concerned espouse the udhr and ratify other international human rights instruments, even to the point of having national laws requiring class structures to be dismantled, this form of unequal treatment of citizen groups persists. 1.1 Primacy of the Intangible Cultural Heritage Despite Asia’s complexity, some basic generalizations can be made, at least for East and Southeast Asia, that bear on how cultural policies and human rights are understood and implemented (or, in the case of the latter, not implemented). For instance, while all Asian societies value their cultural heritage, most put more store in intangible forms rather than tangible; that is, they attribute greater significance to the meaning of historic places and artefacts than to their physical fabric. This approach to heritage underlay the development of the Nara Document on Authenticity7 and the 2003 unesco Convention for the Safeguarding of the Intangible Cultural Heritage (2003 ich Convention),8 which describes intangible cultural heritage as ‘practices, representations, expressions, knowledge, skills’.9 Inasmuch as this is a living, breathing heritage that is embodied in people rather than in inanimate objects, efforts to protect such heritage are more likely to raise issues of human rights.10 The Preamble of the 2003 ich Convention begins by acknowledging the primacy of human rights considerations and, as of October 2015, 21 of South, Southeast and East Asia’s 23 states11 have ratified the Convention, despite the fact that the human rights record of many of them is less than might be 6

7

8 9 10

11

Stener Ekern, William Logan, Birgitte Sauge and Amund Sinding-Larsen, ‘Human Rights and World Heritage: Preserving our Common Dignity through Rights-Based Approaches to Site Management’ (2012) 18 International Journal of Heritage Studies 213, 216–217. The Nara Document on Authenticity (icomos 1994), unesco Doc. WHC-94/CONF.003/ INF.008; available online at accessed on 15 April 2016. Adopted on 17 October 2003, entered into force on 20 April 2006, 2368 unts 3. Ibid Art. 2. William Logan, ‘Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage Protection’ in Helaine Silverman and D. Ruggles Fairchild (eds), Cultural Heritage and H ­ uman Rights (Springer, 2007) 33. The statistics in these paragraphs are drawn from the unesco listing of South, Southeast and East Asian states within its Asia-Pacific region. The Central Asian and West Asian

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d­ esired. These Asian States Parties to the Convention have 117 listed elements, 32 per cent of the world total of 364 elements.12 Indeed, several Asian states have led the way, notably Japan in inspiring and implementing unesco’s ­intangible heritage system and China, Japan and the Republic of Korea in terms of i­nscriptions. China alone has 34 elements, or 9 per cent of the total, while Japan has 22 elements and the Republic of Korea 16. Vietnam has eight elements while Myanmar only recently ratified the convention and has no ­inscribed elements as yet. Thailand and Singapore have yet to ratify the Intangible Heritage Convention.13 This is not to say that Asian states are uninterested in protecting the tangible heritage of heritage places, especially if World Heritage status can be claimed for them. Indeed, as at October 2015, all of the 23 South, Southeast and East Asia’s states have signed up to unesco’s 1972 World Heritage Convention14 and have 177 inscriptions or 17 per cent of the global total, which now stands at 1,031. Again, some states have large numbers. China, for instance, has 48 inscriptions on the World Heritage List, or almost five per cent of the global total. China has another 54 places on its Tentative List, which is an inventory of those properties the State Party intends to consider for future nomination to the World Heritage List. Of the other sample countries, Vietnam has eight inscriptions and another seven on its Tentative List, while Thailand has five inscriptions and five on the Tentative List. Myanmar won its first inscription – Pyu Ancient Cities – at the 2014 meeting of the World Heritage Committee and has 14 places on its Tentative List. In most Asian cultures restoration or rebuilding is regarded as a­ ppropriate for religious and commemorative buildings, since keeping structures in good repair is seen as an important way of showing respect to the ancestors, gods and heroes to whom the buildings were dedicated. In such societies, maintaining the uses to which buildings have been put and the skills required to rebuild are more critical issues than whether the timber is original or not. The distinguished Japanese heritage expert, Nobuo Ito, highlighted the dissatisfaction that many

12 13

14

countries of Iran and those in unesco’s Arab States region are excluded, as are multiregional Turkey and the Russian Federation. These figures are total for the Representative List and List of Intangible Heritage in Need of Urgent Safeguarding. For further discussion, see Zeynep Aygen and William Logan, ‘Heritage in the “Asian ­Century”: Responding to Geopolitical Change’ in William Logan, Máiréad Nic Craith and Ullrich Kockel (eds), A Companion to Heritage Studies (Wiley Blackwell, 2016) 410. Convention Concerning the Protection of World Natural and Cultural Heritage, adopted on 16 November 1972, entered into force on 17 December 1975, 1037 unts 151.

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East Asians felt in the 1980s with the standard ­conservation approaches applied by unesco, which were regarded as too European (‘Western’).15 A major step in resolving this ‘system turmoil’ was the 1994 Nara Document on Authenticity, which set forth the principle that each nation should develop conservation approaches that are appropriate for its own cultural context. But while the Nara Document appears to resolve one set of systemic difficulties, it raises others. In particular it raises the issue of cultural relativism – indeed cultural exclusivism – where one part of the world claims that it is different from others and cannot accept a set of universal principles, except in greatly watered-down form. The Nara Document can be used to reinforce narrowminded parochialism and local practices that fly in the face of international standards. The intention of this chapter is not to pass judgement on the impact of the Nara Document on global heritage practice, but to move on to discuss another profound impact of cultural relativism on heritage practice and scholarship, notably with regard to the different ways in which human rights issues have been or might be brought into the field of cultural heritage management in Asia. 1.2 Other Generalizations Three more generalizations lead to the core of the chapter. First, Asian states tend to emphasize collective rather than individual human rights. There are, however, different understandings of the ‘collective’ concept, which creates conflict not only with other parts of the world – Western Europe, for instance – but also within Asia and, even more seriously, within individual Asian states themselves. Second, there is much resistance to what is seen as ‘Western pressure’ to implement human rights in a Western way. Third, while there is an increased awareness of human rights as a necessary government concern, the movement towards developing a regional approach has been very slow – and indeed has met with resistance. 2

Asian Understandings of Collective Human Rights

In some Asian countries there is little commitment to upholding individual human rights where these are seen to conflict with the ‘national interests’ ­defined by the ruling regime, even though all un members (only Taiwan is 15

Nobuo Ito, ‘World Cultural Heritage and Self-Enlightenment of Conservation Experts’ in Report of the Consultative Meeting on Regional Cooperation in Cultural Heritage Protection in Asia and the Pacific (Asia-Pacific Cultural Centre for unesco, 2000).

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a non-member) are expected to uphold the spirit and principles of the 1948 udhr. Another indication of a relative lack of commitment is seen in the fact that only 17 of South, Southeast and East Asia’s 23 states (74 per cent) have ratified the 1966 International Covenant on Civil and Political Rights (iccpr)16 and 20 (87 per cent) the 1966 International Covenant on Economic, Social and Cultural Rights (icescr).17 Of the four states treated in this chapter, Thailand and Vietnam have ratified both; China has signed but not ratified the iccpr and has ratified the icescr; whereas Myanmar has not ratified the iccpr but signed the icescr in July 2015. In East and Southeast Asia, to the extent there is governmental interest in human rights at all, it has generally been couched within an overriding position that individual human rights may need to be curtailed in the interest of the ‘nation’ as a whole; that is, the state is prioritized as the ‘collective’ that counts. Sub-national collectives, such as racial and ethnic minority groups, also need to set aside their own interests for the sake of the higher-level collective. This point of view is not, of course, confined only to Asia, as my own research into the cultural politics surrounding Indigenous heritage in Australia clearly shows.18 2.1 The Bangkok Declaration 1993 The argument that in developing countries the improvement of standards of living requires the deferral of individual rights issues has a long history in Asia. It underlay the so-called ‘Asian values’ debate that flourished in the 1990s and permeates the Bangkok Declaration 1993, the one occasion when Asian states formulated a joint statement regarding human rights.19 This resulted from a meeting of Ministers and representatives of a wide range of Asian states held in Bangkok from 29 March to 2 April 1993, pursuant to General Assembly resolution 46/116 of 17 December 199120 and as part of the preparations for the un World Conference on Human Rights in Geneva in June 1993. The Declaration’s preamble reaffirms its commitment to the un Charter and the udhr, but also 16 17 18

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unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 23 March 1976, 999 unts 171. unga Res. 2200A(XXI), adopted on 16 December 1966, entered into force on 3 January 1976, 993 unts 3. William Logan, ‘Australia, Indigenous Peoples and World Heritage from Kakadu to Cape York: State Party Behaviour under the World Heritage Convention’ (2013) 13 Journal of S­ ocial Archaeology 1. Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights in Bangkok on 29 March-2 April 1993 (Bangkok Declaration), un Doc. A/CONF.157/ ASRM/8, A/CONF/157/PC/59. un Doc. A/RES/46/116.

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recalls the un Declaration on the Right to Development (1986),21 emphasizing that ‘endeavours to move towards the creation of uniform international human rights norms must go hand in hand with endeavours to work towards a just and fair economic order.’ The body of the text further demonstrates the ambivalence among the Asian parties, with some clauses stressing the essential national and regional particularities flowing from historical, cultural and religious backgrounds. Clause 8 of the Bangkok Declaration, for instance, recognizes that: while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international normsetting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds. This is preceded by the assertion in Clause 6 of the right of ‘all countries, large and small, … to determine their political systems, control and freely utilize their resources, and freely pursue their economic, social and cultural development’. Clauses 4 and 5 demand respect for national sovereignty and territorial integrity and non-interference in the internal affairs of States, and reject the use of human rights as an instrument of political pressure or as a condition for extending development assistance. 2.2 The ‘Asian Values’ Debate In June 1993, when the un World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, it set the Asian viewpoint aside, stating that: While the significance of regional and national particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.22 It also reasserted the position taken in the un Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities that persons belonging to minorities ‘have the right to enjoy their own culture, to profess and practise their own religion and to use their own language in private 21 22

unga Res. 41/128, adopted on 4 December 1986, un Doc. A/RES/41/128. Adopted on 25 June 1993, un Doc. A/CONF.157/23, para 5.

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and in public, freely and without interference or any form of discrimination’ (Article 19).23 Nevertheless, many Asian states remained unconvinced and several leaders, most notably Singapore’s prime minister Lee Kwan Yew and Malaysia’s prime minister Mahathir Mohamad, actively promoted the case for an ‘Asian way’, arguing that Westerners had confused ideas about individual freedoms and liberal democracy, which were rooted in their own traditions, with u ­ niversal truths.24 They proposed a set of distinctive Asian values such as ‘attachment to the family as an institution, deference to societal interests, thrift, conservatism in social mores, respect for authority’.25 While there are some links in the ­sinicized world between the so-called Asian values and Confucian principles,26 a number of academic and media commentators have questioned the distinctiveness of these attributes and challenged the reverse orientalism that seems to be at play. Scholars such as Joanne Bauer, Daniel Bell and Jack Donnelly perceived the concept of ‘Asian values’ as a serious cultural relative/exceptionalist challenge to universal human rights.27 Critics of this Asian exceptionalist position maintain that it is no more than a cover for autocratic control over the workforce intended to support economic growth that favours national regimes and associated social elites and dominant ethnic groups. In this respect it might be noted, for instance, that Malaysia has neither signed nor ratified the icescr and iccpr. The resistance to individual human rights sometimes reflects an anti-colonial attitude, which is perhaps understandable given the history of Western colonialism in Asia. Kofi Annan, Ghanaian General Secretary of the un in 1997–2006, is on record, however, as noting that ‘It was never the people who complained of human 23 24

25 26

27

unga Res. 47/135, adopted on 18 December 1992, un Doc. A/RES/47/135. Michael Jacobsen and Ole Bruun (eds), Human Rights and Asian Values: Contesting National identities and Cultural Representations in Asia (Curzon Press, 2000) 2; Randall Peerenboom, ‘Human Rights and Asian Values: the Limits of Universalism’ (2001) 7 China Review International 295. Kishore Mahbubani, a Singaporean diplomat and writer, quoted in ‘What would ­Confucius say now?’ The Economist, 25 July 1998. Albert H.Y. Chen, ‘Conclusion: Comparative Reflections on Human Rights in Asia’ in ­Randall Peerenboom, Carole J. Petersen and Albert H.Y. Chen (eds), Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the usa (Routledge, 2006) 503. Joanne R. Bauer and Daniel A. Bell (eds), The East Asian Challenge for Human Rights (­c up, 1999); Jack Donnelly, ‘Human Rights and Asian Values: A Defense of “Western” Universalism’ in Joanne R. Bauer and Daniel A. Bell (eds), The East Asian Challenge for Human Rights (cup, 1999) 69.

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rights, nor did the people consider human rights as a Western or Northern imposition. It was often their leaders who did so.’28 Certainly the ‘development comes first’ argument has been and remains powerful in many Asian countries, leading to the hyper-commercial features that now dominate living environments and fashion social behaviour, from the Hong Kong shopping mania to the explosion of Lijiang’s suburban precincts with replica houses and shops that threaten the ‘Outstanding Universal Value’ of the city’s ancient precincts.29 The commodification and transformation of ethnic minority cultures through cultural tourism is another dilemma at the intersection of cultural heritage and human rights that needs to be resolved. It has to be recognized, however, that some local communities may in fact prefer to achieve higher standards of living by modernizing and rejecting tradition. 2.3 Lower Level, or Sub-National, Collective Rights Upholding the collective rights of minorities within Asian states seems to face even less commitment than protecting individual rights. Indeed, they are nearly always narrowly defined, often denied, and sometimes actively opposed. This is generally because they are seen to be inimical to ‘nation-building’. Some Asian states go further and deny that they have any racial or ethnic minority groups at all. At the 25th Session of wh Committee in Helsinki in in 2001, for instance, during a debate over whether a World Heritage Indigenous Peoples Committee of Experts (whipcoe) should be established, India stated categorically that there are no indigenous groups in Asia, while Thailand said the issue of Indigenous people applies to only a handful of countries.30 This denial was broadened at the 2013 World Heritage Committee meeting in Phnom Penh in discussions at a sub-committee meeting concerning Indigenous peoples’ criticisms of the Operational Guidelines, when India, France and Algeria refused to acknowledge the category of indigenous peoples on the grounds that ‘we only have citizens in our country’.31 28 29

30 31

Kofi Annan, quoted in Christian Tomuschat, Human Rights: Between Idealism and Realism (oup, 2000) 94. Outstanding Universal Value (ouv) is the key requirement for being inscribed on the World Heritage List. It is explained in the Operational Guidelines for Implementation of the World Heritage Convention (paragraph 49) as ‘cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity’; available at accessed on 5 April 2016. Logan, ‘Australia, Indigenous Peoples’ (n 18) 165. Tim Winter, personal communication, 21 June 2013.

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Adherence by all citizens to a common set of national values is seen to be important by governments across Asia. States also, understandably, fight to protect national sovereignty and territorial integrity. These characteristics are not exclusive to Asia, of course: all ‘nation-states’ engage in creating and reinforcing a united national sentiment. Such activity on the part of governments and their agencies is fairly benign when conducted within a democratic society that respects minority views. It takes a fine balancing act, however, to achieve such conforming citizen behaviour as well as protect human rights and maintain cultural diversity and heritage. In the post-9/11 context and especially with the emergence of isis terrorism, Western liberal democracies such as the usa, United Kingdom, France and Australia have struggled to reach an acceptable balance.32 In some Asian countries, however, where the ‘nation’ is constructed around the dominant social and economic elite, racial and ethnic minorities are expected to conform and, where they resist, they may be subject to persecution by the state. This has enormous impact upon the minorities’ enjoyment of the rights to which they are entitled according to international law, including their right to have access to and enjoy their cultural heritage. States commonly define and protect the national heritage to suit the dominant group’s interests. Thus, rather than being a unifying force emphasizing a nation’s shared identity, cultural heritage is often used by governments, especially in multi-ethnic states, to force minorities to adopt the dominant culture, leading to the destruction of the minority’s cultural identity. Insistence on unity around a single heritage can even, at worst, be used to encourage community involvement in wars, ethnic cleansing and genocide. 3

Asian Case Studies

The four states upon which this chapter focuses – China, Vietnam, Thailand and Myanmar – are all independent so-called ‘nation states’ although each is in fact multi-ethnic and multi-religious. Their different colonial or quasi-­ colonial and post-colonial experiences have led to contrasts in their economic and social characteristics and governance arrangements. Each of the states contains wide internal variations, especially between the dominant majority groups and the many minorities, and between urban, agricultural and remote 32

William Logan, ‘Reshaping the “Sunburned Country”: Heritage and Cultural Politics in Contemporary Australia’ in Roy Jones and Brian J. Shaw (eds), Loving a Sunburned ­Country? Geographies of Australian Heritages (Ashgate, 2007) 216–220.

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mountain areas. Given this diversity, the legal structures in the four states are bound to vary, as too are the ways in which collective rights are recognized, defined and enforced. One commonality, however, is that in all four states human rights are covered by the national Constitution rather by separate legislation. China is included in this small selected sample of Asian states because of its size, its regional influence across the millennia and its current standing as the world’s second largest economy. Vietnam was chosen because of its h ­ istory of foreign domination and its new status as rapidly growing economy. Like Vietnam 25 years ago, Myanmar is coming out of a period of international isolation under a leftist military junta and facing serious social issues and the lack of modern legal and other governance arrangements that provide an adequate framework to deal with the barrage of development proposals coming from external would-be investors.33 Thailand offers some contrast politically, as a kingdom with a capitalist economy and longer and stronger ties with the West. The recent internal conflict between the royalist-nationalist Yellows and the populist Reds and the imminent demise of the long-reigning king nevertheless threaten the country’s stability. 3.1 People’s Republic of China a) Constitution The Preamble of the current Constitution of the People’s Republic of China 1982 (2004 Revision)34 highlights state cohesion: The People’s Republic of China is a unitary multi-national State created jointly by the people of all its nationalities. Socialist relations of equality, unity and mutual assistance have been established among the nationalities and will continue to be strengthened…. The State will do its utmost to promote the common prosperity of all the nationalities. Article 33 declares that ‘the State respects and preserves human rights’ and that all citizens are equal before the law, entitled to the same rights and at the same time must perform the duties prescribed by the Constitution and other laws. Chapter ii deals with the fundamental rights and duties of ­citizens, including 33

34

William Logan, ‘Heritage in Times of Rapid Transformation: A Tale of Two Cities – Yangon and Hanoi’ in Gregory Bracken (ed), Asian Cities: Colonial to Global (University of Amsterdam Press, 2015) 279. Constitution of the People’s Republic of China, adopted on 4 December 1982 (last amended on 14 March 2004); available at accessed on 20 March 2016.

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freedom of speech, assembly, association and religious belief, although ‘religious bodies and religious affairs are not [to be] subject to any foreign domination’. Article 51 stipulates that, in exercizing their freedoms and rights, citizens ‘may not infringe upon the interests of the State, of society or of the collective, or upon the lawful freedoms and rights of other citizens’. Recognition of China’s multi-ethnic diversity is seen in prescriptions for local area congresses and national autonomous areas, with Article 119 stating that The organs of self-government of the national autonomous areas independently administer educational, scientific, cultural, public health and physical culture affairs in their respective areas, protect and sift through the cultural heritage of the nationalities and work for a vigorous development of their cultures. b) Cultural Heritage Laws The Law of the People’s Republic of China on Protection of Cultural Relics was enacted in 1982 and revised in 1991 and 2002, with a further by-law introduced in 2003.35 The law deals with tangible heritage and the extensive system operating at national, provincial, autonomous region and municipal levels under the State Council. As well as encompassing monuments and sites of ancient culture, the law enables protection of important modern and contemporary historic sites, material objects and typical buildings associated with major historical events, revolutionary movements, or famous people. There are no references to intangible heritage, minority groups or human or cultural rights. The People’s Republic of China Intangible Cultural Heritage Act (2011)36 sets up a system to safeguard intangible heritage, a system that is necessarily elaborate since it operates at the national, provincial, autonomous region and local levels. It closely follows the unesco system established under the 2003 ich Convention, with one major conceptual difference. This is the insistence on using the notion of ‘authenticity’ as a measure of the significance of an intangible element – a concept that unesco uses for tangible heritage but rejected for intangible in favour of inter-generational transmission. According to the Chinese government’s ‘Intellectual Property in China’ website, the protection of intangible cultural heritage ‘should focus on the authenticity, completeness 35

36

Adopted on 19 November 1982, as amended; unofficial English translation available at  accessed on 20 April 2016. Adopted on 25 February 2011; unofficial English translation available at accessed on 21 April 2016.

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and inheritance; should help strengthen the recognition of Chinese cultures, maintain the country’s unification and ethnic unity and promote social harmony and sustainable development’. While the law indicates that the state will support intangible heritage protection in ‘ethnic minority areas, remote areas and poor areas’ (Article 6), there is no reference to human or cultural rights. c) Recognition and Enforcement of Collective Cultural Rights In their study of the cultural heritage politics of China, Blumenfeld and Silverman note that Chinese leaders see cultural traditions as an important factor in strengthening ethnic harmony and national unity.37 Ethnic minority cultural development is supported, however, only insofar as it conforms with state interests as defined by the Chinese Communist Party, and this is both centralist and inevitably dominated by the majority ethnic group, the Han. There are many studies of Chinese hotspots where local ethnic populations confront the transmigration of Han settlers and Han exploitation of local resources in their traditional homelands. This matter is recognized at senior leadership levels, as seen in the reference in the Constitution Preamble to ‘the struggle to safeguard the unity of the nationalities’ and the admission that ‘it is necessary to combat big-nation chauvinism, mainly Han chauvinism, and to combat local national chauvinism’. In terms of the impact of China’s central government policies on local cultures and cultural heritage management, Shepherd’s work on Tibet38 and Bennett’s on Xinjiang39 are eye-opening. The picture is not all one-sided, however, as Amund Sinding-Larsen outlines in a recent human rights issue of the International Journal of Heritage Studies.40 While the local Buddhist-based culture is being ‘overrun by efforts to implant one national and pan-Chinese culture’, new rights have been granted, particularly those that come with modernity and development. This has meant ‘improved access to health services and a science-based education for most sections of the Tibetan population, and this is highly appreciated by the recipients’.41 In a report on its recent 37 38 39

40 41

Tami Blumenfeld and Helaine Silverman (eds), Cultural Heritage Politics in China (Springer, 2013) 4. Robert Shepherd, ‘unesco and the Politics of Cultural Heritage in Tibet’ (2006) 36 J­ ournal of Contemporary Asia 243. Gwen P. Bennett, ‘National History and Identity Narratives in the People’s Republic of China: Cultural Heritage Interpretation in Xinjiang’ in Charles W. Hartley, G. Bike ­Yazicioglu and Adam T. Smith (eds), The Archaeology of Power and Politics in Eurasia: Regimes and Revolutions (cup, 2012) 37. Amund Sinding-Larsen, ‘Lhasa community, World Heritage and Human Rights’ (2012) 18 International Journal of Heritage Studies 297. Ibid 303.

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­ rogress in the human rights field, China goes further to claim that a service p system to ensure Chinese citizens’ cultural rights, including those of ethnic minority groups, has been ‘basically established’.42 This comprises libraries, cultural centres, radio programming in various languages and bilingual teaching in schools. The report makes a strong point about the protection and transmission of intangible cultural heritage through the unesco and national systems. 3.2 Socialist Republic of Vietnam a) Constitution The 1992 Constitution was the first in Vietnam to mention human rights. The latest Constitution, approved by the National Assembly in November 2013, begins by emphasizing independence, sovereignty, unity and territorial integrity (Article 1),43 all key achievements of the generations of struggle against French colonialism and the subsequent wars with the us and China. As its heading – ‘Human Rights, Fundamental Rights and Obligations of Citizens’ – makes clear, Chapter ii seeks to balance individual and state rights: ‘The exercise of human rights and citizens’ rights may not infringe upon national interests and others’ rights and legitimate interests’ (Article 15(4)). Four areas in which the state’s rights will always prevail are listed in Article 14(2): Human rights and citizens’ rights may not be limited unless prescribed by a law solely in case of necessity for reasons of national defense, ­national security, social order and safety, social morality and community well-being. While Article 5 refers to the multi-ethnic nature of the ‘unified nation’ and states that all ethnic groups, which the Constitution calls ‘nationalities’, are equal and have the right to use their own language and system of writing, to preserve their national identity, and to promote their ‘fine customs, habits, ­traditions and culture’, Article 15 declares that rights and duties are inseparable. Article 5 says that the various ethnic groups will mutually respect and assist each other in their development. While the state implements a policy of comprehensive development, and provides conditions for the national 42

43

China, State Council, Information Office, Full Text: Progress in China’s Human Rights in 2012; available at accessed on 20 April 2016. Final Constitution of the Republic of Vietnam, adopted on 28 November 2013; unofficial English translation available at accessed on 20 April 2016.

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­ inorities to promote their internal abilities, they are to develop together with m the nation and all acts of ethnic discrimination and division are strictly forbidden. The National Assembly has the power to decide on policies with respect to ethnic minorities, following advice from a Nationalities Council, elected by the Assembly, and on religions. A quota of Assembly members is set aside for representatives of ethnic communities. b) Cultural Heritage Laws By world standards, Vietnam was advanced in its early introduction of an ­omnibus law – the Law on Cultural Heritage 2001 – covering the three main elements of cultural heritage: heritage places, collections of artefacts in ­museums, and intangible heritage.44 The 2001 law was amended by the National ­Assembly in June 2009 in order to, inter alia, bring it closer in line with the provisions of the unesco ich Convention of 2003. It still has problems, however, and further revision is already being discussed. For example, it is tougher than the unesco and the World Heritage Committee in insisting on the removal of residents from inscribed properties, even when they may have lived there for generations and have no major negative impact on the Outstanding Universal Value of the properties. c) Recognition and Enforcement of Collective Cultural Rights In Vietnam, as in China, the collective that has priority is the state. This is understandable given Vietnam’s and China’s histories of foreign interventions, although the picture is complicated by continuing diasporic interference and by perceptions that human rights arguments are being used politically, ­particularly by the United States. The complexity of the collective human rights context is shown by a case-study of the Tay Nguyen ethnic minority in Vietnam’s Central Highlands region.45 In this region claims to the right to protect traditional culture, including local religious practices, clash with the right to religious freedom, especially the right of individuals to abandon tradition and adhere to one of the Christian sects proselytizing in the area. Further complicating the situation is the underlying competition for resources, which stems from State-initiated population migrations into the central uplands in the 44

45

Law of the Socialist Republic of Vietnam on Cultural Heritage, adopted on 29 June 2001; unofficial English translation available at accessed on 21 April 2016. William Logan, ‘Protecting the Tay Nguyen gongs: conflicting rights in Vietnam’s central plateau’ in Michele Langfield, William Logan and Máiréad Nic Craith (eds), Cultural Diversity. Heritage and Human Rights (Routledge, 2010) 189.

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1960s, impacting on Tay Nguyen land tenure rights and creating major land use changes. Tensions boiled over into violent clashes with the authorities in 2001 and 2005, which appear to have been instigated by and certainly egged on by the intervention of Christian sects and anti-communist Vietnamese emigrants overseas (Viet kieu), notably in the United States. Unsurprisingly, the Vietnamese state reasserted its control over the Tay Nguyen area and its people, leading some to flee into neighbouring Cambodia. While all this was taking place, the Vietnamese state chose to embark upon a campaign to celebrate and protect one of the most distinctive features of the Tay Nguyen’s intangible heritage, its gong-playing culture. In such a complex and highly politicized context, the issues of protection of ethnic minority heritage and the maintenance of human rights are interlinked in complex ways. A new decree on heritage management is currently being drafted and should be approved in 2016. It is likely to respond to the World Heritage C ­ ommittee’s new sustainable development policy,46 particularly as Vietnam is currently a member of the Committee. This policy, approved by the General Assembly of States Parties to the World Heritage Convention in November 2015,47 ­understands sustainability in broad terms. It covers four key dimensions – environmental sustainability, inclusive social development, inclusive economic development, and peace and security – and overarching these are the three principles identified in the United Nation’s post-2015 development agenda of human rights, equality and long-term sustainability. For Vietnam, as in many countries around the world, this represents new challenges for the definition of collective cultural rights and protection of cultural heritage. 3.3 Kingdom of Thailand a) Constitution The Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007)48 in effect until 2014, was drafted by a body appointed by the military junta following a 2006 coup d’état. The Constitution stated in Article 4 that ‘The human dignity, rights, liberty and equality of the people shall be protected’, while a range of specific rights, including rights to education, non-discrimination, r­ eligion 46

47 48

whc, Policy for the Integration of a Sustainable Development Perspective into the Proc­ esses of the World Heritage Convention, 15 May 2015, unesco Doc. WHC-15/39.COM/5D, Annex, at 5. unesco Doc. WHC-15/20.GA/13 (6 November 2015). Constitution of the Kingdom of Thailand, Buddhist Era 2550, approved on 19 August 2007; unofficial English translation available at accessed on 20 April 2016.

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and freedom of expression, are covered in Articles 26–69. The provisions under Article 66 are particularly relevant to community rights: Persons so assembling as to be a community, a local community or a traditional community shall have the right to conserve or restore their customs, local knowledge, good arts and culture of their community and of the nation and participate in the management, maintenance, preservation and exploitation of natural resources, the environment and the biological diversity in a balanced and sustainable fashion. The 2007 Constitution was replaced in 2014 by a new supreme act – the interim Constitution of the Kingdom of Thailand (Interim), Buddhist Era 2557 (2014),49 promulgated by the military junta, led by General Prayut Chan-o-cha and staging a coup d’état of 22 May 2014, and signed by King Bhumibol Adulyadej. The interim constitution was drafted without public consultation. Its provisions on human rights are very weak. In fact, they are limited to a general statement (Section 4): Subject to the provisions of this Constitution, human dignity, rights, freedoms and equality of all Thais, which have been protected under the customary practices of the government of Thailand under the democratic regime with the King as Head of State and under existing international obligations of Thailand, shall remain protected under this Constitution. b) Cultural Heritage Laws Thailand’s Act on Ancient Monuments, Antiques, Objects of Art and ­National Museums b.e. 2504 (1961)50 deals with the forms of tangible heritage m ­ entioned in its title and a management system administered by the Department of Fine Arts to protect those items deemed ‘useful in the field of art, history or archaeology’. The Act makes no reference to minority groups, human or cultural rights, or to intangible heritage, although other laws exist regulating Muay Thai (Thai boxing) and traditional medical knowledge. In order to come in line with the unesco ich Convention, however, the Department of Cultural Promotion released a Draft Bill on the Intangible Cultural Heritage in ­February

49 50

Enacted and signed on 22 July 2014; unofficial English translation available at accessed on 21 April 2016. Enacted on 2 August 1961; available at accessed on 16 April 2016.

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2013. It appears to have met opposition from a number of artists and, perhaps also because of the civil turmoil in Thailand, has yet to be enacted. c) Recognition and Enforcement of Collective Cultural Rights Thailand is a most interesting case in relation to cultural diversity, heritage and human rights. Although the Constitution does not recognize indigenous peoples,51 Thailand has had a long tradition of encouraging minority groups to live peacefully alongside the Thai majority within the Thai national territory as long as such groups adhere to certain key national values. These values include respect for Buddhism and the royal dynasty. Some commentators, such as Marc Askew52 and Maurizio Peleggi,53 interpret this as part of a conscious creation of Thai-ness. Peleggi sees the Thai state’s efforts from the late 1970s to restore and protect monuments and sites such as the ancient capitals of Sukhothai and Ayutthaya as part of a deliberate state-forming strategy – creating a community-bonding sense of ‘Thai-ness’ by promoting a particular authorized version of Thailand’s national history. It also helped in the packaging of Thailand’s cultural identity for tourism promotion. The problem is that this privileging of a particular set of values and the monuments and places that reflect them, especially those related to the Chakri dynasty and to Buddhism, means that other aspects of Thailand’s cultural environment can be under-valued if not excluded. This applies to groups for whom alternative cultural forms are important, notably ethnic and religious minorities such as the Lao and Mon in the north of the country and Islamic groups in the south. The narrow conception of heritage might seem to fit most comfortably in the super-dominant city of Bangkok at the geographical heart of the Thai kingdom, although even here there can be local resistance. An example of this is the a long-running conflict between the local community in Pom Mahakan and the Bangkok Metropolitan Authority which planned to turn this Rattanakosin Island area into a royal theme park.54 51

52

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Ten ethnic groups in the northern mountains are usually called ‘chao khao’ (hill people) and around 300,000 are denied Thai citizenship (Network of Indigenous Peoples in Thailand), ‘Indigenous Peoples of Thailand’, (2010) 62 Focus, accessed on 24 April 2016. Marc Askew, ‘The Magic List of Global Status: unesco, World Heritage and the Agenda of States’ in Sophia Labadi and Colin Long (eds), Heritage and Globalisation (Routledge, 2010) 19. Maurizio Peleggi, The Politics of Ruins and the Business of Nostalgia (White Lotus, 2002). Graeme Bristol, ‘Rendered Invisible: Urban Planning, Cultural Heritage and Human Rights’ in Michele Langfield, William Logan and Máiréad Nic Craith (eds), Cultural

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The Thai state has yet to embark seriously on the safeguarding of the i­ ntangible heritage of its ethnic minorities in provincial areas. This will require broadening of its conception of the country’s cultural heritage and to recognise the linkage between heritage protection and human rights. Official cultural heritage registers and programs need to become more inclusive, perhaps by using thematic and cultural mapping approaches, and a program of protecting the cultural heritage of minority groups needs to be developed. An ethnic minority group in northern Thailand, whose distinctive cultural heritage offends universal human rights values (and women’s rights), are the so-called long-necked Kayans. Their communities fled from Myanmar, where they are known as Padaung, and have become subject to exploitation by the tourism industry in Thailand. Other recent human rights concerns include the forced repatriation of Uyghur refugees to China.55 3.4 Republic of the Union of Myanmar a) Constitution British rule over Myanmar (then called Burma) ended in January 1948. An ethnically diverse country, the various ethnic minorities worked with Burman leaders under General Aung San to amend the 1947 Constitution to establish a federation of states. These principles, laid out in the Panglong Agreement, were ignored after the military coup d’état by General Ne Win in 1962. Following another coup in 1988, Myanmar’s military-based Law and Order Reconstruction Council (slorc) suspended the 1974 Constitution. Twenty years later the military government, now the State Peace and Development Council (spdc), created the country’s third and current constitution.56 This was ratified in May 2008 following a referendum that was regarded as fraudulent by the opposition, led by Aung San Suu Kyi’s National League for Democracy, as well as by external observers. Article 390 of the Constitution states that every citizen has the duty to assist the Union of Myanmar in carrying out, inter alia, the preservation and safeguarding of cultural heritage, while Article 364 ­asserts that ‘[e]very citizen shall, in accordance with the law, have the right to freely develop literature, culture, arts, customs and traditions they cherish’. The

55 56

­Diversity. Heritage and Human Rights. Intersections in Theory and Practice (Routledge, 2010) 117, 117–125. Simon Denyer, ‘Uighurs face “grim” return to China as authorities level terrorism claims’, The Washington Post 10 July 2015. Constitution of the Republic of the Union of Myanmar, approved on 10 May 2008; ­available at accessed 23 April 2016.

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Article continues to set an important parameter, however, by declaring that ‘[i]n the process they shall avoid any act detrimental to national solidarity’. b) Cultural Heritage Laws The Protection and Preservation of Cultural Heritage Regions Law (The State Peace and Development Council Law No. 9/1998)57 continues Myanmar’s highly conservative cultural heritage management system, run by the Department of Archaeology in the Ministry of Culture. This law makes no reference to minority cultures, except by inference when it defines cultural heritage as ancient monuments or sites that require protection by reason of their historical, cultural, artistic or anthropological value. There is no mention of intangible heritage or human or cultural rights. c) Recognition and Enforcement of Collective Cultural Rights Philp argues that the cultural heritage of the dominant Burman ethnic group was protected by the political regime as a way of legitimizing its own political authority.58 In contrast, the cultures of ethnic and religious minorities such as the Karen, Shan and Kachin were seen as expendable, and there is a history of attempts to enforce assimilation. The Rohinga in Rakhine State bordering on Bangladesh are a special case – a Muslim minority that under Myanmar’s ethnically based citizenship laws have been denied citizenship and hence cultural rights.59 Building human rights into heritage policy would require acknowledgment of the multi-cultural, multi-religious nature of Myanmar’s population and definition of the national heritage in more inclusive ways. It could help defuse inter-ethnic conflict, as well as bring Myanmar back in line with the universal principles underlying the udhr. It should be recalled that Myanmar (then Burma) was one of the countries supporting the udhr’s adoption at the un in 1948.

57 58

59

Enacted on 10 September 1998; available at accessed on 21 April 2016. Janette Philp, ‘The Political Appropriation of Burma’s Cultural Heritage and Its Implications for Human Rights’ in Michele Langfield, William Logan and Máiréad Nic Craith (eds), Cultural Diversity. Heritage and Human Rights. Intersections in Theory and Practice (Routledge, 2010) 83. Damien Kingsbury, ‘Political transition in Myanmar: prospects and problems’ (2014) 6 Asian Politics and Policy 351–373; Ronan Lee, ‘A politician, not an icon: Aung San Suu Kyi’s silence on Myanmar’s Muslim Rohingya’ (2014) 25 Islam and Christian-Muslim Relations 321.

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However, the military authorities were intransigent in their stance towards human rights, defying international pressures from human rights agencies, which they saw as interference in Myanmar’s intenal affairs. The statesponsored media poured ridicule on the concept of human rights as a Western notion alien to Burmese traditional values. As a result of the regime’s attitudes and actions, Myanmar became known in the 1990s and 2000s as having the world’s worst human rights record. It was certainly difficult for international igos and ngos to operate in this context – and the kind of ‘principled engagement’ advocated by Morton Pedersen60 remains difficult, since none of the current leaders, including Aung San Suu Kyi, have yet spoken out in favour of protecting the cultures and cultural heritage of the ethnic minorities. In the 1990s an effort by the World Heritage Centre to investigate Bagan as a potential World Heritage nomination came to nought. With the liberalization under President Thein Sein (2011–2015) new World Heritage initiatives emerged relating to both tangible and intangible heritage. The ancient Pyu cities became Myanmar’s first World Heritage property in June 2014 and a World Heritage nomination dossier is being prepared for Bagan. Meanwhile Myanmar ratified the unesco’s 2003 Intangible Heritage Convention in May 2014 and a national program to identify, record and officially recognise the cultural practices of ethnic groups across all states of the Union has begun. unesco is providing assistance, bringing together heritage managers to an initial workshop in Mandalay also in May 2014. The overwhelming victory of Aung San Suu Kyi’s party in the November 2015 elections may enable her to extend collective cultural rights and resolve the outrageous legal situation in which the Rohingya find themselves. 4

Towards an Asian Human Rights Convention?

As Albert Chen observes,61 while the legitimacy of human rights has become unquestionable in the contemporary world, in Asia human rights are best applicable to individuals rather than to sub-national collectives. Asian states generally follow the global pattern in having constitutions and legislation that protect cultural heritage and contain a tacit recognition of collective cultural rights, but with little specific reference to the heritage of ethnic or other ­minority groups. Significance is still measured in terms of ‘authenticity of ­fabric’ in those countries coming out of the British colonial system, where 60 61

Morton B. Pedersen, ‘How to promote human rights in the world’s most repressive state: lessons from Myanmar’ (2013) 67 Australian Journal of International Affairs 190. Chen, ‘Conclusion: Comparative Reflections’ (n 26) 506.

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heritage protection falls largely under town planning laws and is often administered by departments of archaeology. The Japanese influence, through the Nara Document and the sponsoring of the 2003 ich Convention is, however, having an impact on countries like Vietnam and China, which have already legislated for and implemented programs of ich protection, including the heritage of their ethnic minorities. The right of ethnic and other minority groups to have access to and enjoy their cultural heritage is still waiting to be incorporated into regional human rights frameworks. Progress is slow and ambivalence towards human rights remains strong. Certainly there have been a number of worthy civil society efforts to pull the Asian countries together to strengthen human rights. Jurists have been working through the Asian Legal Resource Centre, for instance, while a Asian Human Rights Commission operates out of Hong Kong, Dignity International has its headquarters in Malaysia, and the Asia-Pacific Human Rights Information Centre is based in Japan. The Asia-Pacific Forum of National Human Rights Institutions, which involves a more direct state commitment, is a Sydney-based intergovernmental organization that was established in 1996 when the national human rights bodies of Australia, New Zealand, Indonesia and India met in Darwin. They are joined now by Afghanistan, Jordan, Malaysia, Mongolia, Nepal, Philippines, South Korea and Thailand, with Bangladesh, Myanmar and Sri Lanka as Associate members. The group with the greatest potential, however, is the Association of Southeast Asian Nations (asean) Working Group. Founded in 1995 as a civil society group working with asean officials, it was met with little enthusiasm and operated at snail’s pace until 2008, when the asean Member States ratified a new asean Charter, transforming what was once a loose organization into a rules-based one.62 After considerable debate, the asean Foreign Ministers agreed that the establishment of a regional human rights mechanism was essential in building the credibility of asean as a rules-based organization. The human rights body was thus given the status of an asean ‘organ’ and, although covering only the ten Southeast Asian Member states and operating very slowly, the Working Group developed asean Human Rights Declaration which was adopted in Phnom Penh in November 2012.63 This became the first 62

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Charter of the Association of Southeast Nations, adopted on 20 November 2007, entered into force on 15 December 2008, 2624 UNTS 223; asean’s slow progress in developing a human rights mechanism is detailed in Yung-Ming Yen ‘The Formation of the asean Intergovernmental Commission on Human Rights: a Protracted Journey’ (2011) 10 Journal of Human Rights 393. Adopted on 18 November 2012; available at accessed on 20 April 2016.

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­multinational human rights declaration in Asia since the Bangkok Declaration in 1993. It incorporates some of the limitations on human rights found in the Bangkok Declaration but is an extensive document covering general principles, civil and political rights; economic, social and cultural rights; rights to development; and rights to peace. Perhaps it represents the start to development of an Asia-wide human rights charter that will recognize individual and collective cultural rights for all of Asia’s ethnic groups. 5

Conclusion: Universalizing Discourses

If indeed we have entered an ‘Asian century’ – and some scholars still see this as ‘plausible, but by no means, preordained’64 – we can expect to hear Asian voices putting more forcefully Asian views on the whole range of social, ethical and legal issues, including human rights, both individual and collective, and indigenous and non-indigenous. In the heritage field, however, we are clearly into an Asian century judging by the impact that Asian countries such as Japan and China have already had in terms of global leadership and innovation.65 Heritage theory and practice have already made major adjustments to incorporate Asian viewpoints. If current trends continue, the next decades will see a two-way flow of heritage ideas and influences, leading to hybridization rather than a simple East vs West division. Similar processes are likely to operate in the human rights field, leading to a stronger presence of Asian notions of collective cultural rights in Western legal and philosophical discourses and perhaps in the long run to the resolution of differences and to the universality of human rights. Clearly Asian states need to overcome their resistance to discussing human rights publicly and investigate human rights infringements in a fair and open manner.66 Human Rights Council reviews, international ngo critiques and media commentary are having a ‘shaming’ effect on countries like Vietnam and are coupled with economic embargos to influence Myanmar. Most Asian states still resent this as external interference, however, as do states elsewhere including the West, and the asean Human Rights Declaration still maintains that ‘the realisation of human rights must be considered in the regional and national context bearing in ind different political, economic, legal, social, cultural, historical and ­religious 64 65 66

Harinder S. Kohli, Ashok Sharma and Anil Sood, Asia 2050: Realizing the Asian Century (Sage, 2011) 28 This is discussed further in Aygen & Logan, ‘Heritage in the “Asian century”’ (n 13). Ekern et al., ‘Human Rights and World Heritage’ (n 6) 216.

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backgrounds.’ (Article 7). At least the asean states are honest in openly declaring that the exercise of human rights and fundamental freedoms must ‘meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society’ (Article 8). Some Western states, such as my own homeland Australia, have held similar positions in the post 9/11 decade without overtly declaring as much. The view that human rights are a Western invention, promoting individualism and contrary to national values does seem to be abating in Asia, as promulgation of the asean Human Rights Declaration shows. The time seems ripe for constructive debates about the fundamentally problematic issues of the relationship between individual and group rights and how to understand cultural rights. Such discussions are already beginning to take as exemplified by the mission by Farida Shaheed to Vietnam in 201367 and the workshop I attended in Hanoi in November 2015 on the topic ‘Understanding Community Participation and Rights-Based Approaches in World Heritage.’ This workshop, which was hosted by the Vietnam Academy of Social Sciences with support from unesco and the University of Lucerne, was the first time in Vietnam that senior politicians, bureaucrats and heritage site managers came together with international scholars and practitioners to discuss the topic’s complexities and practical implications. It reached important conclusions on the adoption of more inclusive approaches to heritage identification and the elimination of management practices and legal instruments that discriminate against ethnic minorities, women and other marginalised groups. Meetings at the interface of heritage and human rights such as this will no doubt be replicated across the Asian region, with mutual respect being shown between Western and Asian experts. Related collaborative research and publishing ventures will be undertaken and university teaching programs will be adjusted, both in Asia and elsewhere. In these many ways interregional understanding will be strengthened and heritage and human rights discourses will become more fully universalized.

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hrc, Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, Visit to Viet Nam (18–29 November 2013), un Doc. A/HRC/28/57/Add.1.

chapter 9

Collective Cultural Rights as Human Rights Simpliciter: The African and African Charter Example Folarin Shyllon 1

Introduction: The Past in the Present

The purpose of human rights is to affirm the rights and needs fundamental to a civilized existence, and thereby ensure the happiness of human beings. Basic human rights’ norms include the right to life, right to liberty and right to the enjoyment of resources. The flowering of the jurisprudence of human rights has led to the refinement of human rights norms and the accretion of other norms such as the rule of law, due process of law, natural justice, freedom of expression, right to a fair trial, and the right to food and right to shelter. In 1977, the Czech jurist Karel Vašák (Karl Vasak) classified human rights into three ‘generations’ – first (civil and political), second (economic, social and cultural) and third (collective) generation rights.1 The concept of human rights and its norms have been part of the fundamental philosophy of life in African societies from time immemorial. It is true that during the period of the trans-Atlantic slave trade, Africans were denied basic human rights. But this must be seen in its proper context. And here the words of C.L.R. James in his masterly history of the Haitian slave revolution are pertinent. James noted in The Black Jacobins that the slavers scoured the coasts of Guinea. They set tribesmen fighting against each other with modern weapons over thousands of square miles. Tribes had to supply slaves or be sold as slaves themselves. Violence and ferocity became the necessities of survival, and violence and ferocity survived. The unceasing destruction meant the end of enjoyment of human rights. Thus was established the myth that human rights never reigned in Africa. The propagandists of the time even claimed that, however cruel was the slave trade, the African slave in America was happier than in his own ­African civilization. The truth is that in the sixteenth century ‘Africa was a territory of peace and happy civilization. Traders travelled thousands of miles from one side of the 1 Karl Vasak, ‘Human Rights: A Thirty-Year Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights’ (1977) 30 unesco Courier 29.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004312029_011

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continent to another without molestation.’2 Similarly, it is fashionable today to decry the denials of human rights in many African nations, again forgetting that with colonialism came the indiscriminate merging of ethnic nationalities to suit colonial rulers’ ends, and thus the European powers continued to set tribesmen fighting against each other through a process of favouring a particular ethnic group in the various nation states they created. African culture is essential to Africans. Communalism is a key aspect of African culture. Individual rights co-mingle with those of the group. The individual and the group are co-heirs in the same parcel of land. It is in the sphere of cultural rights that we see the universality of the communal nature of African cultural heritage. In African customary law corporate ownership has always attached to sacred objects, ancestral altars, shrines, sacred groves and other objects, ­tangible and intangible, of material culture that we now call cultural heritage or cultural property. The African conception of rights is communal. The term corporate would be an apt description of the system of land-holding, since the relation between the group and the land is intrinsically complex, in that the rights of the individual members often co-exist with those of the group in the same parcel of land. The ownership belongs to the group, and the individual member has mere rights of possession. The chief is everywhere regarded as the symbol of the residuary, reversionary and ultimate ownership of all land held by a territorial community. He holds in the capacity of trustee on behalf of the whole community.3 On this issue we may cite the assertion by the Endorois, a traditional (indigenous) community in Kenya, in the case Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya.4 In their Communication to the African Commission on Human and Peoples’ Rights, in 2003, they asserted that: ‘[L]and for the Endorois is held in very high esteem, since tribal land, in addition to securing subsistence and livelihood, is seen as sacred, being inextricably linked to the cultural integrity of the community and its traditional way of life. Land … belongs to the community and not the individual and is essential to the preservation and survival as a traditional people.’5 Thus, land rights are about human rights. The Friends of the Earth International graphically grasped the issue of land rights as collective rights when it 2 C.L.R. James, The Black Jacobins: Toussaint L’Ouverture and the San Domingo Slave Revolution (2nd revised edn; Vantage Books, 1963) 6–7. 3 Taslim Elias, The Nature of African Customary Law (Manchester University Press, 1956) 162–165. 4 AfCHPR, Comm. No. 276/03, 4 February 2010. 5 Ibid para 16.

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stated that ‘collective rights are intergenerational. Land rights must be understood from this perspective, as present generations have inherited the territory of previous ones, and are obliged to pass it on to future generations.’6 As a Lagos Chief told the West African Land Committee in 1912, ‘I conceive that land belongs to a vast family of which many are dead, few are living, and countless numbers are unborn.’7 All this illustrates that, from the African perception and perspective, the view that collective rights are not human rights or are ‘mere’ rights is unsustainable. This amounts to a rejection of the position of Marlies Galenkamp, who stated that the two polar views – that collective rights cannot be justified at all and the opposite view that they are human rights – are too extreme, concluding that: ‘[C]ollective rights are rights, no less and no more. Collective rights do exist … but they cannot properly be called human rights’.8 How can it be maintained that collective rights are just rights, when the subjects of them are human beings?9 It should be kept in mind that the Universal Declaration of Human Rights (udhr)10 was not adopted as a binding document due to Western opposition toward the implementation of second generation rights in the same way as first generation rights. This does not mean that such a position is valid for all time.11 Also, the fact that again in 1966 the view prevailed that there should be two separate international covenants: one on political and civil rights; and the other on economic, social cultural rights, does not mean that this perhaps capitalistic and Western-dominated approach is valid. The African belief in the unity of past, present and future generations dramatically demonstrates the African philosophy of rights, which accords pre-eminence to the supremacy of the group in contrast to the Western individualistic, presentoriented philosophy of law.

6

Friends of the Earth International, ‘Collective Rights’; accessed on 15 April 2016. 7 Elias The Nature of African (n 3) 143. 8 Marlies Galenkamp, ‘“Collective Rights” Reports Commissioned by the Advisory Committee on Human Rights and Foreign Policy of Netherlands’ (1995) 16 (Special, Parr 1) Studieen Informatiecentrum Mensenrechten (sim) 53, 70. 9 Katia Ziegler, in Cultural Heritage and Human Rights, has convincingly demonstrated that a collective right to cultural heritage exists. See Katia Ziegler, Cultural Heritage and Human Rights (University of Oxford Faculty of Law Legal Studies Research Paper Series Working Paper No 26/2007). 10 unga Res. 217 A(iii), adopted on 10 December 1948, un Doc A/810, 71. 11 Frans Viljoen, ‘Africa’s Contribution to the Development of International Human Rights and Humanitarian Law’ (2001) 1 African Human Rights Law Journal 18, 20.

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Collective Cultural Rights

Although Nieć has suggested that any recognition of collective rights must necessarily lead to a hierarchy of human rights,12 we must agree with Article 5 of 1993 Vienna Declaration of the World Conference on Human Rights that: ‘All human rights are universal, indivisible and interdependent and interrelated’.13 Janet Blake is quite right in her assertion that ‘claims to cultural rights lie at the heart of the dignity of each human being and, hence, the heart of all human rights’.14 And Farida Shaheed, the Independent Expert in the Field of Cultural Rights, has asserted that ‘the existence of collective cultural rights is a reality in international human rights law today’.15 This is well exemplified in the United Nations Declaration on the Rights of Indigenous Peoples.16 2.1 Collective Rights are not a Contradiction in Terms Collective cultural rights as Yvonne Donders posits reflect the integration of collective subjects and collective interests in international human rights law. Human rights are seldom enjoyed in complete isolation and human rights, even those formulated as individual rights, should benefit the community as well. Collective cultural rights confirm that some collective cultural interests cannot be reduced to merely individual interests.17 Collective rights are held by a group, rather than any one individual. They have typically been a focus of indigenous peoples and other ethnic nationalities whose rights are threatened by an individualistic system.18 The fact is there is an interdependent relationship between group and individuals, in that certain individual rights cannot be exercised outside the group.19 12

Halina Nieć, ‘Casting the Foundation for the Implementation of Cultural Rights’ in Halina Nieć (ed), Cultural Rights and Wrongs (unesco Publishing and Institute of Art and Law, 1998) 181. 13 Vienna Declaration and Programme of Action of the World Conference on Human Rights, 25 June 1993, un Doc. A/CONF.157/23. 14 Janet Blake, Exploring Cultural Rights and Cultural Diversity: An Introduction with Selected Legal Materials (Institute of Art and Law, 2014) 44. 15 Report of the Independent Expert in the Field of Cultural Rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, un Doc. A/HRC/14/36, para 10. 16 Ibid; unga Res. 61/295, adopted on 13 September 2007, un Doc. A/RES/61/295. 17 See Chapter 4 by Yvonne Donders in this volume. 18 Avory Faucette, ‘What are “Collective Rights”’, available at accessed on 20 April 2016. 19 ‘Conceptualizing Collective Human Rights’; available at accessed on 21 April 2016.

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The focus on an individualistic approach to human rights has led some to argue however that collective human rights are a contradiction in terms.20 The African view in fact is that this is not correct. Group rights compliment individual rights and therefore are not in conflict with the former. As Thornberry rightly pointed out no single human right exists in isolation from others belonging to a larger family of rights.21 It is significant that the udhr and the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)22 were adopted in the same year (1948) following the massive trampling on both the individual human right to life and Jewish right to life during World War ii. 2.2 Constitutional Recognition of Collective Rights in Africa The Bill of Rights of the 1996 Constitution of South Africa23 provides for justiciable and enforceable economic, social and cultural rights, including the rights to education, housing, health care, food, and a safe environment, as well as the right to enjoy cultural, religious and linguistic associations. Prior to the landmark South African endorsement, the Constitutions of several African countries, in their chapters on Fundamental Human Rights or in chapters on Directive Principles of State Policy, recognized cultural rights for the individual and/or the community.24 Thus Article 10 of Benin’s 1990 Constitution enjoins that: ‘The State has the duty to safeguard and promote the national value of civilization, as much material as spiritual, as well as the cultural traditions.’25 Likewise, the 1992 Constitution of Congo (Brazzaville) declares, in Article 35, that the ‘State shall have the duty to safeguard and promote the national 20 21

22 23

24 25

Erik Fair, “What are ‘Collective Rights’”; available at