Cultural Rights in International Law : Article 27 of the Universal Declaration of Human Rights and Beyond [1 ed.] 9789047419938, 9789004157521

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Cultural Rights in International Law

The Universal Declaration of Human Rights Volume 2 Series Editor: Professor Hurst Hannum

Human rights law has developed from the modest “common standard of achievement for all peoples and all nations,” proclaimed by the Universal Declaration of Human Rights in 1948, to a complex and rich substantive tapestry of international and national law. The provisions of the Universal Declaration have been codied and interpreted by a growing number of international bodies, most signicantly by the committees created to oversee the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, each of which has over 140 state parties. In addition, the Declaration has served as a model for national constitutions and statutes, many specically designed to reect the Declaration’s provisions. Inspired by the ftieth anniversary of the Declaration, the Universal Declaration of Human Rights Series analyzes the development of the Declaration’s norms and their status in contemporary international law. The Series consists of approximately 20 volumes, each dealing with a substantive right (or group of rights) set forth in the Universal Declaration of Human Rights. Each volume is authored by an expert in human rights generally and in the particular subject addressed. Each book provides a comprehensive, legally-oriented analysis of the rights concerned, understood within the political context in which implementation of human rights must occur. The issues addressed include an examination of the legislative history of each right at the time of its adoption, the right’s subsequent articulation and interpretation by international bodies and in subsequent international instruments, and, where feasible, a survey of state practice in dening and enforcing the right. When completed, the Series will constitute an encyclopaedic guide to the content of universally recognized human rights in the twenty-rst century.

Cultural Rights in International Law Article 27 of the Universal Declaration of Human Rights and Beyond

By

Elsa Stamatopoulou Foreword by

Mary Robinson

LEIDEN • BOSTON 2007

The views expressed by the author do not necessarily reect those of the United Nations. This book is printed on acid-free paper.

ISBN 978 90 04 15752 1 © Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. 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. printed in the netherlands

for Sophia and Andreas

“Despite this universal consensus, as all know, the condition of human rights differs widely among countries, and leaves more-or-less to be desired everywhere. This may suggest that the consensus described is at best formal, nominal, perhaps even hypocritical, and cynical. If it be so, it is nonetheless signicant that it is this idea that has commanded universal nominal acceptance . . . Even if it be hypocrisy, it is signicant—since hypocrisy, we know, is the homage that vice pays to virtue—that human rights is today the single, paramount virtue to which vice pays homage that governments today do not feel free to preach what they may persist in practicing”. Louis Henkin, (The Age of Rights, 1990, Columbia University Press, New York, pp. xvii–xviii) “Individuals who live in fear and lack of comprehension of other cultures are more likely to resort to acts of hatred, violence and destruction against a perceived ‘enemy’. Those who are exposed to the cultures of others and learn about them through communication across cultural divides are more likely to see diversity as a strength and celebrate it as a gift”. Ko Annan, Secretary-General of the United Nations (Crossing the Divide, 2001, School of Diplomacy and International Relations, Seton Hall University, South Orange, p. 11)

CONTENTS

Acknowledgments ....................................................................... List of Abbreviations .................................................................. Foreword by Mary Robinson .....................................................

xi xiii xv

Introduction ................................................................................ Scope and Approach .............................................................. Why Have Cultural Rights Been Neglected? ........................ Why Are Cultural Rights Important Today? ........................

1 2 4 6

Chapter One Legal History and Contemporary Context ...... A. The Drafting History of Article 27 of the Universal Declaration of Human Rights and of Article 15 of the International Covenant on Economic, Social and Cultural Rights .................................................................. Article 27 of the Universal Declaration of Human Rights ............................................................................ Article 15 of the International Covenant on Economic, Social and Cultural Rights ......................... B. Culture, Cultural Relativism, Identity Politics ................. C. The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance .... D. Dialogue Among Civilizations ..........................................

11

Chapter Two The Right to Participate in Cultural Life in International Instruments and Practice ................................. A. International Instruments .................................................. 1. Universal Declaration of Human Rights .................... 2. International Covenant on Economic, Social and Cultural Rights ............................................................. 3. International Covenant on Civil and Political Rights ............................................................................ 4. International Convention on the Elimination of All Forms of Racial Discrimination ............................ 5. Convention on the Elimination of All Forms of Discrimination against Women .................................... 6. Convention on the Rights of the Child ......................

11 11 16 18 28 34

37 37 37 38 38 39 39 40

viii

B.

C.

D. E. F.

contents 7. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities ..................................................................... 8. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families .............................................................. 9. Other Instruments ........................................................ Role of the United Nations Human Rights Treaty Bodies With Respect to the Right to Participate in Cultural Life ...................................................................... 1. The Committee on Economic, Social and Cultural Rights ............................................................. 2. The Human Rights Committee .................................. 3. The Committee on the Elimination of Racial Discrimination (CERD) ............................................... 4. The Committee on the Elimination of Discrimination against Women (CEDAW) ........................................... 5. The Committee on the Rights of the Child ............... Role of United Nations Bodies Other Than the Human Rights Treaty Bodies ........................................... 1. The Commission on Human Rights and Extra-Conventional Mechanisms ................................. 2. The Sub-Commission on the Promotion and Protection of Human Rights ....................................... 3. The United Nations Permanent Forum on Indigenous Issues .......................................................... 4. The General Assembly ................................................. 5. The Security Council ................................................... Role of the Ofce of the UN High Commissioner for Human Rights ................................................................... Role of the UN Educational, Scientic and Cultural Organization (UNESCO) ................................... Cultural Rights and United Nations Operations ............. 1. Development and Cultural Rights ............................... 2. Peace Operations and Cultural Rights ........................

Chapter Three What Are Cultural Rights? The Normative Content of the Right to Participate in Cultural Life ............ A. The Context and Concept of Culture ............................. B. The Fundamental Nature of Cultural Rights: Not Every Custom or Rite Is a Right ..............................

41

42 43

48 48 55 55 55 56 57 57 66 70 71 72 74 76 83 83 96

107 107 112

contents C. The Elements of the Right to Participate in Cultural Life ..................................................................................... 1. Non-Discrimination and Equality ............................... 2. Freedom From Interference in the Enjoyment of Cultural Life, Freedom to Create and Contribute to Cultural Life ............................................................. 3. Freedom to Choose in Which Culture(s) and Cultural Life to Participate, the Freedom to Manifest One’s Culture ............................................................... 4. Freedom of Dissemination ........................................... 5. Freedom to Cooperate Internationally ........................ 6. Right to Participate in the Denition, Preparation and Implementation of Policies on Culture ................ 7. Other Elements Connected to the Right to Participate in Cultural Life .......................................... D. State Obligations and Violations ...................................... The Minimum Core Obligations of the State ................. E. Monitoring Cultural Rights: Indicators and Benchmarks ....................................................................... F. Justiciable Aspects of Cultural Rights .............................. Chapter Four Special Groups .................................................. A. Indigenous Peoples and Minorities: What Are Their Cultural Rights? ................................................................ 1. Some Preliminary Considerations ............................... 2. Special Characteristics of Cultural Rights Pertaining to Minorities and Indigenous Peoples ......................... 3. Existing and Developing International Standards ...... 4. International Jurisprudence and Other Case Law (Permanent Court of International Justice, Human Rights Committee, Organization of American States): Non-Discrimination; Participation Through Own Institutions; Language Rights; Right of Indigenous Peoples to Continue Certain Economic Activities Linked to the Traditional Use of Land and Natural Resources; Competing Rights ...................................... 5. Practice of International Human Rights Treaty Bodies in Examining State Reports ............................. 6. The Right to Choose in Which Culture(s) to Participate ..................................................................... 7. Language Rights ..........................................................

ix

115 115

121

129 132 135 141 143 148 153 158 160 163 163 163 171 173

176 185 187 189

x

contents 8. Freedom of Religion .................................................. 9. Education of the Larger Society ............................... 10. Contact With Kin Beyond Borders ........................... 11. Cultural Rights, Self-Determination and Autonomy 12. Cultural Heritage and Traditional Knowledge ......... 13. Positive State Measures .............................................. B. Other Groups .................................................................... 1. Women ....................................................................... 2. Children and Youth ................................................... 3. Persons With Disabilities ............................................ 4. Migrant Workers, Refugees, Other Non-Citizens ..... 5. The Poor ....................................................................

199 201 202 204 207 225 230 230 238 239 241 242

Conclusions and Recommendations ..........................................

245

APPENDICES Appendix One Universal Declaration on Cultural Diversity ......................... Appendix Two The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights ........ Appendix Three Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples ......................................... Appendix Four Overview of Select National Constitutions ........................... 1. Africa (Kenya, Tunisia) ...................................................... 2. Americas (Guatemala, Guyana) ........................................ 3. Asia (Bangladesh, Philippines) ........................................... 4. Europe (Bulgaria, Ukraine) ...............................................

305 305 307 310 312

Selected Bibliography .................................................................

317

Index ...........................................................................................

327

261

269

297

ACKNOWLEDGMENTS

My special thanks go to those who offered valuable insights from their rich experience: Lila Abu-Lughod, Nannette Ahmed, Teresa Albero, Kitty Arambulo, Manuel Bessler, Veronica Birga, Kevin Boyle, Alisa Clarke, Ilene Cohn, Tatiana Cosio, Virginia Dandan, Paul D’Auchamp, Angela Francais, Norberto Frydman, Sakiko Fukuda-Parr, Liz Gibbons, Freddy Justiniano, Mona Kaidbey, Jennifer Klot, Maarit Kohonen, Hui Lu, Gianni Magazzeni, Mirian Masaquiza, Bacre Ndiaye, Michael O’Flaherty, Roger Plant, Renzo Pomi, Julie de Rivero, John Scott, Susan Soux, Sophia Stamatopoulou-Robbins, Heidi Swindells, Alexander Tikhonov, Stefan Vassilev, Fiona Watson, Vassiliki Yacoumaki, Lena Yacoumopoulou and the late Ingmar Egede. I thank Hurst Hannum for being a friend and a critic without political correctness. I am glad to acknowledge Lilian Ashante, Oksana Burabaeva, Irene Biglino, Laura Carey, Priscilla Ciesay, Byong-Jo Kang, Anouch Mkhitarian, Mahi Mouzaki and Carina Ndiaye for their precious and skillful research assistance. I am thankful to Olivia Jones for all the logistical support and more. Over the years, Bruce Robbins has been a companion in navigating the cosmopolitan latitudes between culture and human rights. I thank him for sharing the voyage and keeping us fed at the same time. This project would not have been possible without the moral support of Mary Robinson, the former UN High Commissioner for Human Rights, who believed from the start that more must be done on cultural rights. The Human Rights Institute of Columbia University Law School and Professor Louis Henkin in particular provided an enriching and inspiring research environment and advice for which I am deeply grateful.

LIST OF ABBREVIATIONS

CBD CCA CEDAW

Convention on Biodiversity Common Country Assessment Committee on the Elimination of Discrimination against Women CERD Committee on the Elimination of All Forms of Racial Discrimination ILO International Labour Organisation MINUGUA United Nations Mission in Guatemala OAS Organization of American States OSCE Organization for Security and Cooperation on Europe OHCHR Ofce of the UN High Commissioner for Human Rights UN United Nations UNCT United Nations country team UNDAF United Nations Development Assistance Framework UNESCO United Nations Education, Scientic and Cultural Organization UNFPA United Nations Fund for Population Activities UNICEF United Nations Fund for Children UNMIK United Nations Mission in Kosovo UNPFII United Nations Permanent Forum on Indigenous Issues WIPO World Intellectual Property Organization

FOREWORD

What is it in a group’s or a person’s way of life that must be protected as a human right? The quick answer we usually give is “culture.” But what are the elements of culture that can and should be protected in human rights terms? What are the state’s responsibilities in such areas as intellectual property, traditional knowledge, language and identity? What must be done to protect and promote cultural rights at the level of policies, laws, budgets, jurisprudence? Do cultural rights pertain to an individual considered apart from a group? How does the controversy over individual rights versus group rights apply to cultural rights in partucular? These are the difcult yet necessary questions addressed by this unique and timely volume. Cultural rights is one of the most neglected subjects of international human rights law. Yet it is an area where responsible policy action is required now more than ever, both at the national and at the international level. While contemporary literature on culture has been abundant in the humanities, the coverage of culture in the literature of international human rights law has been largely limited to a discussion of how culture does (or does not) clash with international human rights standards. Long overdue, this book shifts the perspective to ways in which international human rights standards and practice have already attempted to integrate culture into themselves. It is appropriate that Cultural Rights in International Law would be published as we prepare for the 60th Anniversary of the Universal Declaration of Human Rights in 2008. The Universal Declaration is a living document which can be re-invigorated by different perspectives and new research into areas that may have been overlooked. Elsa Stamatopoulou avoids the politicization or essentialization of culture. Drawing from a comprehensive review of international legal instruments, practice, jurisprudence and literature, yet looking at these legal materials with the help of other disciplines as well, she brings forth the full spectrum of cultural rights as individual and collective human rights, including the rights of indigenous peoples and minorities, the rights of women and the rights of migrants. Putting together these widely dispersed materials, she offers a compelling vision for public policy.

xvi

foreword

In a world where, as we know, economic globalization, massive migrations, poverty and its ensuing conicts, expressions of cultural, ethnic and religious polarization and the rise of the information society bring civilizations into ever increasing contact with each other, cultural rights need to become part of our efforts to eliminate discrimination and intolerance, to build peace and economic and social development. We often speak of our desire to build understanding, cooperation and appreciation among people both within our diverse societies and across borders. We say that we want to foster truly pluricultural democratic states. If these are our goals, then Elsa Stamatopoulou has shown us the positive steps we can and must take. Cultural rights, often a key resource of those who are most vulnerable, must be integrated into the rest of our human rights work. One of the roads to ethical globalization leads through cultural rights. Mary Robinson

INTRODUCTION

Little attention has been paid to cultural rights by the UN human rights bodies and other UN bodies, funds and programmes, with the exception of UNESCO, which includes the promotion and protection of culture in its mission and which has made an important contribution in this area.1 UNESCO has worked to dene cultural rights in terms of the rights of creators and transmitters of culture, the rights of the people at large to contribute to and participate in cultural life, and the right of peoples to cultural identity.2 Although human rights literature often includes the word cultural in the established phrase economic, social and cultural rights, it most often does so without addressing cultural rights at all. Recently it seems that even the pious inclusion of the term cultural has started to drop off. Yet there has been no explanation of why these rights have been neglected or why more attention should be paid, apart from the reason that, after all, cultural rights are part of the human rights proclaimed in international instruments, and especially in the Universal Declaration of Human Rights and the International Covenant on Economic Social and Cultural Rights and they therefore need to be taken seriously by all actors concerned, particularly by states and the intergovernmental system. Some recent writings have contributed to the legal analysis of cultural rights. Others are silent on them.3 The Committee on Economic, Social and Cultural Rights is the principal human rights body that should be dealing with cultural rights, since it monitors the implementation of the International Covenant on Economic, Social and Cultural Rights,4 has 1 For an extensive review of UNESCO’s role, see Kishore Singh, “UNESCO and Cultural Rights”, Cultural Rights and Wrongs, Halina Niec ed., UNESCO Publishing/ Institute of Art and Law, 1998, pp. 146–160; also an earlier article by Stephen Marks, “UNESCO and Human Rights: The Implementation of Rights Relating to Education, Science, Culture, and Communication”, Texas International Law Journal, 1977, vol. 13, No. 1, pp. 35–67. 2 S. Marks, ibid., p. 50. 3 This is the case, for example in the recent book of Mary Ann Glendon who discusses cultural relativism, but not cultural rights in A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, 2001, Random House, New York. 4 The international and regional human rights instruments quoted in this book are

2

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made some good efforts in the last ten years, within the context of its overall priorities, but has not yet been able to exercise the leadership warranted by its mandate. Other treaty bodies, especially the Human Rights Committee, have approached the issue from the point of view of cultural rights pertaining to minorities and indigenous peoples. A critical review of the treaty bodies’ work will follow. In 2002, the Commission on Human Rights adopted by consensus its rst ever resolution on the subject, entitled “Promotion of the enjoyment of the cultural rights of everyone and respect for different cultural identities”, possibly opening up the way for more attention to cultural rights.5 The aim of this book is twofold. First, I will explore the concept of cultural rights, by reviewing international and national legal instruments, international practice, and especially the role of UN bodies and entities in the promotion and implementation of these rights. Second, I wish to demonstrate that cultural rights are of profound moral, political and economic signicance to individuals and groups and that they are concepts on the basis of which moral and material claims can be made and solutions given to long-term problems in societies, thus addressing past injustices and contributing to human development in peace. I will also draw some conclusions and make recommendations on how international organizations, especially the United Nations, can strengthen their role in promoting and protecting cultural rights and be visible doing so. I will situate this primarily legal analysis within the political context of current international debates on cultural relativism, racism, dialogue among civilizations and the post-11 September era.

Scope and Approach Five human rights are understood as cultural rights under international law: 1. The right to education; 2. The right to participate in cultural life;

reproduced in Human Rights: A Compilation of International Instruments, Volume I (Part I and Part II) and Volume II, United Nations Publication, Sales No. E.97.XIV.1 and E.02.XIV.4. 5 Resolution 2002/26, report of the 2002 session of the UN Commission on Human Rights, E/2002/23-E/CN.4/2002/200.

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3. The right to enjoy the benets of scientic progress and its applications; 4. The right to benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of which the person is the author, and 5. The freedom for scientic research and creative activity.6 Considerable analytical work has already been done on the right to education, the protection of the moral and material interests resulting from any scientic, literary or artistic production of which one is the author—generally referred to as intellectual property rights—and the other cultural rights mentioned above except the right to participate in cultural life. For this reason this book will focus on this least explored of cultural rights, namely the right to participate in cultural life enshrined in article 27 of the Universal Declaration of Human Rights and Article 15 1 a of the International Covenant on Economic, Social and Cultural Rights. I will only deal with the other cultural rights to the extent necessary in the discussion of the right to participate in cultural life. I occasionally use the term “cultural rights” for convenience instead of the longer “right to participate in cultural life”. The introduction to this book addresses the questions why cultural rights have been neglected by the intergovernmental machinery, academia and others and the reasons for the importance of cultural rights today. Chapter One discusses the legal history and contemporary context of cultural rights, with special reference to the drafting history of the Universal Declaration and the International Covenant on Economic, Social and Cultural Rights, the debates on cultural relativism, racism, “the dialogue among civilizations” and terrorism. Chapter Two is a critical overview of the right to participate in cultural life as it is reected in international human rights instruments and the practice

6 The latter freedom is also closely linked with the right to education and the right to participate in cultural life. Although I will discuss the concept of cultural rights in some detail below, I want to point out from the beginning that the Committee on Economic, Social and Cultural Rights as well as UNESCO consider the right to education as a major cultural right and have analyzed it and are actively promoting it. The right to education is also a social and an economic right and is also, in many ways, a civil and a political right (General Comment No. 11 (1999) by the Committee on article 14 of the International Covenant on Economic, Social and Cultural Rights regarding plans of action for primary education, E/2000/22, Annex IV). The UN system’s development efforts indeed focus considerably on helping to implement the right to education.

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of UN bodies, agencies and other entities, including eld operations in the areas of development and peace. The work of the Committee on Economic, Social and Cultural Rights since its rst session and the work of other human rights treaty bodies and of the Commission on Human Rights since 1990 are reviewed in detail. Chapter Three is a legal analysis of the normative content of the right to participate in cultural life, including the context of culture and the elements of the right. This Chapter also analyzes state obligations and denes the minimum core obligations of the state, provides an overview of the challenges of monitoring cultural rights and explores the justiciable aspects of the right to participate in cultural life. Chapter Four is devoted to special groups. The rst part deals with indigenous peoples and minorities and their right to participate in cultural life and is a lengthy analysis due to the particular signicance and challenges faced in this area by indigenous peoples and minorities. The Chapter also discusses this right as it applies to women, children and youth, persons with disabilities, migrant workers, refugees and non-citizens as well as the poor. At the end of the book, in the nal chapter, I draw a number of conclusions and include a set of recommendations addressed to international organizations, especially the UN system, states and others on how to begin a policy shift to strengthen attention to cultural rights.

Why Have Cultural Rights Been Neglected? The prevalent attitude among many human rights experts, including international law specialists, is to avoid discussion of cultural rights lest the lurking issue of cultural relativism appears, implicitly or explicitly, to undermine the delicate and fragile universality concept that has been painstakingly woven over the last ve decades. Therefore, many feel it is better not to talk about cultural rights, but rather to take a low prole approach in order not to “provoke” the cultural relativists. It is generally easier for human rights jurists to put the issue aside and only invoke the legal principle of pacta sunt servanda, in other words demand of governments to implement cultural rights as part of international agreements and expect good monitoring and promotion of same by international bodies. But this formalistic approach is not enough either to dissipate cultural relativism or to promote implementation of cultural rights, which instead must be taken seriously and be discussed and analyzed as fully as the other human rights categories.

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Another difculty lies in the denition of cultural rights, since they are obviously tied to the concept of culture, which is uid and changing. UNESCO’s denition of culture, which has followed the anthropological paradigm (namely culture as “a way of life”), while extremely useful within the context of UNESCO’s work, is too vague to base actual rights and obligations on.7 Moreover, anything called a “human right” should not be frivolous, but of obvious fundamental value. The challenge of grappling with the denition of cultural rights has partially prevented promotion of these rights. Cultural rights may even be considered by some as a “luxury”, as something that comes after “bread and water”, as an item only for societies at a certain stage of development. Nobody could deny, by looking at human history throughout the centuries, that economic development generally goes with cultural development; culture represents the soul, the moral edice, the self-denition and self-esteem of a person or a community, without which life loses context and meaning. In that sense, cultural development is not a luxury but a tool for obtaining “bread and water”. Political difculties at the international level are also part of the reason of silence. In an international diplomatic context, governments that are members of UN bodies may not necessarily want to speak of cultural rights in their own or other states unless they are ready to also talk of cultural wrongs, i.e., those customs and prejudices that in fact violate human rights. This is an issue approached cautiously by states. For example, it took from the 1950s to the late 1970s to get UN bodies to see that female genital mutilation is not only a health issue but a human rights issue as well. One of the most signicant difculties in dealing with cultural rights is that these rights have evoked, for some governments, the scary spectrum of group identities and group rights that they fear could threaten the “nation” state and territorial integrity. The drafting history of Article 27 of the Universal Declaration of Human Rights is telling (see Chapter II below). Ofcial state support of cultural rights has often taken the form of promoting, for example, seemingly innocent folklore while

7 UNESCO denes culture as the “set of distinctive spiritual, material, intellectual and emotional features of society or a social group; it encompasses “in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs”, see UNESCO Universal Declaration on Cultural Diversity, Records of the General Conference, Paris, 15 October to 3 November 2001.

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remaining silent or hostile to the promotion of minority languages in the education systems and the media. The other side of this coin is that governments may be wary of the threat that majorities may feel from the promotion of minority cultures which may lead to claims for collective rights. Governments, however, if they have the political will, can nd plenty of constructive policy responses, in a holistic approach to cultural rights, which this books advocates. Even as individual rights, cultural rights can be perceived as threatening to the state or the community. One person’s artistic creation outside the norm, outside the traditional culture of the community of which s/he is a member, borrowing elements of other cultures, can be seen as a threat that needs to be suppressed in various ways. New trends are often started by one person, and this does not escape the traditional mainstream. Violent crimes against gay people, for example, are only one way in which gay culture is mocked and rejected by communities. Drawbacks within the international system, as will be demonstrated below, have also been responsible for the neglect of cultural rights. For example within the UN system, the Committee on Economic, Social and Cultural Rights and UNESCO have unfortunately not yet forged the substantive link they were expected to create by the drafters of the International Covenant on Economic, Social and Cultural Rights. This lack of institutional links has impoverished both bodies and has certainly impoverished cultural rights.8

Why Are Cultural Rights Important Today? For many policy makers globalization and free markets, economic restructuring, economic crises and extreme poverty, the ght against HIV/AIDS and now terrorism seem to have placed cultural policies and cultural rights on the back burner. This is at a time of the most unprecedented mass movement of migrants and refugees around the

8 Paul Hunt, “Reections on International Human Rights Law and Cultural Rights” in Culture, Rights and Human Rights, The proceedings of a colloquium organized by the UNESCO Ofce for Pacic Member States and the Center for New Zealand Jurisprudence (School of Law, University of Waikato, New Zealand), October 1998; Wilson and Hunt eds., 2000, Huia Publishers, Wellington, p. 28.

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globe which, together with new technologies and communications, bring cultures in contact at a speed that is tremendously challenging for people and societies to absorb without profound ramications, sometimes in the form of racism, xenophobia and intolerance, limitations to human rights and outright conict. These tensions have been exacerbated after the tragic events of September 11th 2001. From the varied reactions that followed September 11th in developing and developed countries it became clear that, despite all else that unites a “globalized” world, in reality there is in many senses a communication dead end at the level of the masses, one that is not only sustained by the poverty divide, but also often fueled by religious fundamentalism and exploited by political opportunism. In this dangerous crossroads respect for cultural freedom, identities and pluralism within a context of a democratic polity is more urgent than ever. To recognize cultural rights as legal rights is a bold statement and key to state action.9 Responsible public policies for cultural development and for the protection of cultural rights must now be reclaimed. The World Conference Against Racism, Racial Discrimination, Xenophobia and related Intolerance that took place in Durban, South Africa, in 2001 gave a new impetus to the challenges of diversity of our time. The anti-racism agenda has become even more important after September 11th, especially as it provides a balance to the anti-terrorism agenda and is forward-looking and long-term. It is clear that now more than before the international community and especially the UN need to promote respect for cultural pluralism. Cultural rights are an indispensable component of policies of tolerance, diversity and pluralism. What is more, the UN, as the global forum for its multiethnic and multicultural constituency, must show leadership in the international arena advocating respect for cultural rights as human rights. Such leadership should also be visible, not only because it is very much needed to lift this issue out of oblivion, but also because it can represent a moral voice that will call for concrete respect—the kind that human rights provide—for humanity’s cultures and counter-balance the generalized vilication of some.

9 Elsa Stamatopoulou, “Protection of National Minorities and Kin-states: an International Perspective”, in The Protection of National Minorities by their Kin State, European Commission for Democracy through Law (Science and Technique of Democracy, No. 32), Council of Europe Publishing, 2002, p. 90.

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There is another reason for paying attention to cultural rights today, and this is the “culturalization” of political life and rhetoric.10 Identity politics have been on the rise within states as well as internationally. This emerging” battle of the cultures” is part of a more fundamental struggle—the struggle for identity, both personal and political.11 One reason for this increased assertiveness of identity is that globalization has accentuated local awareness, consciousness, sensitivity, sentiment and passion.12 We have seen a very clear sign of this at human rights debates at the UN after the end of the Cold War, especially in the form of cultural relativism. I will address the issue of cultural relativism below in order to clarify to what extent it touches upon the concept of cultural rights and to what extent it is irrelevant to cultural rights. This analysis will contribute to disentangling the valid from the invalid arguments that see culture only as an obstacle in implementing human rights. One of the challenges in contemporary law and politics is how to ensure that the politicization of culture is a positive and not a negative development13 and that it results in the respect and not the denial of human rights. Respect for and promotion of cultural rights is also closely linked to peace in many parts of the world when it comes to minorities and indigenous peoples. From the Basques of Spain and the Russians of the Baltic Republics to the Kurds of Turkey and the indigenous peoples of Ecuador, defending cultural uniqueness is a profound demand and political rallying point. How can we forget the Albanians’ demands of many years for education in their own language in Kosovo and in the Former Yugoslav Republic of Macedonia before conict broke out

10 Terry Eagleton speaks of the issue in The Idea of Culture, 2000, Blackwell Publishing, Oxford. In Eagleton’s words “. . . it is political interests which usually govern cultural ones, and in doing so dene a particular version of humanity”, p. 7; “. . . culture wars which matter concern such questions as ethnic cleansing, not the relative merits of Racine and soap opera ”, p. 51. 11 Margaret Wilson, “Cultural Rights: Denitions and contexts” in Culture, Rights and Cultural Rights: Perspectives from the South Pacic, supra 8, p. 14. 12 G. Picco, A.K. Aboulmagd, L. Arizpe, H. Ashrawi, R. Cardoso, J. Delors, L. Gelb, N. Gordimer, Prince El Hassan bin Talal, S. Kapitza, H. Kawai, T. Koh, H. Kung, G. Machel, A. Sen, S. Jian, D. Spring, T. Weiming, R. von Weizsacker, J. Zarif, Crossing the Divide: Dialogue among Civilizations, 2001, School of Diplomacy and International Relations, Seton Hall University, South Orange (report of the Special Representative of the Secretary-General on Dialogue among Civilizations and the Group of Eminent Persons selected by the UN Secretary-General). 13 Ibid., p. 22.

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in the 1990s? While a serious public policy response to demands for cultural rights may not be the full response to all the issues raised by groups in struggle, such response will go a long way towards solving long-standing disputes that have often led to numerous conicts around the world.

CHAPTER ONE

LEGAL HISTORY AND CONTEMPORARY CONTEXT

A. The Drafting History of Article 27 of the Universal Declaration of Human Rights and of Article 15 of the International Covenant on Economic, Social and Cultural Rights Article 27 of the Universal Declaration of Human Rights The drafting history of the Universal Declaration of Human Rights reveals the difculties in dealing with cultural rights. UNESCO had proposed the rst draft of Article 27. It is indeed impressive that the core debate on whether, apart from individual rights, the Declaration should also recognize group rights and minority rights in particular, took place within the context of article 27 of the Declaration dealing with cultural rights. This discussion was in turn connected with the erce controversy as to whether the Convention on the Prevention and Punishment of the Crime of Genocide which was being prepared simultaneously to the Universal Declaration, should also address “cultural” genocide besides physical or biological genocide. This parallel and connected history of the two rst United Nations human rights instruments is related with extraordinary insight by Johannes Morsink, whose account is the main source for this sub-section.1 Article 27 of the Universal Declaration states: “1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientic advancement and its benets. “2. Everyone has the right to the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he is the author.”

1 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent, University of Pennsylvania Press, Philadelphia, 1999, especially pp. 217–222 and 269–280.

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The very rst draft of paragraph 1 of the article is credited to John Humphrey, the rst Director of the Human Rights Division of the United Nations Secretariat, and the rst draft of paragraph 2 credited to René Cassin, the famous jurist and representative of France at the UN Commission on Human Rights. The word “freely” in paragraph 1 was added by the Peruvian delegation, while it was the Chinese delegation that included the idea of sharing in scientic advancement, which was viewed not as property of the few but as the heritage of mankind. The second paragraph of Article 27 became the focus of a controversy about international copyright law on which no consensus existed at the time. The controversy was about some states, including the United States, the United Kingdom and India, viewing international copyright as a form of private property protection, and others, including France, Chile and Mexico, seeing in addition an author’s or an artist’s “moral rights” over the use of his or her work, the latter right remaining or lingering even after the legal rights of commercialization have expired. Thus for the rst group of states there was no room for intellectual property/copyright as a human right in the Universal Declaration except in the sense of the right to property, while for the second group of states there was. After long debates at the level both of the Commission on Human Rights and of the General Assembly, Article 27 was enriched by paragraph 2.2 Yet Article 27 does not present a commitment to the respect of diversity and pluralism, assuming somehow that cultural participation will take place in the “one” culture of the “nation-state”. The question about the inclusion of rights for persons belonging to minorities did arise, as was to be expected in the very First Session of the Commission on Human Rights when it established the Sub-Commission on Prevention of Discrimination and Protection of Minorities. In his report on the issue at the Sub-Commission, Humphrey pointed out that the expression “protection of minorities” would normally “include both protection from discrimination and protection against assimilation”. In his denition of “minorities”, Humphrey referred to “groups within a country that differ from the dominant group in their culture,

2 The human rights angle of this right has also prevailed in the General Comment of the Committee on Economic, Social and Cultural Rights on article 15, paragraph 1© adopted in 2005 (E/C.12/GC/17 (General Comment), which I discuss in subsequent chapters.

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religion or language, and which usually desire to maintain and foster their cultural, linguistic and religious identity”. Given the fact that both the anti-discrimination Article 2 and Article 18 on freedom of religion covered the rights of persons belonging to religious minorities, Humphrey pointed out that the real interest of including an article on minorities would be the other two elements, namely ethnicity and language. Although the draft article also included reference to persons belonging to religious minorities, in Morsink’s view, it was ethnicity and language that caused the drafters of the Universal Declaration to reject an article on minorities.3 The text on minorities that was debated at the Sub-Commission read as follows: “In states inhabited by a substantial number of persons of a race, language, or religion other than those of the majority of the population, persons belonging to such ethnic, linguistic or religious minorities shall have the right, as far as compatible with public order and security to establish and maintain schools and cultural and religious institutions and to use their own language in the press, in public assembly and before the courts and other authorities of the state”. The United States presented the sole strong opposition to the minorityrelated article, arguing that its ideas were covered by other articles, including the anti-discrimination Article 2 and by Article 27 on the right to participate in the cultural life of the community. During the drafting debate at the Third Committee of the General Assembly in 1947 the US delegation, headed by Eleanor Roosevelt, claimed that minorities were a European issue and there was no reason to reect the matter in the Universal Declaration. Roosevelt was supported by Latin American countries and Canada in this position, while Australia declared it had opted for the principle of assimilation of all groups as being in the best interest of all in the long run. In the other camp, in favour of minority rights, were the USSR, Yugoslavia and other Eastern European countries as well as Lebanon and India. Belgium, although hesitating occasionally, also was one of the supporters. Three proposals on minority rights were submitted at the General Assembly Third Committee. When the debate came to a crunch, the USSR, hoping to get developing countries on its side, accused the colonial powers of denying the cultural rights of the people in the colonies and engaged

3

Supra 1, p. 270.

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in Cold War rhetoric, but this strategy did not have the desired effect and the idea of an article on minorities was rejected.4 The drama of the debate on cultural rights, which encompassed the debate on minority rights, had another angle as well. It was connected with the Convention on the Prevention and Punishment of the Crime of Genocide which was being drafted by the General Assembly Sixth Committee simultaneously with the Universal Declaration of Human Rights being drafted by the Third Committee. There was a proposal during the preparation of the Anti-Genocide Convention to include in the denition of genocide the intent to destroy, in whole or in part, cultural groups, along side “national, ethnical, racial or religious” groups, in other words to include “cultural genocide” along with “physical or biological” genocide. The proposed article 3 in the Genocide Convention read as follows: In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. Destroying, or preventing the use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the groups.5

The supporters of such a concept argued that a group could be suppressed by extinguishing their specic traits, as well as their physical destruction, although the argument that nally prevailed was that such provision was inescapably too vague and would invite the risk of political interference in the domestic affairs of states, and that the protection of minorities’ culture should be the responsibility of other international bodies. Since then other opinions have argued that cultural ethnocide

4 In one of the statements, the USSR delegation said that “. . . the individual’s right to his own language and culture was one of the most important human rights” and that “. . . it was impossible to ignore the fact that . . . Australia had carried out a policy of forceful elimination of its aboriginal groups and that the North American Indian had almost ceased to exist in the United States”. He went on to say that “. . . in colonial territories too there were no signs that indigenous culture was being developed and encouraged . . . Ninety percent of the people in the British colonies were illiterate, for the development of culture and the colonial yoke were mutually exclusive”. (Quoted by Morsink, supra 13, p. 277. 5 Quoted by Morsink, supra 1, page 371, footnote 45.

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and ecocide are crimes against humanity rather than genocide.6 Ben Whitaker, the Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his study on genocide, concluded in 1985 that further consideration should be given to this question, including if there is no consensus, the possibility of formulating an optional protocol to the Genocide Convention. The proposal on cultural genocide in the context of drafting the Genocide Convention at the Sixth Committee of the General Assembly was nally put aside with the argument that the issue of cultural groups would be dealt with by the Third Committee in the Universal Declaration of Human Rights. Denmark followed up on a promissory note made at the Sixth Committee and proposed a text on minorities in the Third Committee that would ensure the right to establish minority schools and receive training in the language of choice. It was turned down as well. In his account of the drafting process of Article 27 and the related debate on minority rights, Morsink demonstrates that, if it had not been for a series of tactical mistakes and facts of coincidence in the debate, minority rights would have been included in the Universal Declaration. As he sees it, the votes in favour were there. The nal wording adopted by the General Assembly for Article 27 includes the prescriptive word the in the phrase “the right freely to participate in the cultural life of the community”, thus giving out a signal of limitation to this freedom and an assumption of a homogenous instead of a multicultural society. The International Covenant on Civil and Political Rights adopted eight years later, in 1966, is the most broadly ratied international instrument with binding nature to recognize, in Article 27, that persons belonging to ethnic, religious or linguistic minorities “shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. 6 Ben Whitaker, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, E/CN.4/1985/6/Corr.1, paragraphs 32–33. “Ecocide” is dened in the Whitaker study as “adverse alterations, often irreparable, to the environment—for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest—which threaten the existence of entire populations, whether deliberately or with criminal negligence”. The UN Study on Indigenous Populations (E/CN.4/Sub.2/1983) emphasized the need for special urgent attention to “cases of physical destruction of indigenous communities (genocide) or destruction of indigenous cultures (ethnocide)”.

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Morsink’s view on Article 27 of the Universal Declaration of Human Rights, however, and the possibility of adding minority rights could be seen as too optimistic given that it took the United Nations until 1992 to adopt the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities, not to speak about the draft Declaration on the Rights of Indigenous Peoples which is still under preparation after more than twenty years of drafting. In any case, it is obvious today that cultural rights, which explicitly started as individual rights in the Universal Declaration of Human Rights, have traveled through time to acquire elements of group rights (see below Chapter VII on indigenous peoples and minorities). The tumultuous history of Article 27 may well explain much of the silence on cultural rights over the decades, to the extent that the original reasons for resisting them for minorities and indigenous peoples still remain. But in today’s interconnected world of greater openness to democracy, avoiding the respect for cultural rights can only lead to frustrations in society and the instigation of conict. Article 15 of the International Covenant on Economic, Social and Cultural Rights The drafting of Article 15 of the International Covenant on Economic, Social and Cultural Rights was done with remarkably little debate by comparison to that of Article 27 of the Universal Declaration of Human Rights. Article 15 reads: “1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benets of scientic progress and its applications; (c) To benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he is the author. “2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. “3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientic research and creative activity. “4. The States Parties to the present Covenant recognize the benets to be derived from the encouragement and development of international contacts and co-operation in scientic and cultural elds.”

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Not facing any particular controversy, paragraphs 1(a), 1(b), and paragraphs 2 and 3 were adopted by the UN Commission on Human Rights as early as 1952.7 A proposal at the Third Committee of the General Assembly in paragraph 1(a) to include some notion of restriction, as in the phrase of the Universal Declaration of Human Rights “the cultural life of the community”, that everyone has the right to participate in the cultural life “of the communities to which he belongs” was rejected. In the nal wording the Committee recognized the “right of everyone to take part in cultural life”. The core of paragraph 2 on the steps to be taken for the realization of the rights in paragraph 1 was adopted with virtually no comment made on its content: “The steps to be taken . . . to achieve the full realization of these rights shall include those necessary for the conservation, the development and the diffusion of science and culture”. There was considerable debate, however, about whether or not certain goals of scientic and cultural development should be set out within the provision. It was proposed, for example, that states should undertake to ensure the development of science and culture in the interests of progress and democracy, and of ensuring peace and cooperation among nations. But nally the view prevailed that a statement of aims might provide states with a pretext for abusive control of science and culture, so the amendment was rejected. Paragraph 3—“The States Parties to the present Covenant undertake to respect the freedom indispensable for scientic research and creative activity”—was proposed on the basis that the concept of freedom for scientic research and creative activity was not covered by the previous provisions of Article 15. Proposals suggested the inclusion of certain objectives for scientic research and creative activity. A Greek amendment suggested that states should give particular encouragement to such creative activity as tends to the healthy development of the human personality. Finally, as in the case of paragraph 2, these amendments were rejected as giving the potential for discrimination on the part of the state. Certain states found the term “indispensable” as too restrictive in the above-mentioned phrase “respect the freedom indispensable

7 I base the text on the drafting of Article 15 on Matthew Craven’s “The Right to Culture in the International Covenant on Economic, Social and Cultural Rights”, Cultural Rights and Cultural Policies in a Changing Europe-The Right to Participate in Cultural Life, Report of the European Roundtable, Helsinki, 30 April–2 May 1993, pp. 142–152.

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for scientic research and creative activity”. Yet the Third Committee decided, by vote, to retain the word, it being recognized that the phrase afrmed the right of the state to impose upon the exercise of that freedom limitations such as were strictly required in the interests of national security, public order and morality.

B. Culture, Cultural Relativism, Identity Politics Every culture produces values that are specic to that culture, several values coincide among many cultures, but others do not. In their deontological expressions some values are made into laws by various societies, laws dening rights and wrongs within each state. Sometimes these nationally dened rights and wrongs may not coincide, may in fact clash, with international human rights as dened by the international human rights instruments which have been created through international consultation and consensus. At the same time, international human rights, including cultural rights, need to be contextualized within the culture, within the reality of each society, in order to be understood and implemented. This is the point of conceptual contact between culture and cultural rights. In other words, culture is the context within which cultural rights can be understood and implemented. What if a specic cultural context prompts values and practices which contradict international human rights norms? Do these culturally specic values create rights, including cultural rights that override international human rights? The angle from which I will deal with this question is that of international human rights law, namely international instruments and case law as well as state practice. It will perhaps be a surprise to some that, given the fervent debates on the issue of cultural relativism, this question has been answered quite clearly—by the international law that states have created as well as by intergovernmental bodies through their practice—in favour of internationally proclaimed human rights.8

8 “One need not afrm that equality exists outside the domain of differences . . . in order to hold that the respect of differences must always run into limits of one sort or another-in short, that no culture is incorrigible”, Bruce Robbins, “The Weird Heights: On Cosmopolitanism, Feeling and Power”, Differences: A Journal of Feminist Cultural Studies, 1995, I.1, p. 178.

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During the Cold War the main political controversy between East and West in human rights debates was about which “family of rights”, economic and social or civil and political, are more important—cultural rights were given virtually no attention; the East was emphasizing economic and social rights and the West civil and political rights. The North/South tension in human rights debates since then has been mainly characterized by a debate around culture.9 This debate repeated itself dramatically in the years that followed and as the UN was preparing for the World Conference on Human Rights in 1993. The controversy threatened to destroy the consensus at the World Conference and resulted in a text on the universality of human rights which both sides to this argument read to their advantage. The Vienna Declaration and Programme of Action, adopted by consensus, stated that all human rights are universal, indivisible, interdependent and interrelated,10 that the promotion and protection of human rights is a legitimate concern of the international community,11 and that the right to development is a universal and inalienable right and an integral part of fundamental human rights.12 The Vienna Declaration stated that while the signicance of national and regional particularities and various historical, cultural and religious backgrounds must be born 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.13 In other words, states are not allowed to pick and choose which among the international human rights they will respect, since, the Conference declared, civil, political, economic, social and cultural rights are indivisible, interdependent and interrelated. The contribution of non-governmental organizations, especially from the regions where governments were taking a more culturally relativist stand, was crucial during this process of negotiation.

9 It was a memorable moment in the post Cold War era during the General Assembly session in the autumn of 1989 when China and Iraq, in well-crafted speeches, launched a major ideological offensive, in a sense opening an era of North/South “cultural wars” at the UN, during the human rights debate at the Third Committee of the General Assembly. These countries’ main argument was that human rights were a Western concept, imposed on the developing countries which had their own cultures and particularities and this imposition was unacceptable (see, especially, A/C.3/44/SR.53, pp. 12–13, A/C.3/44/SR.54, pp. 7–8, A/C.3/44/SR.56, p. 4). 10 A/CONF/157/24(Part I), paragraph 5. 11 Ibid., paragraph 4. 12 Ibid., paragraph 9. 13 Ibid., paragraph 5.

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In 1993 over 100 Asia-Pacic non-governmental organizations met to prepare the World Conference and adopted the Asia-Pacic Declaration of Human Rights.14 The relevant text in favour of the universality of human rights read as follows: “We can learn from different cultures from a pluralistic perspective and draw lessons from the humanity of these cultures to deepen respect for human rights. There is emerging a new understanding of universalism encompassing the richness and wisdom of Asia-Pacic cultures. Universal human rights are rooted in may cultures. We afrm the basis of universality of human rights which afford protection to all of humanity, including special groups, such as women, children, minorities and indigenous peoples, workers, refugees and displaced persons, the disabled and the elderly. While advocating cultural pluralism, those cultural practices which derogate from universally accepted human rights, including women’s rights, must not be tolerated. As human rights are of universal concern and universal value, the advocacy of human rights cannot be considered to be an encroachment upon national sovereignty”. The consensus at the Vienna Conference was characterized by some as a soft consensus, but every consensus in the adoption of intergovernmental proclamations is as good as it lasts. And in fact this one has lasted until now as shown by subsequent texts adopted by the UN that have repeated the language of the Vienna Declaration and Programme of Action (VDPA). And yet, one cannot pretend that the often formalistic falling back on the VDPA at UN fora solves the problem either of cultural rights or of the tension between cultures and internationally-proclaimed human rights. Well-meaning or not, one cannot dispel skepticism over human rights simply by saying that this is a cover for violator governments to avoid international criticism, even if in many, probably most, cases this is true. We need to respond to good faith skepticism. This tension, although under control during the Cold War, was present from the very beginning of UN debates and UN human rights and other bodies have dealt with it since the time of the drafting of the Universal Declaration of Human Rights. In a submission to the Commission on Human Rights in 1947, for example, during the drafting of the Universal Declaration of Human Rights, the American

14 “Our Voice: Bangkok NGO Declaration on Human Rights”, Asia Cultural Forum on Development, pp. 198–199, 1993.

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Anthropological Association maintained that one of the three principles that should underpin the formulation of a human rights agenda was that “standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole”.15 This position is still feeding the arguments of the cultural relativists, although the American Anthropological Association has since nuanced its positions regarding human rights. In a 1999 declaration the Association states its ethical responsibility to protest and oppose the denial by any culture or society of “the right of people and peoples everywhere to the full realization of their humanity, which is to say their capacity for culture”.16 A UNESCO initiative led to another conclusion. To facilitate the drafting process of the Universal Declaration of Human Rights, UNESCO brought together a committee of philosophers who were to evaluate about seventy responses they had received to their questionnaire asking for reections on human rights from Chinese, Islamic, Hindu

15 American Anthropological Association, Statement on Human Rights, 49 American Anthropologist, 1947, No. 4, p. 539. The other two principles advocated by the Association were that “the individual realizes his personality through his culture, hence respect for individual differences entails a respect for cultural differences”; and nally that “respect for differences between cultures is validated by the scientic fact that no technique of qualitatively evaluating cultures has been discovered”. 16 In June 1999, the American Anthropological Association adopted the Declaration on Anthropology and Human Rights (www.aaanet.org/stmts/humanrts.htm). The Declaration states: “. . . Anthropology as a profession is committed to the promotion and protection of the right of people and peoples everywhere to the full realization of their humanity, which is to say their capacity for culture. When any culture or society denies or permits the denial of such opportunity to any of its own members or others, the American Anthropological Association has an ethical responsibility to protest and oppose such deprivation. This implies starting from the base line of the Universal Declaration of Human Rights and associated implementing international legislation, but also expanding the denition of human rights to include areas not necessarily addressed by international law. These areas include collective as well as individual rights, cultural, social and economic development, and a clean and safe environment. . . . “. . . Anthropology as an academic discipline studies the bases and the forms of human diversity and unity; anthropology as a practice seeks to apply this knowledge to the solution of human problems. “As a professional organization of anthropologists, the AAA has long been, and should continue to be, concerned whenever human difference is made the basis for a denial of basic human rights, where ‘human’ is understood in its full range of cultural, social, linguistic, psychological, and biological senses”.

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and customary law perspectives, as well as from American, European and socialist points of view.17 “All in all, the results of the UNESCO survey were encouraging: they indicated that the principles underlying the draft declaration were present in many cultural and religious traditions, though not always expressed in terms of rights. Somewhat to the UNESCO group’s surprise, the lists of basic rights and values submitted by their far-ung correspondents were broadly similar”. Glendon points out that no one has yet improved on the UNESCO philosophers: Where basic human values are concerned, cultural diversity has been exaggerated. The philosophers concluded that even people who seem to be far apart in theory can agree that certain things are so terrible in practice that no one will publicly approve them and that certain things are so good in practice that no one will publicly oppose them. The most recent international instrument that made a pronouncement on this issue is the UNESCO Universal Declaration on Cultural Diversity, adopted in November 2001. In Article 4 entitled “human rights as guarantees of cultural diversity”, it states that no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.18 Important international human rights instruments prepared after the Universal Declaration of Human Rights in the last fty years, some of which have become the most widely ratied treaties, have explicitly addressed this tension and included provisions with checks and balances between culture and human rights. Their normative pronouncements are in favour of internationally proclaimed human rights and include the quotes mentioned below. The Convention on the Elimination of All Forms of Racial Discrimination adopted in 1965 states in Article 7 that: The States Parties undertake to adopt immediate and effective measures, especially in the elds of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups . . .

17 This paragraph is based on Glendon, supra 3, in Introduction chapter, pp. 73 to 78 and 221 to 233. 18 UNESCO, Records of the General Conference, 31st session, Volume 1, Paris, 15 October to 3 November 2001, Resolution 25 (see annex).

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The Convention on the Elimination of All Forms of Discrimination Against Women adopted in 1979 states in Article 5 that States Parties shall take all appropriate measures: (a) 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.

The Convention on the Rights of the Child adopted in 1989 in Article 24 states that: 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted in 1992 in Article 4 states that: 2. States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specic practices are in violation of national law and contrary to international standards.

The Declaration also aims at protecting the human rights of all persons who may be affected by the exercise of minority rights, whether living within the minority, belonging to the minority or not, or whether living outside the minority, by stating in Article 8 that: 2. The exercise of the rights set forth in the present Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms.

The 1993 Declaration on Violence Against Women, in Article 2 dening violence against women explicitly refers to traditional practices harmful to women. Women’s human rights have always been the site of the most virulent expressions of cultural relativism. At the international level, at UN debates, state representatives have reacted defensively for years, giving the impression that the way their societies treat “their” women is somehow off limits, as if such treatment were an essential of part of the

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self-denition, the innermost soul of those societies, a core that should not be touched by the international public sphere. Women were thus “imprisoned” in the UN’s social agenda for decades, being seen mainly as tools to a more effective development of their societies, not so much as subjects endowed with human dignity and rights by virtue of the fact that they are human beings. The extraordinary advocacy of women in preparation of and at the World Conference on Human Rights in 1993 made it possible for the UN to address directly the matter of cultural relativism as far as it concerns women. The Vienna Declaration and Programme of Action, adopted by consensus, states that the human rights of women must be part of the international human rights regime in all their aspects and that violence against women, whether in the private or in the public sphere, is a human rights issue. The Conference stressed the importance of working towards the eradication of any conicts which may arise between the rights of women and the harmful effects of certain traditional practices, cultural practices and religious extremism.19 The latter statement was indeed a breakthrough in international relations since for the rst time it was reversing what until then had almost constituted a taboo in interstate discussions. Efforts to adopt similar statements in the past had failed . . . The Committee on the Elimination of Discrimination Against Women (CEDAW) has to be credited for strategically contributing to the adoption of the Declaration on Violence Against Women and for interpreting the Convention on the Elimination of All Forms of Discrimination Against Women as prohibiting violence against women.20 One year later, in 1994, the Commission on Human Rights established a Special Rapporteur on Violence Against Women to analyze and monitor this phenomenon around the world. Radhika Coomaraswamy, the rst Special Rapporteur on Violence Against Women, grappled with the issue of culture and women’s human rights from the beginning. In one of her speeches she recalled telling her students that anthropology is a “reality check” on law, denying law its generalized and essentialist understanding of the world based on a Kantian metaphysics and the universality principle, but law is also a “reality check” on anthropology. “Can it be true that there are no moral

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A/CONF/157/24, Part II, paragraphs 37 and 38. For a full discussion of the development of the women’s human rights agenda at the UN see E. Stamatopoulou, “Women’s Rights and the United Nations” in Women’s Rights Human Rights: International Feminist Perspectives, J. Peters and A. Wolper edts., 1995, Routledge, New York/London, pp. 36–48. 20

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standards by which we can judge cultures or events?”.21 Coomaraswamy has pointed out that women’s rights are the “soft” area of international human rights law, the area over which there is debate, discussion and sometimes frivolity.22 I believe that this frivolity, certainly present until 1993, has subsided considerably thanks to the momentum of women’s international movements, the legal scholarship that ensued and the changing and supportive position of international human rights bodies and mechanisms. Yet, we are reminded too often at the political international debates how fragile these achievements still are. For example, as recently as 2000 at the debate over honour killings in the General Assembly, the all too familiar defensiveness of the past resurfaced when some Muslim countries refused to accept this term in the nal text of the resolution.23 During these debates it was obvious that one side perceived the other as arrogant while the latter saw the rst as conservative or fundamentalist. Somewhere in the middle women’s human rights were the losers. This anti-climax after the breakthroughs on women’s rights at the Vienna and Beijing Conferences make it obvious that the strategies of approaching human rights and cultural relativism have to be carefully planned and must be multi-pronged. International human rights law has proven to be a powerful emancipating discourse. It has fed voices of resistance. At the same time experience has shown that profound change cannot be achieved without what Coomaraswamy calls “reengaging the local”. On the question of the clash between cultural or traditional practices and human rights, the bodies monitoring the implementation of human rights treaties have consistently advocated upholding international human rights norms. The Committee on Economic, Social and Cultural Rights, while it has been sparse in its comments on cultural rights during its consideration of states parties reports, it has been tackling cultural practices that violate human rights, especially women’s human rights. Here the Committee has systematically and actively raised its voice to criticize practices that violate human rights and to encourage and recommend policies, laws and educational programmes to counter such practices.

21 Radhika Coomaraswamy, “Are Women’s Rights Universal: Re-engaging the local”, speech at Harvard University, March 2002. 22 Ibid. 23 A/RES/55/66. The Netherlands had taken the initiative on the resolution.

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A systematic review of the Committee’s reports from the beginning of its work reveals that the Committee considers the following types of policies and practices as violating the human rights of women: rape and other violence in the family,24 female genital mutilation,25 discrimination in inheritance or property,26 discrimination in education including high levels of illiteracy,27 early marriages of girls,28 forced marriages of widows with a late husband’s brother,29 bride kidnapping,30 discriminatory ways of dealing with women and adultery leading to “honour crimes”,31 polygamy,32 sexual harassment,33 discrimination against women in the workplace,34 and culture of superiority of men over women.35 It is interesting to note that the Committee’s concern over violence against women became systematic after 1993, after the mobilization at the World Conference on Human Rights on this issue. The Committee systematically critiques states for not taking adequate measures to protect women from cultural or traditional practices prevailing in society. At the same time the Committee has criticized violations of human rights based on cultural attitudes towards groups other than women, namely the elderly, children, and immigrants. The Committee has called for public education to combat discrimination against those with mental disabilities.36 The Committee expects states parties to take measures to change prejudicial, racist or xenophobic attitudes against immigrants,

24 Examples are E/2001/22, para. 152 regarding Egypt, para. 414 regarding Portugal, para. 443 regarding Finland; E/2000/22, para. 273 regarding Argentina, para. 323 regarding Cameroon, E/1999/22. Para. 151 regarding Poland, paras. 357 and 358 regarding Switzerland; E/1996/22, para. 129 regarding the Philippines. 25 Examples are E/1995/22, para. 351 regarding Mali; E/1999/22, para. 116 regarding Nigeria; E/2001/22, para. 155 regarding Egypt, 325 regarding Sudan. 26 Examples are E/2001/22, para. 202 regarding the Congo; E/2000/22, para. 165 regarding Tunisia, para. 323 regarding Cameroon; E/1999/22, para. 73 regarding Sri Lanka; E/1992/23, para. 93 regarding Afghanistan. 27 Examples are E/2000/22, para. 169 regarding Tunisia; E/2001/22, para. 344 regarding Kyrgyzstan. 28 Examples are E/2001/22, para. 351 regarding Kyrgyzstan; E/1999/22, para. 73 regarding Sri Lanka; E/1998/22, para. 73 regarding Zimbabwe. 29 For example E/1998/22, para. 73 regarding Zimbabwe. 30 For example E/2001/22, para. 344 regarding Kyrgyzstan. 31 For example E/2001/22, para. 233 regarding Jordan. 32 For example E/2000/22, para. 323 regarding Cameroon. 33 For example E/2001/22, para. 270 regarding Mongolia. 34 For example E/1998/22, para. 258 regarding Iraq. 35 E/1997/22, para. 69 regarding Paraguay. 36 E/1997/22, para. 351 regarding Hong Kong.

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asylum seekers and foreigners in general which sometimes lead to violence.37 In one case the Committee also criticized traditions that negatively affected the right of teachers to strike in South Korea.38 Child abuse based on discriminatory or traditional attitudes is also tackled by the Committee.39 In another case, the Committee asked whether the Umuganda policy in Rwanda requiring citizens to contribute to civil work was compatible with international human rights standards prohibiting forced labour to which the government responded that Umuganda was a way of life and a traditional way of organization of the population; some members commended the inclusion of cultural elements in the Rwandan economic, social and cultural plan.40 The Human Rights Committee, the monitoring body of the International Covenant on Civil and Political Rights, has consistently treated cultural/traditional practices negatively affecting the human rights of women in the same critical spirit as the Committee on Economic, Social and Cultural Rights. In addition to categories of negative traditional practices mentioned above, the Human Rights Committee has also identied as negative the requirement of the wife’s obedience to a husband which, in Gabon and Yemen, found its way into the Civil Code as well.41 The Committee nds it particularly disconcerting when such negative cultural values are sanctioned by legal provisions.42 The Committee has repeatedly called on states parties to ensure that there is no discrimination based on customary law in matters such as marriage, divorce and inheritance. The Committee has also been concerned with practices of identifying the sex of fetuses and high rate of maternal mortality from unsafe abortions,43 the possibility for husbands to seek a legal court order to prevent their wives from engaging in certain occupations44 and treating women as minors by law.45

37

E/1996/22, para. 141 and 148 regarding Sweden, para. 210 regarding Norway. E/1996/22, para. 71. 39 For example E/1996/22, para. 245 regarding Mauritius. 40 E/1989/22, paras. 169 and 190. 41 A/56/40, para. 75(9) on Gabon and A/50/40, para. 255 on Yemen. 42 Thus, for example, it would be a violation of the equality between the sexes under the International Covenant on Civil and Political Rights that the ceremony in the Greek Orthodox Church includes the phrase that “the woman shall fear the man”, since church wedding under Greek law constitutes a valid act of marriage without a parallel civil marriage requirement. 43 A/55/40, para. 135 regarding the Republic of Korea. 44 A/55/40, para. 195 regarding the Cameroon. 45 A/54/40, para. 253 regarding Lesotho. 38

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This impressive body of international law and practice on culture and human rights has nevertheless not put this debate to rest. It is clear by studying the practice of human rights bodies that they have not hesitated to underline governments’ obligations to take measures and abolish practices and customs that violate human rights, and women’s human rights in particular. There is an unfamiliar question lurking in this familiar debate on culture and human rights, and that is the denition of cultural rights as human rights.

C. The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance compensated, in a sense, for the overall marginalization of cultural rights by UN bodies until now. Cultural diversity and cultural rights are concepts that run throughout the nal document of the World Conference, both in the Declaration and the Programme of Action adopted on 8 September 2001.46 The Declaration and Programme of Action pose new challenges to policy makers at the governmental, intergovernmental and non-governmental level as well as to the private sector. The document pays particular attention to special groups, namely women and children, as well as minorities, indigenous peoples, Afro descendants, people of Asian descent, the Roma/Gypsy/Sinti/Travellers and migrants; access to means of dissemination; participation in decisions dealing with cultural issues; the cultural consequences of racism and colonialism; international cooperation; development and culture; challenges of globalization; state obligations regarding nondiscrimination and equality, respect for and protection of the freedom to participate in cultural life, respect for cultural identity, afrmative action; multicultural and intercultural education; linguistic rights; the need to develop indicators; restitution of cultural objects. Above all, the World Conference projected the vision of multiracial and multi-cultural societies living together in harmony,47 the vision of societies that would reshape their modern identities in light of the new intercultural realities, with a commitment to non-discrimination and human rights.

46 47

A/CONF.189/12. Ibid., para. 171.

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The action points of the Programme of Action of the World Conference related to cultural rights address specic groups, some of which had not, until 2001, received international visibility, such as the Afro descendants, the Travellers and people of Asian descent:48 The references mentioned below are the most relevant ones for cultural rights. Afro descendants States were urged to facilitate the participation of people of African descent in all aspects of political, economic, social and cultural life and promote greater knowledge of their heritage and culture; to promote the full and accurate inclusion of the history and contribution of Africans and people of African descent in the education curriculum; to resolve problems regarding ownership and promote the productive utilization of land inhabited for generations by people of African descent, respecting their culture and decision-making. Indigenous peoples States were urged to promote better knowledge and respect for indigenous culture and heritage. In connection with the challenges faced by indigenous peoples and individuals in an urban environment, states were called upon to pay special attention to opportunities for their continued practice of their traditional, cultural, linguistic and spiritual ways of life. States were urged to commit nancial resources to anti-racism education and media campaigns promoting the values of acceptance, tolerance, diversity and respect for the cultures of all indigenous peoples living within their national boarders, and to promote an accurate understanding of the histories and cultures of indigenous peoples. In the context of the need to mitigate any negative effects of globalization, States are urged to consult with indigenous peoples on any matter that may affect their physical, spiritual or cultural integrity. Minorities States were urged to guarantee the rights of persons belonging to national or ethnic, religious and linguistic minorities, individually or

48 Ibid., Programme of Action, paras. 4, 10, 13, 15, 18, 23, 30, 39, 42, 45, 47, 98, 99, 112, 117, 124, 126, 128, 136, 141, 142, 148, 158, 171, 172, 208.

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in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference, and to participate effectively in the cultural, social, economic and political life of the country. States were urged to adopt, where applicable, appropriate measures to ensure that persons belonging to national, or ethnic, religious and linguistic minorities have access to education without discrimination and, where possible, have an opportunity to learn their own language. States were also urged to protect the national or ethnic, cultural, religious and linguistic identity of minorities and to develop appropriate legislative and other measures to encourage conditions for the promotion of that identity, in order to protect them from any form of racism, racial discrimination, xenophobia and related intolerance. Migrants States were urged to implement specic measures involving the host community and migrants in order to encourage cultural diversity and develop programmes, where appropriate, that facilitate their integration into social, cultural, political and economic life; and to take all possible measures to promote respect for their cultural identity. Roma/Sinti/Travellers States were called upon to ensure that children and youth of these communities are given equal access to education and that educational curricula at all levels, including complementary programmes on intercultural education, which might, inter alia, include opportunities for them to learn the ofcial languages in the pre-school period and to recruit Roma/Sinti/Traveller teachers and classroom assistants in order for such children and youth to learn their mother tongue, are sensitive and responsive to their needs. The World Conference recommended that intergovernmental organizations promote the economic, social and cultural advancement of these communities. States were called upon and non-governmental organizations encouraged to raise awareness and promote knowledge and respect for the culture and history of these communities.

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People of Asian descent States were urged to take all necessary measures to eliminate the barriers that people of Asian descent face in participating in economic, social, cultural and political life. Cultural decision-making States were urged to promote participation of individuals and groups of individuals who are victims of racism, racial discrimination xenophobia and related intolerance in economic, social and cultural decision-making. Afrmative action and strategies States were encouraged to develop national action plans which should include afrmative or positive action and strategies for all to participate effectively in decision-making and realize their civil, cultural, economic, political and social rights on the basis of non-discrimination. Human rights education States were encouraged to initiate and develop cultural and educational programmes aimed at countering racism, racial discrimination, xenophobia and related intolerance, in order to ensure respect for the dignity and worth of all human beings and enhance mutual understanding among all cultures and civilizations. States were urged to support and implement formal and non-formal education programmes and public information campaigns and specic training programmes in the eld of human rights promoting respect for the value of diversity, pluralism, tolerance, mutual respect, cultural sensitivity, integration and inclusiveness; such programmes and campaigns should be addressed to all sectors of society, in particular children and young people. States were also called upon to ensure that education and training, especially teacher training, promote respect for human rights and that educational institutions implement policies and programmes on equal opportunities, anti-racism, gender equality, and cultural, religious and other diversity.

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Information, media, new technologies The World Conference drew attention to the potential of new information and communication technologies, including the Internet, to promote respect for the value of cultural diversity, and emphasized the importance of concrete measures to encourage the access of marginalized communities to the mainstream and alternative media through, inter alia, the presentation of programmes that reect their cultures and languages. Statistics The World Conference recommended that states include in their periodic reports to human rights treaty bodies statistical data on the cultural situation. International level The World Conference recognized the need for international cooperation to develop programmes in the areas of education, training and cultural development for Africa and the Diaspora; and for the restitution of art objects, historic artifacts and documents to their countries of origin, in accordance with bilateral agreements or international instruments. The UN and its specialized agencies are requested to consider establishing an international centre for multiracial and multicultural studies and policy development. Although the World Conference could not be expected to conduct a systematic standard-setting exercise, it is positive that, through its pronouncements, it conrmed some important normative elements of cultural rights. However, it was less detailed than existing or emerging international instruments, for example regarding the cultural rights of migrants, children, and indigenous peoples. The normative elements of cultural rights captured by the Conference and that contribute to understanding the denition of cultural rights were in particular the following: (a) The freedom of individuals and groups to practice their way of life, including the use of their language; (b) The obligation of the state to guarantee that persons belonging to minorities, individually or in community with other members

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(c)

(d)

(e)

(f )

(g)

(h)

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of their group, enjoy their own culture, profess and practice their own religion, use their own language, in private and in public, and participate effectively in the cultural life of the country; The obligation of the state to adopt appropriate measures to ensure that persons belonging to national, or ethnic, religious and linguistic minorities have access to education, without discrimination, and, where possible, have an opportunity to learn their own language; The obligation of the state to protect the identity of minorities and to develop appropriate legislative and other measures in that regard; The obligation of the state to promote knowledge and respect of the cultures of minorities and indigenous peoples within the broader society, including in the educational system; human rights education should play a great role in that regard; The need for states to commit nancial resources to the promotion of acceptance, tolerance, diversity and respect for indigenous peoples’ cultures within their borders; The need for states to create mechanisms for all individuals and groups, including victims of racism and racial discrimination, to participate in cultural decision-making; such mechanisms may include afrmative or positive action; Recognition of the potential of new information technologies and of the access of marginalized communities to the mainstream and alternative media and the need for the state to take measures to encourage such access.

Despite the political controversy that surrounded the World Conference against Racism, the substance of the text adopted shows the measures that the international community denes as good practices and public policies regarding the promotion of diversity and tolerance. Many of these elements constitute elements of cultural rights and the fact that the World Conference is the most recent world gathering of its time to make these proclamations is worth of attention. As a political document, the World Conference outcome clearly sends the message that respect for cultural rights is one of the ways to counter racism, racial discrimination, xenophobia and related intolerance. The elements of cultural rights contained in the Declaration adopted at the Conference have been taken into account in Chapter III below dealing with the normative content of cultural rights.

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chapter one D. Dialogue Among Civilizations

In the last several years the cultural debate at the UN resulted in the inscription by Iran of a separate item on the agenda of the General Assembly, entitled “Dialogue Among Civilizations”, as well as the proclamation of 2001 as the International Year of Dialogue Among Civilizations. Although the launch of the item in1998 may have caused some trepidation from the point of view of human rights, the debate in 2001 and the resolution adopted showed that the item has in fact given the opportunity for an open dialogue where countries, have largely declared commitment for cultural diversity and human rights. Many statements of developing and developed countries alike saw guarantees for cultural pluralism within the context of the overall human rights legal regime,49 despite different degrees of emphasis50 and there was no rallying for cultural relativism versus human rights at the debates. The term “civilization” was used as a synonym of “culture” and dialogue was advocated not only among civilizations but also within civilizations. The report of a Group of Eminent Persons and the Special Representative of the Secretary-General was made available to the General Assembly and informed the debate.51 As a result of the discussions resolution 56/6 adopted by the General Assembly on 9 November 2001, entitled “Global Agenda for Dialogue Among Civilizations”, includes various elements of particular interest to human rights discourse.52 Among the objectives of such dialogue the General Assembly recognizes the “identication and promotion of common ground among civilizations in order to address common challenges threatening shared values, universal human rights and achievements of 49 This was the case for example with Morocco, Chile (A/56/PV.40), Norway (A/56/PV.41), Austria, Belgium (A/56/PV.42), Finland, Guatemala, Tunisia, Canada, Nepal (A/56/PV.43). Sudan was the only country to express negativity about human rights and a culturally relativist view (A/56/PV.42). In introducing the item in 1998, Iran spoke of the “necessity and signicance of dialogue and the rejection of force, the promotion of understanding in the cultural, economic and political elds, and the strengthening of the foundations of liberty, justice and human rights” (A/53/PV.8). 50 In an insightful statement, Luis Henkin wrote in 1990 that “(L)like traditional Western cultures, modernizing, developing, industrializing, urbanizing, pluralistic national societies in Asia, Africa and Latin America are apparently looking to human rights to help protect not only personal dignity but also traditional culture against modern political power, and are adapting local, ideas and ideology to the human rights idea”; Luis Henkin, The Age of Rights, 1990, Columbia University Press, New York, p. 188. 51 Supra 12 in Introduction chapter. 52 A/RES/56/6.

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human society in various elds” and “the promotion and protection of all human rights and fundamental freedoms and the enrichment of common understanding of human rights” as well as the “enhancement of respect for cultural diversity and cultural heritage”. The principles to which the General Assembly committed itself in that resolution include “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”, “recognition of the right of members of all civilizations to preserve and develop their cultural heritage within their own societies” and “enhancement of participation by all individuals, peoples and nations in local, national and international decision-making processes”. The General Assembly recognizes that dialogue among civilizations contributes to the promotion and protection of human rights. The Programme of Action in the resolution contains many of the elements of the normative contents of cultural rights that I discuss in Chapter III below, including facilitating and encouraging interaction and exchange among intellectuals, thinkers and artists of various societies and civilizations; sponsorship of conferences, symposiums to enhance mutual understanding, tolerance and dialogue among civilizations; planning sports competitions and scientic competitions; promotion of historical and cultural tourism; incorporation of programmes to study various cultures and civilizations in education curriculums; provision of equitable opportunities for participation in the dissemination of information; utilizing the existence of migrants in various societies in bridging the gap of understanding between cultures; and, very signicantly, consultation to articulate effective mechanisms to protect the rights of all people to maintain their cultural identity, while facilitating their integration into their broader social environment. Although what matters most in the case of such proclamations at the UN General Assembly is implementation, and despite the fact that implementation is slow, it is signicant that the initiative on “dialogue among civilizations” came from Iran, a developing country with a challenging human rights history, and that the nal text turned out the way it did, i.e. in a way that is positive for human rights. I would not exaggerate the signicance of an international soft consensus, such the one achieved at adopting this type of General Assembly resolution, but it remains a fact that this item became a site of a positive ideological exchange, where implicitly the universality element of human rights was on the table and it survived.

CHAPTER TWO

THE RIGHT TO PARTICIPATE IN CULTURAL LIFE IN INTERNATIONAL INSTRUMENTS AND PRACTICE

A. International Instruments This chapter provides an overview of international standards regarding the right to participate in cultural life as well as the practice of relevant international bodies and mechanisms in terms of cultural rights. A review of international standards and literature regarding cultural rights demonstrates that these rights are inextricably linked to the concept of human dignity, to people’s sense of their own self-respect and identity, therefore stirring some of the most profound emotions, whether in individuals or in groups with a distinct culture. Cultural rights have been incorporated in the major international human rights instruments adopted by the UN, UNESCO, the International Labour Organisation and regional organizations1 and a close examination reveals the normative elements of cultural rights. Below is a compilation of the relevant provisions of international instruments which are analyzed and synthesized in chapters III and IV so as to distill the normative elements of cultural rights. 1. Universal Declaration of Human Rights The right to participate in cultural life is boldly enshrined in article 27 of the Universal Declaration of Human Rights which states that: 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientic advancement and its benets. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he is the author.”

1 Unless otherwise indicated, the texts of the international instruments mentioned in the book are reproduced in Human Rights: A Compilation of International Instruments, Vol. I (First Part) and Vol. I (Second Part) United Nations, New York and Geneva, 2002, ST/HR/1/Rev.5, Vol. I (Part I) and Vol. 1 (Part 2), Sales No. E.02.XIV.4.

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2. International Covenant on Economic, Social and Cultural Rights The major human rights treaty that proclaims cultural rights is the International Covenant on Economic, Social and Cultural Rights which has included the term “cultural rights” in its title. In article 15 the Covenant states that: 1. The States Parties to the present Covenant recognize the right of every one: (a) To take part in cultural life; (b) To enjoy the benets of scientic progress and its applications; (c) To benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. 3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientic research and creative activity. 4. The States Parties to the present Covenant recognize the benets to be derived from the encouragement and development of international contacts and co-operation in the scientic and cultural elds.

3. International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights, although not explicitly using the term “cultural rights”, in Article 27, states: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

As I explain below in Chapter Four A, this article has been the basis of pioneering jurisprudence of the Human Rights Committee regarding the cultural rights of persons belonging to minorities and indigenous peoples.

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4. International Convention on the Elimination of All Forms of Racial Discrimination The International Convention on the Elimination of All Forms of Racial Discrimination, in Article 1 containing the denition of “racial discrimination”, denes the term as: . . . any distinction, exclusion, restriction or preference based on race, colour, descent or national . . . or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other eld of public life.

Article 5 states: In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (e) economic, social and cultural rights, in particular: . . . vi) the right to equal participation in cultural activities. (f ) The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks.

Article 7 states: States Parties undertake to adopt immediate and effective measures, particularly in the elds of teaching, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

5. Convention on the Elimination of All Forms of Discrimination against Women In Article 5, the Convention denes a contravention of this treaty as including . . . any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital

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chapter two status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other eld.

Article 13 requires of States to take measures to eliminate discrimination in order to ensure the same rights, in particular . . . (c) The right to participate in recreational activities, sports and all aspects of cultural life.

6. Convention on the Rights of the Child The Convention on the Rights of the Child is rich in references to cultural rights, with special emphasis on the protection and development of the child’s identity. In Article 8 it establishes the obligation for states to . . . respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without interference. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Article 17 establishes the obligation for states to: “. . . Encourage the mass media to disseminate information and material of social and cultural benet to the child . . . “Encourage international cooperation in the production, exchange and dissemination of such information and material from a diversity of sources. “Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous”.

Article 20 on adoption, kafalah, or institutional placement of the child states that . . . due regard shall be paid to the desirability of continuing in a child’s upbringing and preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.

Article 23 on mentally or physically disabled children provides that the disabled child shall have effective access to and receive

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. . . education, training, health care services, rehabilitation services, and spiritual preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.

Article 24 provides that States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

Article 29 on the right to education and its aims includes in the aims the development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values in which the country is living, the country from which he or she may originate, and for civilizations different from his or her own.

Article 30 states that a child belonging to a minority or who is indigenous . . . shall not be denied the right, in community with other members of his or her group, to enjoy his or her culture, to profess and practice his or her religion, or to use his or her language.

Article 31 recognizes . . . the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.

7. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities In Article 1, the Declaration establishes the obligation of States to protect the existence of the cultural identity of minorities. According to Article 2, persons belonging to minorities . . . have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.

They also have the right to

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chapter two . . . establish and maintain, without discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other states to whom they are related by national or ethnic, religious or linguistic ties.

Article 4 of the Declaration states: 2. . . . shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specic practices are in violation of national law and contrary to international standards. 3. . . . should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue. 4. . . . should, where appropriate, take measures in the eld of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing in their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of society as a whole.

8. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families In Article 31, the Convention establishes the obligation of States parties to . . . Ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their state of origin.

The above provision covers all migrant workers irrespective of whether they are documented or not. In addition, for documented migrant workers and members of their families the Convention provides, in Articles 43 and 45, for equality of treatment with nationals of the state of employment regarding access to the participation in cultural life. In addition the Convention stipulates that states of employment . . . shall endeavour to facilitate for the children of migrant workers the teaching of their mother tongue and culture and, in this regard, States of origin shall collaborate whenever appropriate. . . . may provide schemes of education in the mother tongue of children of migrant workers, if necessary in collaboration with the States of origin.

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9. Other Instruments In UNESCO’s rich standard-setting activity, various instruments have contributed to the understanding of the right to participate in cultural life and have particularly stressed the value of international cultural cooperation. The 1966 Declaration of the Principles of International Cultural Co-operation states, in Article II, that international cultural co-operation shall cover all aspects of intellectual and creative activities relating to education, science and culture and lays out the aims and conditions of such co-operation. Throughout this book I will be referring to the UNESCO instruments which have left a signicant mark on the cultural debates. Especially important in that sense is the Universal Declaration on Cultural Diversity adopted in 2001, which also appears as an appendix to the book.2 More detailed reference to UNESCO’s work appears under sub-chapter E below. Convention No.169 of the International Labour Organisation Concerning Indigenous and Tribal Peoples in Independent Countries, adopted by the International Labour Conference in 1989, contains various provisions on cultural rights including: the responsibility of governments to promote the full realization of the cultural rights of these peoples with respect to their social and cultural identity, their customs and traditions and their institutions (Article 2); the obligation to adopt special measures for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned that shall not be contrary to their freely expressed wishes (Article 4); the obligation to respect social, cultural, religious and spiritual values and practices and the integrity of the values, practices and institutions of these peoples (Article 5); the right of indigenous and tribal peoples to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development (Article 7); the right of indigenous and tribal peoples to retain their own customs and institutions where these are not incompatible with fundamental rights dened by the national legal system and with internationally recognized human rights (Article 8); regarding traditional economic activities, the state has the obligation to recognize them as

2

http://www.unesco.org/culture/pluralism/diversity/html_eng/index_en.shtml

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important factors to maintaining the cultures of indigenous and tribal peoples (Article 23). Turning to regional human rights instruments,3 the African Charter on Human and Peoples’ Rights recognizes, in Article 17, that “every individual may freely take part in the cultural life of his community”. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988 Protocol of San Juan) recognizes cultural rights in similar terms to the Universal Declaration of Human Rights and to the International Covenant on Economic, Social and Cultural Rights. The 1950 European Convention on Human Rights does not explicitly provide for the protection of cultural rights, but various of its articles, such as those on freedom of expression, freedom of thought, conscience and religion, as well as the non-discrimination clause, are relevant to the free participation in cultural life. In 1990 the Conference on Security and Cooperation in Europe declared the right of national minorities to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.4 In 1991, in the Charter of Paris for a New Europe, the states participating declared that the ethnic, cultural, linguistic and religious identity of national minorities have the right freely to express, preserve and develop that identity without any discrimination and in full equality before the law.5 The 1995 Framework Convention for the Protection of National Minorities clearly recognizes cultural rights and establishes specic obligations on states regarding their respect, protection and fulllment. Especially through the work of the High Commissioner on National Minorities, this instrument has acquired particular signicance in the area of cultural rights, as is discussed in Chapter Four A on indigenous peoples and minorities. The 1996 European Social Charter (Revised), includes provisions relevant to cultural rights in its provisions on the right to just conditions of work and the rights of migrant workers: it establishes the state obligation “to ensure a weekly rest period which shall, as far as possible, coincide with the day recognized by tradition or custom in the country or 3 The regional human rights instruments have been reproduced in a United Nations publication: Human Rights: A Compilation of International Instruments, Volume II, Regional Instruments, United Nations, New York and Geneva, ST/HR/1/Rev.5 (Vol. II), Sales No. E.97.XIV.1. 4 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, June 29, 1990, art. 32. 5 CSCE, Nov. 21, 1991, 30 I.L.M. 193 (1991).

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region concerned as a day of rest”; and “to promote and facilitate, as far as practicable, the teaching of the migrant worker’s mother tongue to the children of the migrant worker”.6 The more recent Charter of Fundamental Rights of the European Union, which entered into force in 2002, does not mention the term “cultural rights”, but in article 22 provides that the Union “shall respect cultural, religious and linguistic diversity”.7 In an interesting development that tries to bring cultural heritage closer to the concept of human rights, and cultural rights in particular, the Council of Europe adopted and opened for signature in October 2005, the Framework Convention on the Value of Cultural Heritage for Society.8 The Convention presents a shift from the question of how to preserve cultural heritage, to the question why the value of cultural heritage should be enhanced and for whom. It is based on the idea that knowledge and the use of heritage form part of the citizen’s right to participate in cultural life as proclaimed in the Universal Declaration. The text presents heritage both as a resource for human development, the enhancement of cultural diversity and the promotion of intercultural dialogue, and as part of an economic development model based on the principles of sustainable resource use. The Framework Convention of the Council of Europe defines cultural heritage as “a group of resources inherited from the past which people identify, independently of ownership, as a reection and expression of their constantly evolving values, beliefs, knowledge and traditions. It includes all aspects of the environment resulting from the interaction between people and places through time” (art. 2a). Its stated aim is for Parties to recognize that rights relating to cultural heritage are inherent in the right to participate in cultural life, as dened in the UDHR (art. 1a), in other words the Convention views cultural heritage-related rights as part of cultural rights. It is interesting that article 1 of the Framework Convention recognizes “individual and collective responsibility” towards cultural heritage, but avoids using the word “rights” in the same article, next to the word “collective”. Yet in Article 4a the Convention recognizes that everyone alone or collectively has the right to benet from the cultural heritage

6 7 8

Articles 2(5) and 19(12), European Treaty Series- No. 163. Ofcial Journal of the European Commission, 2000/C 364/1. See CETS 199, 27.X.2005, _www.coe.int_.

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and to contribute towards its enrichment. This provision is positive in that it takes into account both the individual and the collective aspect of heritage-related cultural rights. The thrust of the Convention appears to be more towards people serving a heritage (probably a common European heritage), through protection and promotion of that heritage, rather than people and groups being themselves agents of heritage endowed with human rights that the state must respect, protect promote and fulll. The preamble makes a strong—the strongest—human rights reference in the whole treaty by recognizing that every person has a right to engage with the cultural heritage of their choice, while respecting the rights and freedoms of others, as an aspect of the right freely to participate in cultural life enshrined in the Universal Declaration of Human Rights and guaranteed in the International Covenant on Economic, Social and Cultural Rights. It is positive in this respect that the Convention includes “human rights, democracy and the rule of law” as part of the ideals, principles and values that constitute the common heritage of Europe (art. 3b). The Convention recognizes the limitations to heritage-related rights. Such limitations derive from the responsibility to respect the cultural heritage of others as much as their own heritage and consequently the common heritage of Europe (art. 4b). The right to cultural heritage is also subject to those restrictions which are necessary in a democratic society for the protection of the public interest and the rights and freedoms of others (art. 4c)—a standard provision found in human rights treaties. The Convention takes a low prole on Europe’s contemporary multicultural challenges due to migration. There is no reference to migrants in the text, but an allusion to “otherness” in the recognition, in article 5f, of the value of cultural heritage situated on the territories of Parties under their jurisdiction, regardless of its origin. A human rights treaty should have referred to the principle of non-discrimination, which is not the case in the Convention. The Convention recognizes the role of cultural heritage for a peaceful and democratic society, for sustainable development and for cultural diversity. Under the title “cultural heritage and dialogue”, article 7 stipulates the obligation of Parties to promote respect for diversity of interpretations of cultural heritage and also, to establish processes for conciliation to deal equitably with situations where contradictory values are placed on the same cultural heritage by different communities. This

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provision could open the way for a more active state role in cultural conicts of values in the new Europe of migration. It is only regrettable that the Convention misses a chance to clarify the cultural rights of individuals and groups and the corresponding state obligations, so as to facilitate the process of dialogue in every society, as well as the work of government. The Convention is vague and weak in terms of state obligations. An eloquent proof is that Article 6c states that no provision of the Convention shall be interpreted so as to create enforceable rights, which would also include the idea that none of the few rights recognized in the Convention would be justiciable. State obligations are limited to the measures that are to promote and protect cultural heritage rather than its agents, i.e. individuals or groups—and in this sense the Convention falls short of being a human rights treaty. The Convention is vague about the obligations of the state to establish mechanisms of effective participation and consultation regarding cultural heritage issues. Article 12, however, entitled “access to cultural heritage and democratic participation” provides elements that can be used positively in that direction, including the state’s obligation to encourage everyone to participate in the process of identication, study, interpretation and presentation of the cultural heritage, and in public reection and debate on the opportunities and challenges which the cultural heritage represents. Finally, it is positive that the Convention requires states to conduct cultural heritage impact assessments and to adopt mitigation strategies when they plan the use of land or other processes of economic, political, social and cultural development. The use of land in particular is of fundamental importance for indigenous peoples and minorities and them sustaining their way of life and cultural heritage. An evaluation of the balance of this Convention will depend on its implementation and interpretation in the years to come, and on whether individuals and groups will use it, monitor it and demand its implementation at country level and before European bodies. Despite the weaknesses of this new instrument there is therefore potential for its use to the benet of the cultural rights of people living in European states.

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B. Role of the United Nations Human Rights Treaty Bodies With Respect to the Right to Participate in Cultural Life A comprehensive review of human rights treaty bodies since the time of their inception in general reveals inadequate attention to cultural rights, with some exceptions. At the same time, the signicance of the link between culture and human rights has not escaped these bodies. Their attention, however, has mostly focused on the obstacles of culture for human rights implementation, while they have not fully explored the potential for positive contribution of culture to human rights. Through their examination of State Party reports on the implementation of the treaties, their recommendations to states, their jurisprudence as well as their analysis and authoritative interpretation of the treaties, known as “General Comments”, the treaty bodies have tackled various aspects of cultural rights. The case law of the Human Rights Committee is particularly interesting, namely in the area of minority rights and indigenous peoples’ rights, where the Committee has brought in cultural rights elements to solve difcult cases with political dimensions. 1. The Committee on Economic, Social and Cultural Rights The Committee on Economic, Social and Cultural Rights is the main international human rights body that has cultural rights explicitly under its mandate, namely the Committee has to monitor the implementation by States Parties of Article 15 of the Covenant. Since its establishment by the Economic and Social Council as an expert human rights body in 19879 the Committee has made some good, but limited efforts on cultural rights. The reasons for this inadequate attention could be understood by the Committee’s prioritization of other rights, such as economic and social rights, which the Committee, especially since its constitution as an expert body, has proceeded to analyze and interpret as well as monitor over the years. As mentioned earlier in this book, it is obvious that the Committee as well has implicitly viewed the impor-

9 Economic and Social Council resolution 1985/17 of 28 May 1985, E/C.12/1987/1. This resolution transformed the Working Group of the Economic and Social Council in charge of monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights since 1978 into a body of 18 independent experts, namely the Committee on Economic, Social and Cultural Rights. I have reviewed the work of this Committee as well as of its predecessor Working Group.

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tance of cultural rights as coming after the other rights proclaimed in the Covenant. The preparation of a General Comment that will provide the Committee’s authoritative interpretation and analysis of the normative elements of Article 15 of the Covenant will do a lot to ll this gap. It is a welcome step that the Committee, at its thirty-fth session in November 2005, issued a General Comment on Article 15, paragraph 1c of the Covenant, regarding the right of everyone to benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he or she is the author.10 I discuss elements of this General Comment as they pertain to the right to participate in cultural life in subsequent chapters. The Committee’s rst attempt to grapple with cultural rights dates back to the early 1990s. At its request a study was prepared11 in 1992 by one of its members, Samba Cor Konate of Senegal, who had a special interest in cultural rights. In the same year the Committee held a day of general discussion on the subject.12 According to Konate, the drafters of the Covenant had a conception of cultural rights that was too limited and even incomplete because cultural activities were perceived as a luxury, as consumer goods that could only be provided after other needs deemed vital for the development of human beings had been met. Konate regretted that a “right to culture” had not been enshrined in international law. In his view, such a right is a collective right and is presupposed to exist so that the individual can exercise the right to take part in cultural life as a kind of usufruct. Konate identied as obstacles to the application of cultural rights the level of development in a country as well as the extent to which the right to education, as an aspect of cultural life, is fullled. The discussion of Konate’s study by the Committee took place with the participation of UNESCO and the non-governmental organization International Movement for Rights and Humanity. The discussion addressed, among other topics, the elements of the denition of culture and of the concept of participation in cultural life, the issue of participation and ideas on subjects to be addressed by states in their reports. Konate was requested by the Committee to draft recommendations on the obligations of states concerning the right to participate in cultural 10 E/C.12/GC/17 (General Comments), General Comment No. 17 (2005); also available on www.ohchr.org. 11 E/C.12/1992/WP.4. 12 E/1993/22, paras. 202 to 223.

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life that the Committee would study in 1993, but the death of Konate halted this effort of the Committee for years to come. It was only in 2001 that the Committee decided to embark on the preparation of a general comment on the right to participate in cultural life and its work was still awaiting completion in 2005. The Konate study is hardly quoted by the few authors who have written on the subject of cultural rights, possibly because the study was only issued as a working paper and therefore its distribution was limited. Konate’s interest in cultural rights was not necessarily shared by other members of the Committee and his death the year after the presentation of his study probably contributed to the halt of any focus on the subject for a number of years. The Committee has, however, contributed to the understanding of what cultural rights are in various other ways, namely through its examination of States Parties reports and the use of the Revised Guidelines for the consideration of these reports, through its General Comments on various other articles of the Covenant and, most importantly, its General Comment on states’ obligations under the Covenant, through the Limburg Principles on the implementation of the Covenant and through the Maastricht Guidelines on violations of economic, social and cultural rights which are annexed to this book. This analytical work offers a good basis for deciphering some of the normative elements of cultural rights. The Committee has included a number of questions relevant to cultural rights in its dialogue with States parties, even if they are not systematic. The Revised Guidelines regarding the form and contents of reports13 still in force today were adopted in 1990 and therefore do not include any new elements from the Konate study and the Committee’s discussion on it. Through detailing various questions on Article 15 of the Covenant in the Guidelines the Committee shows that it went through considerable normative analysis of the Article, even if an incomplete one. Based on the Revised Guidelines, the Committee has helped analyze what non-discrimination and also what freedom of dissemination mean in terms of cultural rights. These will also be taken into account in Chapter Three below. At the same time the consideration of states parties’ reports by the Committee reveals certain weaknesses of the Committee’s work regarding the right to participate in cultural life. These weaknesses could be grouped as follows: 13

E/1991/23, Annex IV.

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(i) The Committee’s reports show that it does not pay particular or systematic attention to cultural rights; references to these rights seem haphazard. Even if relevant questions are put to states, the nal observations and suggestions adopted rarely include references to cultural rights. One might be tempted to explain this by imputing on the Committee the view that these are “luxury rights”. But how could this explain the fact that the Committee does not focus on these rights adequately, even in developed countries where economic and social rights are relatively well advanced, for example Sweden, where the Committee could presumably comment on cultural rights of migrant workers? Such a state of development should in principle “free” the Committee to pay attention to cultural rights as well. In addition, the Committee is not systematic in its methodology: for example, the 1997 report of the Committee mentions cultural rights of indigenous peoples of Peru,14 but this is not the case with Mexico or the Russian Federation which also have indigenous peoples in their territory. (ii) The format of the reports of the Committee to the General Assembly before 1993 allowed for the Committee’s discussion with state delegations under each article to be reected. Thus Article 15 was covered, although inadequately.15 After 1992 the format changed and only the principal subjects of concern and conclusions of the Committee are reected in the reports to the General Assembly. In this way cultural rights become literally invisible in this high prole document. For these rights, as mentioned before, rarely make it to the conclusions part of the report. It is obviously not enough that the questions of the Committee on cultural rights may be covered in the summary records of the Committee. In other words, the restructuring of the Committee’s reports since 1993 contributed to the virtual disappearance of the issue from the reports. There is no doubt that an increased attention by the Committee to cultural rights should go together with a revision of the structure of its reports. (iii) Another methodological aspect of the Committee’s work that may explain this relative inattention to cultural rights is the fact that the Committee requests States Parties to report in two phases, one

14

E/1998/22, para. 139. For example, there were various questions raised on cultural rights by the Committee and responses provided by Poland, Hungary and Italy in 1992 but there is no reection in the Committee’s concluding observations (E/1993/29 or E/C.12/1992/2, paras. 121, 132, 135, 136, 147, 186). 15

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chapter two regarding the implementation of the rst half of the Covenant’s substantive articles and one for the second half. Thus the discussion by the Committee of Article 15 in States Parties’ reports comes at the end of the rst set of articles discussed by the Committee and time constraints force a rushed examination of state implementation of this article.

One of the most fervent debates on economic, social and cultural rights is certainly the question of their enforceability and even justiciability, given the fact that that these rights are subject to the principle of progressive realization, depending on the level of development of a state. This may create some vagueness about these rights and has certainly led to a point of contention, with assertions by some, the United States in particular, that these rights are not human rights, but rather social aims and aspirations. The Committee has made a substantive contribution to this debate by sharpening the focus on what are the obligations of immediacy for states ratifying the Covenant. The General Comment on states’s obligations regarding economic, social and cultural rights16 underlines two obligations of immediacy: non-discrimination and the undertaking to take steps. Keeping these two obligations in mind, one can give concreteness to the various normative aspects of cultural rights as discussed in Chapter Three below. Freedom of dissemination which is one of these normative aspects of cultural rights, for example, should be enjoyed by all without discrimination, and, if discrimination exists, the state, should, upon ratication of the Covenant, take steps, legislative and educational, for example, to correct the situation. A major step towards further clarification of legal doctrine on economic, social and cultural rights and their implementation are the Limburg Principles and the Maastricht Guidelines.17 The Limburg Principles on the Implementation of Economic, Social and Cultural Rights were adopted in 1986 by a group of 29 distinguished experts, including four members of the Committee on Economic, Social and Cultural Rights, convened by the International Commission of Jurists, the University of Limburg (The Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (USA). The participants agreed unanimously that the Limburg Principles reected

16 17

E/1991/23, Annex VI. These texts (E/C.12/2000/13) appear in an Appendix.

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the state of international law on the issue. The Limburg Principles were followed, in 1997, by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Among other signicant elements, the Maastricht Guidelines analyze the meaning of the state’s positive obligations to protect and fulll rights and identify four principles that should underpin such action: a) the principle of availability, b) the principle of accessibility, c) the principle of acceptability, namely that the state’s action must be culturally relevant, and d) the principle of adaptability. Through the Limburg Principles, the Committee has also been able to address the issue of limitations of economic, social and cultural rights and analyze article 4 of the Covenant: such limitations are to be protective of the rights of individuals rather than permissive of the imposition of limitations by the state; no limitation shall be made unless provided by national law of general application and such law shall not be arbitrary or unreasonable or discriminatory. Applying the Limburg Principles and the Maastricht Guidelines has led to a further understanding of the normative elements of cultural rights which are reected in Chapter Three, regarding individual cultural rights, and in Chapter Four regarding cultural rights of indigenous peoples and minorities. In addition, the Committee’s General Comments on various other articles of the Covenant are useful sources of normative thinking on cultural rights, especially the General Comments on the right to education, Articles 13 and 14. In the General Comments the Committee indicates that education must be culturally appropriate and adapted to the diverse cultural settings; that the right to adequate housing includes cultural adequacy18 as an essential feature; that the state’s positive obligations on the right to food include acceptability of food, which also means cultural acceptability;19 that the nature of obligations of states parties under the Covenant,20 namely their essential features, availability, accessibility, acceptability and adaptability, have cultural angles as well. In General Comment No. 6 on the economic, social and cultural rights of older persons the Committee encourages governments and international organizations to support programmes aimed at providing

18 General Comment on Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, on the right to adequate housing, E/1992/23 Annex III. 19 E/2000/22, Annex V, paras. 4, 8, 11, 39. 20 General Comment No. 3 (1990) on Article 2 para. 1 of the International Covenant on Economic, Social and Cultural Rights, E/1991/23, Annex III.

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the elderly with easier physical access to cultural institutions (museums, theatres, concert halls, cinemas etc.).21 In General Comment No. 5 on persons with disabilities, the Committee states that the effects of disability-based discrimination have been particularly severe in the elds of education, employment, housing, transport, cultural life and access to public places and services. The Committee underlines that states should promote the accessibility and availability of places for cultural performances and services, as well as places for recreation, sports and tourism. The right to full participation in cultural and recreational life further requires that communication barriers be eliminated to the greatest extent possible. Useful measures in this regard might include the use of talking books, papers written in simple language and with clear form and colours for persons with mental disability, and adapted television and theatre for deaf persons. In addition, governments should inform and educate the general public about disabilities, especially to dispel prejudices or superstitious beliefs against persons with disabilities.22 As I mentioned in Chapter Two above, the Committee has criticized many cultural practices that violate internationally recognized human rights. Cultural traditions that do not violate human rights have in fact been welcomed and encouraged by the Committee, as for example the positive role of the extended family as part of culture,23 and customary land tenure.24 A number of recommendations to the Committee on Economic, Social and Cultural Rights and other UN bodies appear in the last chapter of this book.

21

General Comment No. 6 (1995), E/1996/22, para. 40. General Comment No. 5 (1994), E/1995/22, paras. 15, 36, 37, 38. 23 E/2000/22, para. 198 regarding the Solomon Islands where the “Committee takes note of the fact that the unique Kastom and wantok culture has to date been kept largely intact. The preservation of the traditional extended family system, which is based on a strong sense of social responsibility, has absorbed a considerable part of the social repercussions caused by the recent economic crisis”. Para. 81 regarding Iceland where the Committee is concerned with the lack of family solidarity and the increasing resort to foster homes. 24 E/2000/22, para. 203 regarding the Solomon Islands. 22

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2. The Human Rights Committee In monitoring the International Covenant on Civil and Political Rights, the Human Rights Committee has made an important and consistent contribution to cultural rights through its monitoring of civil and political rights related to cultural rights, such as the freedom of expression and freedom of religion, but mainly through its monitoring of Article 27 on minorities, the adoption of the General Comment on that article and an impressive body of case law. Given the special contribution of the Committee to the understanding of the cultural rights of minorities and indigenous peoples, I have considered it more appropriate to incorporate its analysis in Chapter Four A below. The work of the Committee in relation to cultural practices that violate human rights has also been discussed in Chapter One B above. 3. The Committee on the Elimination of Racial Discrimination (CERD) A review of the reports of CERD since 1990 shows that its attention to cultural rights has been inconsistent. The term “cultural rights” has been used by the Committee supercially or in the phrase “economic, social and cultural rights”. Where the Committee’s work has been signicant and consistent is in the area of linguistic rights of minorities, indigenous peoples and migrants, especially in education and the media. The Committee has also made a contribution to the other elements of cultural rights pertaining to minorities and indigenous peoples, which are incorporated in Chapter Four A below. As in the case of the Committee on Economic, Social and Cultural Rights, the change of format of CERD’s reports to the General Assembly since 1993 has made cultural rights invisible in those reports. 4. The Committee on the Elimination of Discrimination against Women (CEDAW) Review of the reports of CEDAW shows that the Committee has hardly paid any attention to cultural rights. References to cultural rights in the phrase “economic, social and cultural rights” are formalistic, never followed up with any specic discussion. A plausible explanation would be that culture has been one of the motors of violations of women’s human rights and this has naturally created a conceptual blockage that has prevented thinking on cultural rights themselves. It is well-known

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that the Convention on the Elimination of All Forms of Discrimination against Women has a sad record of reservations by states parties. Some of those deal with conicts between religion or custom and the human rights recognized by the Convention, something which CEDAW has closely monitored.25 As should be expected, the Committee has been active in criticizing violence against women, and traditional and cultural practices that violate women’s human rights. 5. The Committee on the Rights of the Child Despite the rich references to cultural rights in the Convention on the Rights of the Child, more comprehensive than in other treaties in force, the Committee on the Rights of the Child does not pay adequate attention to the monitoring of those provisions. Apart from the usual formalistic references to cultural rights in the phrase “economic, social and cultural rights” and concern over traditions that impede the implementation of the Convention,26 there are some references to linguistic rights.27 Overall, the review of the reports of the Committee reveals a striking omission of attention to cultural rights.28

25

For example A/49/38, para. 41, where the Committee noted with alarm the number of states parties which have entered reservations of the whole or part of Article 16 (equality of men and women in marriage and family), especially when a reservation has also been entered to Article 2, claiming that compliance may conict with a commonly held vision of the family based, inter alia, on cultural or religious beliefs or on the country’s economic or political status. 26 The Committee has identied some of the practices identied by other human rights treaty bodies as violating the human rights of children, such as genital mutilation, discriminatory social attitudes against children, especially the girl child etc. See, for example, CRC/C/111, paras. 355, 373 and 447 regarding Cameroon and Gambia; and A/51/41, paras. 26 and 37 on Pakistan, paras. 48, 50 and 54 on Burkina Faso and 237 and 247 on Madagascar. 27 See, for example, A/51/41, para. 499 on promotion of the teaching of the Irish language in schools in Northern Ireland, and para. 133 on the protection of the linguistic rights of Tibetan children. 28 For example, in the 2001 report of the Committee, CRC/C/111, in the section entitled “education, leisure and cultural activities”, any substantive reference to cultural activities is consistently omitted.

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C. Role of United Nations Bodies Other Than the Human Rights Treaty Bodies 1. The Commission on Human Rights and Extra-Conventional Mechanisms In a relatively recent development, the Commission on Human Rights adopted its rst resolution on cultural rights in 200229 entitled “Promotion of the enjoyment of the cultural rights of everyone and respect for different cultural identities”, which was a Cuban initiative. Resolution 2002/26, includes the following elements: that intellectual property rights should be respected; that each culture has a dignity and value that must be respected and preserved and that every people has the right and the duty to develop its culture; that states have the primary responsibility for the promotion of the full enjoyment of cultural rights by everyone and for the enhancement of respect for different cultural identities; that the promotion and protection of the enjoyment of cultural rights by everyone and the respect for different cultural identities is vital for the protection of cultural diversity in the context of the ongoing process of globalization; that all peoples have the right to self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development. The resolution underlines the importance of cultural cooperation for all peoples and nations, which should share with one another their knowledge and skills, and that international cooperation, while promoting the enrichment of all cultures through its benecent action, should respect the distinctive character of each; emphasizes that cultural cooperation is especially concerned with the moral and intellectual education of young people in a spirit of friendship, international understanding and peace and should foster awareness among states of the need to stimulate talent and promote the training of the rising generations in the most varied sectors; recognizes that the promotion and protection of cultural diversity implies a commitment to human rights and fundamental freedoms guaranteed by international

29 Commission on Human Rights resolution 2002/26 was adopted by consensus on 22 April 2002. The main sponsor was Cuba and the resolution was also co-sponsored by Angola, Barbados, China, Democratic Republic of Korea, France, Iran, Iraq, Sudan, Syria, Togo, Viet Nam, Yemen and Zambia; see E/2002/23–E/CN.4/2002/200.

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law and advances the application and the enjoyment of cultural rights by everyone; also recognizes that the promotion of the cultural rights of every one, of respect for the distinct cultural identities of peoples and of the protection of the cultural diversity of humanity advances the implementation and enjoyment of all human rights by all; stresses that in the face of current imbalances in ows and exchanges of cultural goods and services at the global level, it is necessary to reinforce international cooperation and solidarity aimed at enabling countries, especially developing countries and countries in transition, to establish cultural industries that are viable and competitive at national and international level; underlines that market forces alone cannot guarantee the preservation and promotion of cultural diversity, which is the key to sustainable development, and from this perspective, recognizes that the pre-eminence of public policy, in partnership with the private sector and civil society, must be reafrmed. Finally the Commission requests the High Commissioner for Human Rights to consult with governments, intergovernmental and non-governmental organizations on the implementation of the resolution and the possibility of appointing a special rapporteur the basis of whose mandate would be the comprehensive implementation of the resolution. The thrust of this resolution is a commitment to cultural diversity and at the same time a concern over the effects of globalization on culture and the need for international cooperation to balance out those effects, especially for developing countries and countries in transition. The resolution also makes clear that promotion of cultural diversity should be linked to respect of all human rights. In other words, human rights recognized by international law should not be victims of cultural practices. The resolution, however, focuses more on North/South relations or inter-state relations in general and does not address the cultural rights of individuals or groups within each state. Consultations took place following this rst resolution and subsequent resolutions of the Commission have had a similar thrust.30 The resolutions also explore the possibility of establishing a thematic procedure of the Commission on Human Rights and the 2004 resolution underlines that the objective of such thematic procedure is not to develop a new monitoring mechanism, but the appointment of an

30 Resolution 2003/26 in document E/2003/23 and resolution 2004/20 in E/2004/23.

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independent expert who could elaborate voluntary guidelines and concrete proposals and recommendations on the implementation of the resolution, taking into account the work already done in this eld by other bodies, organs and organizations of the United Nations system. It is unclear from the resolution whether such guidelines would contain any elements appropriate for the protection, promotion and fulllment of a right. It is also regrettable that the resolution opts to reiterate the phrase “to participate in the cultural life of the community” (emphasis added), i.e. the more restrictive language of the Universal Declaration of Human Rights, instead of the broader formulation of Article 15 of the International Covenant on Economic, Social and Cultural Rights, “to take part in cultural life”. The politicization of this resolution into another North/South issue, as attested by the result of the 2004 vote along those lines, where 38 voted in favour, 1 against and 14 countries abstained, would not seem conducive to a constructive examination and promotion of cultural rights, without the prior contribution of an expert UN body. Yet the debate at the Commission on Human Rights continued in 2005 with the Commission expressing its appreciation to States and intergovernmental and non-governmental organizations that responded to the consultations held pursuant to its resolutions 2002/26 of 22 April 2002, 2003/26 of 22 April 2003 and 2004/20 of 16 April 2004 and underlining that those consultations had highlighted the importance for the Commission to enhance the visibility and understanding of cultural rights and the issue of cultural diversity, and had conrmed support for the concept that the creation of a thematic procedure could contribute to the achievement of that objective.31 The Commission reafrmed that the objective of the establishment of a thematic procedure on the promotion of the enjoyment of the cultural rights of everyone and respect for different cultural identities was not to develop a new monitoring mechanism, but to appoint an independent expert who could elaborate concrete proposals and recommendations on the implementation of the resolution, taking into account the work already done in this eld by other bodies, organs and organizations of the United Nations system. It is noticeable that the Commission changed the concept of the mandate of a future rapporteur, no longer asking him or her to develop voluntary guidelines, but rather concrete proposals on the implementation of the

31

Resolution 2005/20 in E/2005/23.

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resolution. Finally, in the 2005 resolution, the Commission requested the United Nations High Commissioner for Human Rights to consult States and intergovernmental and non-governmental organizations on the particularities and scope of the mandate of an independent expert on the promotion of the enjoyment of the cultural rights of everyone and respect for different cultural identities, the basis of which would be the comprehensive implementation of the present resolution, and to report on the results of those consultations to the Commission at its sixty-second session, in 2006. These developments demonstrate that it is the political momentum at the Commission on Human Rights that is moving the debate, although it is unclear what will be the position of the Human Rights Council which replaced the Commission on Human Rights.32 A thematic mechanism of the Commission should ideally be preceded by an in-depth analysis of cultural rights in a General Comment by the Committee on Economic, Social and Cultural Rights, the expert body that has cultural rights in its mandate. If UNESCO’s work can be used as a barometer of this climate, it is worth noting that UNESCO’s effort to turn the human rights-oriented 2001 Universal Declaration on Cultural Diversity into a convention, has actually not materialized: the Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, adopted by UNESCO’s General Conference at the end of 2005, is essentially a trade agreement and cultural rights are still approached as a sensitive matter by member states of UNESCO. The work of UNESCO is discussed in some detail in sub-chapter E below and throughout this book. One of the Commission on Human Rights extra-conventional mechanisms is systematically attentive to cultural rights, namely the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, who has been presenting reports to the Commission since 2002 and to the General Assembly since 2004. The subject demanding no less than due attention to cultural rights, the Special Rapporteur has integrated concerns about cultural rights, but also some good examples in all his reports, whether reporting on a theme or on a country situation.

32 The Human Rights Council was established by General Assembly resolution 60/251 adopted on 15 March 2006, see A/RES/60/251, also available on www. ohchr.org.

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Rodolfo Stavenhagen, the rst Special Rapporteur on the human rights and fundamental freedoms of indigenous people, has extensively covered cultural rights in the area of education, multicultural education, language rights, including in the judicial system, use of indigenous languages in the media, indigenous traditional knowledge development, use of mainstream media by indigenous peoples and sensitivity of mainstream media to indigenous peoples, access to and protection of indigenous sacred sites, recognition of customary legal systems, cultural discrimination in the media and public life, including about indigenous dress and way of life.33 I discuss some examples of state practice in Chapter Four A below dealing with the cultural rights of indigenous peoples and minorities. A review of the reports of Commission on Human Rights thematic and country specic reports since 1990 reveals lack of understanding, misunderstanding, or low interest about cultural rights, with very few exceptions, in particular the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, who systematically covers the issue. There were, for example, almost no references to cultural rights in eighteen human rights reports at the fty-sixth session of the General Assembly in 2001 by Commission on Human Rights countryspecic Special Rapporteurs or by the Secretariat under three thematic issues, where one would expect to nd references to them. Three were reports of the Secretary-General: one on the protection of migrants, where out of sixteen replies by governments reected in the report, none mentioned cultural rights; one report was on national institutions for the promotion and protection of human rights; and one report was on human rights and cultural diversity.34 Out of the fteen reports on country situations,35 only three mentioned cultural rights peripherally;

33 References to cultural rights are contained in the following reports of the Special Rapporteur: E/CN.4/2002/97 (containing an overview of issues affecting the rights of indigenous peoples, including culture), E/CN.4/2003/90 (focusing on large scale development projects), E/CN.4/2004/80 (focusing on the administration of justice), E/CN.4/2005/88 (focusing on the right to education). From the country-specic reports of the Special Rapporteur especially rich in references to cultural rights is his report on Guatemala (E/CN.4/2003/Add.2); see also other country-specic reports on the Philippines (E/CN.4/2003/90/Add.3), Chile (E/CN.4/2004/80/Add.3), (E/CN.4/2004/80/Add.2), and Colombia (E/CN.4/2005/88/Add.2). 34 The three reports are A/56/310, A/56/255 and A/56/204 and Add.1 respectively. 35 The reports are: A/56/337 on East Timor, A/56/440 on the occupied Arab territories, including Palestine, A/56/505 and A/56/312 on Myanmar, A/56/340 on

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two others mentioned “cultural rights”, in the phrase “economic, social and cultural rights” without giving any content. The rst Special Rapporteur on the right to education, one of the more recent monitoring mechanisms of the Commission, paid special attention to minority languages and languages of instruction and publications. Given the substance of this mandate, the Rapporteur would be expected to continue expanding on these and related issues.36 The Special Rapporteur on violence against women has made a major contribution to the issue of the relation between culture and the human rights of women rather than cultural rights of women, which is understandable given her mandate.37 The Special Rapporteur on the right to food has clearly accepted the concept of ‘adequacy’ of food as including prevailing cultural conditions and traditions, and “the perceived nonnutrient-based values attached to food and food consumption”.38 The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, in his rst report to the Commission, outlined the importance of cultural rights and included, among his main topics for future activities, “cultural rights of indigenous peoples as reected in bilingual and inter-cultural education, as well as the preservation and development of their own cultural heritage”.39 The Special Rapporteur on freedom of religion and belief has dealt with the ne line between religion and culture, and a study of his reports

Iraq, A/56/327 on the Democratic Republic of Congo, A/56/230 and A/56/209 on Cambodia, A/56/409 and Add.1 on Afghanistan, A/56/479 on Burundi, A/56/ 336 on the Sudan, A/56/278 on Iran, A/56/281 on Sierra Leone and A/56/460 on Bosnia and Herzegovina and the Federal Republic of Yugoslavia. The report on Iran mentions nothing substantive under the chapter “economic, social and cultural rights”, while it refers to cultural activities and language rights in chapter on minorities. The report on Bosnia and Herzegovina and the Federal Republic of Yugoslavia has even omitted the nominal reference to the word “cultural” out of the title “economic, social and cultural”, and has mentioned languages in education in the recommendation on minorities. The report on the Sierra Leone refers to the assistance of the Human Rights Section of UN Mission in Sierra Leone for customary law courts. 36 For example, the Special Rapporteur refers to a World Bank report that emphasizes the language barriers that are considerable obstacles for many learners; “it is estimated that 90 per cent of learners in Africa are not completely familiar with the major languages of instruction and publishing, which also happen to be the colonial languages”, E/CN.4/2000/6, para. 28. 37 The Special Rapporteur’s 2002 report, for example, focused on cultural practices in the family that are violent towards women, E/CN.4/2002/83. 38 E/CN.4/2001/53, paras. 14–20. 39 E/CN.4/2002/7, para. 113(d).

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shows that states do the same in their dialogue with the Special Rapporteur.40 Although it is beyond the Special Rapporteur’s mandate to dene the line between religion and culture, the Rapporteur has stated that, irrespective of history and geography, religions do—to differing degrees—play a part in the culture of a society and in human civilization.41 The Special Rapporteur’s 2002 report42 to the Commission on Human Rights had a special part devoted to religion and women’s rights. The report dealt essentially with the limits of culture vis-à-vis individual rights and concluded that, in case of conict between religion or culture and individual rights, the latter must prevail. The report made various suggestions to states on how to prevent such a conict. In researching the reports of country-specic special rapporteurs in the last ten years, given the overall neglect of cultural rights, I focused more on countries where, due to the particularity of their situation, one would expect some attention to the issue, namely reports on Yugoslavia, Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Myanmar, Iran and Sudan. References to cultural rights in country-specic reports of special rapporteurs of the Commission on Human Rights have also been rare, with few exceptions. Reports of special rapporteurs on Yugoslavia, Bosnia and Herzegovina, Croatia and the Former Yugoslav Republic of Macedonia have appeared more sensitive to cultural rights in recent years (1999–2001). Considerable space is dedicated to the treatment of minorities and discrimination, the media, freedom of expression and freedom of religion. There is special attention to education in the languages of the various ethnic groups, as well as the content of

40 For example E/CN.4/1995/91, para. 21, where China refers to the process of identication and reincarnation of a living Buddha as a “basic tradition and religious ritual”. Para. 26, where Bhutan refers to discipline as part of the religion and tradition of the country. The Special Rapporteur has also dealt with religious dress code, for example in E/CN.4/1996/Add.2, para. 97 regarding Iran, where he emphasizes that “the various community traditions and behaviour concerning dress should be respected, but dress should not be turned into a political instrument and that exible and tolerant attitudes should be shown so that the richness and variety of Iranian dress can be manifested without coersion”. 41 E/CN.4/1997/91, para. 88. In its 2002 resolution entitled “Combating defamation of religions” the Commission on Human Rights also makes the link between religions, culture and cultural diversity and deplores physical attacks and assaults on business, cultural centers and places of worship of all religions, in particular of Muslims in many parts of the world. 42 E/CN.4/2002/73/Add.2.

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textbooks regarding the image projected of “the other”. In addition there is attention to free access to cultural centers and the issue of vandalism and re-building of places of worship.43 The reports of the Special Rapporteur on the situation of human rights in Myanmar contain few references to cultural rights. This is even more surprising given the presence of some 135 minorities and indigenous groups in the country which would suggest the existence of cultural issues. There is some reference to the Muslim minority and the need to promote its cultural participation without restriction or discrimination.44 There is also reference to freedom of association for the purpose of participation in the civil, political, economic, social and cultural life of the country.45 The Special Representative on Iran has referred to complaints of various minorities regarding lack of “cultural recognition” by the Government46 and noted positively measures encouraging Kurdish “cultural expression”.47 The Special Rapporteur on Sudan has dealt mainly with religious intolerance practiced by the Government and within this context critiqued policies of forced assimilation, not only in terms of the religion of Islam but also of values, which result in violation of the rights, especially of vulnerable and defenseless categories of the population like children, women or displaced persons belonging to ethnic, religious, linguistic or racial minorities. The Rapporteur also criticized the limitation of freedom of expression in policies of intimidation of persons belonging to a non-Islamic faith by criminalizing exhibitions, theatre and entertainment clubs or shows “contrary to public morality”.48 A new thematic mechanism of signicance for cultural rights was established by the Commission on Human Rights in 2005, at its sixtyrst session.49 The Commission requested the High Commissioner for

43 See, for example, A/54/396, where reference is made in para. 35 to the destruction of places of worship. Document A/49/641, para. 186 refers to the lack of availability of teaching in the Hungarian language in many schools in Vojvodina, and para. 222 refers to the difculty of obtaining permission to build centers of worship in the Former Yugoslav Republic of Macedonia. 44 A/52/484, para. 72(n). 45 E/CN.4/1993/37, para. 135(g). 46 A/55/363, para. 69 regarding the Azeris, and A/56/278, para. 76, regarding the Baha’is. 47 A/56/82, para. 82. 48 E/CN.4/1994/48, paras. 67 and 78. 49 Commission on Human Rights resolution 2005/79 in document E/2005/23.

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Human Rights to appoint an independent expert on minority issues with the mandate to promote the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities; to identify best practices and possibilities for technical cooperation by the Ofce of the High Commissioner for Human Rights; to apply a gender perspective; to cooperate with relevant UN bodies; to take into account views by non-governmental organizations; to report to the Commission on Human Rights annually and make recommendations on effective strategies for better implementation. The independent expert has the potential of contributing to a progressive interpretation of the Declaration, including on cultural rights, also building on the work of the human rights treaty bodies in this area and perhaps bringing a global perspective to achievements until now at the regional level, namely through the High Commissioner on National Minorities of the OECE—discussed in Chapter Four A below on indigenous peoples and minorities. The weight of the Commission on Human Rights extra-conventional mechanisms, in human rights, political and legal terms, has been such that appropriate attention to cultural rights on their part could have a catalytic effect in country policies. Especially in countries with minorities and indigenous peoples, such attention could help strengthen public policies for the respect of the identity of these communities, even mend historic injustices towards these communities by the majority population, it could build positive inter-cultural relations. One has to think, for example of the effect that the rebuilding of the House of Bab in Shiraz, Iran—the center of pilgrimage of the Bahai’—would have in terms of turning public policies towards this religious minority, or the effect that the reconstitution of the Buddhist sculptures in Bamiyan, Afghanistan, would have in terms of promoting tolerance in that country. Since cultural rights impact so deeply on identities, even symbolic acts, such as the ones mentioned, can have a signicant impact in society and set the stage for more positive changes, ones that would go beyond symbolism and also touch on material demands that some cultural rights entail, such as for example linguistic rights for minorities. Given the link between peace and human rights, the special rapporteurs of the Commission on Human Rights could become “ambassadors” for cultural rights and show the way towards cultural rights policies that could prevent or respond to various conicts, especially those linked to minorities and indigenous peoples. One has to look at the prominence of cultural rights in the Guatemalan peace process for example in order

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to appreciate how central these issues are in building sustainable peace. The example of Guatemala is discussed in sub-chapter F below. It is regrettable that the input of human rights special rapporteurs, with the exception of the rapporteur on the human rights and fundamental freedoms of indigenous people, in this area is a still unexplored territory, while the potential for a positive international contribution is enormous. However, in order for this to happen, the most expert human rights treaty body in this area, namely the Committee on Economic, Social and Cultural Rights, needs to take leadership in placing cultural rights squarely on the human rights map. Otherwise, interventions on cultural rights by individual rapporteurs without a clear sense of what cultural rights are can lead to weak results. 2. The Sub-Commission on the Promotion and Protection of Human Rights The Sub-Commission on the Promotion and Protection of Human Rights, formerly known as Sub-Commission on Prevention of Discrimination and Protection of Minorities, has made a considerable contribution to cultural rights, mainly through its work on minorities and indigenous peoples over decades. Its Working Group on Indigenous Populations, which has been meeting since 1982, has plowed new roads in the understanding of cultural rights of indigenous peoples through its Draft Declaration on the Rights of Indigenous Peoples completed in 1993 and passed on to the Sub-Commission in 199450 as well as studies on the cultural heritage of indigenous peoples,51 documents which I discuss in Chapter Four A below. At the same time, the Working Group, through its unique exible practice, has given the opportunity for indigenous languages to be heard during its meetings, when indigenous representatives often open their statements by phrases in their own indigenous languages, thus giving a concrete as well as symbolic example of deference to indigenous cultures. Meetings of the Working Group and, since 2002, of the United Nations Permanent Forum on Indigenous Issues, have other elements of assertion of culture in terms of protocol, such as the use of indigenous dress by most indigenous participants, the holding of opening ceremonies of the Permanent Forum by Indigenous Elders of the indigenous peoples who are the

50 51

E/CN.4/Sub.2/1994/2/Add.1. E/CN.4/Sub.2/1995/26.

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traditional owners of the land where the meeting is held, as well as the organization of indigenous cultural events and exhibits. The most substantive contribution of the Working Group on Indigenous Populations in this eld is the integration of cultural rights in the draft United Nations Declaration on the Rights of Indigenous Peoples. The draft Declaration, as further elaborated by a working group of the Commission on Human Rights over 11 years and nally adopted by the Human Rights Council at its rst session in June 2006 devotes no fewer than 17 of its 46 articles to cultural rights.52 In addition, given the interdependence of human rights, the rest of the articles of the Declaration are of relevance to cultural rights. The various aspects of the cultural rights of indigenous peoples covered by the Declaration are: the right of indigenous peoples and individuals to be free from any kind of discrimination, in particular that based on indigenous origin or identity (art. 2); the right to self-determination, by virtue of which indigenous peoples should freely determine their political status and freely pursue their economic, social and cultural development (art. 3); the right to maintain and strengthen their distinct cultural institutions, while retaining their rights to participate fully, if they so choose, in the cultural life of the state (art. 5); the collective right to live as distinct peoples (art. 7); the right not to be subjected to forced assimilation or destruction of their culture (art. 8); the right to belong to an indigenous community or nation in accordance with the traditions and customs of the community or nation concerned (art. 9); the right to practice and revitalize their cultural traditions and customs and to receive redress for cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent (art. 11); the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies, to maintain, protect and have access to their religious and cultural sites, to use and control their ceremonial objects and to have their human remains repatriated (art. 12); the right to revitalize and transmit to future generations their histories, languages, oral traditions, philosophies and to designate their own names for communities, places and persons; and the obligation of states to ensure that indigenous peoples can understand and be understood in political, legal and 52 In its resolution 2006/2 of 29 June 2006 the Human Rights Council adopted the draft United Nations Declaration on the Rights of Indigenous Peoples and recommended its adoption by the General Assembly. For the text of the resolution, see the website of the Ofce of the High Commissioner for Human Rights, www.ohchr.org.

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administrative proceedings (art. 13); the right to establish and control their education systems and institutions providing education in their own language and in a manner appropriate to their cultural methods of learning and teaching; and the right to have access, when possible to an education in their own culture and provided in their own language (art. 14); the right to have the dignity and diversity of their cultures reected in all forms of education and public information (art. 15); the right to establish their own media in their own languages and have equal access to all forms of non-indigenous media (art. 16); the right to their traditional medicines and to maintain their health practices (art. 24); the 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 ora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts; they also have the right to their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions (art. 31); the right to determine their own identity or membership in accordance with their customs and traditions (art. 33); the right to their distinctive customs, spirituality, traditions, procedures and practices and, in case they exist, juridical systems or customs in accordance with international human rights standards (art. 34); the right of indigenous peoples divided by borders to maintain and develop contacts, relations and cooperation across borders (art. 36). The draft Declaration, which is expected to be adopted by the General Assembly by the end of its sixty-rst session, captures the major normative elements of the cultural rights of indigenous peoples, which are also inferred from other international legal sources, as discussed in Chapter Four A on indigenous peoples and minorities. The Working Group on Minorities of the Sub-Commission has also made a signicant contribution, meeting annually between sessions of its parent body. Its pioneering activities have included support for the rst regional seminar on multiculturalism in Africa, held in Arusha, Tanzania in 2000, and the second regional workshop on the matter, held in Kidal, Mali in 2001. The Working Group has also supported international seminars, such as the one held in 1999 on the themes of education and participation of minorities, one in Montreal, Canada,

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and the other in Flensberg, Germany.53 At its 2003, 2004 and 2005 sessions the Working Group’s recommendations related to cultural rights included freedom of expression, training of minority journalists, permitting and providing support to media in minority languages, including community broadcasting, and access by persons belonging to minorities to public media; ensuring respect for the cultures and histories of minorities in educational and research institutions and reviewing education curricula so that students learn and respect the values, languages and cultures of minorities.54 Overall, considerable discussion takes place at the Working Group on the issue of indigenous languages, their use in public life, and mother tongue education at the primary level of education. Elements of the Working Group’s work are reected in Chapter Four below. In 2005, when the Commission on Human Rights decided to establish a new thematic mechanism, an independent expert on minority issues, it also decided to turn the Working Group on Minorities into a sessional working group, meeting for three days during the Sub-Commission’s sessions.55 This action of the Commission should not be interpreted as a limitation of its interest in minority issues, but rather as a strengthening of the monitoring on human rights and perhaps also a safeguard against the changes that the replacement of the Commission on Human Rights by the 2005 World Summit might entail for the Sub-Commission and its mechanisms. Various studies conducted by the Sub-Commission over the years, such as on indigenous peoples and on minorities,56 have given rise to new draft instruments later elaborated by the Commission on Human Rights and adopted by the General Assembly. To indicate the neglect of cultural rights, a study on economic, social and cultural rights in 199657 devoted two pages to cultural rights under the title “[R]emembering

53 The results obtained at the four meetings mentioned in this paragraph are summarized in A/56/258 of 1 August 2001, entitled “Effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities”. 54 E/CN.4/Sub.2/2003/19, para. C.12(l) and (n); and E/CN.4/Sub.2/2004/29, para. C.15 (l) and (o); E/CN.4/Sub.2/2005/27, C.16( j) and (n). In 2005, the Commission on Human Rights, in its resolution 20005/79, decided to establish a new thematic mechanism, namely an independent expert on minority issues. 55 Commission on Human Rights resolution 2005/79 in E/2005/23. 56 Study on Indigenous Populations, UN Sales No. E.86.XIV.3; Study on Minorities, UN Sales No. E.91.XIV.2. 57 E/CN.4/1996/16.

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cultural rights”. The Special Rapporteur did not provide any special clarication of the concept of cultural rights. The survey of the work of human rights bodies shows that crossfertilization among them in the area of cultural rights has been missing. The gap between the need to address cultural rights and the inadequate attention and action they receive is such that one or more of the human rights bodies should be taking the initiative to bring this anomaly to an end. It is also certain that this cannot be done without the expert input of the Committee on Economic, Social and Cultural Rights, which needs to provide its in-depth analysis through the adoption of a General Comment. Otherwise, the subject is treated unsystematically, occasionally motivated by political interests of the moment, and looses the authority that it should have in taking its rightful place on the human rights agenda. 3. The United Nations Permanent Forum on Indigenous Issues In 2000 the ECOSOC established the Permanent Forum on Indigenous Issues,58 an expert body composed of sixteen experts, half of whom are nominated by indigenous organizations and half by states. This body, which held its rst session in May 2002 is mandated to advise ECOSOC on questions of culture, as well as human rights, environment, economic and social development, education, health and information and to raise awareness of indigenous issues, as well as to promote coordination. This important development allows ECOSOC to systematize understanding and action throughout the UN system on cultural rights of indigenous peoples, including in the development area. Until now the Permanent Forum has dealt with cultural rights, without necessarily calling them that, mostly during its discussions on culture as well as under the angle of development and education. At its third session it had the opportunity to hear and take into account the results of studies on indigenous languages in education and make signicant recommendations.59 The recommendations pertained both to the content and languages of indigenous education as well as to inter-cultural education. As one of the goals of education, the Forum 58

ECOSOC resolution 2000/22 of 28 July 2000, E/2000/INF/2/Add.2. See report of the Third Session in E/C.19/2004/43. The Norwegian Expert Tove Skutnab Kangas made a presentation on mother-tongue education for minority and indigenous children. For more references see Chapter Four A below. 59

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included the appreciation, understanding and respect for indigenous cultures, namely that education should aim at enabling all students, both indigenous and non-indigenous, at all levels of education, to have an appreciation and understanding of and respect for traditional and contemporary indigenous histories, cultures and identities. Signicant recommendations were issued by the Forum in 2005 in connection with Millennium Development Goal 2, which focuses on primary education for all. The Forum made a series of recommendations on language rights in education—the most extensive to date at the international level—which are discussed in Chapter Four A below on the cultural rights of indigenous peoples and minorities. A major focus of the Forum is its advocacy for development with identity, development with culture, central to which is the full and effective participation of indigenous peoples in development processes. As the work of the Permanent Forum unfolds over the years, the Forum is emerging in the leadership in terms of further interpreting indigenous cultural rights into practical recommendations, but also in stressing the political signicance of their implementation for development and peace. The Forum’s overall philosophy and approach in this area is about how to reconcile aspects of the dominant development paradigm with culture and in particular the cultural rights of indigenous peoples. 4. The General Assembly The General Assembly has given another turn to the cultural debate as I explained in Chapter One above within the context of the item “Dialogue Among Civilizations”. At the same time, it adopted a resolution in 2000, resolution 55/91, entitled “Human rights and cultural diversity”, requesting the Secretary-General to prepare a report on human rights and cultural diversity, taking into account the views of Member States, relevant UN agencies and non-governmental organizations as well as the considerations in the resolution regarding the recognition and importance of cultural diversity among peoples. The 2001 report issued by the Secretary-General on the subject contained replies from UNESCO, one non-governmental organization and Argentina, Colombia, Cuba, Iraq, Qatar and the Russian Federation.60 In 2002 the replies compiled in the report of the Secretary-General were from Argentina,

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Cuba, Syrian Arab Republic, United Nations Conference on Trade and Development (UNCTAD), International Labour Organisation and UNESCO.61 The contribution most relevant to cultural rights came from UNESCO quoting from the Universal Declaration on Cultural Diversity, and pointing out that the defense of cultural diversity implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples. UNESCO also underlined the fact that cultural diversity must not be allowed to serve as a pretext for infringing on fundamental human rights or for promoting cultural relativism. It also stated that the Declaration aims at avoiding segregations and fundamentalisms that in the name of cultural traditions make sacred differences and transgress the principles of the Universal Declaration of Human Rights. As is the case with many other human rights issues, the substantive elaboration and study of a subject, such as cultural rights, must rst be done at the level of the human rights bodies before it arrives at the General Assembly. Therefore the General Assembly’s role on cultural rights within its human rights debates will remain limited, until the necessary work has been done by the UN human rights expert bodies. 5. The Security Council The Security Council has been another UN body playing a role in the area of cultural rights. In the case of sanctions regimes the Security Council has been confronted with the question of exceptions linked to the right to participate in cultural life, such as travel of artists, scientists or athletes to and from the targeted country for events or conferences, import of newspapers, magazines and other publications into the targeted country and the like. A report commissioned by the Ofce of the Coordinator for Humanitarian Affairs and UNICEF was revealing as it painted a dark picture of the intellectual, scientic and cultural isolation that was felt by people in the Federal Republic of Yugoslavia.62 Sanctions regulations on scientic, technical and cultural 61

A/57/311. “Economic Sanctions, Health and Welfare in the Federal Republic of Yugoslavia 1990–2000”, prepared by Richard Gareld, pp. 61–62, see UN Ofce of the Coordinator of Humanitarian Affairs website, www.reliefweb.int/library/documents/2001/ocha yug 25may.pdf. Some scientists are quoted as saying: “Sanctions isolated us and we further isolated ourselves during the years of sanctions”. 62

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exchange were never clear. In practice governments and organizations made their own interpretation of intellectual and communications policy regarding sanctions. People from the Federal Republic of Yugoslavia were not permitted to participate in most of the annual scientic congresses in Europe, subscriptions to professional journals did not arrive, international travel was restricted, researchers were cut off from research funding and shunned by professional organizations. One of the worst aspects of international isolation was the loss of information and communications, alleviated for a small group of people who had Internet access and email accounts in the early 1990s. Those communications and relations that continued did so because of personal friendships. Isolation stemmed both from a ‘wagons in a circle’ consciousness of exclusion from the mainstream of European life as well as border controls both within and outside the Federal Republic of Yugoslavia. The various sanctions committees of the Council over the years have approached the matter on a case by case basis and have argued that people do not only live by bread alone but need spiritual food as well. The thrust of the approach is that sanctions target governments and entities, not individuals, although, since September 11th 2001 and the adoption of Security Council resolution 1267, specic individuals may also be targeted. In the cases of international contacts of artists, scientists, intellectuals and others the sanctions committees examine whether the person wishing to participate may represent a targeted government or entity, in which case that person would fall under the sanctions regime, but not otherwise. Matters are more complex when the question of nancing of events arises, since links with a targeted government’s funds for a conference, for example, would fall under sanctions and thus individuals would not be able to participate. In the relevant debates of the Security Council’s Working Group on Sanctions which has been in charge of elaborating humanitarian exceptions to sanctions, there has not been a reference to exceptions pertaining to cultural rights, apart from import of standard educational materials and travel for religious purposes. It would be desirable for the Council to systematize and formalize its ideas on exceptions to sanctions connected with the right to participate in cultural life, thus boldly recognizing the fundamental value of cultural participation for human dignity.

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chapter two D. Role of the Ofce of the UN High Commissioner for Human Rights

When the General Assembly established the institution of the High Commissioner for the Promotion and Protection of all human rights in 1993, one of the qualications that were prescribed for the post was “the general knowledge and understanding of diverse cultures necessary for impartial, objective, non-selective and effective performance of the duties of the High Commissioner”.63 Having attended the negotiations on the mandate of the High Commissioner, I believe that, for some, the criterion of sensitivity to and understanding of various cultures was seen as a possible brake to a critique of national human rights practices that the future High Commissioner might make. I assume that this idea is still in the mind of some today. The General Assembly resolution boldly calls on the High Commissioner to promote and protect all human rights. The High Commissioner’s mandate also includes the -by now famous—phrase that the High Commissioner shall be guided “by the recognition that all human rights-civil, cultural, economic, political and social—are universal, indivisible, interdependent and interrelated and that, while the signicance 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”. Soon after the second High Commissioner, Mary Robinson, took ofce, she co-sponsored a seminar with the Organization of Islamic Conference entitled “Enriching the Universality of Human Rights: Islamic Perspectives on the Universal Declaration of Human Rights” in connection with the ftieth anniversary of the Universal Declaration of Human Rights.64 Through a series of other substantive and symbolic acts the High Commissioner took special steps to carry out her mandate in a culturally sensitive manner. The Ofce of the High Commissioner for Human Rights (OHCHR) in principle has the capacity through a number of voluntary funds to 63 A/RES/48/141 of 20 December 1993. Para. 2(a) reads: “Be a person of high moral standing and personal integrity and shall possess expertise, including in the eld of human rights, and the general knowledge and understanding of diverse cultures necessary for impartial, objective, non-selective, effective performance of the duties of the High Commissioner”. 64 The Seminar took place in Geneva from 9 to 10 November 1998, the report is contained in document HR/IP/SEM/1999/1.

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provide technical assistance in the eld of human rights. This is the case mainly through the Voluntary Fund for Technical Cooperation which provides assistance at the request of governments, tailor-made to the needs of the country. The programmes are prepared after needsassessment missions and are carried out after an agreement between the government concerned and OHCHR has been concluded. Draft projects are reviewed by the Board of the Fund. I believe it is not an exaggeration to say that rarely do any programmes deal with cultural rights65 although occasionally, as in the case of human rights bodies, the term “cultural” is added to the title “economic, social and cultural” without being accorded any specic content. Given the lack of conceptual clarity of cultural rights on the part of human rights expert bodies, this omission is understandable. Cultural rights categories would need to form part of OHCHR’s thinking during needs assessment missions, which could then be translated into programmes. There are of course exceptional cases where OHCHR’s technical cooperation projects have included some elements of cultural rights, such as training on access to cultural rights by persons with disabilities and review of school curricula to eliminate cultural and racial stereotypes.66 The Voluntary Fund for the rst International Decade of the World’s Indigenous People provided funding for projects aimed at the promotion of cultural rights. Examples of such community projects were the translation of children’s stories into indigenous languages, the development of museums to keep cultural traditions alive, the preparation of a manual on cultural traditions, the revival of tribal arts and crafts, the publication of books on traditional medicine. Although the funds available under this Voluntary Fund were limited, resources provided for cultural projects went a long way in assisting and empowering communities and were appreciated by the communities. Within the context of discharging various mandates, OHCHR has been the organizer of seminars and workshops that promote multi-culturalism. This was for example the case with two regional seminars on multi-culturalism in Africa, held in 2000 and 2001, a third in Canada

65 For example in two 2001 reports to the General Assembly, on technical assistance to Myanmar (A/56/230) and on technical assistance to national human rights institutions (A/56/255), the Ofce of the High Commissioner for Human Rights does not make any reference to projects connected to cultural rights. 66 Such positive exceptions in the technical cooperation programme of the Ofce of the High Commissioner for Human Rights have occurred mainly in Latin America.

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on inter-cultural and multi-cultural education and a fourth in Germany on effective participation of minorities in decisions affecting them. Given the prominence of the Ofce of the High Commissioner for Human Rights in the international human rights scene, it would be desirable and expected for the Ofce to be more proactive in the eld of cultural rights. With the normative and resource base well in place by now, the Ofce is clearly in a position to take initiatives in terms of research, promotion and technical assistance in the eld of cultural rights.

E. Role of the UN Educational, Scientic and Cultural Organization (UNESCO) UNESCO includes the promotion and protection of culture in its mission and has made an important contribution in this area.67 It has worked to dene cultural rights in terms of the rights of creators and transmitters of culture, the rights of the people at large to contribute to and participate in cultural life, and the right of peoples to cultural identity.68 In its prolic standard-setting activity over the decades, UNESCO has placed the strongest emphasis on the international, mostly inter-state aspects of the promotion and protection of culture and on international cultural cooperation. UNESCO interfaced with the UN early on and played an important role in the preparation of article 27 of the Universal Declaration of Human Rights, both by preparing the rst draft of the article and taking the initiative to facilitate the understanding of universality. On the latter, UNESCO brought together philosophers from various religious, cultural as well as political perspectives, who indicated that the principles underlying the draft declaration were present in many cultural and religious traditions, though not always expressed in terms of rights.69

67 For an extensive review of UNESCO’s role, see Kishore Singh, “UNESCO and Cultural Rights”, Cultural Rights and Wrongs, Halina Niec ed., UNESCO Publishing/ Institute of Art and Law, 1998, pp. 146–160; see also Stephen Marks, “UNESCO and Human Rights: The Implementation of Rights Relating to Education, Science, Culture, and Communication”, Texas International Law Journal, 1977, vol. 13, No. 1, pp. 35–67. 68 S. Marks, ibid., p. 50. 69 Glendon, Mary Ann. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, New York, 2001.

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UNESCO’s 1966 Declaration of the Principles of International Cultural Co-operation is an important instrument in international cultural cooperation among states, covers all aspects of intellectual and creative activities relating to education, science and culture and lays out the aims and conditions of such co-operation. Earlier instruments gradually built an understanding of specic aspects of cultural cooperation, such as the 1948 Agreement for Facilitating the International circulation of Visual and Auditory Materials of an Educational, Scientic and Cultural Character,70 the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,71 the 1972 Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange,72 and the 1976 Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It.73 Other positive contributions of UNESCO have been in terms of clarifying or dening various crucial concepts connected with culture, including the concept of culture itself, which 2001 UNESCO addressed in one of its most recent instruments, namely the Universal Declaration on Cultural Diversity. UNESCO has espoused the anthropological understanding of culture, i.e. culture as a way of life, or the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, encompassing, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs.74 By observing UNESCO’s work over the years one can see that the organization has moved away from concepts of culture as “high culture” only, such as masterpieces or monuments, to a more holistic approach that anthropology stands for. This is what has prompted UNESCO’s more recent work to spread to topics such as intangible cultural heritage and traditional knowledge. “Cultural heritage” is proclaimed as “universal” in UNESCO’s constitution and its protection includes the safeguarding, preservation

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197 U.N.T.S. 3. www.UNESCO.org. 72 17 UNESCO Gen. Conf. Rec., UNESCO Doc. 17 C/Resolutions, at 67 (1973). 73 19 UNESCO Gen. Conf. Rec., UNESCO Doc. 19 C/Resolutions, Annex I, at 29 (1977). 74 UNESCO Universal Declaration on Cultural Diversity, Records of the General Conference, Paris, 15 October to 3 November 2001 (see Annex). 71

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and restoration of historic sites and monuments and also works of art and literary productions.75 Cultural heritage represents what we have the right to inherit from our predecessors and the duty to pass on to future generations. As mentioned above, UNESCO expanded its original understanding of cultural heritage as the traditional manifestation of a masterpiece or a monument, i.e. “high Culture”, reecting the continuity of a particular people, to include the notion of intangible heritage.76 Intangible heritage is about identifying, protecting and enhancing an exceptional heritage, threatened with disappearance, particularly in the face of the uniformity frequently brought about by globalization. UNESCO adopted the Intangible Heritage Convention in 2003.77 UNESCO came closer to a human rights understanding of cultural rights, as compared to an understanding focusing mainly on inter-state relations, in the 2001 Universal Declaration on Cultural Diversity. The Declaration is divided into four parts. The rst part, “identity, diversity and pluralism”, recognizes the uniqueness and plurality of the identities of groups and societies and their forming part of the common heritage of humanity. It stresses that harmonious interaction among people and groups requires “cultural pluralism”, which is the policy expression conducive to cultural exchange and to the ourishing of creative capacities that sustain public life. It nally positions cultural diversity as a factor of development, understood also “as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence”. The second part of the Declaration, entitled “cultural diversity and human rights”, states that cultural diversity is inseparable from respect for human dignity and implies commitment to human rights, in particular the rights of persons belonging to minorities and those of indigenous peoples, adding that no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope. Cultural rights are viewed in this Declaration as an integral part of human rights, which are universal, indivisible and interdependent.

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Konate study, E/C.12/1992/WP.4, page 7. UNESCO and the Cultural Heritage, UNESCO’s Action, pp. 1 and 4. Fundamental normative instruments of UNESCO in this area include the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conict, the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1972 World Heritage Convention and the 1995 UNDROIT Convention on Stolen or Illegally Exported Cultural Objects. 77 See www.unesco.org. 76

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The ourishing of creative diversity requires the full implementation of cultural rights as dened in Article 27 of the Universal Declaration of Human Rights and in Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights. 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 should be able to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms. The human rights section of the Declaration also stresses the importance of ensuring the free ow of ideas by word and image which should be exercised so that all cultures can express themselves and make themselves known. Freedom of expression, media pluralism, multilingualism, equal access to art and to scientic and technological knowledge, including in digital form, and the possibility for all cultures to have access to the means of expression and dissemination are the guarantees of cultural diversity, the Declaration states. The other parts of the Declaration address the need for special treatment of cultural goods and services as commodities of a unique kind, the requirement for international solidarity in this area so that cultural diversity can be preserved and promoted, and the special role of UNESCO in these efforts. The two and a half page action plan attached to the Declaration includes some human rights elements, such as supporting expression, creation and dissemination in the greatest possible number of languages; encouraging linguistic diversity, while respecting mother tongue at all levels of education, respecting and protecting traditional knowledge, in particular that of indigenous peoples; fostering the mobility of creators, artists, researchers, scientists and intellectuals. In all its standard-setting efforts over the decades UNESCO has truly contributed, even if many times indirectly, to the understanding of cultural rights as human rights, i.e. the rights of individuals and the rights of groups or communities within the state, and Chapters Three and Four below on the normative content of cultural rights incorporate these elements. However, UNESCO approaches human rights, and cultural rights in particular with considerable political caution. The fact that UNESCO’s Declaration on Cultural Diversity did not incorporate a number of human rights elements, but left them to the action plan, is one of several indications of the political sensitivity of

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cultural rights as human rights in the organization, meaning among its member states. It has been mentioned above that UNESCO has mostly focused on inter-state relations regarding culture, rather on the cultural human rights of people and what has followed the Declaration on Cultural Diversity is one more proof. Soon after the Declaration on Cultural Diversity was adopted, an effort was set in motion to prepare a convention on cultural diversity, an international instrument with binding force, and some had hoped that such an instrument would clarify and amplify cultural rights as human rights. This nally did not materialize and the new convention is again one that stresses the aspect of cultural protection in inter-state relations. Initiated by France and Canada, but with the support of many developing countries. the new instrument nally adopted in November 2005, is entitled Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, and is in essence a trade agreement.78 The debate during the approximately two-year drafting process was about how to give special status to cultural goods and services, so that national cultural policies would not always have to follow international trade agreements, a position especially promoted by France and Canada and opposed by the United States of America. Thus, Article 20 on this issue became a bone of contention during the negotiations, namely the relation of the Convention with other treaties, especially treaties under the regime of the World Trade Organization. Finally, Article 20 as adopted aims at ensuring a relationship of “mutual supportiveness, complementarity and non-subordination” between these instruments. At the same time, the text states that “nothing in the present Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.” The implication of the Convention is that each state will be able to fund its movie industry, music or other arts, against the commitments undertaken by states at the World Trade Organization.79

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For the text see, www.unesco.org. In an interview of the French representative and member of the expert group that formulated the convention, Jean Musitelli pointed that the text of the convention adopted is rst of all a political act, as it is the rst time that the international community manifested with such majority the will to stop liberalization with no limit; thanks to this new positive law created, the special nature of cultural activities, goods and services has been recognized, according to Musitelli (interview by Nicole Vulser, reported in Le Monde, 19 October 2005). 79

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This brief discussion of UNESCO’s long standard-setting activity warrants another comment. To the extent that UNESCO drafts international standards which touch on human rights, it has to be said that its processes are quite different from those at the United Nations in terms of participation of stakeholders. The UN norm-creating processes rst follow a stage of preparation of studies of comparative international law in the area under discussion, for example, migration, minorities, noncitizens, disabilities, indigenous peoples, so as to inform the standardsetting body, i.e. the Commission on Human Rights or its subsidiaries and now its successor body, the Human Rights Council, or the General Assembly, as to where the world stands on a specic issue. The second stage is a drafting process aiming at consensus, as it is known that the force of international human rights standards considerably depends on their universal, or as close to universal, acceptability. This second stage involves the signicant participation and input of non-governmental organizations, which has become especially visible in certain areas, such as indigenous, gender and disability issues, and is also a result of the global UN conferences of the 1990s that mobilized civil society at a large scale. Such consensus-building, participatory processes at the UN are consequently quite time-consuming, as was the case, for example, with the adoption of the Convention on the Rights of the Child which took ten years to adopt. Processes in UNESCO have been quite different. The preparatory work is much briefer and civil society participation is restricted to very few non-governmental organizations. It was, for example, remarkable that not even one indigenous non-governmental organization was able to participate in the drafting of the Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions. The opposite has been the case, for example, in the process of drafting by a UN General Assembly committee of a comprehensive convention on the protection and promotion of the rights and dignity of persons with disabilities, where the participation of interested non-governmental organizations, including those of persons with disabilities, has been extraordinary. One of the results of the approach that UNESCO follows is that it produces too many international instruments too fast, without them necessarily having gone through the kind of preparation and collection of views required for a standard-setting text of universal character. To the extent that the instruments adopted by UNESCO touch on human rights, vigilance should always be exercised so that

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new human rights standards do not fall below existing international standards and thus weaken or dilute the existing international human rights regime.80 It has been the practice of the UN to conduct technical reviews of draft instruments before their adoption so as to ascertain whether the above-mentioned principle is followed, and so that a new instrument will not do more harm than good to international norms. In addition, too many instruments in the eld of human rights create a loose legal environment, in a situation where implementation of human rights instruments by states is already considerably lacking. Finally, the use of the word “universal” in the title of new instruments of UNESCO, may be viewed as weakening the unique position of the Universal Declaration of Human Rights, which is considered to be part of customary international law.81 In addition to standard-setting, one should highlight UNESCO’s work on cultural indicators, which is a positive contribution towards creating a more detailed understanding of cultural rights. UNESCO’s World Culture Report tries to capture and measure such activities as cultural radio and television programmes, feature lms produced/imported, translations and books in foreign languages and other aspects of culture. Further discussion of UNESCO’s work on indicators appears in Chapter Three E below. Despite UNESCO’s important contribution in the drafting of the cultural rights article of the Universal Declaration of Human Rights, cooperation between UNESCO and the Committee on Economic, Social and Cultural Rights has not been systematic and there is mutual loss in this. As mentioned above, UNESCO participated in the Com-

80 The historic General Assembly resolution 41/120 adopted on 4 December 1986 entitled “Setting international standards in the eld of human rights” provided guidance to the international legislator. The resolution calls on Member States and UN bodies to bear in mind the following guidelines in developing international instruments in the eld of human rights. It states that such instruments 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 sufciently precise to give rise to identiable and practical rights and obligations; (d) Provide, where appropriate, realistic and effective implementation machinery, including reporting systems; (e) Attract broad international support. 81 In November 2005 UNESCO for example also adopted the Universal Declaration on Bioethics and Human Rights (see http://portal.unesco.org/en/ev.php-URL ID=30274 & URL DO=DO TOPIC & URL SECTION=201.HTML).

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mittee’s discussion of Konate’s study on Article 15 of the Covenant, but it would be useful if the organization could also participate during the discussion of states parties reports, so as to strengthen attention to cultural rights, together with the Committee. On the issue of culture and development, UNESCO has been a pioneer advocate, underlining the signicance of culture in the context of development. Article 3 of the Universal Declaration on Cultural Diversity states that “cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence.” The 2005 Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions seeks to reafrm the links between culture, development and dialogue and to create an innovative platform for international cultural cooperation; to this end, it reafrms the sovereign right of States to elaborate cultural policies with a view “to protect and promote the diversity of cultural expressions” and “to create the conditions for cultures to ourish and to freely interact in a mutually benecial manner” (Article 1). Given UNESCO’s limited eld presence and participation in the preparation of common development policies in the UN system, its inuence has not been adequately reected at the programmatic level in UN operations. Fortunately, in the last few years, there has been an increasing awareness of culture as related to development at the operational level, a subject discussed below.

F. Cultural Rights and United Nations Operations 1. Development and Cultural Rights Often underlying the discussions about globalization and the expansion of free markets is the fear of the impact on local or national cultures, the threat by the well-funded standardized cultural products imported together with global capital. Some discussion, although inadequate, has taken place until now at the intergovernmental level towards a consensus that development should not be about homogenization of cultures, but about combining democratic human rights institutions with the cultural prototypes of each country or nation. UNESCO, which has been the most vocal actor, has pointed out that culture is both the context for

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development as well as the missing factor in policies for development and that, although such interactions have long been recognized as essential, there has been no worldwide analysis in this eld on which new policies could be based.82 Through its World Culture Report UNESCO has been trying to provide such analysis. One of the most vocal promoters of development with culture is the UN Permanent Forum on Indigenous Issues, which from its inception has advocated development policies that take into account the visions of development of indigenous peoples themselves. The concept of development with culture is also one of the ve objectives of the Second International Decade of the World’s Indigenous People (2005–2015).83 In a timely and welcome initiatives, UNDP devoted the 2004 Human Development report to Cultural Liberty in Today’s Diverse World. As the forward of the UNDP Administrator points out, the overarching message of the report is to highlight the vast potential of building a more peaceful, prosperous world by bringing issues of culture to the mainstream of development thinking and practice. The report demonstrates that accommodating people’s demands for their inclusion in society, for respect of their ethnicity, religion and language, takes more than democracy and equitable growth. Also needed are multicultural policies that recognize differences, champion diversity and promote cultural freedoms, so that all people can choose to speak their language, practice their religion, and participate in shaping their culture—so that all people can choose to be who they are. Multicultural policies that recognize differences between groups are needed to address the injustices that are historically rooted and socially entrenched. For example, simply spending on education for children of indigenous groups would not be enough, for they are disadvantaged if school instruction is in the ofcial language only—bilingual education would help. Similarly, claims over land cannot be resolved with policies that expand socioeconomic opportunities. Relying only on general policies of economic

82 See in particular the report of the fourth session of the UNPFII, E/2005/23, where the Forum made comprehensive recommendations in the context of indigenous peoples and Millennium Development Goal 1, which calls for the eradication of extreme poverty by the year 2015. 83 The Second Decade was proclaimed by General Assembly resolution 59/174 and the Programme of Action adopted by General Assembly resolution 60/142. For the text of the Programme of Action see A/60/270, Section II; also on www. un.org/esa/socdev/unpi.

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growth with equity for removing such group inequalities would take an insupportably long time, leading to resentment or even civil conict. The analysis concludes that policies which recognize cultural identities and encourage diversity, do not result in state fragmentation or conict, weak growth or authoritarian rule. Suppression or the non-recognition of identity fuels tension and conict, while multicultural policies that expand cultural freedom are the only sustainable option to promoting stability, democracy and human development.84 Even if one were to assume the full acceptance of the ideas promoted by UNESCO, the UN Permanent Forum on Indigenous Issues and the 2004 Human Development Report, reality strikes hard when it comes to culture and development. Public policies and resources for cultural rights and culture-sensitive development policies are often the rst to be sacriced in times of economic recess. Countries in transition and developing countries should therefore be able to count on assistance to enable them to respect and fulll the cultural rights of their population. But how often will the policy maker opt to appeal for international assistance in the cultural eld by comparison to other areas viewed as more urgent? And how would the donor community react to such requests for assistance, if they were to be put forward? It is painfully known, for instance, how little international funding there is for cultural projects proposed by indigenous communities around the world, since such projects do not fall under the “development” category. An overall review of the UN’s development programmes reveals a mostly hesitant, at best, approach to cultural rights. Under the leadership of UNDP and funding from the Italian government, PRODERE, the Development Programme for Displaced Persons, Refugees and Returnees in Central America, was the rst development programme to include the issue of human rights as one of its components. PRODERE’s duration was from 1989 to 1995. It focused primarily on violations of human rights caused by political violence, subsequently expanding the debate to economic, social and cultural rights, with remarkable achievements in the eld of children’s and indigenous rights.85 PRODERE applied the human development

84 Human Development Report 2004: Cultural Liberty in Today’s Diverse World, UNDP publication. 85 “PRODERE: External Evaluation Report”, by the Arias Foundation for Peace and Human Advancement, Refugee Policy Group, Friedrich Ebert Foundation, International Centre for Economic Cooperation and Development; New York, 6 February 1995.

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model integrating aspects relating to human rights and making the programme a valuable method of conict prevention. There was, among other elements, emphasis on better access to education, but there were no other elements relevant to the right to participate in cultural life in its broader sense. After 1997 and the UN Reform launched by the Secretary-General, UN development funds, programmes and agencies embarked on an effort to coordinate their development programming and prepared Guidelines for a Common Country Assessment and a UN Development Assistance Framework (CCA/UNDAF). The CCA/UNDAF Guidelines contain human rights elements and the CCA/UNDAF Indicator Framework, attached to the Guidelines, contains some civil and political rights indicators—a novelty in the UN system—and the idea that data regarding classical development indicators, such as health, education etc., to the extent possible, should be disaggregated for sex, race, colour, ethnic origin, religion or other status—thus trying to capture any discriminatory elements. By 2006 none of the versions of the Guidelines had included any elements that would provide guidance to UN Country Teams regarding promotion and respect for cultural rights.86 The rhetoric on development has been tested by various monitoring exercises at the national and international level and the results were largely disappointing as far as cultural rights are concerned. A review of UNDAFs prepared by the UN Development Group in the Fall of 2001, analyzed twenty UNDAF documents from August 2000 to August 2001. Eleven of those referred to human rights and governance issues and one in particular, the UNDAF of Guatemala, mentioned the discriminatory cultural system as a priority theme.87

86 In the March 2002 version of the CCA Indicator Framework we read the following phrase (p. 30): “Approaching development from the perspective of human rights creates particular demands for data that are not satised by traditional socio-economic indicators alone, and requires the selection and compilation of indicators on the basis of the following principles: a) internationally agreed human rights norms and standards that determine what needs to be measured; b) a comprehensive human rights framework with sectors mirroring civil, cultural, economic, political and social rights . . .”. This language ags the issue of cultural rights, but it is fair to say that it awaits to be given concrete content. It would indeed be very useful if the normative elements of cultural rights were made clear to UN Country Teams so that they would know what to look for in the situation of a country. 87 “Good Practices and Lessons Learnt from Reviews of UNDAF Documents, August 2000–August 2001”, CCA/UNDAF Learning Network, 2nd Synthesis Report prepared by the UN Development Group, New York.

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Reviews of the CCAs and UNDAFs of nine countries with indigenous peoples conducted in 2006 by the Secretariat of the UN Permanent Forum on Indigenous Issues88 found that in countries with some positive policies towards indigenous peoples, UNCTs were able to include indigenous peoples, analyze their situations and identify their key development issues with relative ease. On the other hand, in the absence of such national policies, inclusion of indigenous peoples and their issues with ease was not possible. The issue of participation of indigenous peoples had not been highlighted, even in those CCAs and UNDAFs which were prepared after the issuance of the 2004 CCA and UNDAF Guidelines which included relevant references. Participation of indigenous peoples should begin at the preparatory processes of CCAs and UNDAFs. The issue of participation is of crucial importance, as repeatedly stated by the Permanent Forum on Indigenous Issues and other international policies. The review also identied both a capacity gap in the UNCTs identifying indigenous organizations or representatives to engage in the preparation of the CCA/UNDAF documents, but also lack of assessment of the capacities of the UNCTs. Equally, strategies and actions to support and build the capacity of indigenous organizations or representatives to work with the UNCTs were not reected either. These gaps in the UN system’s own processes as far as cultural rights are concerned in the development area are matched by those of governments. In a desk review of twenty 2004 and 2005 Millennium Development Goals country reports (MDGRs), which are government prepared documents, the Secretariat of the UN Permanent Forum on Indigenous Issues found rare references to cultural rights of indigenous peoples.89 The twenty countries studied have indigenous peoples. In

88 The review entitled “Integration of Indigenous Peoples’ Perspectives in Country Development Processes: Review of Selected CCAs and UNDAFs”, April 2006, was prepared by Prasenjit Chakma for the Secretariat of the UN Permanent Forum on Indigenous Issues (SPFII) and was submitted to the Forum and distributed to UN agencies, funds and programmes. It is available on www.un.org/esa/socdev/unpi. The countries whose CCAs and UNDAFs were reviewed are Botswana, Brazil, Cambodia, Republic of Congo, Guyana, Kenya, Uganda, Vietnam, Ukraine. The CCA and UNDAF documents may be accessed through the website of the UN Development Group, www.und.org. 89 The paper entitled “MDG Reports and Indigenous Peoples: a Desk Review”, January 2006, was prepared by Kelley Laird for the Secretariat of the UN Permanent Forum on Indigenous Issues (SPFII) and distributed to the Permanent Forum and UN agencies, funds and programmes. It is available on www.un.org/esa/socdev/unpi. The

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one of those exceptions, the MDGR of the Lao Peoples’ Democratic Republic focused on rural and ethnically diverse groups, including recognizing the need to develop specic language practices and skills for specic ethnic groups and identifying language barriers as a key challenge for indigenous or ethnic children in that it is difcult for them to learn in a language that is not their rst language. Namibia’s MDGR mentioned that development assistance priorities regarding the San and Ovahimba indigenous peoples should target, inter alia, non-formal education mobile schools. This review of MDGRs concluded that indigenous peoples were not included in the processes of collection of information for the MDGR, nor in planning of MDGrelated interventions. None of the country reports disaggregated data regarding indigenous peoples, thus the realities of indigenous peoples remained obscure. Despite the lack of formal policy guidance on cultural rights and even the lack of clarity about their exact meaning, an examination of a number of documents and discussions with UN ofcials show that UN Country Teams have been trying to grapple with the challenges that culture and human rights, on the one hand, and cultural rights, on the other hand, pose. It is clear that development agencies are aware that women’s and children’s human rights, in particular, are often violated by custom and culture around the world. At the same time, interviews I had with development ofcials revealed that they regret the lack of interest by donors and policy-makers, with few exceptions, in supporting communities in enjoying their cultural rights. In their daily realities, especially in countries with distinct ethnic communities, development funds, programmes and agencies have to deal with multiculturalism and cultural identities in order to curb exclusion and foster a participatory development. There is increasing awareness that development strategies must be culturally appropriate.90 The work done by the UN system in MDGRs analyzed are those of Bangladesh, Belize, Botswana, Brazil, China, Denmark, Ethiopia, Finland, Indonsia, Lao Peoples’ Republic, Malaysia, Mauritius, Namibia, Nigeria, Norway, Pakistan, Papua New Guinea, Philippines, Sweden and Uganda. The MDGRs submitted by countries may be accessed via the website of the UNDP, www.undp.org/mdg/countryreports.html and the website of the UN Development Group, www.undg.org. 90 In its Draft Operational Policy 4.10 on indigenous peoples, the World Bank has included provisions on sustainability of indigenous cultures and the need for benets to be culturally appropriate. The Bank has been critiqued for inadequate consultation with indigenous organizations on this draft policy. For an interesting review of the Bank’s Draft Operational Policy 4.10 see Fergus MacKay, “Universal Rights or

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Guatemala, Peru and Bolivia provides an interesting example in that regard. And it is time to learn from good examples and expand attention to cultural rights at the operational level. In Peru, at the close of the 1990s, UNICEF identied areas of exclusion and of diverse cultures that needed to be examined separately in order to develop strategies that were both effective and culturally appropriate. A new vision was therefore developed that would provide the foundation for a new programme based on equal rights for all with respect for diversity. UNICEF found that, in addition to geographic and economic exclusion, there are profound barriers as a result of cultural exclusion. The great ethnic, racial and language diversity in the country prevented many sectors of the population from having access to basic services. One of the lessons learnt was that basic services that are not adapted to the diversity in the country prevent large sectors of the population from having access to them. Perhaps the most striking example is the way cultural exclusion is one of the factors that contributed to the high rate of maternal and infant mortality due to language barriers and the lack of understanding of the different customs and traditions. Thus the cooperation programme of UNICEF supported efforts to adapt health services adequately to the culture, thereby increasing the number of women using them during their pregnancy and as a result infant and maternal mortality rates are dropping in those communities formerly excluded. Despite this progress, UNICEF concluded that the pervasive geographic, economic and cultural exclusions continue to cause profound disparities and barriers, preventing the poor and extremely poor from exercising their rights.91 The 1998 CCA on Peru paid attention to the issue of cultural rights, especially regarding indigenous peoples and included, among the areas of attention, the promotion of respect for ethno cultural development, conservation and restoration of cultures, and the preservation of national heritage.92 The 2000 CCA of Bolivia addressed the issue of culture, especially indigenous languages, pointing out that bi-lingualism or tri-lingualism give better economic possibilities as compared to monolingualism in

Universe unto Itself ? Indigenous Peoples’ Human Rights and the World Bank’s Draft Operational Policy 4.10 on Indigenous Peoples”, American University International Law Review, 17:527, 2002, pp. 527–624. 91 Peru Case Study: A human rights approach, UNICEF 2002, p. 25. 92 Sistema de Naciones Unidas en el Peru: Evaluacion Conjunta de Pais, 1998, pp. IX, 38, 39 and 58.

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communities. The report underlined that values that give orientation and meaning to the life of a community, as well as the way of the organization of social relations and institutions constitute part of culture. Despite these references, the report stopped short of mentioning cultural rights in its “conclusions and challenges”.93 The CCA and UNDAF of Guatemala are rich documents in the area of cultural rights. The analysis grappled with the problem of exclusion which is associated with being part of ethnic groups whose cultures are meant to disappear or be subjugated to other supposedly superior cultures. This means not only the loss of languages or the use of traditional indigenous clothes, but also the disappearance of the historic memory of a people and a people’s concepts of humanity as well as the disappearance of a natural environment associated with particular forms of spirituality. Indigenous women are in addition affected by patriarchal forms of discrimination. The reports identied the necessity for a broad policy of multiculturalism, as the Peace Accords foresaw, that will help overcome areas of racism and exclusion towards the indigenous peoples; it underlined that indigenous representatives must participate in the Joint Commission on Indigenous Languages and that there is a need to strengthen awareness raising on cultural diversity and cultural difference. The UN System (ILO, UNDP, UNESCO, the UN Mission in Guatemala, MINUGUA) assisted in 35 projects that promoted consensus and participation of indigenous peoples in the recognition of cultural diversity and the process of national development. The UN supported the Joint Commissions and the Special Commissions to strengthen the capacity and participation of indigenous organizations in plans affecting indigenous communities. UNIFEM supported women’s participation. Support was also given within the context of the Agreement on the Identity and Rights of the Indigenous Peoples. A special inter-agency group on indigenous themes and multiculturalism (GRUTIM) coordinated action in these areas and included participation by the World Bank, UNESCO, UNICEF, MINUGUA, ILO and UNDP.94 The encouraging example of the UN’s work in Guatemala appears to be rather exceptional and can be partly explained by the strong overall focus of the UN on this country in terms of the peace 93

Evaluacion Comun de Pais, Sistema de las Naciones Unidas en Bolivia, 2000, pp. 45–47. Analysis de la Situacion del Pais: Guatemala, Sistema de Naciones Unidas, 2000, pp. 11, 15, 37, 57, 69 and 72: and Sistema de Naciones Unidas, Marco Comun de cooperacion para el Desarrollo, Guatemala (UNDAF), 2001–2004, pp. 34 and 47. 94

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process which dealt squarely with the indigenous peoples in the country. A more recent encouraging example, due largely to the leadership of the UN Fund for Population Activities (UNFPA), was the establishment in Ecuador of an Intercultural Theme Group, which brought together all the UN agencies with a eld presence in Ecuador in an effort to introduce an intercultural perspective in country programmes and projects and to link such perspective to the achievement of the Millennium Development Goals.95 Although the overall work of the UN on development shows inadequate attention to cultural rights, UNFPA is by far the UN eld agency with the most important contribution in this area. Given that UNFPA deals with issues of sexuality and reproductive health, which are very closely linked to community culture, it is obvious that cultural sensitivity is even more indispensable for the effectiveness of its work than for the work of other agencies. Through the extraordinary leadership of Thoraya Obaid, the Executive Director of UNFPA, the organization did not just espouse culturally sensitive methodologies, but also a human rights analysis, expressly aiming its work to safeguarding and promoting human rights in contexts of cultural diversity. Obaid, took a unique initiative which started in 2001. UNFPA rst organized a Panel on Globalization and the Role of Culture and Religion in November 200196 followed by an Expert Consultation on “Culture and Religion” in January 2002. The Expert Group was to take a closer look at how religion and culture affect people’s attitudes, perceptions and behaviors and to develop strategies that build on the strength of a common and well researched understanding of this dynamic. The objective of UNFPA’s initiatives was to increase the capacity of UNFPA and its programmes to communicate and implement the universal principles of the International Conference on Population and Development, most particularly as they apply to reproductive rights and gender equality across cultural and religious boundaries. Obaid pointed out that very often cultural and religious values are invoked to justify inaction; but cultures are full of values that support women and young people, that 95 See report of UNFPA to the fth session of the UN Permanent Forum on Indigenous Issues, E/C.19/2006/6/Add.7, also available on www.un.org/esa/socdev/ unpi. 96 It is indicative of the low interest of the UN System in this area that while all high UN ofcials were invited, only one attended the Panel Discussion on 8 November 2001 and the High Commissioner for Human Rights was the only one that sent a representative to read a message.

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promote knowledge and dialogue, that build on community solidarity and mutual support among its members; the UN needs to work with partners at the grassroots level to explore these positive values and anchor its programmes around them.97 Obaid cautioned that this discourse is not driven by cultural relativism but by the sheer force of will to create unity amidst diversity. The Expert Consultation proposed a plan of action for UNFPA. In a span of about four years, through a series of regional consultations and case studies in countries of various continents and religions,98 UNFPA drew important lessons on how to “work from within”, how to mediate change through culturally sensitive approaches and was able to produce guidelines for culturally sensitive programming and conduct training for its staff and also for its Executive Committee, which is composed of states.99 Many of the elements of UNFPA’s guidelines stress the human rights approach to development, especially the requirement to pay attention to the most vulnerable and the element of effective participation of communities, through their own institutions, in policies—of which reproductive health is an area, a major area for UNFPA’s work. UNFPA placed the cultural analysis in the center of programming on the same footing as political and economic analysis. In her Traverse Lecture in Bern in 2005 Obaid stressed that participation and inclusion will bring visibility to the invisible and pointed out that culturally sensitive approaches to the promotion of human rights are about the how, the way to bring about the much-needed visibility.100 UNFPA’s work on culture is based on eight assumptions: 1) that cultures are the realities within the context of which development takes place, 2) that people are not only the products of their cultures but also

97 Report on UNFPA Internal Expert Consultation on Culture and Religion, New York, 21–23 January 2002, pp. 4 and 5. 98 Case studies were prepared from experiences in Guatemala, Iran, Uganda, India, Brazil, Ghana, Yemen, Cambodia and Malawi. They are contained in Culture Matters; Working with Communities and Faith-based Organizations: Case Studies from Country Programmes, UNFPA publication, 2004; for a briefer version see Working from Within: Culturally Sensitive Approaches in UNFPA Programming, UNFPA publication; see also www.unfpa.org. 99 UNFPA’s materials include: Guide to Working from Within: 24 Tips for Culturally Sensitive Programming, 2004; Culture in the Context of UNFPA Programming: ICPD + 10 Survey Results on Culture and Religion, 2005; Mediating Change Through Culturally Sensitive Approaches: Reections from a Regional Retreat for Africa, 2005. 100 Traverse Lecture, Culture Matters to Development: it is the “How” and not the “Why” and “What”, by Thoraya Ahmed Obaid, UNPFA Executive Director, 13 December 2005, Bern, Switzerland, UNFPA ad hoc publication.

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the creators of their cultures, not just passive receivers but also active agents who can reshape cultural values, norms and expressions, 3) that cultures are neither static nor monolithic, but each is characterized by diversity, contestability and private and public space for mediation and negotiation, 4) that cultures have a strong impact on the social sectors and on social relations, but especially on gender power relations, 5) that it is through change from within societies/communities that cultural norms, traditions and expressions are changed, 6) respect for cultural independence and cultural diversity with the acknowledgement that change can be mediated in favour of human rights and gender equality, 7) that cultures and religions share common denominators with universal standards, such as human equality, compassion and tolerance, and 8) that human rights can be recognized and internalized through a culturally sensitive approach that gives social basis and support to the legal approach.101 UNFPA is now at the forefront of trying to bridge theories of culture with development programming, following a human rights based approach to development and has the potential to serve as a guiding example for the rest of the inter-governmental system. UNFPA’s extraordinary and exceptional effort needs time to solidify its results and time is also needed to capacitate national and international ofcials. Development work, whether by national or by international actors, constitutes an external intervention into a society or a social group, it is “social engineering” of sorts, the intervention being likely to create profound changes in peoples lives, especially when the actors are well resourced and politically powerful. Development work that is respectful of cultural rights is linked both to process-related rights and to content. The normative elements of cultural rights are a guide in this respect. In terms of process, development work has to respect the principle of non-discrimination; it should not interfere with people’s enjoyment of their culture and their freedom to contribute to it, nor with people’s freedom to choose in what culture(s) or cultural like to participate; it should not interfere with the avenues of dissemination of culture. Central in any culturally-sensitive approach to development that respects human rights is community participation, through the community’s own institutions. Development should not be an operation of service delivery, on which many development policies are unfortunately still

101

Ibid.

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premised. A human rights approach to development, including cultural rights, in fact demands that people’s visions of who they are and who they want to be is the guide of development. In essence, people should be able to dene for themselves what Socrates called “the highest good”, dene what happiness is for them. This is especially important for culturally distinct groups in society, namely minorities and indigenous peoples. Socio-economic status, for example, would seem an unproblematic concept in western society, generally measured by indicators such as cash income and levels and ownership of assets. However, among many indigenous peoples this can also be determined by access to ritual or religious knowledge rather than to material resources.102 Amartya Sen’s central argument is that development should be seen as a process of expanding people’s freedom to choose and attain the kind of life they wish to live.103 A human rights approach to development requires that especially the voices of the most vulnerable are heard, or, better said, the voices of those that society has rendered vulnerable and marginalized. It is therefore the good process that should produce the content of development programmes. This point is eloquently made in the words of a teacher in a village of Burkina Faso who addressed Frederico Mayor, Director General of UNESCO, during a visit he made to the country. That teacher said: Mr. Director General, why is it that you people from UN agencies when you come here, instead of asking us for our experience and our skills, our thoughts and our dreams, you give us lessons and advice? Why do you not come here to listen rst, then give us advice based on what you heard? 104

The human rights approach to development with culture has prompted some national and international efforts for capturing indicators of well-

102 John Taylor, Indigenous Peoples and Indicators of Well-Being: an Australian Perspective, paper presented at the Meeting on Indigenous Peoples and Indicators of Well-Being organized by the Secretariat of the UN Permanent Forum on Indigenous Peoples; for the paper and the report of the meeting see www.un.org/esa/socdev/unpi. 103 Amartya Sen won the Nobel Prize for economics in 1998. He gave depth to the concept of sustainable human development at the UN; see Sen’s “Democracy as a Universal Value”, Journal of Democracy, 10.3 (1999), pp. 3–17, Johns Hopkins University Press; see also Sakiko Fukuda-Parr, “In Search of Indicators of Culture and Development: A Review of Progress and Proposals for Next Steps”, 2001, article written for the World Culture Report, www.unesco.org. 104 See the website of UNFPA http://www.unfpa.org/culure/quotes.htm.

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being and poverty that would respond to the visions and the cultures of communities. The UN Permanent Forum on Indigenous Issues (UNPFII) noted that none of the 8 Millennium Development Goals, which have been the UN’s blueprint since 2000, nor the 18 targets and 48 indicators adopted by the UN system mentioned indigenous peoples or included their participation or consultation in their formulation. This prompted the Forum to recommend in 2005 that poverty indicators based on indigenous peoples’ own perception of their situation and experiences should be developed jointly with indigenous peoples.105 A project of participatory indicator setting was launched in 2006 by the Secretariat of the UNPFII with a series of regional meetings expected to culminate in proposals to the Forum in 2007. The rst meeting took place in Ottawa in March 2006 capturing indicators around two core themes: a) identity, land and ways of living, and b) indigenous rights to, and perspectives on development. A preliminary list of sub-themes and indicators of indigenous peoples’ well-being were also identied.106 Another pioneering effort at the international level is the work of the Food and Agriculture Organization (FAO) in developing global indicators for indigenous peoples’ food security and sovereignty conducted in cooperation with the International Indian Treaty Council. National efforts include the excellent work conducted by the Maori Statistics Unit of the Statistics Ofce of New Zealand.107 In global terms, it is clear that there is a lot to be done before one can consider that “development with culture” is the mainstream paradigm. However, good examples do exist and pioneering work is being undertaken to advance this agenda. The experiences and policies of UNFPA, the UNESCO Declaration on Cultural Diversity and the policies advocated by the UN Permanent Forum on Indigenous Issues can play a complementary role in this global learning about development and culture and should receive broad distribution among development agencies with the message that cultural diversity is a source of exchange, innovation, creativity and empowerment. Cultural diversity

105 Report of the Permanent Forum on Indigenous Issues at its fourth session, E/2005/43. 106 For the report of the Ottawa meeting on Indigenous Peoples and Indicators of Well-Being see E/C.19/2006/CRP. 3, www.un.org/esa/socden/unpi; the website also contains the papers presented to the meeting by indigenous and other experts. 107 See papers submitted at the above-mentioned Ottawa meeting, www.un.org/ esa/socdev/unpi.

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widens the range of options open to every one, hence it is one of the roots of development, not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence. 2. Peace Operations and Cultural Rights In an effort to assess the extent to which UN peace operations have taken cultural rights into account implicitly or explicitly, I have examined three eld operations, each of them providing a distinct methodological angle: the UN mission in Guatemala (MINUGUA) because of the prominent indigenous population in that country; the UN mission in Kosovo (UNMIK) because of the strong minority element in the conict; and the UN mission in Sierra Leone (UNAMSIL), where there is no ethnic element. Given the recent awareness at the UN that human rights should be integrated in peace operations, it would be no surprise if cultural rights, which are even neglected by human rights bodies, receive little attention in peace operations. On the other hand, in conicts with an ethnic element at their core, it would be reasonable to expect that UN political analysts would see the necessity to include cultural elements in operational policies and programmes, whether they call them cultural rights or not. The cases of MINUGUA and UNMIK are interesting because the indigenous and the minority issues are part of the core of the conict. UNAMSIL is an interesting example as there is no ethnic element in the problem and it gives the opportunity to examine whether the UN has paid attention to cultural rights and their value at the individual level. Based on the elements of cultural rights that I have analyzed in this book, the questions I wanted to respond to include the following: What is the understanding of cultural rights among UN ofcials? What steps are taken to educate the media to foster respect for cultural diversity? Are there attempts to make known and foster respect for minority or indigenous cultures through school curricula? Is the teaching of minority languages promoted at the schools? Can minority or indigenous languages be used within the systems of the administration of justice? Is the use of minority or indigenous language names for places protected? Have community organizations been meaningfully involved in dening cultural policies? Have issues of individual rights within a minority or indigenous group been explored? Do minorities or indigenous communities have the right to maintain relationships with

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their kin beyond national borders? Are special measures in place for the protection and preservation of sacred sites of indigenous peoples or other aspects of indigenous heritage? Is there an awareness that, given the profound spiritual relation of indigenous peoples to their land, their traditional means of livelihood must be protected as part of protecting their cultures?.108 The 2004 Human Development Report points out that with new states there may be unprecedented opportunities to resolve ethnic conicts by negotiating an agreement that involves trade-offs for various groups. For instance, it may be possible to negotiate more language autonomy in return for less territorial self-rule. Under the recent Ohrid Agreement, the Albanians in Macedonia gave up claims to territorial autonomy in return for ofcial language status throughout the country. Earlier examples in history point to the same conclusion. In newly independent Malaysia in 1956, the Chinese accepted the public dominance of the Malay language in return for a liberal naturalization policy.109 These are concrete examples of an important argument in this book, namely that the implementation of cultural rights of minorities, indigenous peoples and others can address crucial historical, moral, political, and material claims and can contribute to more harmonious societies and conict prevention. MINUGUA Based on a solid legislative mandate under the Peace Accords,110 MINUGUA was a mission that paid considerable attention to cultural rights. It was clear from the outset to those assisting with the peace negotiations

108 In order to gain more insight into the three operations, apart from UN documentation, I have also relied on interviews with professionals who worked in those missions and without whose input my understanding would be considerably limited I conducted ve interviews on MINUGUA, three on UNMIK and two on UNAMSIL. 109 Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, UNDP publication, pp. 64–65. 110 Various documents prepared in the process of negotiations attest to the focus on cultural issues and rights from the beginning. These documents have been compiled in a publication of MINUGUA entitled Proceso de Negociacion de la Paz en Guatemala (from 9 January 1983 to 29 December 1996). The 1992 Global Plan of the Unidad Revolucionaria Nacional Guatemalteca included a chapter on the identity and rights of indigenous peoples (pp. 127–129) of the above-mentioned publication). The Response to the Global Plan of the URNG prepared by the Government, also in 1992 also included a chapter on the same subject (pp. 155–157 of the above-mentioned publication). The nal 1995 Acuerdo Sobre Identidad y Derechos de los Pueblos Indigenas contains bold provisions on cultural rights (pp. 261–282 of the publication).

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that a lasting peace could not be achieved unless Guatemala became truly multicultural in its policies and practices, namely unless indigenous cultures were recognized, respected and integrated. The Acuerdo Sobre Identidad y Derechos de los Pueblos Indigenas of 1995 included strong provisions on indigenous cultural rights and, for the rst time in the country’s history, framed Guatemala as a multiethnic, multilingual society. It recognized that national unity should be based on the respect and fulllment of political, cultural, economic and spiritual rights of all Guatemalans. The Accord states that fundamental elements of Mayan identity include: their direct descent from the ancient Mayas; their languages that come from a common Mayan root; their vision of the world, which is based on a harmonious relation with all the elements of the universe, in which the human being is one more element and the land is the mother that gives life to all and the corn is a sacred base of Mayan culture; a common culture with Mayan principles and structures, a philosophy, scientic and technological knowledge, distinct artistic and aesthetic concepts, a distinct collective historic memory, a communitarian organization based on solidarity and respect and a concept of authority based on ethical and moral values. Self-identication was included as one more fundamental element of Mayan identity. The Accord states that, the Government is to take various measures to eradicate discrimination against indigenous peoples, including broad public information on indigenous rights through the system of education, the mass media and other means. Under the title “cultural rights”, the Accord contains special provisions on language, on names and last names of individuals as well as names of places, on spirituality, on temples, ceremonial and other sacred sites and the mass media. On indigenous languages, the Government is to take measures to promote the use of all the indigenous languages in the education system so that children can learn to read and write in their own language or the language most commonly spoken in their community, promoting in particular bilingual and intercultural education. Indigenous languages should be used in the social services provided at the community level. The Government should promote the training of bilingual judges and court interpreters. Indigenous languages should be promoted in the means of mass communication. There should be a process of ofcialization of indigenous languages with the participation of representatives of the various linguistic communities and the Academy of Mayan Languages.

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The implementation of the Accords by the UN Verication Mission in Guatemala (MINUGUA) was an uphill battle given the difcult political climate in the country, and social or budgetary obstacles. However, it is clear that the awareness of cultural rights within the mission was high and efforts were systematic, making MINUGUA a good example in the area of making cultural rights operational. As was mentioned in the chapter on development operations, the development programmes there also made considerable efforts. Enormous importance was given to indigenous law and studies were conducted to record it, not without considerable difculties. While in some instances traditional law had been preserved, in others it had been unraveled by decades of conict and displacement. In addition, there was a conscious effort to make indigenous culture known and respected among the non-indigenous population, the main aim being to foster dialogue and consolidate peace. The media, and radio spots in particular, were used to promote awareness of indigenous rights. Indigenous advisors were placed with the police authorities and schools around the country as well as with every UN regional ofce in the country. MINUGUA worked closely with indigenous organizations. Language became a major focus, bilingual education was pursued and the preferred pattern became the teaching of indigenous languages at the beginning of the schooling, followed by the teaching of Spanish. As is to be expected about any society, differing views within indigenous communities were not uncommon, as to which language policy to follow. A new generation of Mayan intellectuals occasionally disagreed with the teaching of indigenous languages opting for Spanish as the language that would benet the integration of indigenous persons in the economy, especially in areas where the indigenous communities lived in or close to cities. However, the young Mayan intellectuals could not pull the indigenous rank and le with them on this. As the Accords had provided, the UN promoted the ofcialization of indigenous languages through joint commissions, which included indigenous representatives. The UN also promoted actively the use of indigenous languages in courts and the justice system overall, preparing modules and training judges. These were pilot programmes at the local level, mainly due to lack of resources. In contrast, however, the constitutional reforms passed nally did not recognize any indigenous languages as ofcial, nor did they recognize indigenous forms of organization, law and justice, striking a blow on the hopes of the indigenous communities.

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The Mission was aware that some cultural practices were against human rights, especially women’s rights, but also others, as for example the practice of lynching as a punishment for theft. The Mission worked to nd ways to solve these problems, cooperating closely with women’s and other organizations. Contacts of the indigenous population with their kin beyond the border was fairly easy, although there were complications from the wave of returning refugees. The protection of indigenous cultural heritage, including sacred sites, was an issue for MINUGUA, although the effectiveness of its efforts is uncertain. Despite the fact that the Mission was reluctant to get into land issues, it was aware of the close link between land and traditional uses of the land and indigenous cultures and helped indigenous communities identify their traditional resources, for example in the forest management area.111 UNAMSIL A Human Rights Unit was incorporated in UNAMSIL and the work of that unit during the conict was dominated by a paramount concern for the right to life. The conict obviously created violations of cultural rights as well, yet as there was no ethnic element present in it, there was little or no awareness of cultural rights in the mission. No resources were available for cultural matters in the UN operation. Forced displacement and uprooting of people, the destruction of communications and the closing of the borders limited participation in cultural life. Various harmful cultural practices, such as female genital mutilation, continued during the conict and their harmful effects were exacerbated for the persons on whom they were inicted, given the special war circumstances and the brutality of the conict and its impact on society (e.g. raped girls who had undergone female genital mutilation). There

111 While the evaluation of MINUGUA’s efforts for cultural rights is positive, developments in the country have been slow. In a message issued in February 2002 the Special Representative of the Secretary-General to the Consultative Group for Guatemala regretted that little progress had been made in the implementation of the Agreement on the Identity and Rights of Indigenous Peoples and that there is still a vast gap in participation and in enjoyment of the full range of human rights by indigenous peoples. He further stated that it is necessary to strengthen and institutionalize the participation of the indigenous population in decision-making, including positions of responsibility in the Government. This would give a clear signal that the will exists to build a multiethnic, multicultural and multilingual nation in Guatemala (see MINUGUA’s website, minugua.guate.net).

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was no religious animosity in the country, and the ratio of Muslims and Christians is 50/50. The Human Rights Unit was able to work productively on projects with the Inter-Religious Council. International human rights instruments were distributed in the local languages and culturally appropriate cartoons, created by local artists, accompanied those publications. Human rights skits and slogans that were culturally sensitive were also used by the UN operation, again using local artists. The Ofce of the High Commissioner for Human Rights assisted in the establishment of the Truth and Reconciliation Commission which was meant to take full advantage of indigenous reconciliation methods, including the convening of the Council of Paramount Chiefs. In addition, the principles of the Truth and Reconciliation Commission included the idea that redress must be culturally specic. The example of UNAMSIL is typical of what one would expect to encounter in UN operations in terms of cultural rights. At the same time, UN ofcials realize that in order to be more effective in the execution of their programmes they need to take local cultures into account. Laudable as this is, it falls short from actually promoting and protecting cultural rights. UNMIK Kosovo is a part of the world with unique historical, legal, cultural and linguistic attributes and a long history of ethnic tension. Despite strong signs from pervasive human rights violations and a chronic political stalemate, the international community was unable to prevent the conict from erupting. Having being established after the NATO intervention to administer Kosovo, UNMIK was fully aware that it was a matter of life or death to address issues of cultural rights as one of the ways of pacifying the area and setting the foundation for more long-term peace. Yet UNMIK did not have the legislative support from the Security Council that it would have required. One major omission in resolution 1244 of the Security Council was any mention of protecting minorities and promoting multi-ethnicity. Security Council members should have understood that the main human rights and security problem in Kosovo would be the treatment of the Serb, Roma, Turk, Muslim Slav and other minorities.112

112 UNMIK ofcials, at times bafed and frustrated by relentless attacks on minorities, would point to the lack of mention in resolution 1244 of anything about a multi-ethnic

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UNMIK sought to guarantee the rights of all ethnic groups in the Constitutional Framework.113 Section 4.3 provides that institutions shall promote the preservation of Kosovo’s cultural heritage of all communities without discrimination. Under Section 4.4, Communities and their members have the right to use their language and alphabets freely before the courts, agencies and other public institutions receive education in their own language and enjoy access to information in their own language. There are clauses to ensure education, the establishment of educational institutions and the inclusion of community culture and history in the curricula. There are also provisions on the preservation of sites of religious, historical or cultural importance to the community. In addition, UNMIK used legislation to address the marginalization of minorities and introduced positive discrimination, especially for the participation of Kosovo Serbs and women in the civil service. Education became a key human rights issue. Some self-appointed officials refused to allow any instruction in Serbian, even though UNMIK declared Serbian one of the ofcial languages of instruction. Threats were made against leaders or parents who insisted on this right, thus many children remained out of school or their families left since they did not speak Albanian. Steps by UNMIK to encourage inter-ethnic schools and an interethnic curriculum encountered many difculties. Later the Kosovo Assembly put forward a consolidated curriculum developed in cooperation with the Ministry of Education and UNICEF and the participation of various non-governmental organizations and the Ofce of the High Commissioner for Human Rights. The aim was to standardize certain subjects that would be taught at schools in local languages and at the same time foster cross-cultural education. UNMIK encountered problems promoting ethnic languages before judicial authorities and courts. It was difcult to get minorities to trust the court system, especially as most of the judges in UNMIK-sponsored courts were 95–96% Albanian. Thus access to Serb/Roma speaking courts was limited. In addition UNMIK buildings, for example, displayed information only in Albanian and English. UNMIK also

Kosovo and wonder whether they should try for something else more realistic. This sent exactly the wrong signals to the extremists, especially Kosovo Albanians who became responsible for most of the abuses. 113 Based on an interview with a former ofcial.

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encountered problems in ensuring the publication of legislation in minority languages in a timely manner. Language issues have a profound effect in inter-communal relations. Serbs and Roma have been uncomfortable leaving their enclaves because they do not speak Albanian and some Albanians refuse to respond when addressed in Serbian. There have been problems for Albanians in terms of them speaking their language freely in areas where they are the minority. Very few Serbs speak Albanian, thus Albanians have problems communicating in social or ofcial settings because of their own reluctance to use the Serb language. UNMIK is trying to break down barriers, for example by ensuring that all public signs are both in Albanian and in Serbian and encouraging Albanian employees who speak Serbian to communicate with individuals in their respective language. UNMIK has also encouraged language-training for Serbs in the Albanian language with some results. UNMIK has also promoted inter-ethnic cultural events, such as music festivals, cross-cultural sports events, and promoted different ethnic holidays and cultural activities related to them, apart from Albanian or Muslim holidays, such as holidays of signicance for the Roma community. But the implementation of the Constitutional Framework and the laws on multicultural promotion have encountered difculties as UNMIK has found itself amidst reluctance of some communities to move ahead and put past hostilities behind them. In spite of UNMIK’s efforts to foster ethnic harmony, the media have engaged in partial reporting and most of them work in the Albanian language. Overall intimidation has prevented programmes from being aired freely in any but the predominant language. UNMIK has helped sponsor inter-ethnic and inter-cultural news programmes, for example special Bosniac television programmes or brief television programmes in the Turkish language. But resources have precluded broadcasts in Roma languages. Consultation and participation of local communities in decisions affecting them has been a commitment of UNMIK and problems relating to education and the promotion of culture are in principle discussed with community representatives at the ministerial level as well as at the local levels of UNMIK administration. However, in Mitrovica, for example, the overall evaluation is that no adequate forums of dialogue exist between divided communities and that despite several radio and TV stations in and around Mitrovica, neither side broadcasts in the

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other’s language on Mitrovica issues. Within Mitrovica both communities are highly ignorant of the other.114 There is tremendous potential for symbolic cultural gestures, promoting cultural rights and having an impact towards more harmonious relations among communities in Kosovo. It was proposed, for example, to have a “Pristina-Open City” campaign, which would include practical measures to attract residents of nearby Serb enclaves.115 Such measures could include distribution to shops of window stickers declaring, against a background design of the Albanian ag, that “we speak Serbian”; erecting signs at entry points of the city with a similar design declaring “Pristina-otvoreni grad”; asking TV and radio to promote freedom of movement in the capital; ensuring that lms in Pristina’s cinemas have Serbian in addition to Albanian subtitles; offering support to develop a large bookstore with signicant stocks of Albanian, Serbian, Bosnian, Croatian and other language books; and removing constraints keeping Serbs from accessing the hundreds of thousands of Serbian books in the “national” library—in the process of making it more user-friendly for everyone. The basic conclusions from the examination of the examples of MINUGUA, UNMIK and UNAMSIL are the following a) if there is an ethnic element in the conict, whether involving indigenous peoples or minorities, there is a UN focus on cultural rights; yet lack of a full understanding of what cultural rights are weakens their promotion on the ground and nding solutions that could otherwise be at arm’s length; b) a focus on cultural rights in the terms of reference of a UN peace mission gives precious direction to the programmes on the ground; c) if a mission does not contain cultural rights elements in its terms of 114 International Crisis Group (ICG), Bridging Kosovo’s Mitrovica Divide, Europe Report No 165, 13 September 2005, pp. 11–12, p. 15. “A City Slashed Away”, www. crisisgroup.org/home/index.cfm?if=3650&1=1. The report highlights the tragic results of lack of cultural exchange between the two communities: “Serbs regard the territory south of the Ibar as a hostile, mono-ethnic wasteland where they do not want to venture. Apart from knowing that they share their abject poverty, Albanians know little about life on the north bank. They assume it is under Belgrade’s control and mistakenly believe that Oliver Ivanovic has the most clout there because of his prominence on Kosovo Albanian television news”. According to the report, some Serbs cite the impossibility of their “civilized culture” surviving in close proximity with the “aggressive culture” of the Albanians. At the same time Kosovo Albanian society has the tendency to exclude non-Albanians. 115 International Crisis Group (IGC), Kosovo: Toward Final Status, Europe Report No. 161, 24 January 2005, www.crisisgroup.org/library/documents/europe/balkans/ 161 kosovo toward nal status.pdf, p. 11.

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reference, even human rights focal points or units do not necessarily understand cultural rights as part of their mandate, or simply do not understand cultural rights at all; however, discussions with individuals who have worked in UN missions show that, once awareness of the issue is there, promotion of cultural rights is clearly appreciated as part and parcel of building a long-term peace;116 d) similar to UN development programmes, peace operations are also aware that in order to be effective they have to take local cultures into account and use local cultural means, as for example traditional justice systems.117

116 The former UN High Commissioner for Human Rights, the late Sergio Vieira de Mello, when he was still Administrator of East Timor in 2000, addressed, in his speech, the many conicts around the world that the UN had tried to solve and wondered whether the United Nations “reussiront-elles a humaniser l’histoire?, to respond ‘Je soutiens que c’est deja le cas, dans le respect des identities et des cultures particulieres’. (La Conscience du Monde: L’ONU face a l’Irrationel dans L’Histoire”, Lecon inaugurale a l’Institut de hautes edudes internationals de Geneve, 2 November 2000). 117 A brief review of the UN’s work on the matter was conducted in 2002 by a Task Force on the Rule of Law of the UN Executive Committee on Peace and Security. Some of the issues that arise, namely whether traditional justice systems conform to international human rights standards, how they t with the formal judiciary, and how they can be strengthened. MINUGUA has some experience in the area and UNICEF is conducting a study on how the traditional justice system in East Timor could be used in conict resolution and restorative justice processes, especially regarding children as victims and offenders. UNICEF has also studied and promoted traditional justice mechanisms in Rwanda and Sierra Leone. Traditional justice, however, is not without controversy, since various such systems do not conform to fundamental human rights international standards. The gacaca courts in Rwanda for example have been criticized for eliminating the right to counsel as well as other due process guarantees. In other instances, traditional justice systems are even further from what international standards require. For example, it was a shock to learn from international press that a traditional tribal council in Punjab, Pakistan, ordered the gang rape of a woman to punish her family for an alleged affair of her brother with a higher caste girl (New York Times, 17 July 2002, p. A3). The Special Representative of the Secretary-General on Children and Armed Conict, Olara Otunnu, has often spoken about the value of traditional community mechanisms in the painstaking long healing processes after conict. As more research is needed in this area, the Ofce of the Special Representative has developed a research agenda, to be carried out by the Social Science Research Council in New York, which includes as a priority research on the role of cultural and local values in the protection and rehabilitation of children affected by armed conict (see A/57/402).

CHAPTER THREE

WHAT ARE CULTURAL RIGHTS? THE NORMATIVE CONTENT OF THE RIGHT TO PARTICIPATE IN CULTURAL LIFE

The vagueness of the right to participate in cultural life has been one obstacle in attributing responsibility and accountability to the state. The purpose of this chapter is to state what cultural rights are, i.e. to analyze the normative content of the right to participate in cultural life from an international law point of view. Such analysis will clarify what the practical and concrete obligations are for states to respect, protect and fulll this right. The analysis will draw from six sources: the texts of international human rights instruments; the authoritative interpretation of relevant treaty provisions by the human rights treaty bodies in their General Comments, the case law of international courts, regional courts and of the Human Rights Committee; the practice of international human rights bodies and mechanisms; state practice; and relevant academic literature. The texts of the international instruments do not provide the normative elements as a clear collection of provisions that one or the other instrument calls “cultural rights”. Language-related rights are a good example of rights that “hide” in articles on various subjects, without necessarily being called “cultural rights”. This makes the sources mentioned above, other than the human rights instruments, particularly useful. But before I proceed to analyze the normative content of the right to participate in cultural life, I must rst discuss the complexity of the content and concept of culture, which has contributed the greatest difculties in dening cultural rights.

A. The Context and Concept of Culture Cultural rights can only be understood within the context of culture and therefore the denition or at least an understanding of culture must be in place before we proceed to dene cultural rights as human rights. Culture is inseparable from the quality of being human, from

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the sense of self-respect of a person or a community. Culture is about human relations and thus constant cross-inuencing, cross-fertilization, conict and change are part of culture. In today’s interlinked world, economic globalization, revolution in communications, massive people’s migrations and other phenomena result in ever-increasing cultural contacts as well. Mapping the state of culture within state boundaries at any given moment is no easy task. I say “within state boundaries” in order to be able to dene afterwards the corresponding state obligations vis-à-vis cultural rights. In the midst of human diversity, one might say that cultural rights vary from country to country according to the culture or cultures within a country. Such a view would give further basis to arguments for cultural relativism or simply render cultural rights meaningless from an international law point of view.1 However, as I explain below, there are normative elements of cultural rights that are present irrespective of time and location. Time and location help us take a snapshot of the cultural activities and manifestations in a particular society at a particular time. Human rights norms help us respond to the question of what enabling legal space must exist, what legal guarantees, processes and institutions must be in place, to render possible the respect, protection and fulllment of such cultural manifestations as rights. There are numerous denitions of culture. A denition or, more precisely, an understanding of culture that surfaces from the examination of literature and the work of the UN bodies and that is useful for examining cultural rights is at three levels:2 1 I was once told by a prominent diplomat, who resents that the Universal Declaration of Human Rights was ever adopted, imposed, in his view, by the USA at the time, that the only human right that should have been recognized by the UN is not to be subjected to mass killings and genocide and the right for each person to enjoy her/his own culture. In other words two rights would be acceptably recognized according to this view: the right to be alive/not to be arbitrarily killed and the right to have one’s own culture/to be different; the rest should have been left up to each state. A recent account of the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide tells the story about how the pioneer of the term “genocide”, Lemkin, was himself against the adoption of the Universal Declaration of Human Rights so that it would not weaken the Anti-Genocide Convention which was being drafted simultaneously, the logic being that you need to exist rst before there is any discussion about what your rights are (Samantha Power, A Problem from Hell: America and the Age of Genocide, 2002, Basic Books, New York, pp. 74–76). Thomas Buerghenthal repeats this point, stating that the right of specic groups (national, ethnic, racial or religious) to exist as groups is the most fundamental of all cultural rights (International Human Rights, 1998, West Publishing Co., St. Paul Minnesota, p. 49). 2 I follow the denitional distinctions of culture made by Asbjorn Eide, “Cultural

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a) culture in its material sense, as product, as the accumulated material heritage of mankind, either as a whole or part of particular human groups, including but not limited to monuments and artifacts; b) culture as process of artistic or scientic creation, i.e. the emphasis being placed on the process and on the creator(s) of culture; and c) culture in its anthropological sense, i.e. culture as a way of life or, in UNESCO’s words, the “set of distinctive spiritual, material, intellectual and emotional features of society or a social group”; it encompasses “in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs”.3 In this system-oriented understanding of culture, the individual is seen as a product of a cultural system. These denitional “guides” are useful for the legal analysis of cultural rights.4, 5 Within each of these understandings of culture, both high culture (e.g. museums, certain kinds of theatre, painting, literature) and popular culture (e.g. cinema, television, sports, crafts, certain kinds of popular theatre and painting, certain ways of dressing) are included. Language is a major feature of culture. Religions often represent a culture’s ethics, values, explanations for existence, relationship to the environment, and relationships and responsibilities to members within and outside the

Rights as Individual Human Rights” in Economic, Social and Cultural Rights: A textbook, A. Eide, C. Krause, A. Rosas eds. 1995, Martinus Nijhof Publishers, Dordrecht/ Boston/London, p. 230. 3 UNESCO Universal Declaration on Cultural Diversity, Records of the General Conference, Paris, 15 October to 3 November 2001 (see annex). 4 The World Bank uses two denitions of culture: 1) Particular shared values, beliefs, knowledge, skills and practices that underpin behaviour by members of a social group at a particular point in time (with potentially good and bad effects on processes of poverty reduction). 2) Creative expression, skills, traditional knowledge and cultural resources that form part of the lives of people and societies, and can be a basis for social engagement and enterprise development. These include for example, craft and design, oral and written history and literature, music, drama, dance, visual arts, celebrations, indigenous knowledge of botanical properties and medicinal applications, architectural forms, historic sites, and traditional technologies. http://www.worldbank.org/ poverty/culture/overview/. 5 Culture also may be viewed as the framework within which an ongoing series of decisions are made and actions taken and where human rights would serve as a means to make sense of and to guide these decisions. See Stephen Hansen, “The Right to Take Part in Cultural Life: Towards developing core obligations related to Article 15(1)(a)”, paper presented to the Committee on Economic, Social and Cultural Rights, April 2001, p. 5.

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community.6 Religions and belief systems are of fundamental importance for most people, forming part of their identity. Music, dance, food and customs around major phases of life such as birth, marriage and death are also included. As mentioned earlier, when mapping the complexity of culture within a state, a cross-cutting conceptual consideration within the tri-level understanding of culture is that subjects of culture are the individual human being, the group or sub-group and the state or the nation-state. At the global level, UNESCO has established the concept of “the common heritage of humanity” which is “recognized and afrmed for the benet of humanity”,7 whereby, presumably humanity as a whole is entitled to have such aspects of its heritage protected. “Humanity” as a subject of human rights seems too vague to establish as a rights-holder and therefore, within the human rights legal regime, it is rather groups, especially minorities and indigenous peoples, whose rights need to be protected, as they see their cultural heritage threatened or destroyed by state policies. Such situations enter the human rights regime, where protection and promotion of cultural rights comes into play. The various subjects of culture and cultural rights must be taken into account simultaneously in dening the normative content of the human right to participate in cultural life and the possible clash among them should be factored into this analysis.8 Law should address conicts or possible conicts within society. Classical human rights law regulates the relation between the state and the individual or the state and groups and denes positive and negative state obligations vis-à-vis the bearers of human rights. International law also denes violations of human rights by the state in terms of commission or omission.9 We have to examine the complex map of cultural relations within a state against this paradigm of human rights law. Who

6

Stephen Hansen, ibid., p. 17. 2001 UNESCO Universal Declaration on Cultural Diversity, Article 1, Records of the General Conference, Vol. 1, Resolutions. 8 I would like to state here that the phrase “right to culture” used by some can be confusing. This phrase is not a term in international legal instruments. Konate conrmed that a “right to culture” is not recognized (E/C.12/1992/WP.4). In fact the term “right to participate in cultural life” of Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights is most appropriate, recognizing the actor, the person or group, as a protagonist of culture. 9 The current state of international law on implementation and violations of economic, social and cultural rights is captured in the 1986 Limburg Principles and the 1997 Maastricht Guidelines (E/C.12/2000/13). 7

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are the subjects of cultural relations and thus of conicts or possible conicts? What could be described as the mainstream or majority society is one player. Minorities, national, ethnic, religious or linguistic groups, in the classic sense of the term “minority” in international law, are other players who interact, create alliances and possibly clash not only with the majority culture, but also with other minorities within the state. Apart from those understood in the above-mentioned “classic” denition, there are other minorities as well: persons with disabilities, the homeless, gay people and others. Within a majority or a minority culture there are other sub-cultures, e.g. feminist groups or gay groups, environmentalist groups or religious fundamentalist groups, which relate, form alliances and possibly clash with a surrounding minority culture, another sub-culture or the majority culture. Finally, the individual, as the smallest unit of society and subject of cultural relations may interact with all surrounding cultures or subcultures, may develop multiple identities,10 may be the ultimate contester of her/his surroundings and may also conict with other individuals or groups. Respect for each human being’s dignity in terms of his/her identity and cultural self-denition and autonomy puts society and the state to the test. It is obvious that this intricate nexus of cultural relations can stir—and reality shows that it does stir—profound emotions that can have far-reaching political, economic and social reverberations as well as an impact on peace within a state and among states. I am painting this complex picture of cultural inter-relations and possible conicts in order to show, rst of all, that the role of the state in protecting and promoting cultural rights, especially in today’s increasingly multicultural societies, is very complex. The state should not simply be seen as needing to overcome its presumed political prejudice in favour of the majority or otherwise dominant culture or as being in conict or tension with a minority, although this is often true. The state should not be stereotyped a priori as the hostile ground for minority or dissenting cultures—although it can be and often is. A human rights analysis in

10 A study conducted in Marseille of young people born in France of parents with an Algerian origin showed that respondents perceived themselves as having a number of parallel identities. 84% felt that they were from Marseille, 68% felt that they were Algerian, 63% felt that they were French and 66% felt that they were Arab or Muslim, whereas only 22% perceived themselves as immigrants (Migrations Etudes, 1999, 90, Ministere de l’Emploi et de la Solidarite, France), quoted in a study of the European Commission on The Social Situation in the European Union 2002, Directorate-General for Employment and Social Affairs.

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terms of cultural rights reveals that state responsibility expands much beyond the obligation to respect the cultural rights of the individual or of minorities. In our increasingly multicultural societies, it includes the responsibility to be a fair, non heavy-handed, non-stiing, neutral, wise and necessary arbiter of possible conicts of cultures within its boundaries, a promoter of cultural pluralism. Many difcult questions arise within this context. How is the state to discharge its obligation of non-discrimination and equality? How is the state to distribute public funds in the area of culture, for example, among national minority groups and groups of migrant workers as well as the majority cultural institutions? What limitations are permissible to cultural rights? Since cultures are in perpetual movement through time, what are the limits of state intervention in favour of a culture? Should the state “stop the clock”? Is the state, for example, obliged to save a dying culture or subculture when the participants in that culture are changing their attitude towards tradition? Should the state, promote folklore at schools when society is indifferent to it? What are the state’s international obligations for the preservation of what UNESCO has called the cultural heritage of mankind? What are the state’s obligations to preserve and protect national culture in the face of globalization? What are the state’s obligations regarding the cultural rights of vulnerable groups, including the extremely poor? Some answers will hopefully be possible based on the analysis that follows.

B. The Fundamental Nature of Cultural Rights: Not Every Custom or Rite Is a Right International human rights law forbids rites that violate human rights, and a good part of Chapter One B above on “culture, cultural relativism, and identity politics” points to language in international human rights instruments as well as to practice of international human rights bodies that clearly follow this principle and dene the perimeter of state responsibility in this area. At the same time it is useful to recall that Article 29 of the Universal Declaration of Human Rights addresses the responsibilities of the individual to the community, thus placing certain limits to the exercise of freedoms. It reads 1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

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2. In the exercise of his rights and freedoms, everyone shall be subject to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. . . .11

It is an additional challenge in the denition of cultural rights to capture aspects of human life that are of fundamental character so as to warrant their elevation to human rights, in other words not to trivialize cultural human rights. The anthropologists have dened culture as “a way of life”. The difculty is where to draw the line between the essential and the non-essential in order to call it a human right, a cultural right worthy of promotion, protection and fulllment on the part of the state. Here the issue of time and location is crucial. What is essential for people in one geographical area is not so for people in other areas of the same country for that matter, or what was essential yesterday may not be so tomorrow. The issue of degree is also important, i.e. what degree of presence of certain circumstances or what degree of their absence is “essential” so as to be called a “human right”. While, for example, olives for Greeks could be seen as an important part of their nutrition in the past and thus part of their psyche, mythology and culture, they are not so today or in some parts of the country they may be and in others, especially the cities, they are not. Most Greeks would agree that olive oil is essential to their nutrition and culture. Is olive oil more essential than olives for Greeks, one may ask? We remember the long and painful protests of peasants from Megara, an agricultural community in Attiki outside Athens, whose centuriesold olive groves were threatened with expropriation and nally were uprooted at the time of the junta to allow the space to be used for oil reneries. The destruction of the olive groves meant destruction of a whole way of life. Looking today at the destruction of olive trees in Palestine by Israeli authorities brings to mind, apart from the economic, also the cultural aspect of the signicance of this to the community. The Inuit in Greenland would denitely consider whale meat as essential

11 See study on the Freedom of the Individual under Law: A Study on the Individual’s Duties to the Community and the Limitations on Human Rights and Fundamental Freedoms under Article 29 of the Universal Declaration of Human Rights by EricaIrene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, United Nations 1990, Study Series 3, Sales No. E.89.XIV.5, ISSN 1014–5680.

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to their nutrition and overall culture, as well, and Native Americans in various parts of the USA would consider the use of eagle feathers or peyote as essential for their religious and cultural ceremonies. Could then one claim that it is a human right to eat olives in Greece or whale meat in Greenland with corresponding state obligations? Would it not mean something different, closer to their culture, for the Greeks or the Palestinians, to see their olive trees destroyed by state action, by comparison to another crop that the state may decide to do away with? How is the state to distinguish the essential and the non-essential among cultural manifestations in order to treat them as human rights and, according to human rights doctrine, respect, protect and fulll them through laws, policies and budgets? How is a responsible well-meaning democratic government to adopt development policies without trampling upon cultural rights? I partly respond to this by analyzing the normative elements of cultural rights below, but would like to stress here that, since culture is “a way of life” constituted by numerous components, more or less essential to it, the minimum that the state is expected to do is to ensure the democratic participation of the population in such decisions and otherwise not to interfere with the enjoyment of cultural life, the freedom to create and contribute to culture—as long as cultural manifestations do not infringe upon internationally proclaimed human rights. The answer is more complex when it comes to the positive obligation of the state, the obligation to fulll cultural rights, especially through committing resources. This is when the distinction between the essential and the non-essential will play a much bigger role and in order to make a determination of what is or is not essential, a case-by-case analysis is required. In dening cultural rights, one might bear in mind the ground-breaking General Assembly resolution 41/120 adopted on 4 December 1986 entitled “Setting international standards in the eld of human rights” which provided guidance to the international legislator. The resolution calls on Member States and UN bodies to bear in mind the following guidelines in developing international instruments in the eld of human rights. It states that such instruments 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;

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(c) Be sufciently precise to give rise to identiable and practical rights and obligations; (d) Provide, where appropriate, realistic and effective implementation machinery, including reporting systems; (e) Attract broad international support.

C. The Elements of the Right to Participate in Cultural Life 1. Non-Discrimination and Equality The Committee on Economic, Social and Cultural Rights has made clear through its examination of the reports of States parties that the non-discrimination provisions of Article 2, paragraph 2 (“States parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”) and Article 3 of the Covenant (“The States parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.”) must be respected not only in formal terms, by enacting appropriate laws, but in fact. In other words, the Committee has required positive legislative and other measures that will create conditions of real equality in terms of participation in cultural life. The issue of equality in the enjoyment of the right to participate in cultural life becomes particularly signicant in the case of vulnerable persons or groups or groups rendered vulnerable: minorities, indigenous peoples, migrant workers, women, children and youth, the elderly, people with disabilities, the poor. The revised guidelines regarding the form and contents of reports of States parties adopted by the Committee in 199012 request states to report on positive effects as well as on difculties and failures, particularly concerning indigenous and other disadvantaged and particularly vulnerable groups. While the principle of non-discrimination is unqualied and of immediate application in terms of the state’s obligations, the implementation of the principle of real equality is subject to the exibility given 12

E/1991/23, Annex IV.

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to states under Article 2 paragraph 1 of the International Covenant on Economic, Social and Cultural Rights. For example, it cannot be expected that a person carrying out a prison term will enjoy cultural rights in the same degree as a person who is not imprisoned. Nor does it mean that a prisoner is without any cultural rights. For example Native American prisoners in the USA have been allowed to pray in a sweat lodge, even if not at all occasions. In 2005 the Greek Ministry of Justice launched an initiative, called “Life is everywhere”, which consists of cultural programmes in prison, with the participation of important people from the arts, intellectuals, musicians, actors, writers and athletes.13 The application of the principles of non-discrimination and real equality contribute to the integration and end of marginalization of various groups in society. The views of the Committee on Economic, Social and Cultural Rights on positive measures in the area of cultural rights has been cautious. The formulation of an opinion by the Committee on a specic country situation as far as positive measures are concerned would require profound reection, as the notion of integration in terms of culture poses problems and stirs passions: integration it is not a synonym of assimilation,14 and it must be dened carefully. Measures for vulnerable groups in the area of culture must take into account the pluralist dimension of society. The term “assimilation” is understood here as meaning “forced assimilation”. Essentially, if one were to give a literal or narrow interpretation to the concept of equality in terms of cultural rights of minorities and indigenous peoples, for example, there would be a danger of turning it into a tool of forcible assimilation of such groups via public policies. It would be the wrong understanding of equality, for example, if the state were to require the same school dress code for children of an indigenous community as for the children of the dominant community,15 or if the state were 13 At the launch of the programme on 8 October 2005, the Minister of Justice, in a statement underlining the fundamental signicance of participation in cultural life, said: “Life is everywhere, where people are, and life is fed by hope, by free participation and expression, by song and dance, by literature, athletics and communication . . .”. Ethnikos Kiryx, 10 October 2005, p. 11. 14 Mylene Bidault, “La protection des droits economiques, sociaux et culturels par le Comite sur les droits economiques, sociaux et culturels”, E/C.12/2000/14, pp. 41, 36 and 37. 15 I have become aware of an example, where an indigenous youth in Ecuador could not attend school because he was wearing his hair long, following his cultural tradition. The UN Permanent Forum on Indigenous Issues has recommended that states eliminate

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to provide the same type of public housing for an indigenous rural community as it would provide to any other part of the population, thus paying no attention to the cultural acceptability of this type of housing. Partial or full assimilation to the dominant culture by choice of the individual or the group is obviously a different matter, in fact it is part of the ow between cultures which, constantly change each other once they come in contact with each other.16 The issue is that it should not be state policies that force a person or a group to assimilate, but a matter of free choice. The Committee on Economic, Social and Cultural Rights, although not using explicitly the term “positive discrimination”, otherwise known as special or positive measures or afrmative action, has clearly sanctioned this idea through its practice, but has not yet provided adequate analysis on this principle and spelled out what it means. It is a broadly accepted principle of law, however—and the Convention on the Elimination of All Forms of Racial Discrimination includes specic language on this—that such positive discrimination shall not be continued after the objectives for which they were taken have been achieved.17 Human rights norms should not be used to only protect and promote “small” cultures, while dealing with “big” cultures always as the “enemy”. Cultural rights within the human rights legal regime are about protecting human beings who are the ultimate creators, revisers and revolutionaries of culture, whether this culture is “small” or “big”. Simply, the human rights approach requires that the most vulnerable are addressed rst, because of their vulnerability, not because the cultural rights of the majority or dominant population are of lesser importance. There is a question about how a well-meaning state, with commitment to multiculturalism, should balance public policy attention to the culture of a majority and the cultures of minorities, how to apportion resources and how to pursue real equality. The legal aspect of the question is the easier one, since the principle of non-discrimination and other

national policies and practices that create further difculties for indigenous children to enjoy their right to education, such as the refusal to accept indigenous names and traditional dress in schools (E/2005/43, para. 48 (h)). 16 An interesting example is the extraordinary success of the revival of Maori language in New Zealand. This has resulted in non-Maoris having an average of 1000 Maori words in their vocabulary (presentation of Aroha Mead at the UN Workshop on Indigenous Traditional Knowledge, Panama City, 21 to 23 September 2005). 17 Article 1 para. 4.

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normative aspects of cultural rights explained in this and other chapters provide general guidance. The more difcult aspects of the question are the moral and political ones. What are the limits of equal value or visibility or resources placed on a majority culture and a minority culture? Symbolism matters to people, especially in cultural matters. In a hypothetical example, should a new head of state take the oath of ofce in the majority and various minority languages? If she were to do so, what would be the impression created on the majority population and how should the state explain such choice? And how should the state avoid creating tensions among various parts of the population? This is an issue of the political and moral limits of cultural rights, not to speak about the resource-related limits. A major substantive understanding and response of “the well-meaning state” to its majority population would be that the majority culture, in a relatively homogenous society, is in fact well represented in the institutions of the state and that therefore special attention, and visibility, to the minority culture is required so as to reach equitable solutions. There is denitely not one response to all situations in all countries, as histories and social relations vary. But one thing is clear, namely that “the well-meaning state” has to be aware of cultural rights and be pro-active in its policies in this area. Demonstrating the various dilemmas in this eld, an interesting case was submitted to the Human Rights Committee against France for its ban of “dwarf-tossing” as a means of earning a living.18 The complainant, a dwarf himself, who had been earning a living by appearing, since 1991, in “dwarf-tossing” events, allowing himself to be thrown short distances, while wearing suitable protective gear, onto an air bed by clients, complained that the Council of State of France, by allowing the ban on dwarf-tossing, had discriminated against him and his rights to freedom, employment, respect for private life and an adequate standard of living and had violated various provisions of the International Covenant on Civil and Political Rights. The complainant afrmed that banning him from working had had an adverse effect on his life and represented an affront to his dignity. The State party argued that the right invoked did not appear to belong within the orbit of private and family life and that dwarf-tossing was a public practice and, as far as

18 Communication No 854/1999: France, 26/07/2002, CCPR/C/75/D/854/ 1999 ( Jurisprudence), Communication No. 854/1999 submitted by Mr. Manuel Wackenheim.

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the author was concerned, a genuine professional activity. Regarding the issue of discrimination invoked by the complainant, the State party pointed out that the difference in treatment was based on an objective difference in status between those suffering from dwarsm and those that are not and hence, given the underlying aim of upholding human dignity, is legitimate and, in any event, consistent with article 26 of the Covenant.19 The State party underlined that the ban was a classic instance of reconciling the exercise of economic freedoms with the desire to uphold public order, one element of which is public morals; “public order had long incorporated notions of public morals and, on the other hand, it would be shocking were the basic principle of due respect for the individual to be abandoned for the sake of material considerations specic to the author, to the detriment of the overall community to which the author belongs”. Counsel noted that the component of “public morals, embracing respect for human dignity, had been added” to the tripartite structure of public order in France as normally portrayed—order (tranquility), safety (security) and public health. Counsel argued that the addition of “public morals” revived the notion of moral order, directed against an activity that was both marginal and inoffensive when compared with the many forms of truly violent, aggressive behaviour that are tolerated in modern French society; “are the courts to rule on citizens’ happiness?”, Counsel asked. The Human Rights Committee concluded that the ban on dwarf tossing did not constitute an abusive measure but was necessary in order to protect public order, which brings into play considerations of human dignity that are compatible with the objectives of the Covenant; thus the differentiation between the author and the persons to whom the ban ordered by the State party does not apply was based on objective and reasonable grounds. The Committee added that it was aware of the fact that there were other activities which were not banned but which might possibly be banned on the basis of grounds similar to those which justify the ban of dwarf tossing. However, the Committee was of the opinion that, given that the ban was based on objective

19 Article 26 of the International Covenant on Civil and Political Rights reads as follows: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

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and reasonable criteria and the author had not established that this measure was discriminatory in purpose, the mere fact that there may be other activities liable to be banned is not in itself sufcient to confer a discriminatory character on the ban on dwarf tossing. I believe that the Human Rights Committee could not have ruled otherwise on the basis of the International Covenant on Civil and Political Rights. The word “culture” was absent from the proceedings of the Wackenheim case. Yet it is obvious from the arguments put forward by France that the economic activity of “dwarf-tossing” in which the author voluntarily participated was criticized on the basis of public morals and human dignity criteria as interpreted by “the overall community to which the author belongs”, as pointed out in the State party’s brief. In other words, the activity was interpreted according to the criteria of the dominant culture. The Committee accepted this interpretation because the Committee has to uphold the highest international human rights standards and it did. While upholding international legal standards, a deeper look at the case would raise various additional ethical questions: How much is the mainstream society disposed to concern itself with the problems and the culture of persons who are dwarfs? To what extent can a dominant society assume that a dwarf identies with its culture, that he belongs to its community? What does the dominant society know about the culture of dwarfs, certainly a marginal minority culture? How much does the dominant society understand about the sense of dignity or the sense of despair that can lead a dwarf to an economic activity, through which he may nd his own sense of dignity and pride? Why does the mainstream society not express a high moral indignation over the human dignity implications of other economic activities, voluntary as they may be, such as dangerous acrobatics, prostitution, investing abroad while imposing sweatshop conditions or mining with its catastrophic effects on human health, one might argue? On the other hand, does it mean that all culture-specic activities viewed as cultural rights of a small dwarf community would have to be respected, including on the basis of non-discrimination and freedom of expression for that matter? But the Wackenheim case also reveals that a dominant culture is not necessarily the “bad” one and a minority culture the “good” one from the point of view of human rights standards. The decision of the French Council of State differentiated between dwarfs and non-dwarfs because it was striving for equality in human dignity. Yet it is known that not all issues of human rights, including cultural rights can be solved by judicial means. In this case, real equality would entail state

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measures to provide appropriate economic opportunities to the dwarf population, as well as other specic rights stemming from the emerging human rights regime of persons with disabilities20 and also the freedom for them to manifest their cultural specicities, not just in private, but also in public—provided they do not contravene international human rights standards. 2. Freedom From Interference in the Enjoyment of Cultural Life, Freedom to Create and Contribute to Cultural Life These freedoms apply both to the passive enjoyment of cultural life (e.g. enjoying museums, movies, food, singing songs in our own language, reading books and newspapers in our own language, participating in customary or religious rituals that do not violate human rights, etc.) and the active creation of culture in its material or spiritual sense (e.g. creating art or crafts, writing and publishing articles and books, broadcasting programmes in our language or about our culture etc.). Sometimes, given the ever-changing nature of culture, the borders between enjoying and creating culture are blurred (e.g. singing folk songs while changing their words, or participating in customs while introducing changes). Individuals alone or together with members of a group are to enjoy or create culture unhindered by state or other interference. UNESCO’s Universal Declaration on Cultural Diversity, in its Article 5 entitled “cultural rights as an enabling environment for cultural diversity”, states that all persons have the right to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue. During the drafting of Article 27 of the Universal Declaration of Human Rights, the draft text came from the Commission on Human Rights to the General Assembly without the word “freely”.21 Upon the

20 The UN General Assembly has been drafting a convention on the rights of persons with disabilities since 2002. The General Assembly decided, in its resolution A/RES/56/168 of 19 December 2001, to establish an Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights of Persons with Disabilities. Subsequent resolutions on the subject were GA/RES/58/132 and GA/RES/59/198. The reports of the Ad Hoc Committee appear in documents A/57/357, A/58/118 and Corr.1, A/AC.265/2004/5 and Corr.1, A/59/360, A/AC. 265/2005/2, A/60/266. 21 This account is based on Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent, 1999, University of Pennsylvania Press, Philadelphia, p. 218.

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suggestion of the Peruvian delegation the word “freely” was inserted during the debates at the Third Committee of the General Assembly. The Peruvian delegate, Jose Encinas, argued that it was not enough for the Declaration to state that everyone has the right to participate in the ‘cultural, artistic and scientic life of the community’. It should also state ‘the right to do so in that complete freedom without which there could be no creation worthy of man’. Encinas recalled the article on freedom of thought and said that it was pertinent to recognize freedom of creative thought, in order to protect it from harmful pressures which were only too frequent in recent history. The amendment proposed by Peru was adopted by vote of 38 to none with 2 abstentions. While Article 15.1 (a) of the International Covenant on Economic, Social and Cultural Rights omits the word “freely”, the term is included in para. 3 on the obligation of states to respect the freedom indispensable for scientic research and creative activity. It is only reasonable to infer that the right to enjoy culture as a passive participant in it must also be enjoyed freely. Academic and other scientic work is an important part of the expression of cultural rights. The right to freely participate in creative activity is quoted side by side with scientic research in article 15 paragraph 3 of the International Covenant on Economic, Social and Cultural Rights, in the phrase requiring states to “respect the freedom indispensable for scientic research and creative activity”. In addition, article 15 paragraph 1(c) of the Covenant provides for the right of everyone to benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he or she is the author. As the Committee on Economic, Social and Cultural Rights pointed out in its General Comment on this right, it is important not to equate intellectual property with this right, which seeks to encourage the active contribution of creators to the arts and sciences and to the progress of society as a whole. This right also has an economic dimension.22 It is clear that the freedom to enjoy culture and to create culture does not only invoke negative state obligations, i.e. obligations to respect those freedoms by abstaining from certain actions. The state has also posi-

22 General Comment No. 17 (2005), see UN doc. E/C.12/GC/17 paragraphs 1–4, also available on www.ohchr.org.

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tive obligations to protect and fulll them.23 Protecting these freedoms means that the state must prevent their violation by third parties. This is particularly important in the case of individuals who, through their creative work, challenge the mainstream culture and may fall prey to harassment and threats to their work products or to their own person. For example, if a religious fundamentalist group hinders the public from seeing a certain lm or hooligans disrupt sports events and there is no government policy and action to prevent these incidents, then there is a violation by the state via its omission to protect. Fullling these rights means that the state must take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of those rights. Thus the state, for example, should take measures to make available education and training in the arts, create museums, subsidize the arts, facilitate radio and television broadcasting in minority languages and other such measures (the principle of availability). Places of culture such as museums must be accessible physically, e.g. for disabled persons, economically, e.g. for poor segments of the population, and without discrimination (the principle of accessibility). State measures must also follow the principle of acceptability, i.e. must be culturally relevant to those they are meant to benet. For example if the state constructs housing or a place of worship for a community, the architecture and other elements must be culturally appropriate for that community. Finally, measures by the state must follow the principle of adaptability, i.e. be exible to adapt to changing social and geographical settings. For example, art training institutions in a mostly indigenous area must be adapted to the needs of that population. Are there permissible limitations to these freedoms? Limitations of a general nature will need to be informed by those permissible under freedom of expression in the International Covenant on Civil and Political Rights. At the same time, it is clear from the letter of international human rights instruments and the practice of international human rights bodies that cultural practices that violate human rights are not part of the freedom to enjoy cultural life. According to Article 4 of the International Covenant on Economic, Social and Cultural Rights the state may subject rights only to such limitations as are determined by law only in so far as this may be compatible with the

23 See the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, E/C.12/2000/13, para. 6.

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nature of these rights and solely for the purpose of promoting general welfare in a democratic society. These limitations are to be protective of the rights of individuals rather than permissive of the imposition of limitations by the state; no limitation shall be made unless provided by national law of general application and such law shall not be arbitrary or unreasonable or discriminatory.24 A state cannot justify limitations of rights recognized in the Covenant because of different social, religious and cultural backgrounds.25 Thus it would be a violation of the Covenant if, for example, a linguistic minority was not allowed to issue newspapers in its language or perform and sing its songs in public. This, however, does not mean that the laws passed by a majority must be “culture-free”, or even can be “culture-free” to the extent that human behavior is culture imbued in any case. It is obvious that a majority can base laws on its own cultural values—within the limits of international human rights standards. When discussing the issue of participation in decisions on cultural policies, Konate, the member of the Committee on Economic, Social and Cultural Rights, maintained that the state has the duty to protect the individual or the group against other values having harmful consequences for national cultures and that freedom of expression of cultural activity is limited by the need to preserve national identity.26 Such an approach does not only seem paternalistic, assuming that the adult individual is not in a position to exercise judgment herself regarding other values, but also seems totally unrealistic, especially in today’s interconnected information society, as well as purist in its approach to “national identity”, assuming a static nature for such identity, devoid of external inuences. Moreover, this position is untenable in human rights terms, as it does not seem to fulll the above-mentioned criteria for limitation of human rights established by Article 4 of the International Covenant on Economic, Social and Cultural Rights. The practice of the Committee on Economic, Social and Cultural Rights does not agree with this particular view of Konate. In fact the Committee has repeatedly expressed concern over censorship of literary and artistic work, or over the idea of “cultural security”.27 I discuss this issue further under 3(e) “freedom to cooperate internationally”. 24 The Limburg Principles, paras. 46 to 55 analyze Article 4 of the International Covenant on Economic, Social and Cultural Rights. 25 Maastricht Guidelines, para. 8. 26 E/C.12/1992/WP.4, page 9. 27 For example, E/1998/22, para. 187 regarding Libya.

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The Committee on Economic, Social and Cultural Rights addressed the issue of balance between an individual’s interests and society’s interests in discussing the limitations of the right to benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of which one is the author (article 15, paragraph 1(c) of the Covenant). The Committee pointed out the need for balance between this right and other rights contained in article 15 and other articles, in particular the right to food, health and education. In striking this balance, the private interests of authors should not be unduly favoured and the public interest in enjoying broad access to their productions should be given due consideration. Ultimately intellectual property is a social product and has a social function. For example, states should prevent unreasonably high costs for access to essential medicines, such as those for HIV/AIDS, plant seeds, or other means of food production, or for schoolbooks and other learning materials which affect large segments of the population. In taking this position, the Committee obviously had mostly in mind authors of scientic productions who are powerful and represented by strong economic interests, as for example in the case of major pharmaceutical companies or seed-producing industries, which have been the object of controversies within and among states in debates on how to reduce vulnerability of large populations resulting from positions of these companies. The concern of the Committee with vulnerability, which is the right approach in human rights terms, is also demonstrated when it includes, among the core obligations of the state regarding article 15, paragraph 1(c), the obligation “to ensure equal access, particularly for authors belonging to disadvantaged and marginalized groups, to administrative, judicial and other appropriate remedies enabling authors to seek and obtain redress in case their moral and material interests have been infringed” (emphasis added). As is discussed under chapter Four A below, the Committee then makes explicit dispensations for indigenous peoples and minorities under this article.28 The European Court of Human Rights has pronounced itself on issues of limitations to the display of religious symbols, namely regarding wearing of an Islamic headscarf in state educational institutions. In the case of Leyla Sahin v. Turkey,29 the Court had to decide as to whether

28

General Comment No. 17 (2005), E/C.12/GC/17, paragraphs 35 and 39. Leyla Sahin v Turkey, Application no. 44774/98, 29 June 2004, European Court of Human Rights, Fourth Section, Council of Europe. 29

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the prohibition by Turkish law of the wearing of Muslim headscarf at state universities was a violation of religious freedom under Article 9 of the European Convention on Human Rights. The case is discussed below because of its linkage to cultural rights. Among the issues considered in the case,30 the European Court reviewed the jurisprudence of the Turkish Constitutional Court which, in 1989, had pronounced that, while freedom of religion, conscience and worship was inviolable in nature, this freedom could not be likened to a right to wear any particular religious attire. It guaranteed rst and foremost the liberty to decide whether or not to follow a religion. Once outside the sphere of individual conscience, freedom to manifest one’s own religion could be restricted on public order grounds to defend the principle of secularism. Everyone was free to dress how he or she wished, as the social and religious values and traditions of society also had to be respected. However, when a particular dress code was imposed on individuals by reference to a religion, the religion concerned was perceived and presented as a set of values that were incompatible with those of contemporary society. In addition, in Turkey, where the majority of the population were Muslims, presenting the wearing of the Islamic headscarf as a mandatory religious duty would result in discrimination between practising Muslims, non-practising Muslims and non-believers on grounds of dress with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as irreligious. The Constitutional Court also said that students had to be able to work and pursue their education together in a calm, tolerant and mutually supportive atmosphere without being deected from that goal by signs of religious afliation. It found that, irrespective of whether the Islamic headscarf was a precept of Islam, granting legal recognition to a religious symbol of that type in higher-education institutions was not compatible with the principle that State education must be neutral, as it would be liable to generate conicts between students with differing religious convictions or beliefs. 30 The European Court also briey reviewed the legal status of wearing an Islamic scarf in various other European countries. The Belgian courts have held that the principles of equality and neutrality of state education take precedence over freedom of religion and have found against the complaints. In France, the National Asembly’s decision passed in February 2004, regulates, pursuant to the principle of secularism, the wearing of signs or dress manifesting a religious afliation in state primary and secondary schools. In Germany, The Netherlands, Switzerland and the UK, after protracted legal debates, pupils and students may wear an Islamic scarf.

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The University of Istanbul had subsequently, in 1998, adopted a resolution stating that: 1. Students at the University of Istanbul shall comply with the legal principles and rules on dress set out in the decisions of the Constitutional Court and higher judicial bodies. 2. Students at the University of Istanbul shall not wear clothes that symbolise or manifest any religion, faith, race, or political or ideological persuasion in any institution or department of the University of Istanbul, or on any of its premises. 3. In the institutions and departments at which they are enrolled, students at the University of Istanbul shall comply with the rules requiring specic clothes to be worn for work-related reasons.

The Applicant, who had been prevented from attending classes and taking tests because she was wearing a headscarf, submitted that the interference with her right to freedom to manifest her religion was extremely serious as she was a practicing Muslim. Jewish students were allowed to wear a skullcap and Christians the crucix. The decision to ban the headscarf was discriminatory to Muslims—they had to be treated differently as they were in a different position. The State party submitted that the principle of secularism had assumed particular importance due to factors peculiar to Turkey. Religious duty and freedom were two different concepts that were not easily reconciled. The former notion required, by denition, submission to divine, immutable laws, while the notion of freedom presupposed that the individual enjoyed the widest possible range of opportunities and choices. As to the headscarf, the form it took for Muslim women varied according to the country and regime. The bandanna, which left the hair partly visible, was worn by modern women at funerals or by women in rural areas. The burka (full veil covering the entire body and the face) worn by Afghan women was an obligation imposed by the Taliban when in power, in accordance with their interpretation of Islam. The chador or abaya (a black veil which covered the entire body from head to ankles) was also worn in Arabic countries and Iran. It was difcult to reconcile all those different forms of dress derived from the same religious rule with the principle of neutrality in State education. The Government also pointed out that there was no ban on wearing the Islamic headscarf on private or communal premises. Pupils were free to wear it outside schools. However, in the sphere of State education, which was regarded as a public service, the principle of secularism, of which the principle of neutrality formed an integral part, applied. The situation in Turkey and the reasoning of the Turkish courts showed

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that the Islamic headscarf had become a sign that was regularly appropriated by religious fundamentalist movements for political ends and constituted a threat to the rights of women. The European Court underlined that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. It recalled that in previous cases the Convention institutions had found that in a democratic society the State was entitled to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the pursued aim of protecting the rights and freedoms of others, public order and public safety. Likewise, the Court had also previously stated that the principle of secularism in Turkey is undoubtedly one of the fundamental principles of the State, which are in harmony with the rule of law and respect for human rights. In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justied under Article 9 § 2 of the Convention. In that context, secular universities may regulate manifestation of the rites and symbols of the said religion by imposing restrictions as to the place and manner of such manifestation with the aim of ensuring peaceful co-existence between students of various faiths and thus protecting public order and the beliefs of others. In determining the scope of the margin of appreciation left to the States, regard must be had to the importance of the right guaranteed by the Convention, the nature of the restricted activities and the aim of the restrictions. Where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. In such cases, it is necessary to have regard to the fair balance that must be struck between the various interests at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order and pluralism. The European Court pointed out that the notion of secularism appeared to the Court to be consistent with the values underpinning the Convention and it accepted that upholding that principle may be regarded as necessary for the protection of the democratic system in Turkey. In the light of these considerations and having regard in

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particular to the margin of appreciation left to the Contracting States, the Court found that the University of Istanbul’s regulations imposing restrictions on the wearing of Islamic headscarves and the measures taken to implement them were justied in principle and proportionate to the aims pursued and, therefore, could be regarded as “necessary in a democratic society and thus there had been no breach of Article 9 of the Convention. The Sahin case is interesting from a cultural rights point of view for various reasons. First, because it tries to dene the conditions and scope of possible restrictions to the manifestation of religion, and this could apply by analogy to manifestations of culture: the principle of proportionality, and the principle of fair balance between various interests at stake, namely the rights and freedoms of others, avoiding civil unrest and the demands for public order and pluralism. Implicitly, the Court saw a cultural element in the rites and symbols of a religion, as different for the religion itself; freedom of religion is inviolable by nature, but its manifestations may need to be reconciled according to the above-mentioned conditions. Such rites and symbols of one and the same religion may differ from society to society, they are more in the domain of culture, and this is true, not only of Islam, but of Christianity, Judaism and other religions. While considering the decision of the Court as reasonable, I would point out that what the Court did not touch upon in this case is the fact that freedom of religion, conscience and belief is only visible in a social context—and therefore addressed by human rights law—through its manifestations. Once the internal beliefs, religious or other, of a person are expressed in public, they become a legally protectible good. What would freedom of religion mean for a legal system without its manifestations? Therefore it is these manifestations that the law and the state should protect. Similarly, what would a cultural identity of a person be to the legal system without its manifestations. While it is understandable that a well-meaning state must preserve public order in a multicultural society, the state’s balancing act and regulatory power should be exercised cautiously and be subject to the rule of law. 3. Freedom to Choose in Which Culture(s) and Cultural Life to Participate, the Freedom to Manifest One’s Culture The freedom to choose in which culture(s) and cultural life to participate is crucial, especially in its signicance for individuals in our multicultural

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society. If there is a clash between an individual wanting to create an artwork, write a piece of literature etc. and the community perceiving this as against its tradition and wanting to suppress it, then the state must step in to ensure that the individual will be able to participate in cultural life by creating what expresses him/her. This would, for example, be the case if a community was trying to prevent a woman author from publishing her work. The state’s obligations would range from adopting legislation that guarantees equality of the sexes, adopting policies that facilitate and encourage women authors to publish their work, guaranteeing that courts enforce anti-discrimination laws and educating the public and the community on these issues. It is interesting to note that while Article 27 of the Universal Declaration of Human Rights speaks of the right freely to participate in the cultural life of the community, Article 15 of the International Covenant on Economic, Social and Cultural Rights does not contain the word “freely”. However, paragraph 3 of Article 15 clearly provides that the States parties to the Covenant undertake to respect the freedom indispensable for scientic research and creative activity. In addition, Article 15 of the Covenant does not contain the heavy-handed/prescriptive denitive article the, which we nd in Article 27 of the Universal Declaration of Human Rights in the phrase “participate in the cultural life of the community”. The International Covenant on Economic, Social and Cultural Rights thus leaves it up to the choice of the individual in which culture(s) s/he will participate. The 2001 UNESCO Universal Declaration on Cultural Diversity, in Article 5, states that “all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to the respect for human rights and fundamental freedoms”. The Committee on Economic, Social and Cultural Rights, in its Revised Guidelines regarding the form and content of reports of States parties, asks states, in connection with Article 15 of the Covenant, to describe the measures “adopted to realize the right of everyone to take part in the cultural life which he or she considers pertinent, and to manifest his or her own culture”31 (emphasis added). This normative element of cultural rights may raise the theoretical questions whether an individual can create and have his or her own individual culture; whether the freedom to manifest such culture should

31

E/1991/23, Annex IV.

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not better be analyzed under freedom of expression; and, what would then be the meaning of the phrase “to participate in culture” in an “individualistic” interpretation of culture. In fact, the freedom of a person to choose a cultural identity and a way of life and to manifest it is the nodal meeting point between the dynamics of the group and a person’s exercise of freedom of conscience. It would be unrealistic to assume that human beings would just reproduce culture exactly as their family or their group or society gave it to them, without adding their own mix of perceptions, interpretations, knowledge and aspirations. Some will take these variations, adaptations and innovations further than others, some may even become cultural rebels or innovators with a high social prole. The freedom to choose a culture or elements of a culture is part of the freedom of expression, but it is also more than that because of the participatory and communicative elements of culture. Freedom to manifest one’s own culture, the culture and identity one carved out of the experiences one had, means the freedom to reveal in one’s social relations in every day life and in thousands of ways, insignicant or signicant, who one is: and this freedom is very much one about a person’s participation in society. One could say that the freedom to choose in which culture(s) and cultural life to participate is a special and vital part of the freedom of expression, without which a person simply cannot be part of any human interaction. In terms of the doctrine of international law, this close link between freedom of expression and the freedom to manifest one’s own culture, to choose in which culture and cultural life to participate is yet another demonstration of the inter-dependence and inter-complementarity of human rights. Problems in implementing the freedom to choose in which culture(s) and cultural life to participate may arise also in connection with minorities or indigenous peoples. In many states there is a recognition of autonomy regimes regarding personal law which provides that members of a dened ethnic group will be governed with respect to matters of personal law-marriage, divorce, perhaps adoption, succession—by a body of law distinctive to it, usually religious in character, and that this law could be applied by religious courts or by normal secular courts.32

32 H. Steiner, P. Alston, International Human Rights in Context: Law, Politics, Morals, 2000, Clarendon Press, Oxford, p. 491. “Autonomy regimes refer to government systems or sub-systems within a state that are directed or administered by a minority or its members. They take many forms . . . a distinguishing mark of the regime is that

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The problem is that in some of these regimes, the members of the group cannot “opt out” and select the secular legal regime. Although there has not yet been much attention to this matter by human rights treaty bodies, one of the Human Rights Committee cases, Kitok v. Sweden, recognizes the authority of the group in dening who its members are and limits the exercise of the cultural rights of an individual in favour of those of the group if the group’s viability and welfare are at stake.33 I also discuss this case in Chapter Four below in connection with minorities and indigenous peoples. As mentioned above, the Committee on Economic, Social and Cultural Rights and the Human Rights Committee have systematically encouraged states to take steps to protect individuals from traditional practices which are contrary to international human rights law, and one would therefore expect that the two Committees would view personal law regimes that violate human rights in the same light. However, it seems that both national and international jurisprudence is far from having seriously dealt with these dilemmas. The state of affairs in the world today is such that for various sociopolitical and historical reasons in many countries, the preservation of religious personal laws for minority groups is still pursued as the desired regime, both by the groups and by the states. It is occasionally viewed as a positive policy by the state—although it is sometimes a remnant of colonial regimes—and respectful of its minorities to allow the application of personal laws. Voices that demand secular personal laws that abide by the international human rights standards are often raised, and those raising the issue face interminable legal struggles.34 4. Freedom of Dissemination Freedom of dissemination is recognized as part and parcel of cultural rights. Imparting art, knowledge, science, and other manifestations of

it depends on legal authorization customary, statutory, or constitutional law. In most instances, the state’s formal legal system denes the powers and scope of the regime. That is, autonomy regimes are instituted in law, and those governing or administering them exercise a form of government power”. 33 A/43/40, Annex 7 (G) (1988). 34 It is known, for example, that in India there has been a long debate and effort by women’s rights advocates to ensure the application of secular personal laws and a uniform Civil Code. See Rajeswari Sunder Rajan, The Scandal of the State: Women. Law and Citizenship in Postcolonial India, 2003, Duke University Press, pp. 146–173.

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cultural life is indispensable for the essentially communicative nature of culture to ourish. Freedom of dissemination includes freedom of access by the creators of culture to the media, publishing houses, galleries and museums, public spaces and all other means via which culture may be imparted. Paragraph 2 of Article 15 of the International Covenant on Economic, Social and Cultural Rights explicitly refers to this aspect of the right to participate in cultural life: The steps to be taken by the States parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

The 2001 UNESCO Declaration on Cultural Diversity, in Article 6 entitled “towards access for all to cultural diversity”, underlines that freedom of expression, media pluralism, multilingualism, equal access to art and to scientic and technological knowledge, including in digital form, and the possibility for all cultures to have access to the means of expression and dissemination are the guarantees of cultural diversity. Freedom of dissemination is also systematically promoted by the Committee on Economic, Social and Cultural Rights, which in its Revised Guidelines regarding the form and contents of reports of States parties, also follows this line of analysis and asks governments to submit information on the following items: (i) role of mass media in promoting participation in cultural life; (ii) legislation protecting the freedom of artistic creation and performance, including the freedom to disseminate the results of such activities, as well as an indication of any limitations on this freedom; on any other measures for the conservation, development and diffusion of culture and science; (iii) diffusion of information on scientic progress; (iv) guaranteeing the freedom of exchange of scientic, technical and cultural information.35 Apart from the negative obligation of the state not to obstruct the freedom of access to the means of imparting culture, the difcult question is to what extent the state has any positive obligations to ensure access. Should the state intervene, for example, with the media or the private sector on questions of quality standards for what should be acceptable for dissemination, or on afrmative action for minority cultures, or to eliminate explicit or implicit exclusion of minority cultures, say, from the lm industry? Would such state intervention promote

35

E/1991/23, Annex IV.

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cultural rights or would that be a possible way of the state imposing ideological and political control and selecting what is “acceptable” culture to disseminate? The Committee on Economic, Social and Cultural Rights has not addressed the issue of positive obligations of states as far as the freedom of dissemination is concerned. It has, however, provided adequate guidelines via its General Comment on states’ obligations.36 According to this important contribution of the Committee to human rights doctrine, the Covenant does impose “various obligations on States parties which are of immediate effect”, contrary to those who argue that the Covenant is wholly aspirational.37 The Committee has singled out two such obligations in particular, namely non-discrimination and the undertaking “to take steps”. The obligation to take steps, a positive obligation, must be carried out “within a reasonably short time after the Covenant’s entry into force for the States concerned”, and such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant. In the case of cultural rights, one could think of a number of steps that falls under this category, such as reviewing laws to ensure that they guarantee non-discrimination or exploring the possibility of subsidizing minority language education or minority press. The next step would be to actually change the laws and to provide such subsidization to the extent that available resources permit or to seek international assistance in that direction. Is it an obligation for a government to seek such assistance? While no clear answer is given by international instruments, including by the 1986 Declaration on the Right to Development, it is obviously a political decision when and for what a government seeks international assistance. If a government does seek such assistance—and here we are referring to developing countries—it would demonstrate the political will to promote cultural rights. Since the area of cultural rights is uncharted or is a very new territory for international development cooperation, governments and inter-governmental organizations are not necessarily fully aware of the importance of cultural rights—even the concept has been unclear—and examples are therefore not easy to identify. While it is known that Danida, the international development agency

36

E/1991/23, Annex VI. P. Alston, “The Committee on Economic, Social and Cultural Rights”, in P. Alston Ed. The United Nations and Human Rights. A Critical Appraisal, 1992, p. 495. 37

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of Denmark, provides assistance for the preparation of inter-cultural bilingual educational curricula for schools,38 it is less known whether other international assistance processes address language of production of such school material in any systematic way. New opportunities have been open for governments and agencies to focus more on cultural rights issues through the focus on the Millennium Development Goals (MDGs), proclaimed within the context of the Millennium Declaration at the 2000 Millennium Summit at the UN and at the World Summit Outcome ve years later in 2005.39 Millennium Development Goal 2 calls for primary education for all by the year 2015. It is clear from the documents presented at the fourth (2005) session of the UN Permanent Forum on Indigenous Issues and from the Forum’s recommendations that unless indigenous languages are taken into account in primary education, Goal 2 will not be achieved as far as indigenous children are concerned. The Forum proceeded to adopt a series of recommendations, including on the creation and distribution of appropriate curricula.40 There is a bottom line question regarding mother tongue education and development assistance: if all elements demonstrate that, unless primary education is provided in the mother tongue, the children of a minority will essentially lag behind or simply abandon school, is there a government obligation, from a human rights point of view, to seek international assistance in case it cannot provide it itself ? The answer in this case seems to be in the afrmative and at the same time, there is a moral obligation of the international community to respond to such requests. 5. Freedom to Cooperate Internationally Participation in cultural life requires free contacts among people within and beyond borders. Enjoying foreign lms, music and paintings, participating in international conferences, educational exchanges of students, beneting from satellite television are some of today’s common expressions of international cooperation beyond national boarders. Article 15 of the International Covenant on Economic, Social and Cultural Rights, in paragraph 4, provides that the States parties “recognize the benets 38 See Danida website http://education.dccd.cursum.net/client/CursumClientViewer.aspx, regarding programmes in Nicaragua and Bolivia. 39 Documents A/RES/55/2 of 2000 and A/60/L.1 of 2005 respectively. 40 E/C.19/2005/43.

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to be derived from the encouragement and development of international contacts and co-operation in the scientic and cultural elds”. As UNESCO’s 2001 Universal Declaration on Cultural Diversity recognizes, “creation draws on the roots of cultural tradition but ourishes in contact with other cultures” and that “in the face of current imbalances in ows and exchanges of cultural goods at the global level, it is necessary to reinforce international cooperation and solidarity aimed at enabling all countries, especially developing countries in transition, to establish cultural industries that are viable and competitive at the national and international level.41 UNESCO has made an important normative contribution to the issue of cultural cooperation through earlier instruments as well, including the 1948 Agreement for Facilitating the International circulation of Visual and Auditory Materials of an Educational, Scientic and Cultural Character,42 the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,43 the 1972 Declaration of Guiding Principles on the Use of Satellite Broadcasting fort the Free Flow of Information, the Spread of Education and Greater Cultural Exchange,44 and the 1976 Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It.45 The latter foresees as particularly important the obligation to provide access to the treasures of national and world culture without discrimination, while in the 1966 Declaration of Principles of International Cultural Cooperation it is declared that “in their rich variety and diversity, and in the reciprocal inuences they exert on one another, all cultures form part of the common heritage belonging to all mankind”.46 In a 2003 initiative, UNESCO decided to prepare a new instrument on the protection of the diversity of cultural contents and artistic expressions which was nally adopted in 2005.47 The Committee on Economic, Social and Cultural Rights has recognized that international contact among artists, authors and others active

41

Articles 7 and 10 (Records of the General Conference, Vol. 1, Resolutions). 197 U.N.T.S. 3. 43 www.unesco.org. 44 17 UNESCO Gen. Conf. Rec., UNESCO Doc. 17 C/Resolutions, at 67 (1973). 45 19 UNESCO Gen. Conf. Rec., UNESCO Doc. 19 C/Resolutions, Annex I, at 29 (1977). 46 14 UNESCO Gen. Conf. Rec., UNESCO Doc. 14 C/Resolutions, at 86 (1967). 47 For the text see www.unesco.org. 42

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in the area of culture is indispensable for the development of cultures and the state must both respect private non-state initiatives for such contacts and actively encourage them to the extent that its resources permit. At the same time the Committee has shown concern about the possible negative impact of external market forces on national culture. The Committee has noted with interest states’ measures to preserve national culture against excessive impact from abroad, namely the negative effects of tourism and the quest for the country’s cultural roots;48 it has also inquired about the role and impact of satellite television on local culture.49 Such remarks of the Committee are not linked to the exercise of censorship, but to the desirability to promote the preservation of cultures and cultural heritage. The Committee has also been keen to see the promotion of national cultural products abroad.50 It is fair to conclude that the Committee has tried to strike a balance between its advocacy for positive measures to protect national cultural heritage and its promotion of freedom for international contacts and cooperation. As mentioned earlier, the 2002 resolution of the Commission on Human Rights on cultural rights clearly promotes international cooperation, among other reasons, in order to counterbalance the effects of globalization and market forces. The Special Rapporteur on the right to education has referred to the globalization of professional and academic qualications that has been based on a relatively uniform culture, set of business practices and language and has re-actualized the phenomenon of brain drain.51 The debate on culture and globalization is a broad one with numerous ramications of a human rights, ethical and also material nature. UNESCO has given its own angle to this debate. During its preparation of a convention on the protection of the diversity of cultural contents and artistic expressions, an expert group acknowledging that cultural development underlies many aspects of economic development, agreed that the convention should dene its own norms in order to ensure that cultural and economic development may go hand in hand. The

48 E/1989/22, para. 307 regarding Trinidad and Tobago; E/1990/23, para. 166 regarding Jamaica. 49 E/1991/23, para. 80 regarding Jordan. 50 E/1990/23, para. regarding Indian cinema. 51 E/CN.4/2000/6, para. 70. The Special Rapporteur states that “many developingcountry students acquiring OECD degrees will stay where they studied, which led the World Bank to suggest expatriate nationals as an important channel for the acquisition of knowledge by developing countries”.

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experts proposed from the start that the term “protection” should under no circumstances be taken to mean that states should turn in on themselves or close themselves off from others. Rather, the diversity of cultural contents and artistic expressions should always be guaranteed by freedom of expression, and the public should be afforded the broadest possible access to them.52 That would mean, for example, that there should be no limiting of satellite broadcasts. The protection of cultural heritage, actively promoted by UNESCO, includes the safeguarding, preservation and restoration of historic sites and monuments and also works of art and literary productions.53 Thus the state has the obligation to safeguard this cultural heritage, among other ways, by also protecting it from illicit trafc. Konate, the member of the Committee on Economic, Social and Cultural Rights, pointed out in his study that actions must also be taken at the bilateral and multilateral level, to provide, if necessary, for the return of the stolen objects since they represent part of a people’s cultural identity and even its life, its dignity. Konate recommended that the Committee on Economic, Social and Cultural Rights ask states when examining their reports whether they are planning to return objects or begin negotiations or are planning to provide compensation. The emphasis here is whether the acquisition of such objects is legal or not, and it is not suggested that museums host national cultural objects only. Of course, the limits between legal and illegal means of acquisition are often blurred, especially as the accumulation of important works of art has historically often been linked to colonial or other occupation or military action by state actors of the country in whose museums or markets the works of art nd themselves. Numerous court cases and other action of international signicance have periodically received high publicity regarding major works of art, such as the Parthenon Marbles held in the British Museum since the 19th century or famous paintings stolen from the Jews by the Nazis during the Second World War. The Committee on Economic, Social and Cultural Rights has adroitly balanced the right to enjoy a distinctive national culture and the competing demands for the freedom to receive outside cultural input and for cultural development.54 Cultural standardization is a risk faced 52

CLT/CPD/2004/CONF. 201/1, p. 3. Konate study, E/C.12/1992/WP.4, page 7. 54 Roger O’Keefe, “The ‘Right to Take Part in Cultural life’ under Article 15 of the International Covenant on Economic, Social and Cultural Rights”, International and Comparative Law Quarterly (1998) 47, p. 923. 53

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especially by cultures of poorer countries where potent market forces create a situation of cultural invasion. It should not be overlooked that the risk of standardization due to strong economic market forces in the cultural industry is present within developed countries as well, where independent lmmakers for example, face great difculties in the midst of the powerful lm studios that also controls distribution channels. The other aspect of globalization, i.e. the speed of communications among people, results in a continuous ow among cultures.55 The question here is how the state should protect the freedom to enjoy cultural life and to create culture within such a context. The 2004 UNDP Human Development Report devoted to cultural diversity points out that cultural products and creative activities, if left to the market, could wither and diversity could decline.56 I believe that the response to the danger of cultural standardization via government policies lies in government providing the enabling environment for unhindered participation in cultural life nationally, including the freedom to create cultural products. A free and robust cultural life at the national level will be better equipped to dialogue with other cultures, including the forces of the market, than a stied and weak cultural life. This obviously does not address the problem of a poor country that allows all the freedom for participation in cultural life but has no resources to back up cultural institutions, art schools, national arts and artists etc. The answer to this question may lie in the debates over the international information order and those of the World Trade Organization. But there are measures that can be foreseen within the context of the International Covenant on Economic, Social and Cultural Rights and the overall human rights framework, for example that if the right to participate in cultural life cannot be fully respected, protected and fullled by national governments, the international community bears part of the moral, political and material responsibility through development cooperation. The Committee on Economic, Social and Cultural Rights has in fact recognized the role of international assistance in the realization of the rights enshrined in 55 UNESCO’s 1998 Conference on Cultural Policies for Development offers some insights on culture and new media technologies, stating, among other points, that more nancial resources should be made available to developing countries for local production, in an effort to “level the playing eld”; economic empowerment should be encouraged as a prerequisite for the development of culture through the media. See UNESCO document CLT-98Konf.21 0/5, 31 August 1998. 56 Human Development Report 2004: Cultural Liberty in Today’s Diverse World, UNDP publication, p. 98.

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Article 15 of the Covenant.57 Although I have discussed development cooperation in Chapter Two F above, I want to stress at this point that cultural development has hardly been part of such development cooperation. Last but not least, according to the Maastricht Guidelines,58 the obligation to protect includes the state’s responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors. These are important points that the Committee on Economic, Social and Cultural Rights could take into account in a future revision of its guidelines for reporting by States parties, among other things, in order to promote international development cooperation in this area. In international discussions on cultural cooperation we also see clearly the underlying theme of culture as part of national sovereignty. This element goes beyond viewing culture as an individual or a group right, it is rather seeing culture as a “sovereign right” of a state. The concept of “national heritage” falls under this category. Obviously there is a link between protection and projection of a “national culture” and an individual’s right to participate in cultural life. But one cannot maintain that a state should protect its national culture in the minds of its population by raising invisible walls to outside inuences (censorship, limiting cultural exchanges etc.). Cultural rights are not about the reication, fossilization and protection of a culture as such by the state. Nor should a cultural rights approach be used to vilify “big” cultures as the enemy versus “small” cultures as the victim. Simply, in a human rights context, the discussion of international cultural cooperation focuses more on “small” cultures, because a human rights analysis to public policy action must address the most vulnerable rst-not because the human rights of the populations of the “big” cultures are of lesser importance.

57 Revised Guidelines regarding the form and contents of reports to be submitted to States parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (1990), E/1991/23, Annex IV. 58 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, E/C.12/2000/13; see also as an annex to the book.

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6. Right to Participate in the Denition, Preparation and Implementation of Policies on Culture The interdependence of human rights manifests itself eloquently when it comes to the issue of participation in decision-making on cultural policies. All citizens, including the members of minority communities or indigenous communities have the right to participate meaningfully in decisions on cultural policies through democratic institutions. The concept of democracy and democratic institutions has been considerably claried in the last few years through the intense and valuable work of the Commission on Human Rights and the Ofce of the UN High Commissioner for Human Rights. The Commission gradually built a normative understanding of participation, democracy, the rule of law and good governance in human rights terms.59 A deepening understanding of democracy goes beyond free and fair elections and is about transparent, responsible, accountable and participatory government. It is about participation of people and groups without discrimination and with respect for gender equality and multicultural diversity. A democratic polity in which free and meaningful participation is possible stands as a prerequisite to the enjoyment of the right to participate in cultural life. Promotion of cultural rights by various UNESCO instruments includes programmes on democratization as well.60 According to the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, a concerted national effort to invoke the full participation of all sectors of society is indispensable to realizing economic, social and cultural rights. Popular participation is required at all stages, including the formulation, application and review of national policies.61 When it comes to groups, culture manifests itself in many forms, including a particular way of life associated with the use of land

59 At its 2005 session, the Commission adopted a series of important resolutions in this area: 2005/29 (on popular participation), 2005/32 (on democracy and the rule of law), 2005/36 (on the incompatibility between democracy and racism, and 2005/68 (on good governance). See document E/2005/23 Part I. 60 Kishore Singh, “UNESCO and Cultural Rights” in Cultural Rights and Wrongs, Halina Niec ed., 1998, UNESCO Publishing/Institute of Art and Law, pp. 152 and 157; Singh spells out four basic principles of democracy freedom of expression, freedom of association, the rule of law and participation in democratic processes. 61 E/C.12/2000/13, para. 11.

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resources, especially in the case of indigenous peoples.62 Fishing and hunting are examples of such economic use of land resources and religious ceremonies including honouring the burial sites of ancestors are examples of spiritual use of land and of land-based religions. The Human Rights Committee has stated in its case law and in its General Comment on Article 27 that if government measures affect or interfere with culturally signicant economic activities of a minority, the acceptability of such measures depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benet from their traditional economy. Positive legal measures are required for effective participation of minority communities in decisions affecting them.63 Participation in state cultural policies presupposes the existence of public institutional infrastructures, such as consultative mechanisms under culture, education and other ministries, schools and other educational institutions, public cultural centers, museums, libraries, theatres, institutions for arts and crafts, institutions for the study of the arts or for art training. The Committee on Economic, Social and Cultural Rights has included places of worship as warranting public subsidies.64 It is not clear why the Committee would have made such a statement, or whether it would consider such subsidies as required always or under some special circumstances, for some or all religious groups—non-discrimination would seem to require the latter—how this may affect a country’s nature as a secular state and how this may be viewed by secular parts of the population; would the latter be presumed to pay via their public tax money for the religious parts of the population? One could take the reection on this further, wondering whether non-faith groups of people could ask for subsidies for their meeting places on various matters specic to their particular secular beliefs. It is probable that the Committee made such statement without a comprehensive discussion as to what this would mean for States parties in general and in all parts of the world. While the state should not hinder any religious group

62 Human Rights Committee, General Comment on Article 27 of the International Covenant on Civil and Political Rights, CCPR/C/21/Rev.1/Add.5, para. 7. 63 Idem. See also Mahuika et al. v. New Zealand, A/56/40, Volume I, Annex X, A, para. 9.5. 64 For example, E/1999/22, para. 175 regarding the Netherlands.

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from building its own place of worship, it makes no sense to consider that the state has an obligation to fund places of worship as a means of enhancing participation in cultural life. This would raise not just nancial resource issues, but also political issues as to the limits of the state’s capacity to respond to such requests for subsidies and the social and political repercussions of such limitations. I discuss the link between religion/beliefs and culture in part 7 below. Cultural and educational institutions are indispensable vehicles for cultural rights to be fullled and the public must have a meaningful voice in the denition, preparation and implementation of such policies. The Committee has recognized the particular signicance in this respect of the role of non-governmental organizations working in or relevant to the cultural sphere,65 e.g. artists’ and teachers’ associations, women, youth, older persons’ organizations, migrants’ associations, minority organizations etc., who should be consulted at all stages of cultural policy formation and implementation in areas that affect them. 7. Other Elements Connected to the Right to Participate in Cultural Life Since we dene culture as “a way of life”, cultural rights are linked almost to every other aspect of human rights. Cultural rights are an integral part of human rights, which are interdependent and indivisible; cultural rights are one of the most eloquent demonstrations of the inter-complementarity of human rights. Since human existence is imbued with culture in its various manifestations, in fact, cultural rights are cross-cutting, they depend on the implementation of other human rights and other human rights depend on the implementation of cultural rights. They are interrelated with civil, economic, political, and social rights, in particular the right to life, liberty and security of person, the freedom of thought, conscience and religion, the freedom of opinion and expression, the freedom of association, freedom of movement, the right to participate in the conduct of public affairs, the right to an adequate standard of living, health care, food and housing, the right to work as well as to vocational guidance and training, the right to rest and leisure, the right to education—itself a cultural right, but also an economic, social, civil and political right—, the right to self-determination and the right to freely dispose of natural wealth

65

For example, E/1993/29, para. 136 regarding Hungary.

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and resources and means of subsistence. The signicance of cultural rights and their linkage with other human rights is particularly relevant regarding minorities and indigenous peoples—in fact, as analyzed in the following chapter, fourteen of the forty-ve rights enumerated in the Draft Declaration on the Rights of Indigenous Peoples cover various aspects of cultural rights and all nine articles of the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities are about cultural rights in one form or another. This cross-cutting nature of cultural rights makes it also interesting to identify their specicity, their borders vis a vis other human rights. I will try to outline this specicity below by juxtaposing cultural rights to other human rights. The right to life, liberty and security of person is a sine qua non of human existence, the most basic of rights without which a human being cannot pursue a material, spiritual, cultural or other fulllment. If a person’s life, liberty and security are at risk, if sheer physical survival is at stake because of persecution, discrimination or other reasons, how can he or she fully express an identity, participate in cultural life freely, create cultural expressions as an artist or a scientist? If a person suffers extreme poverty and threat to his life because of it, this person’s life is probably reduced to an effort of sheer physical survival, depriving him of other aspects of his humanity and an expression of his cultural rights. On the other hand, a person’s life, liberty and security may be threatened because he decided to exercise his cultural rights, for example, in the case of an author, by writing a politically or culturally critical book that attracts the wrath of the state or of non-state actors as vigilantes. But the assertion of cultural rights can have a supportive inuence towards strengthening the right to security—in its sense as human security: one has to think of the examples in conict situations where, a culture of extended family solidarity will result in saving the life of a very ill or poor member of that family, especially a child. Similar reections can be made on the inter-linkage between cultural rights and the right not to be subjected to torture and the right not to be held in slavery: the violation of these right also impacts cultural rights. It is well know for example, how many aspects of the cultural expressions of enslaved blacks in the United States were suppressed and that the slaves were not allowed to practice their African ceremonies and rituals—instead, Christianity was used to help push away many of these traditions. Another group of fundamental civil rights is indispensable for the effective exercise of cultural rights and their protection: the right to an

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effective remedy, the freedom from arbitrary arrest and detention, the right to a public hearing, as well as other related due process rights. In some instances, these civil rights are violated if the cultural rights of those concerned are not respected: for example, a detention is deemed arbitrary and a trial is not fair, if the person arrested or taken to court does not understand the legal proceedings because they are not in her own minority language and is not provided with an interpreter—as is unfortunately the case in some parts of the world where indigenous peoples live; the non-respect of this person’s language rights entails the violation of her/his right to a fair trial. Freedom of movement and the right to leave any country and return to one’s own country has a particular signicance for cultural rights, as culture is based on and stems from human communication. If, for example, freedom of movement and access to an indigenous sacred site is hindered for members of an indigenous community, this constitutes an infringement of their cultural rights. If an academic or an artist is not allowed to travel abroad to participate at a conference or concert, or is denied re-entrance into his country because of something he/she said abroad, this is an infringement of his freedom of movement which also entails an infringement of his cultural rights. In fact, the freedom to cooperate internationally on cultural matters, as mentioned above, is one of the normative elements of the right to participate in cultural life, as clearly conrmed by various international bodies, including UNESCO, and freedom of movement is part and parcel of that. In today’s globalized information society, where information technology bridges long distances and is also used by the arts and sciences and other cultural areas, one could perhaps say that the signicance of actual physical movement may have diminished. Yet, if we are to judge from the fervent pace of human travel across borders today for matters related to culture, together with the use of information technology, we must conrm the irreplaceable value that humanity continues to place on direct human communication—therefore the importance of freedom of movement for cultural rights remains. Freedom of thought, conscience and religion and freedom of opinion and expression are crucial freedoms for the respect and promotion of cultural rights. A person’s worldview, ethics, opinions or religion often result, partly or fully, from her culture, or, are closely linked to it. Seen from another angle, worldview, ethics, opinions or religion shape, to a greater or lesser extent, a person’s culture, identity and way of life—along with other factors, such as ethnic or other background,

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economics, history of the area where a person lives, the environment or family or other particularities. Given the strong inuence of religion in various parts of the world, religion may have a strong inuence on culture and its manifestations. Protecting religious freedom therefore will go a long way towards protecting the cultural rights of many people in various parts of the world. On the other hand, culture may also have a strong inuence on religion and its manifestations, as can be seen from the different types of Christianity or Islam practiced in various parts of the world, and therefore protecting cultural rights will also mean protecting religious rights. An example where protecting religious freedom does not cover protection of cultural rights, would be a case where an artist or an academic may freely practice his/her religion alone or with others, but his/her artwork or scientic treatise is banned by the state for ideological, political reasons. For an atheist, the protection of his cultural rights will mean something else, may be linked to other manifestations of his worldview or way of life, such presenting in public or publishing certain ideas. How is it different to protect cultural rights by comparison to protecting freedom of expression? Is all expression part of a person’s culture? Could we not absorb the protection of cultural rights via protecting freedom of expression? Do we need cultural rights after all, one might ask? Freedom of expression clearly does not cover all aspects of cultural rights. It does not cover for example the right to participate effectively in the formulation, implementation and evaluation of cultural policies and it does not cover many aspects of cultural rights specic to minorities and indigenous peoples as is explained in the next chapter. For example, language rights, inter-cultural education, the preservation of certain economic activities intimately linked to indigenous identity, protection of traditional knowledge and other aspects of the cultural rights of indigenous peoples are complex issues, which cannot be addressed just by reference to freedom of expression. Similarly, because not all aspects of freedom of religion can be contained in freedom of expression, the Universal Declaration of Human Rights had to include religious freedom in addition to freedom of expression. To the extent that cultural manifestations require human contact, freedom of peaceful assembly and freedom of association are fundamental in the respect for cultural rights. People organizing associations or gathering in various ways and places to partake in and enjoy their culture or the culture of others, to view works of art, to hold conferences, or to carry out a traditional economic activity in the case of an

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indigenous community, e.g., salmon shing or reindeer herding, are exercising their cultural rights and have to be protected. Again, freedom of association cannot cover all aspects of cultural rights, to the extent that people exercise their cultural rights also individually, not just in association with others. As implied above in connection with the freedom of expression, the various human rights proclaimed in international instruments are inter-connected, but also have their relative autonomy and address particular aspects of human life. A number of economic and social rights as well are of particular importance to cultural rights: the right to work, so that a person will have the material means to enjoy certain aspects culture. Not all aspects of culture need a person investing nancial resources at all times in order to be enjoyed, as is for example the case with speaking one’s own language, enjoying music or dancing in the course or regular social and community activity. Other cultural activities need resources, such as buying books, going to the cinema, theatre, conferences, concerts or museums. The right to rest and leisure is important as well, so that a person will have the time to enjoy certain aspects of culture, such as reading books, going to the movies or participating in festivals. The right to social security is quite pertinent and cultural rights are explicitly mentioned in Article 22 of the Universal Declaration of Human Rights devoted to social security, which reads as follows: “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” Realization of rights implies that specic measures have to be taken by the state, including commitment of resources. Article 22 also implies that economic, social and cultural rights are to be realized taking into account the resources of a state, what is commonly known by the term “progressive realization”. National effort and international cooperation are required for the realization of economic, social and cultural rights, and the latter has meant essentially that countries in need will seek assistance through international development cooperation. I also discussed this in part C.5 above as well as in Chapter Two F above on the UN’s development programmes. The right to a standard of living adequate for the health and wellbeing, including food, clothing, housing and medical care, is also a fundamental precondition for enjoying cultural rights. Similar to what

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was discussed above in the context of the right to life and security, if physical survival is at stake, one can hardly expect any meaningful participation in cultural life. In fact, the world has often watched the crumbling of community culture and the destruction of the social fabric, when conict situations or extreme poverty result in the denial of an adequate standard of living. The right to education is itself a cultural right and a precondition of the enjoyment of various other cultural rights, including language rights, the capacity to participate in the arts and other areas. The right to equality and non-discrimination of course underpins all aspects of human rights, including cultural rights, and is discussed in part C.1 above as well as in the chapter on indigenous peoples, minorities and other special groups. In conclusion, the linkages between cultural rights and other rights are strong, while at the same time, cultural rights retain their relative normative autonomy as well as their signicance for human beings and societies.

D. State Obligations and Violations When the UN was preparing Article 27 of the Universal Declaration on Human Rights on the right to participate in cultural life, there was hardly any clear constitutional precedent that the drafters could rely on regarding cultural rights. The most explicit references then available were in a draft composed by the Inter-American Juridical Committee and submitted to the UN by the delegation of Chile.66 The elements contained in the text of the Inter-American Juridical Committee were “the rights to the benets of science” and the rights to “the use of whatever means of communication are available”, examples of which were “the freedom to use the graphic arts, the theater, the cinema and other agencies for the dissemination of ideas”. However, as various new countries emerged in the time of decolonization and in the era after the Cold War, some constitutions included references, even general ones, to culture and its promotion and protection. An overview has been conducted for the purposes of this book of constitutions in states that have minority groups or indigenous peoples

66

Supra 1 in Chapter One, pp. 217–218.

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or are otherwise interesting in terms of cultural rights, in order to examine the extent to which their legal systems and related practice, to the extent available, bring to light recognition and respect for cultural rights. These are discussed in appendix four. Bulgaria and Ukraine were selected from Europe, Bangladesh and the Philippines from Asia, Kenya and Tunisia from Africa, and Guatemala and Guyana from the Americas. In order to gain more insight, the reports of those countries submitted since 1990 under the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child were also examined. It is obvious that recognition of cultural rights in law, to the extent that such recognition exists, does not necessarily imply their implementation. Unfortunately, due to the lack of adequate monitoring of cultural rights by international human rights monitoring mechanisms, it is difcult to form an accurate picture about their implementation. Yet, even the inclusion or not of cultural rights in national legal instruments shows the importance attributed to them by policy makers. The signicance of cultural rights for minorities and indigenous peoples is such, not least for the promotion of peace and the prevention of conict, that it would be useful for the various human rights treaty bodies not to miss opportunities to commend countries on the achievements and express concern over the lacunae in the respect for cultural rights. The brief analysis of state constitutional practice demonstrates that in most cases some awareness and policy attention to cultural rights exists, mostly implicit, and that much more should be done, both in law and in practice for the actual implementation of those rights. The conceptual legal challenge of dening the nature and scope of a state’s obligations, as well as violations of economic, social and cultural rights, has been debated for some time. For some this challenge, together with the issue of justiciability, has provided an excuse to defy even the concept of economic, social and cultural rights as rights or to not work for their advancement.67 The Committee on Economic, 67 The United States of America has traditionally taken the view that economic, social and cultural rights are not human rights, but social aims towards which a government should strive. This position was at times slightly “rescinded”, most visibly on three historic occasions: in 1948, when the Commission on Human Rights adopted,

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Social and Cultural Rights worked diligently to clarify the nature and scope of a state’s obligations and violations over the years and this culminated in the adoption by the Committee of the Limburg Principles in 1986 and the Maastricht Guidelines in 1997.68 It is regrettable that this authoritative analysis, developed and used by the Committee in the examination of states’ reports, is not yet widely known by policy makers or civil society actors who could make a difference in this area and it seems almost that the debate is only starting.69 This sub-chapter follows the analysis contained in the above-mentioned Guidelines, the texts of international human rights instruments and the practice of international human rights bodies. Cultural rights are subject to progressive realization. However, there are also obligations of immediacy which I outline below as minimum core obligations. The burden is on the state to demonstrate that it is making measurable progress towards the full realization of cultural rights. It is important to distinguish the state’s inability from its unwillingness to comply with its treaty obligations regarding cultural rights. If a state claims that it is unable to carry out its obligations because of reasons beyond its control, it has the burden of proving that this is the case.

under the chairmanship of Eleanor Roosevelt, the Universal Declaration of Human Rights, which includes both civil and political rights, and economic, social and cultural rights; in 1977 when the USA, under the Carter presidency, signed the International Covenant on Economic, Social and Cultural Rights—which was never subsequently ratied; and in 1993, when the USA, under the Clinton presidency, accepted in various statements, in the context of the 1993 World Conference on Human Rights, the importance of economic, social and cultural rights. 68 E/C.12/2000/13, see also the website of the Ofce of the High Commissioner for Human Rights, www.ohchr.org. 69 In an article entitled “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization” (26, Human Rights Quarterly 63, 2004) Roth essentially supports the emphasis on the monitoring of civil and political rights by reputable organizations such as Human Rights Watch that he directs due to the lack of adequate clarity of economic, social and cultural rights. Roth’s article, however, focusing on when “naming and shaming” works, fails to take into account the extensive work of analysis and interpretation of the Committee on Economic, Social and Cultural Rights, as for example in the Limburg Principles and Maasrticht Guidelines. There is no doubt that “naming and shaming” would be effective also in the area of economic, social and cultural rights. See also Leonard Rubenstein, “How International Human Rights Organizations Can Advance Economic, Social and Cultural Rights: A Response to Kenneth Roth”; Mary Robinson, “Advancing Economic, Social and Cultural Rights: The Way Forward”; Kenneth Roth, “Response to Leonard S. Rubenstein”; and “Response by Leonard Rubenstein” (26 Human Rights Quarterly, 2004).

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The state’s obligations are obligations to respect, protect and fulll. The obligation to respect requires the state to refrain from interfering with the enjoyment of cultural rights. Thus, for example, cultural rights are violated if a state does not allow publications or radio programmes in a certain language used in the country. The obligation to protect requires states to prevent violations of cultural rights by third parties. For example, if the state fails to ensure that a certain linguistic group is able to teach its language in its private schools undisturbed by hostile individuals or groups may be in violation of the Covenant on Economic, Social and Cultural Rights; or if a state fails to protect an artist from threats by a religious group.70 The obligation to fulll (facilitate and provide) requires states to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of cultural rights. The obligations to fulll and realize are the most pro-active part of state obligations in the area of economic, social and cultural rights. In the case of cultural rights, examples of legislative measures include the adoption of laws providing for equal access to media by migrant or minority communities and non-discrimination provisions for the use of mother tongue in public. Examples of administrative measures would be regulations to facilitate communication between kin ethnic communities divided by borders and training of border guards to implement such regulations, instituting disciplinary procedures for members of police or teachers who act in a discriminatory way towards persons belonging to a minority, as well as instituting a process of meaningful participation of an indigenous group in cultural policies. Examples of budgetary measures would be devoting resources for primary education in the mother tongue and for bi-lingual education of children of a recent immigrant community or for the construction of a cultural or religious center for such community. Examples of judicial measures would include providing access to an interpreter for an indigenous person brought to trial who does not understand the language of the dominant society, taking judicial action against individuals or companies who exploit the cultural expressions of persons belonging to an indigenous community or of the indigenous community as a whole, or .

70 The Committee on Economic, Social and Cultural Rights critiqued Iran on the Rushdie affair, for failing to protect his right to participate in cultural life, via the issuance of a fatwah against him by the religious authorities, E/1994/23, para. 128.

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ensuring that interested and qualied members of a minority become members of the judiciary. While the state must take specic action to protect and promote cultural rights, it must walk a ne line between its own intervention and private initiative. Otherwise the risk is there for a state-sponsored cultural life stiing creativity and ending up in oppression and co-optation.71 One can easily imagine how a government would try to regulate cultural production, for example books or music, of a specic ethnic group if it wishes to oppress this group. Cultural choices have to be left to every individual or group: it is up to each to decide what to practice from one culture or another culture, not to assimilate at all in the dominant culture or assimilate partly, or perhaps to launch new elements of culture. State intervention is a judgment call based on the specic material, historic and social circumstances of an individual’s case or a group’s case and is obviously also linked to available public resources. The minimum core obligations of the state outlined below provide basic guidance. Given the complexities of cultural issues, I believe that, out of these minimum core obligations, the one that requires the effective participation of society, including minorities and indigenous peoples, in cultural policies and programmes is key. A well-meaning government who is in search of what is needed in this area must be open to and facilitate genuine democratic processes, keeping human rights principles always in mind, such as the principle of non-discrimination and of the need to protect the most vulnerable. Violations of cultural rights may take place by acts of commission or omission. Examples of violations through acts of commission include the prohibition of language rights to particular individuals or groups, whether through legislated or enforced discrimination; the active support of measures adopted by the movie industry which exclude artists of a certain ethnic background; the calculated obstruction of, or halt to, the progressive realization of a cultural right, unless the state does so due to lack of available resources or force majeure, if, for example, the state has the means but obstructs bilingual primary education for an

71 The 2002 resolution of the Commission on Human Rights on cultural rights recognized that market forces alone cannot guarantee the preservation and promotion of cultural diversity and, from this perspective, recognizes that the pre-eminence of public policy, in partnership with the private sector and civil society, must be reafrmed (Resolution 2002/76, in E/2002/23). By placing such emphasis on public policy this phrase may appear unbalanced, as it leaves out the fact that cultural choices are after all pre-eminently private.

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indigenous community. Examples of violations through acts of omission are the failure to regulate activities of individuals or groups so as to prevent them from harassing certain types of artists, e.g. preventing the showing of certain lms. The failure to reform or repeal legislation which manifestly discriminates against the cultural rights of a specic group also constitutes a violation of cultural rights. The Minimum Core Obligations of the State The concept of minimum core obligations is particularly useful in the case of cultural rights, which are often viewed as a luxury that government should pay attention to only after fullling other, more basic needs of the population. The issue of competing necessities and limited resources is not new in public policy and the understanding we have that economic, social and cultural rights are to be progressively realized is not necessarily a response to the problem of competing demands on scarce resources. This issue does not only appear in the dilemma cultural rights versus, for example, the right to education, but in general, for instance, right to primary education versus right to primary health. In dening the core obligations for cultural rights one should therefore be able to go beyond the statement of insufcient resources, because if we were only to view obligations from the perspective of resources, in most cases, in most countries, we could simply end up not holding governments accountable for the respect, protection and fulllment of cultural rights. In fact, the core obligations for cultural rights demonstrate that the promotion and respect for cultural rights is very much an issue of democracy and not necessarily one of public nancial resources. The concept of core obligations for cultural rights, taken seriously as legal rights, helps identify whether there is or not a demonstrated political will of government to respect its obligations. Political will is of course also exercised through the distribution of resources, but, while the lack of resources can be used as an excuse to mask the absence of political will, core obligations put it in relief. A government for example could not use lack of resources as an excuse not to repeal discriminatory laws and regulations against indigenous cultures, such as the prohibition of children to speak to each other in their mother tongue in school or for a person belonging to a minority to use her name in her own language in ofcial papers. Core obligations are by denition fewer than the full obligations for a specic human right and allow the analysis to go beyond the issue of

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insufcient resources to fulll competing obligations, for example cultural rights versus the right to health. Core obligations constitute essentially the expression of the political will to fulll these obligations, with no or few nancial resources. Paramount among the core obligations is respect for the principle of non-discrimination, in law and in practice, as for example in allocating public resources. Insufcient resources are not an excuse by human rights standards for discriminating, for example, on the basis of race, sex, national or ethnic origin, religion or language. Nor are they an excuse for state interference in the public use of a minority language. Arbitrary or extraneous behaviour of government, such as for example corruption and inaction in the face of corruption in using public resources, is another indication of lack of political will to respect obligations. Indicators like this can be developed to identify violations and violators of cultural rights. Based on the concept of core obligations developed by the Committee on Economic, Social and Cultural Rights, the minimum core obligations of the state regarding the right to participate in cultural life, which are also obligations of immediacy, can be described as follows: (a) Non-discrimination in law and in practice. The state must respect the freedom of the individual and the community or the group to freely exercise their right to participate in cultural life and assert their identity without any discrimination as provided in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights. The requirement of access to culture also dictates non-discrimination in geographical terms within a state. The state must repeal any discriminatory laws and policies and promote laws and policies regarding non-discrimination in the enjoyment of cultural rights. (b) Non-interference in the freedom of cultural expression of individuals and groups. The freedom of individuals and communities to exercise their cultural rights without undue interference by the state should be respected, including using their own language, engaging in creative activities, unrestricted access to means of dissemination, and cooperation with others at the international level, particular emphasis being given to the respect for the freedom to use language. In the case of minorities or indigenous peoples, such cooperation should be safeguarded in particular with members of kin communities in neighbouring countries. The state should also respect other civil and

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political freedoms related to cultural rights, especially freedom of expression, freedom of association, freedom of assembly, freedom of thought, conscience and religion, and freedom of movement, as well as the right to establish educational and cultural institutions. (c) Protection of the exercise of the freedom to participate in cultural life, when it is under threat by non-state actors, through the state’s regular discharge of police and justice functions. Such non-state actors would include individuals, groups, corporations and economic interests, domestic or foreign. This does not mean that the state should intervene in a situation where, for example, a foreign food chain moves into a local market and may be perceived by some as a threat to local culture. While there may be people asking the state to act against such inux, the human rights framework does not require such limitation. On the other hand, it requires the implementation of labour rights, for instance, regarding the local workers in the foreign food chain, and the respect of human rights by private security agents who may be employed by the company. The state would be responsible to ensure that the company respects these requirements. Another example of state obligations in this area would be if a company were to use the music or traditional designs of an indigenous group without its permission, in which case the state should extend its protective and corrective arm to this indigenous group. (d) Ensuring representative participation of society in the denition, preparation and implementation of policies on culture. The state must ensure representative participation of society, including of minorities and indigenous peoples, in the denition, preparation, and implementation of policies on culture. If, for example there was a decision to provide subsidies to encourage local television, it would be important to consult meaningfully with local associations on the whole spectrum of such cultural programmes, and, if there are indigenous communities in the area, they would also have to participate fully and effectively in such consultations. (e) Promoting policies of respect for cultural rights. The state must promote policies of respect for cultural rights and cultural diversity within society, especially through education. Intercultural education at school would mean, for example, reviewing curricula to eliminate discriminatory references to other cultures or groups, such as indigenous peoples or minorities, developing social studies curricula that promote learning about other cultures,

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giving students the opportunity to study minority languages, hiring teachers from the minority community to teach, not only in minority schools, but also in the majority schools. The broad education of the public can be promoted through programmes in the mass media, inter-cultural festivals, inter-cultural youth camps and other ways. (f ) Taking steps towards the full enjoyment and fulllment of cultural rights. The state must take steps, according to Article 2(1) of the Covenant, to the maximum of its available resources, to fulll conditions and correct circumstances that will allow the full enjoyment of cultural rights, especially those of disadvantaged or vulnerable groups. The undertaking ‘to take steps’ is an immediate obligation. It is the demonstration of political will to respect cultural rights, such as for example launching an examination of laws and policies to eliminate possible discriminatory provisions. Another step would be, in a country with minorities, to launch an examination of the state budget to ascertain how to integrate minority issues. This does not mean that the effect of steps has to be immediate, because the results of public policies often take time. However, transparency and accountability procedures in government should curb arbitrary delays that result in de facto cancellation of policy announcements. The issue of insufcient resources and competing priorities is a real one for any well-meaning government. If the government of a developing country does not have adequate resources to respond to its obligation to fulll, it should explore the possibility of international assistance, whether bi-lateral or multilateral. It can in essence demonstrate its positive political will by doing so. While national governments have primary responsibility for national development, the international community should assist national efforts at the request of governments. In fact, the Revised Guidelines regarding the form and contents of reports to be submitted by States parties to the International Covenant on Economic, Social and Cultural Rights, in paragraph 9, request states to indicate the role of international assistance in the full realization of the rights enshrined in Article 15. Accountability for the implementation of economic, social and cultural rights will have to become more imaginative, by also examining the responsibilities of international donor institutions, but it seems that such a system is still far from being a reality. The possibility of seeking international assistance does implicate the issue of priorities, i.e. in what areas should a government seek assistance.

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The issue is not always a straight one of whether to invest for example in education versus health, but also how to integrate human rights in general and cultural rights in particular in education and health. That would imply for example paying special attention to the most vulnerable parts of the population and providing culturally appropriate health care and education. A concrete example of how to integrate cultural rights in education is given by the UN Permanent Forum on Indigenous Issues. Primary education for all by the year 2015 is one of the eight Millennium Development Goals set by the United Nations in 200072 and the Permanent Forum has outlined what it will mean to integrate language rights of indigenous peoples in primary education. The Forum expressed concern that, in fast track programmes that would aim at achieving primary education for all by the year 2015, inattention to language in primary education may in fact lead to accelerated assimilation and further loss of indigenous languages.73 If one applies an accountability model that goes beyond national government, one would need to examine, for example, whether and how international donors take such linguistic rights into account in nancing programmes for primary education in countries with indigenous peoples. My position is that donor accountability must be underlined in parallel with that of national governments. If a donor government, out of negligence, lack of sensitivity or in agreement with forced assimilation approaches of the receiving government, funds education programmes that lead to the destruction of indigenous languages, its responsibility should also be invoked under international human rights law. Any assessment of whether the state has discharged its minimum core obligations must obviously take into account the resource constraints in the country concerned. It is up to the state to demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, those minimum core obligations,74 which require few

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The Millennium Development Goals (MDGs) are part of the Millennium Declaration adopted by the United Nations Genera; Assembly Summit on 8 September 2000, GA/RES/55/2. 73 Report of the UN Permanent Forum on Indigenous Issues at its fourth session, E/2005/43; available at www.un.org/esa/socdev/unpi. 74 General Comment No. 3 of the Committee on Economic, Social and Cultural Rights on the nature of States parties obligations, Article 2(1) of the Covenant, E/1991/23 Annex III. In an excellent discussion of the report of Sweden in 1992 (and exceptional in the sense of the attention given to cultural rights), the Committee

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or no resources. There is no doubt that the concept of core obligations for economic, social and cultural rights puts to the test fundamental precepts of government, such as the rule of law, representativity and good governance. Core obligations help answer the question whether a government has any intention at all to respect certain rights.

E. Monitoring Cultural Rights: Indicators and Benchmarks The purpose of this section is not to develop and propose cultural rights indicators, a task beyond its scope, but rather to establish the status of work on the subject. Given the inadequate attention paid until now to cultural rights, it is no surprise that the issue of cultural rights indicators is still at a nascent stage. The Committee on Economic, Social and Cultural Rights has been consistent in underlining the importance of indicators and benchmarks for economic, social and cultural rights. During the General Discussion on the right to participate in cultural life held by the Committee in 1992, it was suggested that States parties should be asked to cite their own cultural indicators.75 The Masstricht Guidelines76 include among examples of violations of economic, social and cultural rights the failure to monitor the realization of these rights, “including the development and application of criteria and indicators for assessing compliance”. In his paper on cultural rights for the Committee, Konate included a recommendation that states should provide information for the determination and use of ‘cultural indicators’ in development planning.77 The Special Rapporteur on the realization of economic, social and cultural rights also considered the development of indicators in this area very important.78 The Vienna Declaration and Programme of Action

asked whether under-privileged groups were the same as the minority groups, including the Saami and immigrants; whether the government had taken any steps to ease the marginalization of the Gypsy population; whether the reported 0.7% of the national budget allocated to cultural activities was sufcient to attain the objectives of the Covenant; whether the aim of subsidies to large cultural institutions was to make the activities more affordable for the majority of people or simply maintain them; whether there was any government policy to subsidize sports (E/1992/23, para. 248) 75 E/1993/22, para. 215. 76 E/C.12/2000/13, para. 15 (f ). 77 E/C.12/1992/WP.4, page 12. 78 Special Rapporteur on economic, social and cultural rights of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Danilo Turk

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similarly included among the approaches for strengthening economic, social and cultural rights, the development of a system of indicators to measure progress in the realization of the rights set forth in the International Covenant on Economic, Social and Cultural Rights.79 International bodies, in other words, have consistently encouraged the development of indicators for cultural rights; progress, however, has been slow. In recent years, the Ofce of the High Commissioner for Human Rights cooperated with the United Nations Development Group (UNDG) ( composed by UN agencies, ofces, funds and programmes dealing with development) to prepare guidelines for the UN Development Assistance Framework (UNDAF) and the Common Country Assessment (CCA). I discuss CCA and UNDAF in some detail in Chapter Two F above, but I need to stress here that the CCA Indicator Framework, which includes, for the rst time in the UN’s development programming, indicators linked to some civil and political rights, contains no cultural rights indicators. Although regrettable, this is understandable given the overall difculty of integrating human rights indicators in CCA/UNDAF and the little work done by human rights bodies on the subject. UNESCO has made concrete efforts to develop cultural indicators within the framework of its World Culture Report rst published on a biennial basis, following the 1995 recommendation of the World Commission on Culture and Development (WCR).80 The International Agenda of this Commission had included Action O. 7 entitled “Protection of cultural rights”. The task of the WCR is to survey recent trends in culture and development, monitor events affecting the state of cultures worldwide, construct quantitative cultural indicators, highlight good cultural practices and policies, and analyze specic themes of general importance accompanied by policy suggestions. The WCR is meant to open up a new eld in analytical and quantitative thinking on the relationship between culture and development. It is prepared by an independent scientic committee working with a worldwide team of experts.

(E/CN.4/Sub.2/1989/19); a discussion on this study was held by the Committee in 1990 (see E/1990/23, paras. 255–279). There was hardly any substantive mention of cultural rights in that study. 79 A/CONF/157/24/ (Part I), para. 98. 80 See www.UNesco.org/culture/worldreport/index.html.

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Despite the difculties that the WCR identies in dening cultural indicators,81 the Report has identied a number of such indicators, which are practical and meaningful: number of copies of books produced; registered public library users; number of books in public libraries; cultural radio and television programmes; indicators on performing arts, on recorded music, on museum personnel, on cultural trade; trend data on cinema attendance; feature lms produced/imported/leading country of origin; trend data on foreign visitors; indicators on translations and books in foreign languages; foreign students; newspaper circulation daily; cultural trade. Although the beginning of efforts for cultural indicators may be imperfect, the above-mentioned examples demonstrate that their development is indeed possible, practical and useful.82 In addition to these, work of cultural rights indicators and development is being done under the aegis of the Permanent Forum on Indigenous Issues and the Food and Agriculture Organization, as described in the chapter on cultural rights and UN operations. The Committee on Economic, Social and Cultural Rights could greatly benet from studying these indicators so as to develop a few that are meaningful from a human rights point of view—such as disaggregation of data on the basis of race, sex, ethnic origin, language—to assist in the monitoring of cultural rights and in measuring progress.

Justiciable Aspects of Cultural Rights Justiciability of economic, social and cultural rights has been a muchdebated issue at the UN, especially since the early 1990s when the idea was promoted to draft an optional protocol to the International Covenant on Economic, Social and Cultural Rights that would allow individual petitions to be addressed to the Committee regarding viola-

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Leo Goldstone, “Measuring culture: prospects and limits”, ibid. The difculties identied are: non-reection of cultural concerns through existing statistics; lack of Uniformity in the coverage of cultural indicators among countries; reliability of indicators in the WCR given the variety of sources (some twenty international and professional sources) from which data were obtained for the WCR. 82 An interesting initiative of the Swiss Federal Statistical Ofce on human rights indicators has not yet included cultural rights (discussion with the Swiss Federal Statistical Ofce, 2 May 2002). The University of Fribourg, in Switzerland, within the framework of a project on cultural rights, has an ongoing project on cultural indicators.

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tions of some of these rights. Some progress has been made, especially since the adoption of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, but no comprehensive approach has yet been adopted. The Maastricht Principles on Violations of Economic, Social and Cultural Rights83 state that both individuals and groups can be victims of violations of economic, social and cultural rights and that certain groups suffer disproportionate harm in this respect. These include lower-income groups, women, indigenous and tribal peoples, occupied populations, asylum seekers, refugees and internally displaced persons, minorities, the elderly, children, landless peasants, persons with disabilities and the homeless. Nobody should be penalized for claiming their cultural rights. Any person or group who is a victim of a violation of a cultural right should have access to effective judicial or other appropriate remedies at both national and international levels and is entitled to adequate reparation. Advocacy and monitoring bodies such as national ombudsman institutions and human rights commissions, should address violations of cultural rights. It is clear from the practice of human rights treaty bodies and the language of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women that a justiciable aspect of cultural rights is not only the violation of the non-discrimination clause but also of the other obligations of the state.84 The Revised Guidelines for reporting under the International Covenant on Economic, Social and Cultural Rights85 specically ask states to describe the legal, administrative and judicial system designed to respect and protect the freedom indispensable for scientic research and creative activity. The sparse academic literature on cultural rights does not discuss the issue of justiciability of cultural rights, but this is understandable given the fact that attention until now has focused on clarifying the concept of cultural rights. Although justiciability may seem as a “luxury” in the currently underdeveloped framework of cultural rights, it is still important to demystify it as concerns cultural rights and to stress that it is certainly possible to take such issues to court. Apart

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E/C.12/2000/13, Parts IV and V. See Appendix Two in this book. The draft optional protocol to the International Covenant on Economic, Social and Cultural Rights that will be discussed by a working group of the Commission on Human Rights is expected to address some of these issues. 85 E/1991/23, Annex IV, para. 5. 84

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from the non-discrimination aspect, one could imagine many examples of justiciable cases, such as the prohibition of hunting certain animals or birds for use in traditional ceremonies, the prohibition of speaking a minority or indigenous language in public schools or the teaching of such language in private schools, the lack of state sanctions for acts of harassment by non-state actors towards certain cultural or religious manifestations, the deliberate institutional exclusion by the state of meaningful minority or indigenous representation in cultural policies affecting those communities, the destruction or other measures leading to the inaccessibility of sacred sites and other signicant cultural sites of an indigenous or minority community, the prevention of certain traditional economic activities indispensable for the continuation of an indigenous culture, the inclusion of discriminatory and prejudicial language about minority cultures in school curricula and public documents or discourse, the prohibition of participation in or relation with cultural and scientic actors beyond national borders, the persecution of individuals for bearing visible signs of their culture, including the way they dress, or the suppression of works of art that are viewed as going astray from the mainstream. These examples show how close to reality are situations that can give rise to court cases on cultural rights and are meant to deate the sense of exceptionality around the idea of justiciability in this area. They also demonstrate the moral, political, social and economic stakes around cultural rights. Some cases of this type have been raised in national courts and the increasing multiculturalism in today’s societies together with an increasing awareness of cultural rights may lead to further probing of judicial systems.

CHAPTER FOUR

SPECIAL GROUPS

A. Indigenous Peoples and Minorities: What Are Their Cultural Rights? 1. Some Preliminary Considerations The crisis affecting the world’s diverse cultures and languages is, according to some estimates, far greater than the biodiversity crisis. Around 90% of the 6000+ currently spoken languages (and the cultures expressed by them) may have become extinct or face extinction in the next 100 years.1 The Minorities at Risk data set, a research project including issues related to cultural exclusion, has reviewed the situation of minority groups worldwide and estimates that about 900 million people belong to groups that are subject to some form of exclusion not faced by other groups in the state—around one in every seven people around the world.2 Yet, the subject of the cultural rights of minorities and indigenous peoples is full of controversy in political and legal theory. For many it is the basis for arguing in favour of group or collective rights, an idea that others resist. The drafting history of Article 27 of the Universal Declaration that I have summarized in Chapter One A bears testimony to this controversy. The purpose of this preliminary note to the chapter on indigenous peoples and minorities is not to do the work of philosophers or political theorists, but to give a brief account of questions that form a large part of the underlying tensions that travel across disciplines and that are actually, whether consciously or unconsciously, in the minds of real people living their lives as well as in the minds of policy-makers. After

1 Gonzalo Oviedo, Aimee Gonzalez and Luisa Maf, “The Importance of and Ways to Conserve and Protect Traditional Ecological Knowledge”, paper presented at the UNCTAD Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices, 30 Oct. to 1 Nov. 2000, p. 6, quoted in Carlos M. Correa, Traditional Knowledge and Intellectual Property: A Discussion Paper, commissioned by the Quaker United Nations Ofce, 2001. 2 Quoted in the UNDP Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, UNDP Publication, p. 6.

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this preliminary note I will proceed to the task of reviewing international law and practice on the matter. The rst basic question is what the interest of society is in protecting the integrity of cultural groups as such, i.e. providing rights beyond the protection of the individual. National, ethnic, religious and linguistic minorities and indigenous peoples are the history-based groups that this discourse is mainly about, although there are numerous other groups rendered vulnerable by society (e.g. persons with disabilities, gay people, homeless people, the extremely poor, just to mention a few) and who are not covered by the mainstream discourse on minorities. Almost everybody would agree that culture gives the context for people to make value judgments and choices about their lives and that we all need this context. Culture in this sense is seen by some as the specic culture to which a particular individual is supposed to belong, this belonging to a specic group being fundamental and linked to self-respect. According to this theory, society recognizes the value of cultural membership to the specic group, say the ethnic group, of a person’s origin, as a primary good, closely linked to self-respect, that needs to be protected.3 Therefore, the idea is that the group needs to be protected so that the individual human being can partake in this secure culture. The protective good is the secure cultural context of choice within which a person exercises her moral powers. This theory presupposes that each one of us ts neatly within, say, an ethnic community and that each community is surrounded by distinct borders which need protection. Not everybody sees cultural membership in such clear, neat terms. A person, say, that grew up in a rural minority community, received education in a metropolis in her country, joined a feminist, human rights or other association, was not necessarily popular in her community of birth, migrated afterwards to another country or city and works in a language different from her mother tongue lives simultaneously within various cultural contexts. This story could be true for various members of this person’s rural minority, or even for the majority of that rural community that now has very few members remaining in the countryside. This example, all too common in today’s world of massive migration, reminds us graphically of an attribute of cultures since time immemorial: in most parts of the world—with the exception

3 Will Kymlicka, Liberalism, Community and Culture, Clarendon Press, Oxford, “The Value of Cultural Membership”, pp. 162–181.

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of a few areas that developed in isolation for long periods—people, groups, nations, countries have been in contact, either peacefully through economic and other relations or through war and domination. Thus cultures have been and are in constant contact with each other, inuencing each other, integrating elements of each other, disagreeing with each other, occasionally absorbing or assimilating each other. We are not the self-made atoms of liberal fantasy, certainly, but neither are we exclusively products or artifacts of single national or ethnic communities. No one of these entities give full shape and meaning to our life.4 Drawing borders around each group culture in order to protect it can be like drawing lines in sand. Linked to the difculties on the above-mentioned question is the controversy over resources: once we accept that there is a group right to its culture, should the rest of the society have the positive obligation to provide resources to preserve a cultural context of a minority group which may not even be so easy to dene or may not be so essential for many of those currently or formerly associated with the group? For example, while no one would dispute the freedom of a very small group of people to be the few remaining believers of a religion, is there a social interest in providing resources to preserve such religion at any cost? In case of conict over resources, what are the limits between what is owed to a minority group and other economic development interests of society? The second major question is the position of the individual within a cultural group. Groups often want to use the sense of group rights to rule over and force their will upon individuals. The fact that Salman Rushdie was sentenced to death for apostasy for writing The Satanic Verses is a sobering reminder of what it really may mean to insist that people must keep faith with their roots.5 What are the limits between recognizing cultural rights as collective rights and respecting and protecting the autonomy of the individual, her decision to take risks that may go against a sense of cultural purity? And since groups and individuals sometimes threaten each other, if we advocate a balance between individual and collective rights, what could be the compelling 4 Jeremy Waldron, “Minority Cultures and the Cosmopolitan Alternative”, University of Michigan Journal of Law Reform, Vol. 25 (1992), pp. 103, 105. 5 Idem, pp. 99 and 109. Waldron also quotes extensively a passage of Rushdie’s essay In Good Faith, in which Rushdie defends his book: “Melange, hotchpotch, a bit of this and a bit of that is how newness enters the world. It is the great possibility that mass migration gives the world, and I have tried to embrace it. The Satanic Verses is for change-by-fusion, change-by-conjoining. It is a love-song to our mongrel selves . . .”.

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reasons that would place limitations on the rights of the individual in favour of the cultural group or limitations on the group in favour of the individual? The third issue has to do with remedying historic injustices. Groups claim cultural rights as collective rights vis-à-vis the majority society, with corresponding obligations, both negative and positive, which are necessary to preserve and develop the cultural integrity of the group, often in order to remedy historical injustices.6 The fact of past injustice does not necessarily lead to an automatic legal obligation to remedy all those injustices, but it is clear that the state and society have to nd mechanisms to deal with such injustices. In common criminal or civil cases, modern national legal systems normally provide for a statute of limitations, for example twenty years, so that beyond that time behaviour that the law considers illegal will not hover in perpetuity as an unsolved matter in society and so that the disturbance of the social fabric created by illegality will be laid to rest. It is known that in various parts of the world, age-old traditions that survive modern legal systems can perpetuate family vendettas for decades, not allowing society to “forget” or “forgive” a crime, even if it has been dealt with by the ofcial legal system. It is also known that some traditional legal systems place strong emphasis on reconciliation and resocialization so that the social fabric will be mended sooner rather than later.7 However, when it comes to historic injustice vis-à-vis a group that continues to suffer discrimination and disempowerment by the dominant society, the issue of dealing with such historical injustice gets even more complex and its solution becomes even more signicant. Questions arise as to what can constitute fair moral, symbolic or material remedies that will restore

6 Anaya nds that in the case of indigenous peoples the norm of cultural integrity has developed remedial aspects in light of their historical and continuing vulnerability. S. James Anaya, Indigenous Peoples in International Law, 1996, Oxford University Press, New York/Oxford, p. 102. 7 A good example is sited by the Special Rapporteur on human rights and fundamental freedoms of indigenous people regarding Greenland Home Rule (E/CN.4/2004, para 55). In Greenland the justice system, although based on the Danish system and administered by the Danish authorities, is responsive to the standards and values of Greenlandic society and traditional Inuit legal practice and customary law, with extensive lay participation. The judicial system differs signicantly from the Danish system to which it is attached. Citizens are called to act as district judges, lay judges and defense counsel while local police handle the prosecuting function. In 1994, the Justice Review Commission recommended, inter alia, that local judges must have knowledge of the local community and its cultural values, and language skills in Greenlandic.

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social justice for the victimized group; how far back in history should a state go to deal with historic injustices; how to deal with the competing rights and needs of other populations, majority and minority, who did not commit these injustices in the past, but are descendants of those who did, and their demands on public resources; how can a “wellmeaning state” deal justly with the welfare of its total population; and how can a state take action and what action should it take in various public areas simultaneously so that the effect will be harmonious and peaceful relations among various ethnic, racial, religious and linguistic communities and the dominant society. Since every society is unique in its history, culture and political circumstances, there do not seem to exist easy or homogenous answers to such questions. Key, however, is whether or not the descendants of groups to whom historic injustice was done continues or not to suffer discrimination, marginalization and disempowerment by the dominant society. International legal thinking has contributed to solutions by addressing the concept of continuing violations of human rights, i.e. injustice that stems from far back, but the effects of which still continue in the present, by promoting positive measures to deal with past discrimination, by developing concepts of truth commissions and transitional justice, and, of course by establishing imprescriptibility for crimes against humanity and gross and systematic violations of human rights and humanitarian law. The International Law Commission has addressed the denition of “continuing act” as one which is a single act extending over a period of time and of a lasting nature; an act which proceeds unchanged over a given period of time: in other words an act which, after it occurs continues to exist as such and not merely in its effects and consequences.8 The Human Rights Committee has dened a continuing violation as an afrmation, after the entry into force of the Optional Protocol to the International Covenant on Civil and Political Rights, by act or by clear implication, of the previous violations of the State party.9 At the national level, truth commissions and formal apology have been ways of dealing with past injustices and human rights violations.10

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Report of the ILC, 1976, p. 220. Simunek vs. Czech Republic, Case No. 516/1992, para. 6.4, fty-fourth session. 10 The truth commissions established in Chile after the fall of Pinochet and in South Africa after the end of apartheid are the well-known examples, with varying degrees of success. 9

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The United States, for example, adopted the Apology Bill (Public Law 103–150, signed by President Bill Clinton) on 28 November 1993, to acknowledge the 100th anniversary of the 17 January 1893 overthrow of the Kingdom of Hawai’i, and to offer an apology to Native Hawaiians on behalf of the United States.11 The preamble of the Bill states, inter alia, that the long-range economic and social changes in Hawai’i over the nineteenth and early twentieth centuries have been devastating to the population and to the health and well-being of the Hawaiian people and that the Native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions. Section I states, inter alia, that the United States Congress acknowledges the historical signicance of the illegal overthrow of the Kingdom of Hawai’i which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people; apologizes to Native Hawaiians on behalf of the people of the United States and expresses its commitment to acknowledge the ramications of the overthrow of the Kingdom of Hawai’i, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people. Although the road to such reconciliation seems still long, some useful steps have been taken, such as the establishment of the Ofce of Hawaiian Affairs. At the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance the issue of reparations occupied center stage at the negotiations, sparking controversy, but the conference process was clearly not the forum to set any international standards in this area, especially as no global comparative study had taken place at the time that would provide insight as to where the various legal systems are on this point and how to draw consensus for international standards in this area. Yet the Conference addressed cultural rights eloquently, even if not always naming them as such, within the context of the policies it advocated on indigenous peoples, minorities, Afro descendants, migrants and Roma/Sinti/Travelers.12

11

See publication of Hawaiian Affairs, Apology Bill, also www.OHA.org. See detailed account of the conference outcome in Chapter One C above; the full text of the outcome appears in A/CONF.189/12. 12

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A lot of attention is being paid by the UN human rights system to righting the wrongs of the past and certainly the increasing discussions at the Commission on Human Rights on impunity, transitional justice and truth and reconciliation commissions bear witness to this. The Commission on Human Rights at its sixty-rst session in 2005, for example, welcomed the Set of Principles for the protection and promotion of human rights through action to combat impunity developed by its independent expert on this subject and encouraged the development of effective measures to combat impunity, including efforts to strengthen domestic capacity and the design of judicial mechanisms and truth and reconciliation commissions of inquiry.13 In this era where colonialism and crimes against humanity are outlawed and respect for human rights seems to be a prevalent moral paradigm, it cannot be permissible to extinguish cultural groups via killings, systematic oppression and discrimination, expropriations, forced removal or forced assimilation. The need to address historic injustices looms high on the moral and material agendas of today’s societies and I maintain that respect, protection and fulllment of cultural rights provide a signicant response to such historic injustices. There are no formal international denitions of the terms “minorities” and “indigenous peoples” and these categories overlap in international practice, especially in terms of the need to establish non-discrimination towards them. While rights of cultural integrity outside the specic context of indigenous peoples have been associated with “minority rights”, indigenous rights advocates have frequently rejected calling indigenous groups “minorities” in their attempts to establish indigenous peoples within a separate regime with greater legal entitlements.14 However, there is an accepted distinction between these two terms, although not always clearly articulated. Indigenous peoples, to use one distinction, are in some cases majorities, as in Guatemala and Bolivia, or are majorities in the areas which they have traditionally inhabited. Indigenous peoples have a special spiritual relation to the land which is linked both to their

13

Commission on Human Rights resolution 2005/81 in E/2003/23 (Part I). James Anaya, “International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State” in Defending Diversity: Case Studies, Chandra Roy ed., The Sámi Council, Swedish Section, 2004, pp. 9–10. 14

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physical and to their cultural survival as indigenous.15 International Labour Organisation Convention No. 169 on Indigenous and Tribal Peoples, in Article 1, states the following in lieu of denition: This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present day boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. Self-identication as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

The human rights of minorities have been recognized more explicitly by existing global international instruments than indigenous rights have, while indigenous rights were still being debated in 2006 at the Human Rights Council under the draft United Nations Declaration on the Rights of Indigenous Peoples. At its rst session in June 2006 the Council adopted the Declaration and recommended its nal adoption by the General Assembly.16 The rights formulated in this Declaration are more extensive than those recognized for minorities in the existing international instruments. Another draft on indigenous rights is under preparation by the Organization of American States. The only specialized international treaty on indigenous rights is the International

15 The distinction between indigenous peoples and minorities has been afrmed on various occasions at the international level. Among them is a paper prepared in 1985 by Judge Jules Dechenes, Canadian Expert of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (see E/CN.4/Sub.2/1985/31). This was also the case at the 1989 UN seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and states (E/CN.4/1989/22, para. 40). On 24 October 1991, United National Day, the Home Rule Parliament of Greenland, which is the most advanced indigenous autonomous regime globally, adopted a resolution reiterating the distinction between indigenous peoples and minorities (quoted in “Status and Rights of the James Bay Crees in the context of Quebec’s Secession from Canada”, submission to the Commission on Human Rights, February 1992, p. 63). 16 Human Rights Council resolution 2006/2 of 29 June 2006, see website of the Ofce of the High Commissioner for Human Rights, www.ohchr.org.

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Labour Orgnisation Indigenous and Tribal Peoples Convention (No. 169), but it has been ratied by few states, eighteen as of July 2006, and its purpose is not to cover the overall international legal framework of indigenous rights that the UN declaration can cover. Thus various norms of international law regarding indigenous rights are currently still in the making. International bodies have covered this lacuna until now regarding indigenous rights by using the analogy to minority rights, as can be seen through the examination of the practice and case law of human rights bodies examined below. I have therefore placed the discussion of minorities and indigenous peoples in the same chapter to cover what is common to both as far as cultural rights are concerned, while making distinct references to one or the other separately when necessary. 2. Special Characteristics of Cultural Rights Pertaining to Minorities and Indigenous Peoples I will argue below that there are special characteristics of cultural rights pertaining to minorities and indigenous peoples, in addition to the general characteristics pertaining to the cultural rights of individuals described in Chapter Three above. In summary, these special characteristics include the following elements: (a) The state and its agents have an obligation to respect the freedom of persons belonging to minorities and minority groups to freely participate in cultural life, to assert their cultural identity and to express themselves culturally in the way they choose, i.e. the authorities must not interfere with this freedom unless conditions under (b) below are present. The state, as part of the regular discharge of its police and justice functions must also protect the right to participate in cultural life from infringement by third parties, whether they are individuals, groups, or corporations, domestic or foreign. The principles of non-discrimination and equality must guide the state’s actions, in accordance with Article 2(2) of the International Covenant on Economic, Social and Cultural Rights. The state must establish laws and policies regarding non-discrimination in the enjoyment of cultural rights. Equality may not amount to forced assimilation. Special positive measures by the state to secure advancement of minorities, i.e. afrmative action, are allowed. The positive actions of the state for the fulllment of cultural rights, i.e.

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in terms of the provision of resources, subsidies etc., will be guided by the principle of non-discrimination. If the state does not have adequate resources to respond to its obligation to fulll, it should explore the possibility of international assistance. International norms prohibit cultural practices that contravene internationally recognized human rights. Minority and indigenous rights are part of the human rights regime. States should thus adopt preventive and corrective policies and promote awareness of such problems so that such practices stop. Individuals living within groups are free to participate or not to participate in the cultural practices of the group and no negative consequences may ensue because of their choice. In other words, the cultural autonomy of the individual is guaranteed. The cultural rights of minorities and indigenous peoples consist of: the right to education; the right to use their language in private life and various aspects of public life, such as before judicial authorities and to identify themselves as well as place names; the right to establish their own schools; access to mother tongue education to every extent feasible; access to the means of dissemination of culture, such as the media, museums, theatres etc., on the basis of non-discrimination; the right to practice their religion; the freedom to maintain relations with their kin beyond national boarders, and the right to participate in decisions affecting them through their own institutions; and the preservation of sacred sites, works of art, scientic knowledge (especially knowledge about nature), oral tradition and human remains, i.e. both the tangible and the intangible objects that comprise indigenous cultural heritage. In the case of indigenous peoples, special cultural rights also include the right to continue certain economic activities linked to the traditional use of land and natural resources. Minorities and indigenous peoples have the right to pursue their cultural development through their own institutions and, through those, they have the right to participate in the denition, preparation and implementation of cultural policies that concern them. The state must consult the groups concerned via democratic and transparent processes. The education of the larger society about cultural diversity and minority and indigenous cultures must be pursued by the state. The media and other institutions should play a special role in promoting such knowledge. Although cultural rights have not always been called collective rights in international instruments, it is logically and morally impossible not

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to recognize the collective elements of cultural rights, when speaking of minorities or indigenous peoples. International instruments recognize that individuals belonging to national, ethnic, religious or linguistic minorities and indigenous peoples will enjoy their cultural rights, not only individually, but also as collectivities in community with other members of their group. (h) International law is unclear about the permissible limitations of individual cultural rights when they conict with imputed rights of the collectivity. Under general human rights principles, such limitations would need to be duly justied and remain in force for the duration strictly necessary. Limitations of the individual’s cultural rights vis-à-vis the group could be imposed only when the survival and welfare of the group are threatened and only for as long as the situation of threat persists. Any pronouncement as to when a person’s cultural rights may be limited for the sake of the cultural rights of the group would require a case-by-case analysis. I will analyze the above-mentioned points by reviewing international and regional standards, the practice of international and regional bodies and the jurisprudence of the Permanent Court of International Justice, the Inter-American Court of Human Rights, and the case law of the Human Rights Committee. 3. Existing and Developing International Standards International legal instruments in force systematically recognize the rights of persons belonging to national, ethnic, religious or linguistic minorities, not the rights of minorities. At the same time, it is clear that it would make little sense for an indigenous or minority person to exercise his/her cultural rights, e.g. speak his/her language on his/her own. The group context is an indispensable or a facilitating factor for the exercise of cultural rights by persons belonging to minorities and indigenous peoples. The texts of international legal instruments provide elements of recognition of the collective aspect of cultural rights. Article 27 of the 1966 International Covenant on Civil and Political Rights provides for the right of persons belonging to ethnic, linguistic or religious minorities “in community with the other members of their group” to enjoy their own culture, to profess and practice their own religion, or to use their own language. Other international instruments are also vocal about the cultural rights of minorities and indigenous peoples. The 1990 Copenhagen

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Document of the Conference on the Human Dimension of the CSCE (Conference for Security and Co-operation in Europe, later renamed OSCE), in paragraph 32, provides a series of rights including that persons belonging to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts of assimilation against their will. This concept is also included and developed in the 1995 Framework Convention for the Protection of National Minorities adopted by the Council of Europe, where nine articles refer to the cultural rights of persons belonging to minorities, namely articles 4, 5, 6, 9 to 12, 14 and 17. The 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities similarly states that “persons 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”. The 1989 Convention on the Rights of the Child, in Article 30, similarly recognizes 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 community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language”. The 1966 UNESCO Declaration of the Principles of International Cultural Cooperation states in Article 1 that each culture has dignity and value which must be respected and preserved, that every people has the right and duty to develop its culture and that, in their rich variety and diversity, and in the reciprocal inuence they exert on one another, all cultures form part of the common heritage belonging to all mankind. The African Charter on Human and Peoples’ Rights has set out guidelines requiring states to take specic measures for the promotion of cultural identity and the awareness and enjoyment of the cultural heritage of national ethnic groups and minorities and indigenous sectors of the population.17 ILO Indigenous and Tribal Peoples Convention (No. 169, Article 2), spells out the duty of states to promote “the full 17 African Commission of Human Rights, “General Guidelines regarding the form and contents of reports to be submitted by States members regarding the meaning, scope and weight of ‘the rights of peoples’ recognized by articles 17(2), 19 to 20 of the Charter”, 1990, pp. 417–418.

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realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions”. The above-mentioned instruments thus accept that cultural rights, although they are attributed to individuals, they are implemented more meaningfully within a group context. The draft UN Declaration on the Rights of Indigenous Peoples does refer explicitly to collective rights as well as to rights of individuals.18 Seventeen of the forty-six articles are about cultural rights: the right of indigenous peoples and individuals to be free from any kind of discrimination, in particular that based on indigenous origin or identity (art. 2); the right to self-determination, by virtue of which indigenous peoples should freely determine their political status and freely pursue their economic, social and cultural development (art. 3); the right to maintain and strengthen their distinct cultural institutions, while retaining their rights to participate fully, if they so choose, in the cultural life of the state (art. 5); the collective right to live as distinct peoples (art. 7); the right not to be subjected to forced assimilation or destruction of their culture (art. 8); the right to belong to an indigenous community or nation in accordance with the traditions and customs of the community or nation concerned (art. 9); the right to practice and revitalize their cultural traditions and customs and to receive redress for cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent (art. 11); the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies, to maintain, protect and have access to their religious and cultural sites, to use and control their ceremonial objects and to have their human remains repatriated (art. 12); the right to revitalize and transmit to future generations their histories, languages, oral traditions, philosophies and to designate their own names for communities, places and persons; and the obligation of states to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings (art. 13); the right to establish and control their education systems and institutions providing education in their own language and in a manner appropriate to their cultural methods of learning and teaching; and the right to have access, when possible to an education in their own culture and provided in their own language

18 Human Rights Council resolution 2006/2 of 29 June 2006, see website of the Ofce of the High Commissioner for Human Rights, www.ohchr.org.

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(art. 14); the right to have the dignity and diversity of their cultures reected in all forms of education and public information (art. 15); the right to establish their own media in their own languages and have equal access to all forms of non-indigenous media (art. 16); the right to their traditional medicines and to maintain their health practices (art. 24); the 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 ora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts; they also have the right to their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions (art. 31); the right to determine their own identity or membership in accordance with their customs and traditions (art. 33); the right to their distinctive customs, spirituality, traditions, procedures and practices and, in case they exist, juridical systems or customs in accordance with international human rights standards (art. 34); the right of indigenous peoples divided by borders to maintain and develop contacts, relations and cooperation across borders (art. 36). 4. International Jurisprudence and Other Case Law (Permanent Court of International Justice, Human Rights Committee, Organization of American States): Non-Discrimination; Participation Through Own Institutions; Language Rights; Right of Indigenous Peoples to Continue Certain Economic Activities Linked to the Traditional Use of Land and Natural Resources; Competing Rights Permanent Court of International Justice International jurisprudence of the Permanent Court of International Justice, as early as 1935, in the Court’s advisory opinion on Minority Schools in Albania, explained minority rights provisions in the European treaties as deriving from equality precepts. According to the Court, this meant that nationals belonging to racial, religious or linguistic minorities should be placed in every respect on a footing of perfect equality with other nationals of the state and that the state should ensure for minority elements suitable means for the preservation of their national characteristics. There would be no equality between a majority and a minority if the latter were deprived of its own institutions, and were

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consequently compelled to renounce that which constitutes the very essence of its being a minority.19 In this opinion, we nd elements for positive obligations of the state to ensure suitable means for the preservation of national characteristics, as well as the element of participation of a minority in decision-making via its own institutions. In the Minority Schools in Albania case20 the central issue was whether the Greek minority had the right to establish schools teaching the Greek language, even though private school education at the primary level was abolished for all Albanians by constitutional amendment. In the 1920’s there were in southern Albania a number of Greek minority schools, all maintained by the state out of the funds of the Ministry of Education. Albanian communities, including the Orthodox community, had the right to establish schools of various grades teaching the language of the people over whom their religious heads had rights of jurisdiction. In a process of secularization of education, in 1933, the Albanian Assembly modied articles 206 and 207 of the Constitution of 1928 to read as follows: The instruction and education of Albanian subjects are reserved to the State and will be given in State schools. Primary education is compulsory for all Albanian nationals and will be given free of charge. Private schools of all categories at present in operation will be closed.

The Court considered the case in light of the Albanian Declaration made before the Council of the League of Nations on October 2nd, 1921, article 5 of which read as follows: Albanian nationals who belong to racial, religious or linguistic minorities will enjoy the same treatment and security in law and in fact as other Albanian nationals. In particular they shall have an equal right to maintain, manage and control at their own expense or to establish in the future, charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.

The position of the Albanian Government was that the above-mentioned Declaration imposed no other obligation upon it, in educational matters, than to grant to its nationals belonging to racial, religious or linguistic minorities a right equal to that possessed by other Albanian nationals; once the latter had ceased to be entitled to have private schools, the 19 Permanent Court of International Justice, Advisory Opinion of April 6th, 1935. 20 Advisory Opinion of April 6th, 1935.

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former could not claim to have them either. According to the Greek Government, the purpose of the above-mentioned Declaration was to ensure full and effective liberty in matters of education; the application of the same regime to a majority and a minority, whose needs are quite different, would only create an apparent equality, whereas the Albanian Declaration, consistently with ordinary minority law, was designed to ensure a genuine and effective equality, not merely a formal equality. The Greek Government also pointed out that the Declaration had to be construed in the light of the historical and social conditions of Albania, in particular to the fact that the rights of the minorities had been long in existence in the Near East, where they were known by the name of community rights; the continuation of the religious and educational autonomy enjoyed by the Greek communities in Albania was a point of the Declaration. In its opinion the Court addressed the issue of equality, the issue of minority institutions, the issue of mother-tongue education and the issue of resources for such education. The Court pointed out that the idea underlying the treaties for the protection of minorities was to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and cooperating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority and satisfying the ensuing special needs. In order to attain this objective two things were regarded as particularly necessary, namely to ensure that nationals belonging to minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State, and to ensure for the minority elements suitable means for the preservation of their racial particularities, their traditions and their national characteristics. The Court also said that there would be no true equality if a minority were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority. The Court stressed that equality must be both in law and in fact, an effective and genuine equality. The abolition of minority institutions would destroy this equality of treatment, for its effect would be to deprive the minority of the institutions appropriate to its needs, whereas the majority would continue to have them supplied in the institutions created by the state. On resources, the Court quoted article 6 of the Declaration:

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Provision will be made in the public educational system in towns and districts in which are resident a considerable proportion of Albanian nationals whose mother-tongue is not the ofcial language, for adequate facilities for ensuring that in the primary schools instruction shall be given to the children of such nationals through the medium of their own language, it being understood that this provision does not prevent teaching of the ofcial language being made obligatory in the said schools. In towns and districts where there is a considerable proportion of Albanian nationals belonging to racial, religious or linguistic minorities, these minorities will be assured an equitable share in the enjoyment and application of sums which may be provided out of public funds under the State, municipal or other budgets, for educational, religious or charitable purposes.

In quoting the above provision, the Court pointed out that State education so far as it is intended for members of the minorities, will be something additional to private education, and is not meant to take the place of private education. This particular pronouncement of the Court referring to resources for mother-tongue education is a particularly important one for the minorities regime. Finally, the Court found that the Declaration of October 2nd 1921 ensured for Albanian nationals belonging to racial, linguistic or religious minorities the right to maintain, manage and control charitable, religious and social institutions, schools and other educational establishments. This historic case sheds light on elements of cultural rights of minorities that are as valid today as they were in the 1930s. Human Rights Committee In 1994, the Human Rights Committee enriched the understanding of the cultural rights of minorities and indigenous peoples by adopting an important General Comment on Article 27 of the International Covenant on Civil and Political Rights.21 Article 27 provides that “[I]n those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the rights, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. The Committee underlines that the enjoyment of these rights “. . . does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article—for example, to enjoy a particular culture—may consist in a way of life which is closely associated

21

General Comment No. 23, CCPR/C/21/Rev.1/Add.5.

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with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority”. In the case of indigenous peoples such traditional activities may include shing or hunting and the right to live in reserves protected by law. The Committee moreover considers that the rights stipulated in Article 27 are also to be enjoyed by non-citizens. As to the term “exist” in Article 27, the degree of permanence of a non-citizen’s stay is not relevant. Thus migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.22 The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon the decision by that State party, but is to be established by objective criteria. In examining States parties reports the Committee has been thorough in its monitoring of cultural rights of minorities, in particular linguistic rights,23 cultural autonomy in terms of cultural institutions as well as consultation regarding traditional means of livelihood24 threats to indigenous cultures by logging, mining and delays in demarcation of traditional lands,25 protection of sites of religious or cultural signicance26 and protection of cultural rights of non-citizens.27 The case law of the Human Rights Committee under the Optional Protocol to the Covenant has reected this interpretation of Article 27 and has made pronouncements regarding (a) use of land and resources in a way that will respect the culture of a minority or indigenous group,

22 Hurst Hannum points out that this interpretation of the term “minorities” by the Committee does not appear to be a persuasive interpretation of Article 27, as is attested by the legislative history of the International Covenant on Civil and Political Rights, other UN documents and literature (“New Minority Rights for the Twenty-First Century”, in The Universal Declaration of Human Rights: Fifty Years and Beyond, Danieli/Stamatopoulou/Dias (eds.), 1998, Baywood Publishing Company, Amityville/New York, p. 169). I agree that it is important to keep the term “minority” for “separate, distinct groups, well-dened and long-established on the territory of a state” as was underlined in a paper on Article 27 prepared by the Secretary-General in 1955. International human rights instruments adopted well after the Covenant dened migrant workers and non-citizens as distinct from minorities. 23 For example A/56/40, para. 79(5) where the Committee welcomes Uzbekistan’s language policy whereby education at all levels is offered in ten languages, including the languages of the minority groups. 24 For example A/55/40, para. 75, where the Committee notes positively the transfer of certain cultural institutions to the Sami in Norway as well as the full consultation with the Sami in matters affecting their traditional means of livelihood. 25 For example A/55/40, para. 379 regarding Guyana. 26 For example A/55/40, para. 510 regarding Australia. 27 For example A/55/40, para. 155 regarding the Korean minority in Japan.

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(b) the possible limitations of such rights of the group by other development concerns in the area, (c) the requirement of consultation by the state with the minority group concerned by a decision that may affect its use of the land and resources, and (d) on the issue of the sensitive limits between the cultural rights of a member of a group and what the group perceives as its own cultural rights. I discuss some of these cases below. The case Mahuika et al. v. New Zealand is an eloquent example.28 The Committee accepted that the use and control of sheries was an essential element of the culture of the minority to which the complainants belonged and it recalled that economic activities might come under the protection of Article 27, if they are an essential element of the culture. In a similar case, Ominayak v. Canada, the Committee considered Article 27 to extend to economic and social activities on which the Lubicon Lake Band of the Crees relied.29 The Committee found illegal the granting of leases for oil and gas exploration and for timber development in the indigenous land, since the survival of the indigenous band as a distinct cultural community was closely connected to the sustenance that it derived from the land. Yet the Committee grappled with the conict between the overall development needs of the state and the need for indigenous people and groups to maintain and develop their culture via use of land and natural resources. In the Lansman et al v. Finland case of 199430 the Committee expressed understanding for the state’s wish to encourage economic development and stated that “. . . measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a violation of Article 27”. In another case regarding Finland decided in 1996, Lansman et al. v. Finland,31 the Committee repeated and rened its view stating that “. . . measures that have a certain limited impact on the way of life and the livelihood of persons belonging to a minority will not necessarily amount to a denial of the rights under Article 27 . . . The Committee deems it important to point out that the State party must bear in mind when taking steps affecting Article 27, that though different activities in themselves may not constitute a violation of this Article, such activities, taken together, 28 29 30 31

A/56/40, Volume I, Annex X, A (Communication No. l 547/1993). A/45/40, Annex 9(A) (1990). CCPR/C/52/D/511/1992, Case No. 511/1992. CCPR/C/58/D/671/1995, Case No. 671/1995.

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may erode the rights of Sami people to enjoy their own culture”. In the same case, the Committee examined carefully whether the traditional Herdsmen’s Committee that represented the Saami of the area was consulted and found that this was the case and that that body did not react negatively to the plans for logging in part of the area where the Saami were pursuing reindeer husbandry. Another important case is Francis Hopu and Tepoaitu Bessert v. France32 where the Committee observed that the objectives of the Covenant require that the terms “family” be given a broad interpretation so as to include all those comprising the family as understood in the society in question (Polynesians in Tahiti, French Polynesia). The Committee accepted the applicants’ claim that their ancestors are an essential element of their identity and play an important role in family life and thus burial grounds play an important role in the authors’ history, culture and life. It concluded that the construction of a hotel complex on the burial site constitutes a violation of the right to family and privacy, in violation of Articles 17, paragraph 1, and 23, paragraph 1. The Committee did not invoke Article 27 in this case, since France has made a reservation declining to accept the applicability of Article 27 to France. In individual opinions, several members of the Committee regretted that they could not apply Article 27 which is clearly relevant in this case in terms of the need for the state to respect the cultural values of the community. The Committee has also recognized that an indigenous individual’s cultural rights (at least some of them, especially language rights) need membership within a group in order to be enjoyed. In the case of Lovelace v. Canada the Committee held that Canada’s Indian Act denying Indian status and benets to an indigenous woman marrying a non-indigenous man amounted to a violation of Article 27 because her right to access her native culture and tongue could only be found within the Tobique Reserve where her community exists.33 In another case, Kitok v. Sweden, the Committee has given priority to the cultural survival of an indigenous group, the Saami, via traditional economic activity as compared to an individual’s right to conduct such economic activity.34 The Committee recognized reindeer herding as essential to

32 33 34

CCPR/C/60/D/549/1993/Rev.1, Communication No. 549/1993. A/36/40, Annex 7(G) (1998). A/43/40, Annex 7(G) (1988).

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Saami culture and found that Kitok, who had lost his membership in the Saami community and had been denied readmission by the village, did not have his rights under Article 27 violated. The legislation that restricted Kitok’s participation in Saami cultural life via reindeer herding was justied as a means of ensuring the viability and welfare of the Saami as a whole. In the case Toala et al. v. New Zealand, the Committee held that, where the right of individuals to enjoy their own culture is in conict with the exercise of parallel rights by other members of the minority group, or of the minority group as a whole, the Committee may consider whether the limitation at issue is in the interests of all members of the minority and whether there is reasonable and objective justication for its application to the individuals who claim to be adversely affected.35 The Committee’s jurisprudence leads to the conclusion that limitations on the cultural rights of an individual may be permissible when there is a danger to the survival and welfare of a minority or an indigenous people. In the cases discussed above, Lovelace’s participation in the cultural life of her community would presumably not threaten the community’s survival and welfare, while Kitok’s participation via economic activity would,36 the underlying logic being that allowing Kitok to practice reindeer husbandry could create a precedent risking the viability and welfare of the Saami as a group. Organization of American States The Organization of American States has also upheld the norm of the survival of indigenous peoples as distinct cultures.37 In the case concerning the indigenous peoples of Nicaragua, the Inter-American Commission on Human Rights cited Nicaragua’s obligations under Article 27 of the International Covenant on Civil and Political Rights and found the special protections accorded to the indigenous peoples for the preservation of their cultural identity should extend to the aspects linked to productive organization, which includes, among other things,

35

A/56/40, Vol. I, para. 165. It is interesting to note that after the Lovelace case, Canada revised the law found illegal by the Committee and this resulted in protest by the indigenous community mainly based on concerns over the economic consequences of belonging to the tribe. 37 The discussion of OAS is based on Anaya, Indigenous Peoples in International Law, 2nd edition, 2004, Oxford University Press, New York/Oxford. P. 101. 36

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the issue of ancestral and communal lands.38 In the case of the Yanomami of Brazil, the Commission again invoked Article 27, stating that “international law at its present state recognizes . . . the right of ethnic groups to special protection of their use of their own language, for the practice of their own religion, and, in general, for all those characteristics necessary for the preservation of their cultural identity.39 As Anaya points out, it is interesting that the Commission invoked Article 27, although Brazil was not a party to the Covenant, thus indicating the norm’s possible character as customary international law. In a groundbreaking 2001 decision, the Inter-American Court of Human Rights, in Awas Tingni Mayagna (Sumo) Communities v. Nicaragua,40 recognized the fundamental relation of indigenous communities with their lands which is also the basis of their cultures, their spiritual life and their economic survival. The Court declared that for indigenous peoples their land base is indispensable for the preservation of their cultural heritage and its transmission to future generations; thus the state has an obligation to establish laws and other mechanisms for the demarcation and issuance of property titles to the community members in accordance with the community customary law, values and customs.41

38 OAS Doc. OEA/Ser.L/V/II.62, doc. 10 rev 3 (1983), OAS Doc. OEA/Ser. L/V/II.62, doc. 26(1984) (Case No.7964 (Nicaragua)), quoted by Anaya. 39 Case No. 761 (Brazil), Inter-Am. Commission Res. No. 12/85 (March 5, 1985), Annual Report of the Inter-American Commission on Human Rights, 1984–1985, OAS Doc. OEA/Ser.L/V/II.66, doc. 10, rev. 1, at 24, 31 (1985), quoted by Anaya. 40 Decision of 31 August 2001, Case No. 79, OAS website, www.OAS.org, paras. 138, and 149. Para. 149 reads: “Given the characteristics of the instant case, some specications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition 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. 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 possesion 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”. 41 The link between culture and traditional use of land and natural respurces is also evident in many efforts at the national level. An eloquent account of the case of the Kalash people of Pakistan is given by Sehr Hussain and Saima Zaman in “Land, Culture and Identity: The Case of the Kalasha”, in Reclaiming Balance: Indigenous Peoples, Conict Resolution and Sustainable Development, V. Tauli-Corpuz and J. Carino (edts), Tebtebba Foundation (Indigenous Peoples’ International Centre for Policy Research and Education), Bagui City, 2002, pp. 267–291.

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5. Practice of International Human Rights Treaty Bodies in Examining State Reports Apart from its case law, the Human Rights Committee has been thorough in its monitoring of cultural rights of minority and indigenous groups. The Committee has paid particular attention to language rights,42 cultural autonomy in terms of cultural institutions as well as consultation regarding traditional means of livelihood,43 the obligation for the state to provide protection from threats to indigenous cultures by logging, mining and demarcation of indigenous lands,44 protection of sites of religious or cultural signicance45 and protection of cultural rights of non-citizens and immigrant communities.46 The Committee on Economic, Social and Cultural Rights has shown interest in the lack of opportunities for education of minorities in their own languages,47 non-discrimination in national legal frameworks,48 and the need for steps to safeguard the cultural identity and heritage of ethnic groups.49 The Committee on the Elimination of Racial Discrimination has systematically focused on language rights of minorities, indigenous peoples and migrants in education as well as in the media.50 The Committee has also paid attention to the following other aspects of cultural rights related to groups: use of minority languages in administration51 and health services,52 measures for regaining linguistic and cultural identity,53

42 For example A/56/40, para. 79(5) where the Committee welcomes Uzbekistan’s language policy whereby education at all levels is offered in ten languages, including the languages of the minority groups. 43 For example A/55/40, para. 75 where the Committee notes positively the transfer of certain cultural institutions to the Sami in Norway as well as the full consultation with the Sami in matters affecting their traditional livelihood. 44 For example A/55/40, para. 379 regarding Guyana. 45 For example A/55/40, para. 510 regarding Australia. 46 For example A/55/40, para. 155 regarding the Korean minority in Japan; A/49/40, regarding migrants in Slovenia. 47 For example E/2000/22, para. 231 regarding Bulgaria. 48 For example E/1998/22, para. 79 regarding Zimbabwe. 49 For example E/1997/22, para. 209 regarding Guinea. 50 For example A/44/18, para. 51 regarding France, para. 64 regarding Mexico, para. 89 regarding Venezuela, para.113 regarding Poland, para. 145 regarding Norway, para. 193 regarding Niger; A/48/18, para. 75 regarding Algeria, para. 116 regarding Sudan, para. 185 regarding Poland, para. 519 regarding Yugoslavia and para. 523 regarding Bulgaria. 51 For example A/45/18, para. 133 regarding Czechoslovakia. 52 For example A/46/18, para. 234 regarding Australia. 53 For example A/51/18, para. 111 regarding Hungary.

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preservation of cultural identity of minorities,54 policies to ensure that tribal people live according to their original customs,55 prevention of the illegal export of indigenous art,56 promotion of multicultural training for teachers,57 enactment of legal provisions to preserve the existence, culture and traditions of minorities,58 teaching the history of different ethnic groups and cultures at schools,59 concern over budget cuts in mother tongue education,60 concern over assimilation,61 concern over different levels of protection to different groups,62 ensuring the participation of indigenous people in decisions affecting lands, culture, traditions,63 concern over the lack of statistical and qualitative data on the demographic composition of the population,64 cultural autonomy65 and regional cultural development.66 In conclusion, human rights treaty bodies have shown a keen interest in cultural rights of groups through case law and through the specic questions they have raised in examining state party reports on the implementation of the human rights treaties, having thus helped clarify the concept of cultural rights. The elements that the treaty bodies have focused on mostly are language rights, cultural participation and cultural autonomy, education of the broader society about the cultures of minorities and indigenous peoples, protection of minority cultural heritage and protection of certain economic activities of indigenous groups closely linked to their cultural preservation and development. Other normative elements of cultural rights regarding groups emerge from the overall letter and spirit of human rights instruments and work of the treaty bodies on other aspects of human rights, as for example, the right to choose in which culture or cultures to participate. In conclusion, the human rights treaty bodies, in interpreting the application of the treaties regarding cultural rights, are recognizing as

54 55 56 57 58 59 60 61 62 63 64 65 66

For For For For For For For For For For For For For

example example example example example example example example example example example example example

A/48/18, A/45/18, A/45/18, A/45/18, A/46/18, A/46/18, A/46/18, A/46/18, A/48/18, A/50/18, A/51/18, A/51/18, A/53/18,

para. para. para. para. para. para. para. para. para. para. para. para. para.

113 regarding Poland. 73 regarding Bangladesh. 246 regarding New Zealand. 273 regarding the Byelorussian SSR. 68 regarding the Ukrainian SSR. 101 regarding Burundi. 214 regarding Sweden. 136 regarding Ecuador. 431 regarding Germany. 490–492 regarding El Salvador. 43 regarding Colombia. 111 regarding Hungary. 405 regarding Morocco.

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elements of these rights the fundamental principle of non-discrimination in the enjoyment of cultural rights, language rights in education, administration, health services and the media, access to the media for the dissemination of culture, inter-cultural education, the obligation of the state to protect the cultural rights of minorities and indigenous peoples and to protect the traditional lands and natural resources of the latter, effective consultation regarding cultural matters and cultural autonomy in terms of cultural institutions. Together with the renement of these elements by the case law of the Human Rights Committee, the human rights treaty bodies have contributed signicantly to the clarication and promotion of the cultural rights of minorities and indigenous peoples. 6. The Right to Choose in Which Culture(s) to Participate We have seen from case law analyzed above that international bodies have taken pains to delineate the borders between the individual and the group in the case of cultural rights. Another border between the individual and the group is that an individual within a minority or an indigenous people is free to exercise or not to exercise her/his rights as minority or indigenous person, i.e. the cultural autonomy of the individual is recognized. The minority or indigenous group must respect the internationally recognized rights of its members. According to the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe (CSCE), paragraph 38, “. . . States, in their efforts to protect and promote rights of persons belonging to national minorities, will fully respect their undertakings under existing human rights conventions and other relevant international instruments . . .”. Paragraph 32 states that “to belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice” and “no disadvantage may arise for a person belonging to a national minority on account of the exercise or non-exercise of any such rights”.67 A similar provision is included in Article 3 of the Declaration on the Rights of Persons Belonging to National or Ethnic,

67 For the Copenhagen Document, adopted in 1990, see www.osce.org; it is also printed as an annex in W. Kemp ed., Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities, 2001, Kluwer Law International, The Hague/London/Boston.

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Religious and Linguistic Minorities. The Declaration also provides, in Article 4, that the expression by minorities of their special characteristics is limited when “. . . specic practices are in violation of national law and contrary to international standards”. The draft United Nations Declaration on the Rights of Indigenous Peoples indirectly recognizes the same principle by stating, in Article 34, that “(I)ndigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, traditions, procedures and practices and, in the case where they exist, juridical systems or customs, in accordance with internationally recognized human rights standards” [emphasis added].68 Article 46 of the Declaration also clearly underlines the human rights framework in the excercise of collective rights, by stipulating that “[i]n the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected” and that the provisions of the Declaration “shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”. This means that a group cannot oblige an individual within it to exercise his/her rights as an indigenous person, a group cannot impose indigeneigty on an individual. This is a matter of choice. The duties that an indigenous community would require of its members must comply with international human rights standards. As the UNDP 2004 Human Development Report points out, it is particularly important not to fall into the confusion of taking unexamined traditionalism to be part of the exercise of cultural liberty and also not to see the expansion of multiculturalism as an end in itself—an end that could yield a situation in which the freedom of individual members of the community, female members for example, are severely violated.69

68 Human Rights Council resolution 2006/2 adopted on 29 June 2006. It is expected that the Declaration will be adopted by the General Assembly by the end of the 61st session of the General Assembly. 69 Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, UNDP publication, pp. 24–25.

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7. Language Rights Because language is so central to our social being, it is subject to all sorts of domination, restriction and narrowing.70 Political power wars, in times of conquest and occupation or times of peace have been fought over and through language regulation. Among the most signicant features of the cultural rights of indigenous peoples and minorities are those linked with language. Language can provide an essential cultural distinctiveness to any people. It is not only a medium of communication, but also a crucial element in the structuring of thought processes and in providing meaning to the natural and social environment of any person.71 If a person’s individual right to her language is to be respected, the collective or public use of minority or indigenous languages is crucial, especially in schools, but also in the media, the courts and the administration. There is no more powerful means of “encouraging” individuals to assimilate to a dominant culture than having the economic, social and political returns stacked against their mother tongue.72 Indigenous peoples and minorities are still victims of assimilationist policies that often lead to the disappearance of languages and cultures. Such policies have sometimes been considered as a form of ethnocide.73 In some countries indigenous and minority languages have been recognized as national languages, in others they are only tolerated. The Committee on Economic, Social and Cultural Rights has stated that the specic legal obligations of states regarding the right to education include taking positive measures to ensure that education is culturally

70 Tony Crowley, Wars of Words: The Politics of Language in Ireland 1537–2004, Oxford University Press, 2005, p. 205. Crowley’s excellent book is the rst comprehensive survey of the politics of language in Ireland during the colonial and post-colonial periods. 71 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, E/CN.4/2002/97, para. 59. 72 UNDP Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, UNDP publication, p. 33. 73 Supra 71, footnote 26. Stavenhagen gives the following denition of “ethnocide”: “Ethnocide is a process of cultural change and destruction as a result of specic policies that undermine a cultural community’s ability for self-preservation”. Since ethnocide is viewed by many as a serious violation of human rights, reminding of “genocide”, it would be important to keep a similar rigor in the denition of ethnocide. In the Genocide Convention, intent is a crucial element of the denition of genocide, while intent is not included in Stavenhagen’s denition of ethnocide, which may be overly broad.

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appropriate for minorities and indigenous peoples, and of good quality for all.74 The balance between the legitimate need of the state for some degree of linguistic uniformity and the need of minorities for the practical and/or symbolic recognition of their languages may not be easy to determine, but good faith efforts to arrive at such a balance are essential to maintain intra-state harmony.75 In some cases, special legislation recognizing indigenous languages has laid the foundation for enhanced inter-cultural understanding. In Mexico, for example, Congress adopted in 2003 the General Act on the Linguistic Rights of Indigenous Peoples and the National Institute of Indigenous Languages was established.76 Education in the mother tongue is one of the most desired aspects of this right, but its implementation encounters difculties—in addition to lack of political mill—regarding commitment of resources and specialized teacher training. The international human rights instruments clearly recognize language rights and international human rights procedures pay special attention to them, including the Human Rights Committee and the Committee on the Elimination of Racial Discrimination. At the same time the recognition of language rights is limited, although a tendency can be seen in the views expressed by international human rights bodies that the tendency is to expand them, especially in primary education. In terms of education in the mother tongue, the state’s obligations are to facilitate access and opportunity to such education77 and to involve the full participation of the groups concerned in the decisions and policies affecting language and education in the mother tongue. Draft instruments on indigenous rights go far beyond this in providing for control of education programmes by the indigenous communities.78 The Special Rapporteur on the right

74 General Comment No. 13 on the right to education, Article 13 of the Covenant, E/2000/22, para. 50. 75 See generally Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conicting Rights, 1990, University of Pennsylvania Press, Philadelphia. 76 Report of the Special Rapporteur on the human rights and fundamental freedoms of indigenous people regarding his visit to Mexico, E/CN.4/2004/80/Add.2, para. 13. 77 For example, Article 45 of the Convention on the Rights of Migrant Workers and Members of Their Families, paragraph 34 of the Copenhagen Document, Article 4 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Stronger language is included in terms of obligations on the Draft Declaration on the Rights of Indigenous Peoples, Article 15. 78 For example, paragraph 30 of the Draft Principles and Guidelines for the Protec-

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to education has pointed out that the right to be educated in one’s mother tongue has been on the international human rights agenda since the 1950s, but controversies intensied in the 1990s; the nancial implications of multilingualism have further exacerbated the existing controversies and demands that minority schools be made “free”, i.e. state-nanced, are often made but seldom granted.79 The tumultuous drafting history of Article 27 of the Universal Declaration of Human Rights and the related history of the noninclusion of cultural rights for minorities in the Universal Declaration of Human Rights summarized in Chapter One above, remind us of both their historic signicance for those groups and their sensitivity for states. During the preparation of the Convention on the Prevention and Punishment of the Crime of Genocide, there are drafts indicating a relationship between genocide and cultural rights of minorities. In draft article 1 prepared by the Secretariat “cultural genocide” was dened as follows: Destroying the specic characteristics of the group by (a) forced transfer of children to another human group; or( b) forced and systematic exile of individuals representing the culture of a group; or (c) prohibition of the use of the national language, even in private intercourse; or (d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; (e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersal of documents and objects of historical, artistic or religious value and of objects used in religious worship.80

Thus language was viewed as an issue of profound signicance for the survival of minorities as such, although it was nally excluded from the denition of genocide. It was felt at the time of the drafting of the Convention that such issues should better be dealt with under the human rights agenda, in particular under the Universal Declaration of Human Rights, as related in Chapter One above. A draft article on cultural tion of the Heritage of Indigenous Peoples (see Appendix Three), states that “Governments should provide indigenous communities with nancial and institutional support for the control of local education through community-managed programmes, and with use of traditional pedagogy and languages”. 79 Report of the Special Rapporteur to the Commission on Human Rights, E/CN/ 4/1999/49, para. 66. 80 Quoted by Patrick Thornberry in International Law and the Rights of Minorities, 1991, Oxford University Press, Oxford, New York, Toronto, p. 71. The Sixth Committee of the UN General Assembly decided not to include a provision on cultural genocide by 25 votes to 16 with 4 abstentions (ibid., p. 73).

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rights that was not included in the Universal Declaration of Human Rights was essentially about language rights in the education system, in public life and in public administration. It was widely assumed during the drafting of Article 27 of the Universal Declaration of Human Rights that states would not be placed under the obligation of providing special schools for persons belong to linguistic minorities.81 Through the eld of education, especially public education that is state-controlled, states have always attempted to shape the “hearts and minds” of future citizens, to instill awareness of histories made up or true, to un-do histories, to create, re-create or do away with identities. Until the 1950s Maori children in New Zealand were still caned for speaking their language at school and it is only a sign of hope and lesson for others that today Maori is an ofcial language in that country along with English. Despite very slow progress, the thinking on this issue has developed, so that it is today compelling to see linguistic education for minorities and indigenous peoples in a clearer, human rights framework. Various experiences at the national level demonstrate this point. In Mexico, in the 1960s, the Ministry of Public Education inaugurated an indigenous educational curriculum at ofcial primary schools, which eventually had several thousand bilingual teachers. Training, however of the bilingual teachers proved inadequate and the curriculum never received the necessary support and resources from the education authorities to become a genuine educational option for indigenous children. Twenty-ve per cent of the indigenous population over 15 years of age is illiterate, women in greater proportion than men. Thirty-nine per cent of the indigenous population between 5 and 24 years of age does not attend school. In response to insistent requests from indigenous organizations, three indigenous universities have been established, as has the national Institute of Indigenous Languages. Indigenous bilingual and intercultural education has been one of the most visible results of indigenous policy in Mexico and certainly contributes to the cultural rights of indigenous peoples, although the indicators for this educational sector are still below national average. Still, government assistance is provided to 1.145.000 pupils from 47 indigenous groups in the form of 50,300 teachers in 19,000 educational centers through Mexico’s bilingual and intercultural education programme.82

81 82

Thornberry, ibid., p. 179. E/CN.4/2004/80/Add.2, paragraphs 49 and 62; E/CN.4/2005/88, para. 25.

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In Chile, the Ministry of Education was reported to be starting up a bilingual intercultural education programme based on sound theoretical and pedagogical principles, as the country’s educational system had not been able to meet indigenous peoples’ demand for the protection, preservation and promotion of their traditional culture.83 In Guatemala, the 1985 Constitution recognizes the value of indigenous languages and stipulates that in schools established in areas of predominantly indigenous population, education shall be conducted preferably in bilingual form. The Agreement on Identity and Rights of 1995 contains a broad range of measures for reviving and protecting indigenous languages and promoting their development and use, and initiating a major reform of the education system in order to consolidate bilingual and intercultural education and guarantee access to education for indigenous people. Although bilingual education has been accepted at the political level, problems of resources for it have continued, including teacher training and appropriate curricula and teaching materials.84 In parts of the world other than Latin America, indigenous languages have been recognized as well, albeit at different levels.85 In Sweden, for example, a law adopted in 2000 grants the right of individuals to use the Saami language in dealings with the administration and the courts. In the Russian Federation, the 1999 Federal Law on Guarantees of the Rights of Small Indigenous Peoples of the Russian Federation establishes protection for the traditional cultures and languages. Namibia’s Constitution recognizes the Nama language and the South African Constitution promotes the protection of the Khoi, Nama and San languages. One of the best examples often sited is that of New Zealand, where Maori went from being a forbidden language at schools in the 1950s to being a funded language in pre-schools, primary schools, secondary schools and universities, through the adoption of the 1989 Education Act. In Canada, the government decided to establish and fund a new Aboriginal Languages and Cultures Centre, as part of an approach to preserve, revitalize and promote Aboriginal languages and cultures.86 There has been much concern about the burden of the cost in recognizing minority and indigenous languages by the state in the system

83

E/CN.4/2004/80/Add.4. E/CN.4/2003/90/Add.2, para. 51, 52, 54 and 55. 85 Examples sited in E/CN.4/2002/97, paragraphs 32, 33 and 60. 86 E/CN.4/2005/88/Add.3 para. 66, report of the Special Rapporteur on the human rights and fundamental freedoms of indigenous people on his mission to Canada. 84

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of public education and in public administration. It is of course fully recognized by international human rights law and practice that a fair administration of justice and a fair trial in particular includes the requirement that the defendant will be provided with language facilities if he or she does not understand the ofcial language.87 Regarding the cost for use of minority and indigenous languages in the system of education and in public administration, it would be useful to conduct studies of programmatic costs. Some such studies have been conducted and are quoted in the 2004 UNDP Human Development Report, with eye-opener statistics that demystify this issue. The conclusion is that nowhere do the costs of bi-lingual education appear to be prohibitive and that they could denitely be met with some additional donor support. The 2004 Human Development Report quoted the example of Guatemala where an examination of the costs and benets of bilingual education for indigenous people estimated that there would be a $5 million cost savings thanks to reduced repetitions, savings equal to the cost of providing primary education to about 100,000 students a year. Another study in Burkina Faso demonstrated that the annual recurrent costs (teachers, supplies, maintenance) per student in a bilingual school is 77,447 CFA francs, while in a bilingual school 104,962 CFA francs; and the chance of success in obtaining a primary education certicate is 72% in a bilingual school, while only 14% in a conventional monolingual school. Interesting statistics are also published in a 2004 paper of the Secretariat of the Convention on Biodiversity entitled “Indicators for assessing progress towards the 2010 target: status and

87 See for example Principle 14 of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, adopted by the UN General Assembly in 1988 (A Compilation of International Human Rights Instruments, Volume I (First Part), United Nations, 1993, pp. 265–273); paragraph 6 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by the UN General Assembly in 1990 (see idem, pp. 275–289); Article 18.3 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the UN General Assembly in 1990 (see idem, pp. 550–589); Article 5.1 of the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, adopted by the UN General Assembly in 1985 (see idem, pp. 664–668). Recognized as the principle is, implementation is slow. It took for example until 2004 for Finland to pass the Saami Language Act that guarantees the use of the Saami languages by the courts and public authorities in the Sami homeland (Preliminary review by the Coordinator of the International Decade of the World’s Indigenous People, E/2004/82, paragraph 53).

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trends of linguistic diversity and numbers of speakers of indigenous languages”.88 While realism of the politicians in a country with many languages would consider the unequal treatment among them as normal, including due to resource reasons, an enlightened public policy must take into account the real cost to society of monolingual education. Such cost would need to factor in the resource and social implications of children and youth out of school, of delinquency, of lack of a trained workforce and of dependency on welfare. Understandable as resource problems are, they are not always the real issue. It is clear that any public expense should be viewed holistically. For example, one should calculate the school drop out rate, or pushout rate as supporters of mother-tongue education call it, of minority or indigenous children at early ages due to the language barrier and what this means for a society at many levels and in the long-run. In terms of the cost of using minority or indigenous languages in public administration, one must ask the question to what extent a more equitable employment policy in the public sector of persons belonging to minorities or indigenous peoples, especially in geographical areas where such populations are concentrated, may not address the issue to a large extent. This is yet another demonstration of the inter-complementarity of human rights and, in the example just mentioned, such a policy would be a way of ensuring both cultural rights and the right to take part in the conduct of public affairs and have access to public service. Along with the political and resource-related controversy there is considerable and irresponsible policy confusion created about the effectiveness of mother-tongue education, especially in the early stages of schooling, as many experts have underlined. One of the most eloquent experts on this issue, Tove Skutnabb-Kangas, points out that sound research shows that the longer indigenous and minority children in a low-status position have their own language as the main medium of teaching, the better they also become in the dominant language, provided, of course, that they have good teaching in it, preferably given by bilingual teachers. The worst results obtained in tests, including

88 UNDP Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, UNDP publication, pp. 61–62; and UNEP/CBD/SBSTTA/10/INF/21.

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high percentage of push-outs, were with students in regular submersion programmes where the students’ mother tongues were either not supported at all or where they only had some mother-tongue-as-a-subject instruction. Skutnabb-Kangas concludes that minority children must be taught their own language as the main medium of teaching at least during the rst 8–9 years of schooling, preferably longer. She is critical of the hesitance of the Advisory Committee on the Framework Convention on the Protection of National Minorities and points out that state reluctance to grant educational linguistic human rights to minorities is based on misplaced and outdated ideologies, that reect a belief that the existence of minorities and their reproduction of themselves as minorities, partly through mother-tongue medium education, necessarily lead to the disintegration of nation states. In fact, she points out, it is lack of basic linguistic human rights that contributes to conict and tension, while granting such rights might be part of a solution.89

89 Tove Skutnabb-Kangas, “How (unnecessary) political tension leads to confusion, controversies, contradictions, inconsistencies and, ultimately, lack of linguistic human rights in education”, paper presented at the Council of Europe Conference “Filling the Frames” to mark the 5th anniversary of the entry into force of the Framework Convention on the Protection of National Minorities, Strasbourg, 30–31 October 2003. A similar paper was presented by Skutnabb-Kangas at the Third Session of the UN Permanent Forum on Indigenous Issues, on 11 May 2004. Skutnabb-Kangas also recalls that a draft article of the Convention on the Prevention and Punishment of the Crime of Genocide that was turned down by the UN General Assembly dened genocide also as “prohibiting the use of language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group” and she deplores such practices today. She also deplores the submersion type of language education for minority children today, which she criticizes as genocidal education not in line with international human rights standards. See also E/C.19/2005/7, an important Expert Paper on Indigenous Children’s Education and Indigenous Languages submitted to the Fourth Session of the UN Permanent Forum on Indigenous Issues by Robert Dunbar, Ole Henrik Magga, Ida Nicolaisen, Tove Skutnabb-Kangas and Mililani Trask. See also by Skutnabb-Kangas, Linguistic Genocide in Education—Or Worldwide Diversity and Human Rights?, 2000, Laurence Earlbaum Associates, Mahwah, New Jersey; Biligualism or not- the Education of Minorities, 1984, Clevedon, Avon: Multilingual Matters; Skutnabb-Kangas and Robert Philipson (eds) in collaboration with Mart Rannut, Linguistic Human Rights: Overcoming Linguistic Discrimination, 1994, Contribution to the Sociology of Language 67, Mouton and Gruyter, Berlin and New York. For an extensive publications list of Skutnabb-Kangas, see http://babel.ruc.dk/-tovesku/. See also A. Afolayan,” Towards an Adequate Theory of Bilingual Education for Africa”, in J.E. Alatis (ed.) International Dimensions of Bilingual Education, 1978, Georgetown University Press, Washington, D.C.; Marjut Akio “The Sami Language: Pressure of Change and Reication”, in Journal of Multilingual and Multicultural Development, 1991, 12:1 & 2, pp. 93–103; Richard A. Benton The Legal Status of the Maori Language, 1979, Welington, Maori Unit, New Zealand Council for Educational Research; Brian Street (ed.) Cross-cultural Approaches to Literacy, 1993, Cambridge University Press, Cambridge.Ruth Wodak & David Corson (eds.) Language Policies and Political Issues in

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The compelling case for mother-tongue education based on solid research over many years by various experts,90 makes is clear that, beyond politics, this issue is one of fundamental human rights for minority and indigenous children. Hopefully there will soon follow clearer political awareness and action so that more can change in this area, including a critical review of contemporary boarding schools for indigenous children and their often destructive impact on indigenous languages and cultures. According to The Hague Recommendations Regarding the Education Rights of National Minorities issued in 1996 by the OSCE High Commissioner on National Minorities these recommendations also apply to migrants, who are not citizens of the country where they live.91 At its Fourth Session in May 2005, the UN Permanent Forum on Indigenous Issues focused on primary education within the context of Millennium Development Goal 2 of the Millennium Declaration,92 which was one of its special themes for the Fourth Session. Millennium Development Goal 2 calls for primary education for all by the year 2015. The Forum took a major step in its recommendations on language in primary education, basing them squarely on major human rights instruments and recent work of the UN, including the 2005 report of the Special Rapporteur on the human rights and fundamental freedoms of indigenous people and an Expert Paper on Indigenous Children’s Education and Indigenous Languages prepared by Forum members and academic experts.93 Underlining the importance of mother-tongue education, the Forum recognized that indigenous peoples have the right, including treaty rights (as relevant) to quality primary education that is sensitive to their holistic worldviews, languages, traditional knowledge and other aspects of their cultures, which contribute to human dignity, identity and intercultural dialogue. The Forum further recognized that mother-tongue mediated bilingual education is indispensable for effective learning for indigenous children and for the reduction of dropout rates.

Education, Vol. I, Encyclopedia of Language and Education, 1998, Kluwer Academic Publishers, Dordrecht/Boston/London. 90 Ibid. 91 http://www.osce.org/hcnm/ 92 The Millennium Declaration is contained in General Assembly resolution A/RES/ 55/2. 93 For the report of the Special Rapporteur, see E/CN.4/2008/88; for the Expert Paper, see E/C.19/2005/7.

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The Permanent Forum recommended that states increase the number of indigenous persons in the educational sectors, including in policy, administration, teaching indigenous culture, history and contemporary society, indigenous languages and the production of educational materials. It also recommended the development by states of bilingual and culturally appropriate primary education for indigenous children to reduce dropout rates, stressing that the mother tongue must be the rst learning language and the national language the second language. The Forum recommended that states and the UN system and other intergovernmental organizations pay attention to intercultural bilingual education for indigenous peoples at the preschool, primary and tertiary levels. Finally UNESCO and UNICEF were urged to continue promoting bilingual and cross-cultural education in Latin America and expand these experiences in other regions. Various other recommendations of the Permanent Forum on primary education focused on culturally appropriate education, including the need to review curricula in order to erase culturally discriminatory materials and enhance knowledge of indigenous cultures.94 Language rights in the judicial system acquire another dimension, namely, the question about their respect does not only relate to respect for cultural rights, but also to respect of the right to a fair trial. Numerous and systematic problems are faced by indigenous peoples in this area, resulting often in denial of justice, violation of due process rights and long incarcerations of indigenous persons, who never fully realize, due to lack of linguistic and cultural understanding, why they were tried and incarcerated at all. Even if the right to an interpreter is laid down in the law, it is often not respected. The Special Rapporteur on the human rights and fundamental freedoms of indigenous people cites problems in various countries in this eld, namely Mexico, Guatemala and others and has stressed the need for training of bilingual personnel in the justice system and availability of defense counsel familiar with the culture and circumstances of the indigenous communities.95 A good example is that of New Zealand where legislation recognizes the right of Maori to speak Maori in courtrooms and provides translation

94 For the full text of the UNPFII’s recommendations on Millennium Development Goal 2, see E/2005/43, paragraphs. 41 to 57. 95 Report on Mexico, E/CN.4/2004/80/Add.2, paragraphs 29, 37 and 85; report on Guatemala, E/CN.4/2003/90/Add.2, paragraphs 34 and 36.

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services for the judiciary, while documents may be served and led in Maori as well.96 Language rights also extend to the freedoms to have mass media in indigenous and minority languages. There are various examples from national practice in this area. In Mexico, community radio stations operate in certain areas, some with support from the National Commission for the Development of Indigenous Peoples and private organizations, albeit with signicant resource-related difculties.97 Another dimension of language rights is the one connected with the names of persons and with geographical names. It is well known that all over the world and throughout the centuries histories of conquest are written and revised over geographical names, the change of which represents the effort of those who dominate to conquer the memory, culture and identity of the dominated. Where this becomes an even more obvious affront to the person is when a minority or indigenous person is not allowed to use their own name, i.e. the name from their own culture and language, or where parents are not allowed to give their children such names. In Morocco, for example, parents are often not able to give their children an indigenous name, because the registrars refuse to acknowledge indigenous names. Although the Royal Decree of 17 October 2001 recognized the Amazigh dimension of Moroccan identity and a new law on the registry system was adopted in 2002, parents must still use a list of non-indigenous names in choosing children’s names.98 8. Freedom of Religion Religion is closely linked to culture and therefore respect for freedom of religion is an important element for the right to participate in culture, not only of religious minorities but also of national or ethnic minorities and indigenous peoples. The human rights instruments are clear on this subject and so are the draft instruments on indigenous rights and I have referred to some of their provisions above. Limitation of religious practices is permissible when they violate internationally recognized human rights, as has been discussed above. There is thus a clear link

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E/CN.4/2004/80, para. 64. E/CN.4/2004/80/Add.2, para. 50. 98 Background paper presented at the Expert Seminar on Indigenous Peoples in the Administration of Justice by Hassan Id Balkassm (HR/MADRID/IP/SEM/2003/BP.15). 97

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between Articles 18 (freedom of thought, conscience and religion) and 27 (right to participate in cultural life) of the Universal Declaration of Human Rights. The right to participate in cultural life is linked to various other rights as well, as mentioned in Chapter Three C.7 above, as for example freedom of expression, freedom of movement, right to work and others. Cultural rights are broader and go beyond the coverage of cultural manifestations of a religious nature, to manifestations that are linked to other aspects of a person’s identity or identities, especially ethnic and linguistic. As is known, freedom of religion legal regimes at the national and international levels are much better dened and institutionalized than those on cultural rights. As Humphrey had indicated during the drafting of the Universal Declaration of Human Rights, religious minorities would be fully protected by Article 18 and the anti-discrimination provisions of Article 2 of the Declaration, while an article on the cultural rights of ethnic and linguistic minorities would add to their protection.99 While such article was never included in the Universal Declaration of Human Rights in 1948, Article 27 of the Universal Declaration, together with subsequent instruments and jurisprudence, form today’s solid legal base for the protection of the cultural rights of minorities and indigenous peoples. There is conrmation of the links between freedom of religion and cultural rights in the practice of UN human rights bodies. While a full discussion of freedom of religion is beyond the purview of this study, I would like to mention some examples as an illustration. The Committee on Economic and Social Rights has considered that providing subsidies for constructing places of worship for various religions contributes to the realization of the right to participate in cultural life.100 The Special Rapporteur on freedom of religion and belief has also accepted and called for respect of land-based religions of indigenous peoples which are closely linked to their identities.101 Special

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Morsink, Supra 13, p. 270. In the chapter on the legislative history of Article 27 of the Universal Declaration of Human Rights I explain the controversy about the inclusion or non-inclusion of minority rights in the Universal Declaration. 100 For example E/1999/22, para. 175 regarding the Netherlands. 101 In his report on a country visit to Australia, the Special Rapporteur analyzed the legal challenges of land claims by the Aboriginals and called for conciliatory settlement between the parties, see E/CN.4/1998/6/Add.1, paragraphs. 79 to 90 and 125. The Special Rapporteur also visited the United States of America and made similar remarks and recommendations, see E/CN.4/1999/58/Add.1, paras. 52–69.

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attention to the issue of access to sacred sites is systematically paid by the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, who has noted problems in various parts of the world in that respect, due to environmental projects, especially mega projects, or military occupation. The Special Rapporteur has pointed out that in many cases, the destruction of indigenous communities goes hand in hand with the destruction of their sacred sites and the various manifestations of their cultural heritage that are so important to the preservation of indigenous identity.102 At the same time the Special Rapporteur noted the creation in Guatemala of a joint commission to oversee the conservation and administration of Mayan sacred places and that a law on sacred sites was adopted.103 As part of religious freedom, respect for the spirituality and identity of indigenous inmates in several prisons of the United States has proven benecial. Indigenous representatives have repeatedly asked for indigenous prisoners to have the right to have access to native spiritual leaders and counsellors, sacred medicines and instruments such as sage, cedar, sweetgrass, tobacco, corn pollen, sacred pipes, medicine bags, eagle feathers and headbands and ceremonies such as the sweat lodge and pipe ceremonies.104 9. Education of the Larger Society Public information and the education of the larger society about indigenous peoples and minorities is viewed as crucial by international bodies, such as the General Assembly, the UN Permanent Forum on Indigenous Issues and the Special Rapporteur on the human rights and fundamental freedoms of indigenous people,105 and this norm has emerged from the assumption that non-discrimination policies must

102 E/CN.4/2005/88/Add.2, para 31 regarding Colombia. The Special Rapporteur also cites an example in Japan, where the building of a hydroelectric dam in Nibutani, land sacred for the Ainu people, caused the submergence of their sacred ceremonial sites another example cited are the dams built during the 1950s and 1960s around the Missouri River basin in the United States that cost indigenous nations an estimated 142,000 hectares of their best land, including a number of burial and other sacred sites (E/CN.4/2003/90, paragraphs 20 and 60). 103 E/CN.4/2003/90/Add.2, para. 19. 104 E/CN.4/2004/80, para. 62. 105 See respectively A/60/270 containing the plan pf action of the Second International Decade of the World’s Indigenous People, E/2005/43, paragraphs 47, 48, 50 and 52.

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be supported by a participatory and informed civil society. The role of the media has been repeatedly stressed in combating racism and discrimination vis-à-vis indigenous peoples and monorities. Indigenous communities should have access to mainstream media and the media should refrain from exploiting or sensationalizing their heritage. Policies should encourage the presentation of minority cultures in mainstream media and the world of the arts. The Special Rapporteur on the human rights and fundamental freedoms of indigenous people has stressed the role of the media. Within the context of his visit to Chile, he noted the complaints of Mapuche organizations that the press and broadcast media did not give them the same coverage as they do to the “powers that be” and considered that the situation violated their human right to information. The Special Rapporteur underlined that the media have the duty to put forward an objective and balanced view of such important issues as the struggle for the human rights of indigenous peoples.106 He also recommended that, in the absence of legislation, the mass media should adopt measures of self-regulation in order to eliminate vestiges of racism and ethnic discrimination in their programmes and content and actively promote the vision of a multicultural and democratic society.107 School curricula and textbooks should teach understanding and respect for the heritage of indigenous peoples and minorities.108 In fact intercultural education is promoted by Latin American countries at the school level. In order to spread this concept to the larger society, policies should, for example, support the translation of literature from indigenous languages into the majority languages in order to enhance mutual understanding. 10. Contact With Kin Beyond Borders Another signicant element regarding cultural rights of indigenous peoples or minorities is their right to freely contact their kin beyond

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E/CN.4/2004/80/Add.3, para. 55 (report on Chile). E/CN.4/2003/90/Add.2, para. 93 (report on Guatemala). 108 E/CN.4/1998/6/Add., paragraphs 50 and 52: “Journalists should respect the privacy of indigenous peoples in particular concerning traditional religions, cultural and ceremonial activities, and refrain from exploiting and sensationalizing indigenous peoples heritage . . . Educators should ensure that school curricula and textbooks teach understanding and respect for indigenous peoples’ heritage and history and recognize the contribution of indigenous peoples to creativity and cultural diversity”. 107

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national borders. This aspect of international cooperation which is recognized in the Copenhagen Document, paragraph 32.4, the Draft Declaration on the Rights of Indigenous Peoples, Article 35, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Article 2, acquires particular signicance given the suspicion that is often prevalent between neighboring states whose kin minorities live in the other’s territory, suspicion sometimes steeped in painful histories. However, it is in these cases that the freedom for international cultural cooperation so clearly enshrined in international instruments is especially relevant. Multiethnic society is a reality that one cannot “solve”.109 It is part of our world and here to stay, irrespective of national borders often drawn arbitrarily during the times of colonialism and empires. Being a minority should not be felt as being in a cage, with freedom of movement and contact with kin communities suspected implicitly or explicitly, discouraged or simply suppressed. Such connement would only be likely to create frustration and simmering tensions. Free cultural cooperation with kin communities across borders is key to the respect of cultural rights and also to the preservation of peace and understanding between peoples and states. Obviously this right has to be subject to legal limitation and administration required by security or other legitimate considerations. One could for example devise a special regional identity card for indigenous or minority persons of the area on both sides of a border so that they can be assured free movement by agents of the state. The draft United Nations Declaration on the Rights of Indigenous Peoples110 provides in Article 36 that indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across the borders and that states shall take effective measures to facilitate the exercise and implementation of this right.

109 Walter Kemp ed., “Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities”, 2001, Kluwer Law International, The Hague/London/Boston, p. 106. 110 Human Rights Council resolution 2006/2 of 29 June 2006, see website of the Ofce of the High Commissioner for Human Rights, www.ohchr.org.

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11. Cultural Rights, Self-Determination and Autonomy There is a question whether to ground cultural rights of minorities and indigenous peoples in the right to self-determination. The right to self-determination as proclaimed in common Article 1 of the two International Covenants on human rights, in its internal aspect, can be used to dene the right of peoples within a state to freely enjoy their cultural life. This is for example the case with the draft United Nations Declaration on the Rights of Indigenous Peoples111 which states in Article 3 that indigenous peoples have the right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 31 states that indigenous peoples, as a specic form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, environment and entry by non-members, as well as ways and means for nancing these autonomous functions. Article 33 provides that indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards. There is no reference to self-determination in the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities. Some believe that attempts to dene and promote cultural rights that also support an option of full political as well as cultural autonomy, under the umbrella of self-determination can be counter-productive.112 Cultural development is certainly one of the elements of the right to self-determination. However, the right to participate in cultural life also stands on its own as an internationally recognized human right, albeit interrelated with other rights. Conceptually the right to self-determination would, from the start, give more weight to the collective aspect of cultural development of a people, but in practice there are many difculties. For some, the legal difculty lies in that the term “peoples”

111

Ibid. Stephen Hansen, “The Right to Take Part in Cultural Life: Towards Developing Core Obligations Related to Article 15(1)(a)”, paper presented to the Committee on Economic, Social and Cultural Rights, April 2001, p. 10. 112

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has not been dened. Minorities do not necessarily fall under the denition of “peoples”. There is also a distinction made between minorities and indigenous peoples, although neither of these terms has a formal international denition. In the hope of establishing a separate regime with greater legal entitlements for indigenous peoples, indigenous rights advocates have frequently rejected calling indigenous groups minorities. But this has not necessarily been endorsed by international practice, which sees the two as distinct but overlapping categories subject to common normative considerations.113 Today’s international law has developed so that, although cultural development is part of self-determination, cultural rights also stand on their own. The recognition of collective aspects of cultural rights for minorities or indigenous peoples does not need to pass via the concept of the right to self-determination, which is complex and often politically charged. The norm that minorities and indigenous peoples must be free to have their own institutions on cultural matters and to participate in cultural decision-making resonates systematically in international instruments and practice. Transparent and participatory democracy and pluralism are the vehicles for the respect of cultural rights in their collective aspect. International human rights instruments and the practice of the Human Rights Committee, the bodies of the Organization of American States (OAS) and the Organization for Security and Cooperation in Europe (OSCE) are all consistent on this matter. Pointing to the practice of the Human Rights Committee under Article 27 of the International Covenant on Civil and Political Rights, Martin Scheinin underlines the link of Article 27 to Article 1 of the Covenant regarding the right to self-determination. Scheinin points out that the criterion of meaningful consultation of indigenous peoples by governments that the Committee has applied can be linked to the political dimension of self-determination, and the sustainability test to the economic or resource dimension of self-determination. Despite this link, Scheinin is also obliged to point out that, since the individual complaint procedure under the Covenant cannot be used for Aticle 1 on the right to self-determination, the issue of effective participation or meaningful consultation of indigenous peoples in relation to any 113 S. James Anaya, Indigenous Peoples in International Law, 1996, Oxford University Press, New York/Oxford, pp. 99–100. Anaya sees cultural integrity as one of the international norms elaborating upon the requirements of indigenous peoples’ selfdetermination.

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measures related to land or other natural resources may receive close attention only under Article 27. Scheinin therefore concludes that indigenous peoples and their representatives should put more emphasis on the economic or resource dimension of the right to self-determination as justication for their more general claims on self-determination and in their everyday struggle for a stronger say in decision-making that affects their lives.114 In other words, the essentially political difculty with the right to self-determination can be bypassed through Article 27 and cultural rights. The Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE (1990), in paragraph 33 indicates that the participating states will protect the ethnic, cultural, religious and linguistic identity of national minorities in their territory and create conditions for the promotion of that identity; they will take measures to that effect after due consultations, including contacts with organizations or associations of such minorities, in accordance with the decision-making procedures of each state. The 1989 ILO Convention on Indigenous and Tribal Peoples, Convention No. 169, in Article 2.1, also places emphasis on participation by establishing the responsibility of governments to developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. Sometimes the concepts of self-governance and internal self-determination are evoked in connection with cultural rights of minorities or indigenous peoples.115 In the doctrine developed by the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe (OSCE), Max Van der Stoel, “internal” self-determination can also have a non-territorial character (sometimes referred to as personal, cultural or extra-territorial autonomy). The UN Working Group on Minorities has also discussed the issue in a similar

114 Martin Scheinin, “The Right to Self-Determination under the Covenant on Civil and Political Rights”, in Operationalizing the Right of Indigenous Peoples to Self-Determination, P. Aikio and M. Scheinin eds., 2000, Institute for Human Rights, Abo Akademi University, Finland, pp. 193, 195 and 199. 115 In the Draft Guidelines for the Protection of the Heritage of Indigenous Peoples, the Special Rapporteur has included the provision that “governments, international organizations and private institutions should support the development of educational, research and training centers which are controlled by indigenous communities, and strengthen these communities’ capacity to document, protect, teach and apply all aspects of their heritage”.

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vein, indicating that cultural autonomy effectively seeks to protect a culturally dened, rather than a territorially dened, group, through the right to self-rule or self- management.116 This type of autonomy or self-governance is also useful when the minority population is widely dispersed within a state and could relate, inter alia, to the use and ofcial recognition of names in minority languages, the right to use their own symbols, to determine their own education curricula for teaching in minority languages and other forms of cultural expression.117 The Committee on the Elimination of Racial Discrimination has also supported cultural autonomy of minorities.118 This emerging consensus for cultural autonomy of minorities is different from the sum of other civil, political, economic, social and cultural rights, in that it captures better the group aspect of cultural rights as they pertain to the minority and especially the fact that the state should interface, in terms of policy-making and programmes, with the organizations representing the minority on such matters. State practice in this area is still sparse,119 but the concept of cultural autonomy is useful and can address many situations, especially for political demands that are not linked to use of land or territory, but on the many other aspects of cultural rights regarding the minority. 12. Cultural Heritage and Traditional Knowledge Cultural heritage is seen as a source of pride and continuing inspiration for people, a testimony of cultural and historic continuity, a repository of wisdom from past generations onto future ones. Drawing on their cultural heritage becomes especially important for people or groups ghting discrimination and marginalization and whose cultures and very identity are under threat.120 It is this structural vulnerability that

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E/CN.4/Sub.2/2001/22. Walter Kemp ed., “Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities”, 2001, Kluwer Law International, The Hague/London/Boston, p. 110. 118 For example A/51/18, para. 111 regarding Hungary, where the Committee commends the government for its new policy “based on the principles of preservation of their self-identity, special preference treatment and cultural autonomy”. 119 Idem. 120 At the 2003 conference of the International Association for Traumatic Stress Studies held in Chicago, I participated at a panel on “Culture, Trauma and Cultural Rights”. Although the only jurist on the panel, I found it interesting that the other speakers—psychologists by profession—where stressing the same point from their own 117

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makes the protection of cultural heritage by the human rights regime especially necessary. Although cultural heritage is important for all cultures, indigenous peoples have been particularly present and vocal at international debates to point to its signicance for them and to underline the need for special protection. Tangible and intangible cultural heritage, which includes traditional knowledge, is viewed by indigenous peoples as an inextricable part of their identity and human dignity, as part of their cultural rights. The reaction of the famous aboriginal artist Banduk Marika, whose work was illegally copied by a company and turned into the infamous “Carpet Case” in the Australian court system, epitomizes the meaning of this violation. Banduk said she was hurt when she found out about the carpets and the stolen Aboriginal design. . . . They didn’t understand the importance of the art-art is my culturemy identity.121

The presentation of the “Carpet Case” below aims at introducing the subject by putting in relief many of the issues connected with the protection of cultural rights of indigenous peoples, including communal ownership of traditional knowledge and the interface between traditional legal custom and national law.122 In 1993, imported carpets from Viet Nam reproducing copyright works of indigenous artists in Australia were found to be infringements of each indigenous artist’s works. The artistic works embodied pre-existing cultural clan images that were, in some instances, altered by the carpet manufacturers, thereby distorting the cultural message of their works. The artists instituted a copyright action against the company which had imported the carpets from Viet Nam, Indofurn Pty Ltd, successfully winning their case in a landmark Federal Court decision M* (deceased) v. Indofurn representing an accommodation of copyright law to protect indigenous art and cultural expression.

research. Case studies presented by the other panelists were about the Ethiopian Jews in Israel and Bosnian youth immigrants in Chicago and my paper focused in cultural rights of indigenous peoples. 121 Quoted in Terri Janke’s Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, WIPO, Geneva, 2003, p. 14. Janke provides an interesting analysis of the Carpet Case. 122 The summary is based on Terri Janke’s case study, ibid., pp. 9–27.

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The carpets reproducing the works of several prominent indigenous artists were discovered by the National Indigenous Arts Advocacy Association (NIAAA). Three artists, George M* (deceased), Kumant Tjapangati (deceased) and Banduk Marika, together with the Public Trustee of the Northern Territory on behalf of deceased artists brought an action against Indofurn import company, which imported the carpets from Viet Nam. NIAAA became aware of the carpets when they were contacted by a salesperson from a Sydney carpet store, who was checking, at the request of clients, whether the “Aboriginal carpets” for sale were authentic. NIAAA identied the carpets as copying the original works of several well-known Aboriginal artists. In the course of the proceedings it was discovered that Indofurn had imported approximately 200 carpets, some being sold for over A$4,000 each. Banduk Marika, an Aboriginal artist of the Rirratjingu clan from Yirrkala, is the only artist who was still living and interviewed for the case study after the court decision. Her work, “Djanda and the Sacred Waterhole”, was copied directly from an educational portfolio produced by the National Australian Gallery. Banduk explained the signicance of her painting and its link to traditional knowledge: The image in question relates to the site in Rirratjingu clan land where our creation ancestors, the Djangkawu, visited on their journey across Arnhem Land. The Djangkawu were the original ancestors of the people of the Dhuwa moiety. The image is associated with a place on Rirrajtingu land called Yalangbara (which is Port Bradshaw south of Yirrkala) and represents the events associated with the Djangkawu that took place there. My rights to use this image arise by virtue of my membership of the land ownership group. The right to use the image is one of the incidents arising out of land ownership. When the Djankawu handed over this land to the Rirrajtingu they did so on the condition that we continued to perform the ceremonies, produce the paintings and the ceremonial objects that commemorate their acts and journeys. Yolngu guard their rights in paintings and the land equally. Aboriginal art allows our relationship with the land to be encoded, and whether the production of artworks is for sale or ceremony, it is an assertion of the rights that are held in the land. The place, Yalangbara, and the particular story of the Djangkawu associated with it do not exist in isolation. They are part of a complex or “dreaming track” stretching from the sea off the east coast of Arnhem Land through Yalangbara, across the land to the west of Ramingining and Milingimbi. Djanda is the sand goanna and the image relates to information about that country on a number of levels. Djanda is part of a bigger story, the nature of which cannot be disclosed generally.

Regarding communal ownership of the image by the Rirratingu clan community, Banduk noted:

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chapter four My artwork which has been reproduced on carpets by the respondents herein is known as the “Djanda Sacred Waterhole”. The image is an image which belongs to my clan, the Rirratjingu, and forms part of the mythology of the Djangkawu creation story. The image is of great importance to my clan and also has importance to clans in neighbouring areas, which have rights in this image.

Banduk is the daughter of Mawalan (1), leader of the Rirratingu clan of northeast Arnhem Land until his death in 1967. Mawalan (2) is now the senior representative of the clan and he had given permission to Banduk to depict the image. Mawalan is responsible for the land and associated clan designs. Under customary law of the Yolngu people, any decisions pertaining to their estate require the direct input of Rirratingu traditional owners and/or persons designated as ritual and territorial guardians. Under Aboriginal customary law and regimes, artwork will often depict secret parts of a dreaming that will only be recognized and understood by those who are initiated into the relevant ceremonies, or at least have a close knowledge of the cultural signicance of the story, thus it is signicant that any reproduction is accurate in every respect and with full, proper permission of the artist and community so as not to offend the traditional owners. Regarding the impact of infringement on the artist and the culture, Banduk noted: Even though I know that I am not responsible for the reproduction I am still concerned about the ramications for me and my work within Yolngu society, and I greatly fear a loss of reputation arising from Yolngu associating me with the reproduction. I fear that my family and others may accuse me of giving permission of the reproduction behind their backs without consulting and seeking permission in the manner require by our law and culture. I fear that this could result in my family and others deciding that I cannot be trusted to use important images such as this one any more.

Recognizing the repercussions of unauthorized reproduction under Aboriginal customary law, the Australian court noted: If permission has been given by the traditional owners to a particular artist to create a picture of the dreaming, and the artwork is inappropriately used or reproduced by a third party, the artist is held responsible for the breach which has occurred, even if the artist had no control over or no knowledge of what occurred.

In the past the offender could have been put to death, while the repercussions today take different forms of punishment, including taking away the rights to participate in ceremonies, the removal of the right to reproduce designs of stories of the clan, being outcast from the community, or being required to pay money.

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The issue before the court was whether a work incorporating preexisting traditional designs and images was original and therefore subject to copyright protection. The court found that, although the artworks follow traditional Aboriginal form and are based on dreaming themes, each artwork is one of intricate detail and complexity reecting great skill and originality. The court found copyright infringement of the original works and ordered delivery of the unsold carpets and a collective award of damages to the artists of some A$188,640. The artists, however, never received the total awarded monies, as Indofurn was wound up and the active director was declared bankrupt, while the two non-executive directors appealed successfully against their part of the award. The artists received some monies from the sum paid into court and the sales of some of the carpets organized by NIAAA for their benet. Banduk decided to burn the carpets in a private ceremony. However, one of the carpets has been put on display in the BukuLarrnggay Mulka Museum to serve as a reminder of the case and the importance of maintaining the integrity of the artwork. The Carpet case served to raise awareness within Australia. There has been greater assertion by artists as to copyright and the community responsibilities. There is more awareness within the arts and manufacturing industry, as well as in the legal system, including the judiciary. However, the case also showed that there is a long way before indigenous artists and their contributions, as well as the contributions of their communities, are fully recognized and protected. The conceptual distinction between cultural heritage and traditional knowledge has not always been clear, the two often perceived as similar, especially in the context of indigenous cultural heritage and traditional knowledge. Cultural heritage has been addressed for a long time, including at the normative level, while traditional knowledge is an area identied relatively more recently as one requiring a normative framework. By now, more that eleven intergovernmental bodies deal with indigenous traditional knowledge, a clear sign of its signicance, not just for the indigenous world, but for the non-indigenous world as well. One distinction in the understanding of the two terms is that cultural heritage is viewed more as a body of culture from the past, in the form of monuments for example, that need to be protected and preserved for posterity, in a certain sense, unchanged or frozen in the time of their production. The concept of indigenous traditional knowledge, while including the idea of culture coming from the past,

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is also understood as the body of culture that needs, not only to be protected, but also developed and promoted as a contemporary good, with all that this means for the lives, human rights and development of contemporary communities that have produced and are still holding and continue producing this knowledge. The protection of cultural heritage has been internationally codied, especially through UNESCO’s work from its early days. UNESCO’s mandate encompasses the task of preserving and protecting cultural heritage which its Constitution proclaims as “universal”. Cultural heritage represents what we have the right to inherit from our predecessors and a duty to pass on to future generations. Over decades of normative work UNESCO expanded its original understanding of cultural heritage as the traditional manifestation of a masterpiece or a monument, reecting the continuity of a particular people, to include the notion of intangible heritage.123 Intangible heritage is the issue of identifying, protecting and enhancing an exceptional heritage, threatened with disappearance, particularly in the face of the uniformity frequently brought about by globalization. In a context of essentially oral cultures where, according to the African parable, “when an old man dies, a library disappears”, these notions have become crucial. UNESCO adopted the Intangible Heritage Convention in 2003 and decided to embark on the preparation of a convention on cultural diversity, the discussion of which is covered in Chapter Two E above. Indigenous peoples were always eager to be allowed participation in the debates to ensure that the provisions of the convention also protect indigenous cultural heritage. As UNESCO does not always address the human rights aspects of cultural heritage and traditional knowledge, these need protection and promotion under the human rights legal regime as well, in ways that that go beyond intellectual property regimes, copyright and trademark actions, which have economic remedies as their main focus.124 123 UNESCO and the Cultural Heritage, UNESCO’s Action, pp. 1 and 4. Fundamental normative instruments of UNESCO in this area include the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conict, the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1972 World Heritage Convention and the 1995 UNDROIT Convention on Stolen or Illegally Exported Cultural Objects. 124 As mentioned in the introduction to this book, the book is not dealing with intellectual property issues as such, which in most legal systems are viewed as part of commercial law and are denitely treated as such by a large part of international law. The draft Aboriginal and Torres Straight Islander Commission’s (ATSIC) Cultural Rights Policy: Which Way Our Culture, places cultural rights under the umbrella concept of Indigenous

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The questions that arise are multiple: What protection can indigenous peoples draw from intellectual property regimes and what are the limits of these regimes? What are the challenges for traditional knowledge holders? What does a human rights approach to protection of cultural heritage offer? What are the human rights challenges in protecting traditional knowledge as belonging to a group or an individual? Who should enjoy the exclusive right to commercially exploit intangible traditional know-how and creativity? What could be an appropriate approach to protecting cultural heritage and traditional knowledge as part of cultural rights? How should exclusivity and proprietorship be reconciled with the promotion of creativity, cultural exchange and cross-fertilization, or other goals, such as research and education? The concept of indigenous cultural heritage is given special prominence in debates at the UN, the World Intellectual Property Organization (WIPO) and also at UNESCO. Attention to this area from a human rights perspective has been paid by the Working Group on Indigenous Populations of the UN Sub-Commission on the Promotion and Protection of Human Rights, previously known as Sub-Commission on Prevention of Discrimination and Protection of Minorities. Erica-Irene Daes, Chairperson/Rapporteur of the UN Working Group on Indigenous Populations from 1984 to 2001, conducted a study, mandated by the Sub-Commission on the “Protection of the Cultural and Intellectual Property of Indigenous Peoples”.125 In 1993 Daes was mandated to expand her study with a view to elaborating draft principles and guidelines for the protection of indigenous peoples’ heritage. The study was completed in 1995 and the draft guidelines appear in the annex as they provide a broad and comprehensive view of this area in human rights normative terms.126 A denition of “indigenous heritage” is given in the UN study on the “Protection of the heritage of indigenous people”127 in the draft guidelines prepared by Special Rapporteur Daes, as follows:

cultural heritage”, underlines cultural rights as collective rights and describes the “Right to Cultural Integrity” as including “the right to our distinct characteristics and our right to exist as distinct peoples. . . . This also includes our right to genetic integrity”. ATSIC was abolished by the Australian government in 2003. 125 E/CN.4/Sub.2/1993/28. 126 E/CN.4/Sub.2/1994/31, Annex and subsequently revised and appearing in E/CN.4/Sub.2/1995/26. 127 E/CN.4/Sub.2/1995/26, Annex, paras. 11 and 12.

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chapter four 11. The heritage of indigenous peoples is comprised of all objects, sites and knowledge the nature of which has been transmitted from generation to generation, and which is regarded as pertaining to particular people or its territory. The heritage of an indigenous people also includes objects, knowledge and literary or artistic works which may be created in the future based upon its heritage. 12. The heritage of indigenous peoples includes all movable cultural property as dened by the relevant conventions of UNESCO; all kinds of scientic, agricultural, technical and ecological knowledge, including cultigens, medicines and the rational use of ora and fauna; human remains; immovable cultural property such as sacred sites, sites of historical signicance and burial; and documentation of indigenous peoples’ heritage on lm, photographs, videotape, or audiotape.

The above-mentioned denition contains elements of what today is referred to more often as traditional knowledge. Legal custom and institutions are considered part of indigenous heritage and traditional knowledge.128 For years, indigenous representatives at various world fora have pressed the issue of recognition and protection of their traditional knowledge and cultural heritage. As a result, the 1992 Rio Declaration on Environment and Development and Agenda 21 recognized that, because of their knowledge and traditional practices, indigenous peoples may play a vital role in sustainable development and called for appropriate policies and legal mechanisms to empower indigenous peoples in the enjoyment and control over the knowledge, resources and practices that comprise their cultural heritage.129 International agreements address the ways in which knowledge is protected, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Convention on Biological Diversity (CBD). Articles 8( j) and 10 (c) of CBD state the following: Article 8 Each Contracting Party shall, as far as possible and as appropriate: . . . ( j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities

128 According to James Anaya, for indigenous peoples cultural integrity means the continuation of a range of cultural patterns, including patterns that establish rights to lands and natural resources, and are embodied in indigenous customary law and institutions that regulate indigenous societies; see Indigenous Peoples in International Law, New York/Oxford: Oxford University Press, 1996, p. 5. 129 A/CONF.151/26 (volume 1), Annex 1; and A/CONF.151/26 (volume 3), Annex 2.

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embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benets arising from the utilization of such knowledge, innovations and practices. Article 10 (c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.

Two working groups have been established under CBD, one under article 8( j) and one on Access and Benet Sharing where debates are taking place, which are closely linked to indigenous peoples’ customary rights. Although CBD carries potential for the recognition of traditional knowledge, critics point to the attempted fossilization and reduction of indigenous peoples into “communities” embodying “traditional lifestyles”, which has negative implications for the application of the Convention.130 The point is precisely that indigenous peoples view traditional knowledge as a “living thing” with direct implications on the contemporary indigenous communities, both internally and in terms of their relations with the non-indigenous society and the state, thus the human rights aspect of the issue is crucial. In the CBD text quoted above, the tension of states’ notion of the extent of their obligations in this area and indigenous aspirations is epitomized by the phrases “as far as possible”, “as appropriate” and “subject to its national legislation”. However, it is part of the dynamic nature of international law to develop through practice and interpretation the understanding of such terms. The current status of the debate on intellectual property regimes and traditional knowledge is perhaps best viewed through the debates of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization (WIPO). The relationship between intellectual property and the rights and interests of indigenous and local communities has been the subject of discussion for some time.131

130 Raja Devasish Roy, “Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples”, in Defending Diversity: Case Studies, Chandra Roy, ed., 2004, The Sámi Council, Swedish Section, p. 140. 131 For a general description of WIPO’s work, see: Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, prepared by Terri Janke for WIPO,

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The term “traditional knowledge” is generally used at two levels: in the broad sense, traditional knowledge includes both the ideas and the expressions of the ideas which were developed by indigenous and local communities in a traditional way; in the narrow sense, traditional knowledge refers only to knowledge as such, that is only to the ideas, not their expression; in the narrow sense traditional knowledge describes those elements that may be protected by intellectual property rights. “Traditional” does not necessarily mean that the knowledge is ancient. Traditional knowledge is also contemporary knowledge. WIPO maintains that it is important not only to protect and preserve traditional knowledge created in the past, which may be in the brink of disappearance, but also to envisage a system that contributes to the promotion and dissemination of innovations that are based on continuing use of tradition. The extent to which intellectual property protection of traditional knowledge is the right approach is part of the debates. Intellectual property protection, provided both in national and international legal instruments, refers to the protection of the results of creative intellectual activity against misappropriation and misuse. Such protection may take the form of exclusive property rights, such as certain rights in copyright or patents, or non-proprietary measures, such as equitable remuneration schemes and moral rights in copyright. It might also mean protection against consumer deception and unfair competition through the protection of trademarks, geographical indications and national symbols and the law of passing off, and protection against the disclosure and misuse of condential information. The aim of intellectual property regimes is to give the originators of intellectual works, including collective ones, a say over whether, and if so how, their works are used by others, providing acknowledgement and respect for originators and their distinctive reputations, and sharing the benets of use of their works—thus both cultural and economic interests are addressed. While WIPO’s work is not limited to the use of current intellectual property systems to protect traditional knowledge and traditional cultural expressions, it addresses most directly the intellectual property—like protection of traditional knowledge and traditional cultural expressions, whether

Geneva, 2003; “Culture as Commodity? Intellectual Property and Expressions of Traditional Cultures”, WIPO Magazine, July–August 2003; “Protection of Traditional Knowledge and Genetic Resources”, WIPO Magazine, Nov.–Dec. 2003.

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through intellectual property systems, adapted intellectual property systems and/or sui generic measures. Intellectual property-like protection can be “defensive”, i.e. protection “from intellectual property”, and/or “positive” protection, i.e. protection against misappropriation and misuse “by intellectual property”.132 The elements of traditional knowledge most intensely debated are linked to the use of biological diversity and its components, such as medicinal plants. In order to be effective, traditional knowledge protection has to be practically feasible and accessible to the groups it is supposed to benet. National laws are currently the prime mechanism for achieving practical benets for traditional knowledge protection. The main challenges confronting traditional knowledge holders include the following: (a) Many traditional practices are lost, either through acculturation or diffusion. They are also lost through the loss of indigenous languages, which are vehicles of traditional knowledge and practices. Various communities have recognized a need for documentation of traditional knowledge held by their elders and others in the community. Such documentation should be conducted following the decision of the community-holder of traditional knowledge and it requires a different approach, including decisions by the community as to the information they would like to keep condential within the community and information they may wish to share with others, and the terms for sharing it. (b) There is sometimes lack of respect and appreciation for traditional knowledge. Thus more awareness raising about the value of this

132 Information Note of the World Intellectual Property Secretariat of the World Intellectual Property Organization (WIPO) for the International Workshop on Indigenous Traditional Knowledge, Panama City, September 2005 (see www.un.org/esa/ socdev/unpi; the report of the workshop appears in document E/C.19/2006/2 and in the above-mentioned website). As stated in the above-mentioned Information Note, WIPO’s most recent work programme in this area commenced, in 1998 and 1999, with a series of fact-nding missions in 28 countries during which more than 3000 persons, mainly representatives of indigenous and traditional communities, were consulted with. The insights provided by those communities were distilled into a report and have continued to guide WIPO’s work in this area (WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders, Pub. 768, see also www. wipo.int/tk/en/tk/ffm/report/index.html). A wide range of case-studies, databases, surveys, laws and other resources are available at www.wipo.int/tk/en/resources/.

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knowledge is needed both in the group where it was produced and in the rest of society.133 (c) Commercial exploitation of traditional knowledge by others raises the question of its legal protection, but also the challenge of using formal legal systems by the traditional knowledge holders, who may not have the means to access them. (d) Loss of links of indigenous communities to territories, destruction of ecosystems, climate change, people movements and urbanization, are further challenges for the preservation, protection and promotion of indigenous traditional knowledge. (e) Discriminatory government policies and lack of coherent and informed national policies towards indigenous peoples and indigenous knowledge in particular provide additional obstacles to the holders of traditional knowledge. Various denitions, terms or understandings of traditional knowledge used by academia and intergovernmental bodies show the complex nature of the issue which is part of the complexity of human societies and the diversity of worldviews. While different terms or working denitions coexist, what appears less debatable is that understanding of traditional knowledge and approaches on traditional knowledge require being holistic and comprehensive. For example, traditional knowledge refers to “the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles”, according to the Convention on Biological Diversity, Article 8( j). WIPO has established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in 2000 without dening the term. It has however underlined the complex nature of traditional knowledge that encompasses the forms of traditional know-how, innovations, information, practices, skills and learning of traditional knowledge such as traditional agricultural, environmental or medicinal knowledge. The Food and Agriculture Organization stresses the value of “local rural technologies” in the conservation and utilization of plant 133 The UN Permanent Forum on Indigenous Issues, at its third session in 2004, pointed out in particular about indigenous women’s traditional knowledge that “. . . Western-based and male-oriented systems of knowledge are given predominance, while indigenous and traditional systems of knowledge are being devalued, ignored or seen as mere ‘obstacles to development’. Knowledge systems of indigenous women, as the essence of their cultural expression and identity, are thus faced with the double bias of Western and male forms of ethnocentrism” (E/C.19/2004/43, para. 30).

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genetic resources. UNESCO has a range of inter-disciplinary activities dealing with traditional knowledge and has tried to formulate some elements towards a working denition. The full denition proposed by UNESCO in the framework of joint work with the Internal Council of Science (ICSU) states: “Traditional knowledge is a cumulative body of knowledge, know-how, practices and representations maintained and developed by peoples with extended histories of interaction with the natural environment. These sophisticated sets of understandings, interpretations and meanings are part and parcel of a cultural complex that encompasses language, naming and classication systems, resource use practices, ritual, spirituality and worldviews”. In the World Health Organization, emphasis is placed on traditional medicinal knowledge.134 As the debates on the issue of indigenous cultural heritage and traditional knowledge progress, more views have been aired in recent times about the need to add a non-intellectual property approach to strategies. This was for example one of the conclusions of an interesting 2003 WIPO publication of case studies regarding aboriginal cultural heritage in Australia.135 The direction of the debates at WIPO’s Intergovernmental Committee point towards the use of a multi-pronged approach combining intellectual property protection, non-proprietary and non-intellectual property measures and especially created sui generis regimes, including both defensive and positive measures. Indigenous representatives participate at the debates actively and a lot of attention is paid on the creation of sui generis regimes for indigenous traditional knowledge. While such regimes are being discussed, intellectual property protection measures, from which indigenous peoples should benet are being used, for example in protecting condential information and preventing unauthorized use of traditional knowledge. We note that there is a difference between such protection and the “preservation/safeguarding” with which indigenous peoples are often more concerned. In other words, for some custodians of traditional culture, intellectual property protection means the possibility to commercially exploit tradition-based creations and innovations, but for others it means preventing the use and commercialization of their cultural heritage and traditional knowledge.

134 Background Paper prepared by the Secretariat of the UN Permanent Forum on Indigenous Issues for the International Technical Workshop on Indigenous Traditional Knowledge, Panama City, September 2005, see www.un.org/esa/socdev/unpi. 135 Minding Culture: Case Studies on Intellectual Property and Traditional Expressions prepared by Terri Janke for WIPO, Geneva, 2003.

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The fact that in most legal systems intellectual property rights expire after some time and the items protected become part of the “public domain” poses another challenge under intellectual property law. These intense debates have yielded some positive results on the ground. For example, geographical indications have been registered in respect of handicrafts in Mexico, the Russian Federation and Portugal. Australia is preparing a draft amendment to the Copyright Act for the creation of communal moral rights in indigenous cultural materials.136 In Aotearoa/New Zealand Maori cultural traditions are infusing the society at large and have even crossed over into international communities and markets. This is the result of Maori themselves having fostered a renaissance in Maori cultural pride and competence. Use of some Maori cultural traditions by third parties has been permitted on the basis of informed consent, direct Maori participation, culturally appropriate use and agreement that no exclusive property rights be sought by the third party. Maori have also registered a certication trade mark to be used in relation to authentic Maori creative arts, which has caused the Maori cultural industry to ourish. Trademarks legislation in Aotearoa/New Zealand has also been amended to prevent the registration of marks that would be culturally offensive to Maori.137 In Panama a sui generic law enacted in 2000 at the initiative of indigenous authorities and experts from Panama provides collective intellectual property-type rights in respect of indigenous creative designs and crafts.138 A range of valuable practical activities are being undertaken by communities at the local and community levels which pragmatically address needs identied by the communities themselves. These are participatory, capacity-building, multi-disciplinary and inter-cultural in character. An example is a project undertaken within the Subanen community in the South of the Philippines aimed at the documentation of their ethno-botanical indigenous traditional knowledge. Modern encryption tools, layered rights of access and copyright in the documentation itself were used by the community concerned to protect its interests. This project also responded to the need for enhanced dialogue between 136 Information Note of the Secretariat of the World Intellectual Property Organization (WIPO) for the International Workshop on Indigenous Traditional Knowledge, Panama City, September 2005 (see www.un.org/esa/socdev/unpi; the report of the workshop appears in document E/C.19/2006/2 and on the above-mentioned website). 137 Report of the International Workshop on Indigenous Traditional Knowledge, Panama City, September 2005, E/C.19/2006/2, para. 16. 138 Idem, para. 17.

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traditional and modern science. In some cases, these kinds of projects are undertaken with the assistance or support of an intergovernmental organization, fund or agency.139 Viewing traditional knowledge under the human rights regime raises various other challenging questions: To whom does traditional knowledge “belong”, to a group, to individuals, to both? What are the limits between cultural heritage and traditional culture being used as a source of legitimate inspiration and commodication? What is the limit between freedom of cultural expression of an individual and the group’s requirement for permission in the use of tradition for new works, in accordance with indigenous customary law, the latter being viewed as part of indigenous cultural heritage? Although the purpose of this analysis is not to provide the answers to all these challenges, I argue that a human rights approach to questions of indigenous heritage and knowledge is both legally and morally required. A human rights approach (a) requires particular sensitivity to and focus on vulnerability factors, namely socioeconomic, legal, institutional awareness and capacity and other conditions that render a particular population group vulnerable; (b) obliges the state to devise special legislation, policies and budgets to protect and promote traditional heritage and knowledge, ensuring that the people concerned will participate fully and meaningfully in this process; (c) requires respect for the norm of non-discrimination, and (d) requires implementation of the international human rights legal instruments to which the country has subscribed, which also protect cultural rights. In addition, a cultural rights approach in terms of indigenous peoples requires the state to adopt awareness-raising and educational measures vis-à-vis the dominant society, to inspire appreciation and respect for indigenous traditional heritage and knowledge, including understanding of the special conditions required for outsiders to commercially exploit traditional knowledge, especially the free prior and informed consent of the community and benet sharing. The Committee on Economic, Social and Cultural Rights addressed the vulnerability of minorities and indigenous peoples in its General

139 Idem, para. 18. The report of the International Workshop on Indigenous Traditional Knowledge contains a number of other examples as well. The expert papers presented by UN agencies and indigenous experts are posted on the website of the Secretariat of the UN Permanent Forum on Indigenous Issues, www.un.org/esa/ socdev/unpi.

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Comment No. 17 on article 15, paragraph 1(c) of the Covenant regarding the right to benet from the protection of the moral and material interest resulting from any scientic, literary or artistic production of which he or she is the author. The Committee rst of all acknowledged that, although the wording generally refers to individual creators, this right can, under certain circumstances also be enjoyed by groups of individuals or by communities. With regard to the right to benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of indigenous peoples, 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. In adopting measures to protect scientic, literary and artistic productions of indigenous peoples, States parties should take into account their preferences. Such protection might include the adoption of measures to recognize, register and protect the individual or collective authorship of indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientic, literary and artistic productions of indigenous peoples by third parties. In implementing these protection measures, states parties should respect the principle of free, prior and informed consent of the indigenous authors concerned and the oral or other customary forms of transmission of scientic, literary or artistic production; where appropriate, they should provide for the collective administration by indigenous peoples of the benets derived from their productions. States parties in which ethnic, religious or linguistic minorities exist are under an obligation to protect the moral and material interests of authors belonging to these minorities through special measures to preserve the distinctive character of minority cultures.140 The underlying principles in the Committee’s approach, as seen from the above-mentioned comment, are attention to the most vulnerable and promotion of special measures to face these particular situations—an approach consistent with the philosophy of human rights law. Misappropriation of traditional knowledge need not be deliberate, and there is also a danger of wrongly awarding intellectual property rights, so that communities that have produced, preserved or developed traditional knowledge over several generations are not compensated

140

General Comment No. 17 (2005), E/C.12/GC/17, paragraphs 2, 32 and 33.

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for its use. The evidence of misappropriation of traditional knowledge is shocking. The UNDP 2004 Human Development Report quotes a 2000 study concluding that 7,000 patents had been granted for the unauthorized use of traditional knowledge including misappropriation of medicinal plants. The issue is to nd ways to reconcile the provisions of different international intellectual property regimes in order to protect traditional knowledge for the benet of the indigenous community and promote its appropriate use within the wider society. The Human Development Report concludes that loans to countries and companies for projects that wrongly acquire property or do not compensate communities should be withdrawn. The Report considers three measures as essential: a) the explicit recognition of indigenous peoples’ rights over their physical and intellectual property, b) requiring consultations with indigenous communities and their participation for the use of any resource, thus ensuring informed consent, and c) empowering communities by developing strategies to share benets.141 The United Nations Permanent Forum on Indigenous Issues, at its third session in 2004, paid special attention to cultural heritage.142 It recommended in particular that states adopt legislation acknowledging that traditional knowledge of indigenous peoples is their inalienable cultural heritage and embodies their cultural identity. The Permanent Forum also recommended that states make available such legislation and information in local indigenous languages and put in place policies and mechanisms to increase indigenous women’s access to markets and capital in order to enable them to turn their traditional skills into sustainable forms of income generation. The Forum encouraged states to facilitate the establishment of civil society organizations, including indigenous organizations, to assist in the preservation and protection of indigenous cultural heritage. UNESCO and other cultural institutions and academic institutions were encouraged to examine and document the instrumental role of women in indigenous societies as custodians of sacred knowledge and power, and as medicinal specialists, and to highlight indigenous women’s traditional skills, arts and crafts and to publicize them through the media, cultural institutions and other means.

141 UNDP Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, UNDP publication, pp. 11, 86, 93, 94. 142 E/C.19/2004/43, paras. 32, 33, 34, 37, 40–44.

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Regarding the work of WIPO, the Permanent Forum encouraged WIPO and its Member States to take practical steps to ensure that inappropriate and unauthorized documentation and publication of traditional knowledge and traditional cultural expressions/folklore does not occur, and to reinforce the capacity of indigenous peoples to make informed decisions whether and, if so, how documentation should occur, including through the development of toolkits and guides which should have this as their aim. Furthermore, based on international human rights standards, the Forum has been promoting the principle of free prior and informed consent. The Forum conrmed its readiness to provide expert input to the work of WIPO, such as its work on studying how customary and indigenous laws and protocols could be recognized and applied within national, regional and international systems for the protection of traditional knowledge and cultural expressions. In an interesting move towards standard-setting, the Forum recommended that the Secretariat of the Convention on Biological Diversity, the Ofce of the High Commissioner for Human Rights, UNESCO, WIPO, the World Trade Organization and other relevant United Nations system organizations, under the auspices of the Permanent Forum, establish guidelines, ethical codes of conduct, “best practices” and practical guidelines relating to indigenous peoples’ cultural heritage and access to and use of traditional cultural expressions and knowledge, in close cooperation with indigenous peoples. This rich international work of more than eleven intergovernmental organizations on traditional heritage and knowledge demonstrates the strong interests, both economic and moral, vested in this area by societies, both dominant societies and indigenous peoples and communities who are holders of such knowledge. The tension and the ensuing clashes are about the terms of the sharing of such knowledge, if the traditional owners so decide. One may say, using the analogy of the original dogma of colonization, that for many in the dominant society traditional knowledge seems to be there to be “occupied” and exploited as a kind of terra nullius, since the communities who own this knowledge come from “different” cultures and legal customs and happen to be viewed as marginal, expected to conform and bow to the patterns of the dominant societies and legal systems. At the same time, the human rights paradigm, which has brought indigenous issues to international visibility in the last fty years, presents creative opportunities and sets parameters. An important parameter that needs to be reconciled within the human rights regime is the relation, not only between the group-

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traditional knowledge holder and dominant society, but also between the group and individual members within it. The challenge in this respect is the enjoyment of an individual’s freedom of expression and freedom to participate in cultural life in its broad sense and the individual’s obligations under the customary laws of his or her community. Another problem commonly surging is the relation between research and traditional knowledge: there is a marked tension to reconcile when one side may view unauthorized research as poaching and the other views it as a good faith exercise. Such issues, the conicts that ensue and the possible solutions will have to be the object of further analysis before some satisfactory responses are found. The world has changed today in that the voice of indigenous peoples and what constitutes for them a just system is heard more loudly than before. While exploitation of their traditional knowledge still continues, without their consent and without benet sharing, the international legal regime has, at many levels, realized the need for change so this injustice is corrected—and the normative work at various international bodies is a demonstration of that. States are also gradually recognizing the need to improve the situation, as some examples mentioned above show, where practical solutions are sought through laws and institutional arrangements. Despite the rapid developments in this eld, considerable time is still needed for the sui generis regimes to be formulated, as they require reconciling some deep differences in economic interests and legal and philosophical thinking between dominant and indigenous societies. 13. Positive State Measures To fulll the cultural rights of groups also means that the state must take positive measures and commit resources when necessary. Dening the parameters of the obligation to fulll is no easy matter. Difculties include lack of or limited resources and the major question of how resources are to be distributed. In other words, the issue for the state is to balance the interests of majority and minority groups. Positive discrimination is not an unfamiliar concept in international human rights instruments in favour of minorities. For example, Article 1, paragraph 4, of the International Convention on the Elimination of All Forms of Racial Discrimination speaks of “special measures 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

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ensure such groups or individuals equal enjoyment of human rights and fundamental freedoms” (emphasis added). It is clear that the parameters of positive measures are dened in terms of duration, i.e. such measures should be of a temporary nature, namely until equal enjoyment of human rights has been achieved, as otherwise the positive measures could constitute discrimination vis-à-vis other parts of the population. Positive measures should also be of a special nature, i.e. relevant to the disadvantaged group, a minority or an indigenous community, for example nancial assistance for community radio programmes in indigenous languages, as is the case in some parts of Mexico. Article 4 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities describes the obligation of states to “create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, tradition and customs . . .”. But the Declaration is more tentative further down: “. . . States should [not “shall”] take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue”. The Draft Declaration on the Rights of Indigenous Peoples has much stronger language in terms of the positive obligations of the state, but this instrument has not yet been adopted and it is known that the issue of resources that the establishment of such state obligations would entail is one of the issues. By the same token, such positive measures to protect and create the conditions for the promotion of the ethnic, cultural, linguistic and religious identity must respect the principles of equality and non-discrimination with respect to other citizens of the state.143 The Human Rights Committee has included a view along these lines in its General Comment on Article 27 of the International Covenant on Civil and Political Rights, namely that “positive measures must respect the provisions of articles 2(1) and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population”.144

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Copenhagen Document, para. 33. CCPR/C/21/Rev.1/Add.5, para. 6.2. Paragraph 1 of Article 2 of the International Covenant on Civil and Political Rights reads as follows: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights 144

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Positive measures are also discussed extensively within the context of the principle of non-discrimination and equality discussed in Chapter Three C above. The focus in this chapter to indigenous peoples or minorities requires re-stating that positive state action for real equality should not aim at assimilation, but at ending their marginalization. The term “integration” is often used to describe such positive policies, meaning that integration is used as the opposite of marginalization.145 In the doctrine developed by the OSCE High Commissioner on National Minorities, integration assumes that the distinctive identity of the minority can be maintained, while, at the same time, the minority should be part of the society at large.146 According to the CSCE Copenhagen Document, paragraph 32, “Persons belong to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will”. The Committee on the Elimination of Racial Discrimination has also shown interest in the cultural integrity of minorities and indigenous or tribal peoples and against assimilation policies.147 These ideas also permeate the Draft Declaration on the Rights of Indigenous Peoples. It is essential that the state must consult the institutions of minorities and indigenous peoples when it needs to make decisions on cultural matters that concern them, for example in the area of education. recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Article 26 reads as follows: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. 145 We should be aware that this understanding of “integration” is not always shared in policy discussions. For example, in the discussion of the German immigration bill by the German Parliament, immigrants would be prodded to become more “integrated” in German society and, within this framework, long-term foreign workers would be allowed to bring children only younger than 12, so that the children would be more likely to attend German schools and learn the language (New York Times, 23 March 2002). 146 Kemp, Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities, 2001, Kluwer Law International, the Hague/London/Boston, p. 106. 147 For example the Committee, when examining the report of Bangladesh, asked how the government was “ensuring that they [indigenous peoples] continued to live according to their original customs” (A/44/18, para. 73 regarding Bangladesh). In A/51/18, para. 111 regarding Hungary, the Committee praised the government for the review of former assimilation process that allows minorities to regain their linguistic and cultural identity.

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At the same time, the human rights framework requires a holistic approach, namely that minorities and indigenous peoples must also respect and promote internationally recognized human rights vis-à-vis individuals and other groups within them. This idea is included both in the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities and in the Draft Declaration on the Rights of Indigenous Peoples. Obviously, minorities and indigenous people, as citizens, are also required to respect national law overall, law which is presumed to originate from the majority. There is a ne line between state policies of respect for freedom of participation in cultural life by minority and indigenous groups and marginalization of such groups. It is possible that too strong or unconditional a push for these communities institutionally to take care of their own cultural needs and for the state to abstain from action will be simply convenient for the state, “letting the state off the hook” in terms of positive obligations and ending up in continuing marginalization of the groups themselves. The other ne line is that between positive action by the state and assimilation. There are no ready-made recipes as to how to apply positive action in favour of the cultural rights of groups. Ideally the state should, in a spirit of true equality between majority and minority, take such measures as are necessary in order to assist the minority to preserve, develop and promote its cultural identity. The more the minority is able to fulll the task of retaining its identity through its own resources, the less onerous will be the duties devolving upon the state. The standard of obligation is necessarily a relative one and uniform conduct is not required.148 Here again the holistic framework of human rights requires that if aspects of a minority culture run contrary to internationally recognized human rights, for example reluctance to educate girl children, the state should not take any positive measures to encourage such practices of the group, rather the opposite, i.e. the state in such a cases should protect the human right of the girl child to education without discrimination based on sex. The clash of values of the minority with those of the majority is often discussed within the context of personal law. There is no doubt that personal law, customary or religious, reecting values of the minor-

148 Patrick Thornberry, International Law and the Rights of Minorities, Oxford University Press, 1991, pp. 185–186.

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ity community on birth, marriage, death and inheritance, profoundly reects cultural values of the minority and forms part of its cultural integrity. Measuring such values against international human rights norms, especially regarding women and girls, poses one of the biggest challenges to the role of the state regarding cultural rights at the group level. It would be contrary to the philosophy and precepts of human rights law to state that all values of each group, constituting part and parcel of its cultural integrity, must be upheld, respected and promoted by the state, including by positive measures. Debates have been fervent on this in several parts of the world, especially regarding the provisions of religious law applied by minorities vis-à-vis women and girls, with the consent of the state. It should be added that, within the politics and conicts of minorities and the state in which they live, it is not uncommon to view as “progressive” or pro-minority or as a sign of tolerance and multiculturalism the acceptance of the personal law regimes of the minorities by the state, which in a sense is ready to close its eyes to the adverse effects of such regimes on individual members of such communities, especially women and girls. From a human rights law point of view, however, the acceptance by the state of such separate customary or religious legal regimes of minorities should be whether they conform to human rights standards. The state is in fact responsible under international human rights law to respect, protect and fulll the fundamental human rights of all persons on its territory without discrimination, including persons belonging to minorities. The state, in other words, cannot justiably fail to apply human rights norms to minority persons by invoking the culture, religion or legal custom of the minority group. The elements discussed in this chapter are guidelines that we nd in international law and practice regarding the cultural rights of indigenous peoples and minorities. An overall principle that summarizes these guidelines is that whenever the state needs to intervene to protect or fulll the cultural rights of minorities or indigenous peoples, and especially when conicts between competing groups need to be managed, the operating principle for laws, policies, resource allocation and other action must be to create an enabling environment for diverse cultures to ourish, within a holistic context of human rights. At the same time, as I stress elsewhere in this book, positive state measures for the fulllment of the cultural rights of minorities and indigenous peoples are an essential way of addressing historical injustices with moral, political and material implications for society.

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The political issues that have earned minorities and indigenous peoples inadequate or bad policy attention, but attention nevertheless regarding cultural rights, seems to be mostly missing for other groups in society that the human rights agenda regularly focuses on: women, children, youth, the elderly, persons with disabilities, migrant workers, refugees and other non-citizens, as well as the poor. If policies on cultural rights are missing in general, the case is worse for these social groups which receive little recognition of their capacity and their right to participate in cultural life. 1. Women It is clear that the non-discrimination clauses of the International Covenant on Economic, Social and Cultural Rights and of the Convention on the Elimination of All Forms of Discrimination against Women are most pertinent for the right of women to participate in cultural life, as there are no other concrete provisions on cultural rights regarding women. Real life examples abound, of the “invisible” women authors and artists, for example, who face lack of access to the means of diffusion of culture or other discriminatory practices of society. It is also known that in several societies women artists were and are frowned upon as occupying inappropriate gender roles. The concern of the Committee on Economic, Social and Cultural Rights for women regarding nondiscrimination and culture concentrates on the Committee’s clear and systematic critique of traditional practices and prejudices, and violence against women especially within the family often sanctioned by law. The Committee on the Elimination of Discrimination Against Women has also critiqued the inadequacy of culturally and gender-sensitive measures and programmes for immigrant and refugee women to enable them to benet from legal and social services.149 The Committee has otherwise paid no attention to the aspect of gender equality in terms of the right to participate in cultural life, such as for example access of women artists and writers to museums and publishing houses to exhibit or publish their work. The Committee could focus on this issue in a General Comment on non-discrimination.

149

A/52/38/Rev.1, para. 263 regarding Denmark.

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Because of inadequate general understanding of cultural rights, the subject of cultural rights and women commonly evokes the issue of women and culture and how culture has negative effects on women’s human rights. One thinks in particular about the role of the family, where the woman is traditionally seen in her reproductive and familycaring role, the community with the woman’s traditional role as keeper of culture, and the state, where the woman is dealt with in the legal sphere, with her life regulated in a traditional way. While the negative effects of culture on women’s human rights have been discussed for years,150 there has been little exploration on the positive aspects of culture and its potential for changing women’s lives towards gender equality.151 Today’s economic changes in the globalized economy are bringing women increasingly to the public sphere, as workers and consumers— not always in a benecial manner for them, in fact with continuing and even increasing and new inequalities and exploitation faced by women. The market addresses them as potential cheep labour, cheaper than men, and as consumers, while at the same time development institutions, national and international, now target women directly: investing in women, in education and other areas, is an effective way to help not only them, but also their family and community. The net result is that women now inhabit more of the public sphere than before, outside the family and the community152—therefore they have the potential to be inuenced by a variety of cultural waves and also to inuence public culture more broadly. Work provides thus a new space and time for women to have access and be accessed in the public sphere. The promotion of women’s full and effective participation in a democratic polity and in all aspects of civil society has special signicance in terms of cultural rights, so that

150 The international human rights treaty bodies have systematically criticized culture-based practices that violate women’s human rights. See Chapter One B above for a detailed review of the work of treaty bodies in this area. 151 In 2005 Mary Robinson launched a Women Leaders Intercultural Forum, which, among other things, is to examine issues of women and culture. A planning meeting was held in New York in October 2005 and a rst conference in September 2006 at Columbia University in New York. The UN Fund for Population Activities is an active partner in this effort. 152 See Rajeswari Sunder Rajan, The Scandal of the State: Women, Law and Citizenship in Postcolonial India, 2003, Duke University Press, Durham and London, pp. 147–176 on “Women Between Community and the State”. Although Sunder Rajan focuses on the experiences of Indian women, her analysis can apply more broadly.

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women can have the opportunity to assert their agency, to interpret and re-interpret culture in the light of new elements they have gathered, to destroy, in their way, cultural specicities that are negative for them153 and to exercise their cultural rights. Work is also the public space where women can build broader solidarities and networks with other women and related movements, with the labour movement and the new social movements—in their national and international dimensions. The world of work brings different generations of women together, creating a new culture of relationships, beyond the traditional family and community, and the potential to pass on to younger generations the hard-won knowledge from the experiences of the older generation with the labour market. The women leaders of the older generation, those who went out massively into the job market in the last twenty years, survived, some ascended, breaking the proverbial “glass ceiling”, created waves in male-dominated cultures and have a lot of experiences to share with younger women. These relationships provide the eld for new potential mutual learning and cultural exchange among women. Despite the women’s movement and its interface with the human rights movement in the last fteen years, women have not been viewed as a collectivity, with the potential this would have in creating solidarities, increased participation and even bargaining power in labour and state affairs as well as a sense of cultural commonality. Now women have new opportunities, through their involvement in the labour market and the information society, to connect with each other more—the way, in fact, that globalization connected labour across borders—and to create and strongly promote a culture of gender equality. Women in minority or indigenous communities face special challenges, within the context of these changing circumstances. Their increasing involvement in the labour market and the ensuing interaction with dominant culture and civil society is combined with loyalty to their community which is in struggle—where often the minority culture, in self-defense, becomes stricter towards its members, especially the women, who are recognized as the keepers and transmitters of culture to future generations. The question then is how a human rights approach to culture, including through the cultural rights of women, can promote gen-

153

As Gayatri Chakravorti Spivak has put it, “Destruction of cultural specicity is part of good globalization”, statement at the rst Planning Meeting for the Women’s Intercultural Leaders’ Forum, New York, 11 October 2005.

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der equality, including through strengthening women’s agency. Some methodological considerations are in order. It is rst of all clear that change of culture, whether traditional or not, that violates the human rights of women will be the result of change from within, with women as agents of change, with inuence from outside. Women’s increasing visibility in the public sphere, largely through them joining the labour market will support this agency of change. Alliances among women leaders in different social positions is crucial, women in elite positions as well as grassroots women leaders and young women leaders have to be brought into this struggle and spaces for dialogue with progressive men, including young men, should also be created. The women’s movement, the human rights movement and labour as well as the new social movements are important entry points for such cultural interventions. Women need to share their experiences and perspectives on the supportive elements of their cultural contexts which empowered them to become leaders and dynamic agents of change as well as the obstacles generated by traditional norms or values that limit social, economic and political participation of women and curb their leadership potential.154 The world has heard more about the obstacles, but not enough about the supportive elements of various cultural contexts, as women interpreted, re-interpreted and used them for their empowerment. Based on the commonality of many problems faced by women in their variety of situations, a culture of solidarity could be encouraged of “women as communities”, for women’s mutual reinforcement.155 Where do cultural rights t in the above-mentioned context and why do they need to be addressed? In general a human rights approach adds a legal, normative angle to an issue: it brings in the state vis a vis the individual and also vis a vis the community or the group(s). A human-rights approach is also empowering as it promotes effective participation, non-discrimination and attention to the most vulnerable, it

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UNFPA’s proposal, as presented at the planning meeting for the Women Leaders’ Intercultural Forum, held in October 2005. UNFPA proposed various means for sharing experiences: leadership-specic conferences, mentorship programmes, including the use of electronic-distance mentoring. Two more could be added: i) encouraging the inclusion of an element on culture, women and leadership in other international gatherings, and ii) encouraging empirical and other research and publications on this issue. 155 I would like to use the image of a tradition among women from various tribes of India—and I am sure of other parts of the world, where the water well is an exclusively women’s space for the exchange of important news, work planning, marriage planning and other exchanges—a space of intense participation in mutual support and solidarity. One could imagine creating a “women’s intercultural water well”.

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is holistic because it takes into account civil, political, economic, social and cultural rights, and it is about accountability of the duty-bearers.156 Cultural rights are to be taken seriously because they are part of human rights and thus fundamental to human dignity. Using cultural rights allows our analysis to go deeper into the various elements that need to be addressed by public policies on the issue of women and culture. As it is made clear in previous chapters of this book, cultural rights, as human rights, are not just group rights—as is sometimes loosely assumed about this neglected category of human rights—but also and especially, individual rights. Therefore women, as individuals, are subjects and holders of cultural rights. Customs of a group or a community, that violate women’s human rights, as dened by international human rights instruments, are not cultural human rights of the group. It would be a contradiction in terms to recognize as human rights of a group, customs and practices that violate the human rights of half of the group, namely women. The issue is therefore not “cultural human rights of the group v. the human rights of women”, but “the culture of the group v. the human rights of women”. This has been made amply clear both in the actual texts of various human rights treaties and in the systematic pronouncements of UN human rights treaty bodies.157 The 1993 Vienna Conference on Human Rights was fundamental in bringing a high prole to this issue, especially through highlighting that violence against women, whether in the public or in the private sphere, is a human rights issue. The Vienna Conference also proclaimed a Decade for Human Rights Education. Since 1993 there have been a few stories of empowerment of women through human rights education, stories of women re-interpreting their cultures and revising their visions for the future. The example of the women in Malinkounda, Bambara, a village that is part of the city of Thies, Senegal, is especially encouraging. In 1997 the women followed a programme of education in the national language supported by TOLSTAN, a non-governmental organization, the Government of Senegal and UNESCO. During this process, the women also learned about human rights and their experience was so catalytic that they decided to stop the practice of female genital cutting and so did the men and 156 The UN system adopted a Common Understanding to the Human Rights Approach to Development in 2003, see www.UNDG.org (Home, Achieving the MDGs, The Millennium Declaration and the MDGs, Human Rights/Action 2). 157 See Chapter One B.

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the old women of the Bambara community, who had long insisted on keeping this practice. This is how the story was told by the director of TOLSTAN: “The women of Malicounda had begun to change as a result of their participation in the TOSTAN/UNICEF/Government of Senegal Basic Education Program in the national language. They started thinking and talking about things they had never discussed before, things that had always been ‘taboo’. In Module 1, the women worked on problem solving. In Module 2 they learned about germs and the spread of disease . . .—they studied Human Rights in the module on Women’s Health and particularly the right to health . . .—actually, the program gave them condence that they could change things if they wanted to . . .—they learned that human rights imply the freedom of each woman to decide for herself what she does with her body . . .—the right to preserve their body without mutilation or changes . . .—they talked with their husbands who understood their concerns. Encouraged by their husbands’ support they created a theater about human rights that included messages on the dangers of female circumcision. They went to all the neighborhoods in the village and invited the village midwife to these sessions too. She was also convinced. After only several months, the women of Malicounda, had agreed to stop the ceremonies for this year and indeed forever. An older woman said at one of the meeting: ‘We, old women were the ones who insisted that all the girls be circumcised! But in the class I learned about universal human rights. Did you know that every man and woman have the right to marry and live their lives according to their own beliefs?—I realized I could no longer impose my will on my children and grandchildren.” The village chief present at the discussion said: ‘I’m not a member of the class, but I support the women’s decision . . .’ The women said: ‘We’ve made our decision! We’re going to stop female circumcision in Malicounda . . .—we became aware that we could make a difference in the world. If our culture violates our human rights, we want a human rights culture.”158

158 The story was told by Molly Melchin, the Director of TOLSTAN, a grassroots Senegalese organization, to Shulamith Koenig, Founder of the Peoples Movement for Human Rights Education (PDHRE). Koenig quoted this story in “Human Rights Education for Social Transformation: Innovative Grassroots Programs on Economic, Social and Cultural Rights”, Effective Strategies for Protecting Human Rights Prevention and Intervention, Trade and Education, David Barnhizer (ed.), 2001, Ashgate Publishing, Aldershot, Hampshire, UK. Koenig also reported the following: “I also learned from Molly that French television came to interview the people of the village. A little girl was

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This conceptual clarication, i.e. “culture of a group vs the human rights of women”, is crucial for three main reasons: a) because human rights, cultural rights, and group rights are used in the discourse we are dealing with, and each provokes profound emotions and political reverberations; b) we need this clarity, so as not to appear to discredit all cultures at all times when we deal with women’s issues, and thus create un-nuanced, unnecessary or absolute confrontations; and c) because we need to positively assert the obligation to respect the cultural rights of women in this debate—and until now, very little attention has been paid to this by public policy—the UN system, governments and others. What are the cultural rights of women, what is their normative content, as outlined in international instruments, practice and jurisprudence? Summarizing from Chapter Three above, they are: a) nondiscrimination and equality. b) freedom from interference with the enjoyment of cultural life; freedom to create and contribute to culture; c) freedom to choose in what culture or cultures to participate; d) freedom of dissemination; e) freedom to cooperate internationally; f ) right to participate in the denition, implementation and evaluation of policies and programmes on culture. In addition, in the case of minority or indigenous women, cultural rights include language rights, education of the larger society about the minority or indigenous culture, inter-cultural education, both in the formal and non-formal education, contact with kin beyond national borders (in case of communities divided by national borders), and protection of cultural heritage and traditional knowledge. Indigenous women, in addition, have the right to carry out certain traditional land-based economic activities closely linked to their specic culture—and thus related rights to their traditional territories are crucial. In order to protect some of the cultural rights and other human rights of women, the state is called on to play a “protective role vis-à-vis running in front of the cameras. Her mother called out to her: “Sensen, Sensen. Come here!”. “What does Sensen mean?” the cameraman asked. “Human Rights” answered the mother with pride. “Why do you call her Human Rights?” the cameraman asked again. “Because she is the rst girl in the village that was not circumcised” the mother answered. Men and women alike declared an end to FGC [ female genital cutting] in front of the camera, quoting the language of human rights. Pride accompanied their recognition that the international community had also acknowledged what they believe to be decent and correct. These are norms and standards that they now accepted as their own. These very same women in the village of Malikunda came several weeks later to their husbands, requesting parcels of land to grow vegetables. They said to their husbands: “Land is a human right” and they got the land.

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inequities within the community”, since the community is not necessarily the egalitarian, democratic, and intimately affective space that it is claimed to be in communitarian discourse.159 In order to bring together, in law and public policy, the areas of human rights, including cultural rights, women and culture, one should address questions such as the following, so as to make progress in this area: • What special measures should be taken at national and local level to address inequalities that exist in terms of women’s participation in cultural life, for example as authors, scientists or artists? • What special measures should be taken to document and recognize grassroots women’s particular, often invisible, positive contributions to culture which empower women and girls? How can academic institutions contribute in this effort? • Given the uneven international visibility of women gures in science and culture in the developed and the developing world, what means should be found to address this inequality? • What types of programmes of development institutions constitute good practices that are both gendered and culture-sensitive? Such cases should be documented and shared. • How have women applied leadership as agents of cultural change, pursued and achieved positive change towards gender equality by the state or their religious or ethnic community? For example, how have women achieved the termination of a harmful traditional practice in a community? • What examples are there of empowering dialogue, taking place between women holding repressive cultural or religious ideas and women who advocate change towards equality—including intergenerational dialogue? What are the elements that made such dialogue empowering and lead to positive social, political or economic change for women and the broader society? • What examples are there of successful alliances between women leading culture change towards equality and progressive men? What lessons can be learned?

159 Amartya Sen, “On Interpreting India’s Past”, in Nationalism, Democracy and Development: State and Politics in India, edited by Sugata Bose and Ayesha Jalal, 1997, Oxford University Press, Delhi, pp. 10–35.

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• In addition to literacy and education, what kind of assistance can international development agencies and other international actors provide to support cultural expressions of women that support gender equality? How can such assistance be provided with the full and effective participation of the women concerned and in ways that will not create a reaction by conservative state or community institutions? • How can human rights education, especially focusing on gender, impact culture change towards equality and peace in a community? • How can data be disaggregated for gender to monitor the extent to which the cultural rights of women are protected, promoted and fullled, for example—using some of UNESCO’s cultural indicators—what is the gender breakdown for public library use, access by women to the mass media, trend data on foreign visitors, data on foreign students, cultural trade and others? • How can the information society be used to strengthen women’s capacities, especially at the grassroots level, so that they participate more effectively in governance and create national and international networks? • How should women’s oral histories at the grassroots level be documented that tell stories of empowerment and leadership? • How can women at the grassroots impact, through culture and policy involvement, on boys’ education towards a culture change for gender equality and human security? How can women’s networks and other actors support such efforts? 2. Children and Youth Education and training in the arts are particularly relevant for children and youth in terms of their participation in cultural life. Education in the mother tongue, especially in the early stages of schooling, is also part of children’s cultural rights. Language rights in education are especially important for minority and indigenous children and the children of migrants.160 The Convention on the Rights of the Child, in Article 31 recognizes the right of the child to participate freely in cultural life and the arts and describes that state’s obligation to respect and promote the right of the child to participate fully in cultural and artistic life

160

For an extensive discussion of language rights, see Chapter Four A above, dealing with indigenous peoples and minorities.

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and to encourage the provision of appropriate and equal opportunities for cultural, artistic and leisure activity. Various other articles of the Convention are eloquent on cultural rights, as mentioned in Chapter Three 1 above, but the focus of the Committee on the Rights of the Child in monitoring them continues to remain quite weak. From the few elements that can be retrieved in the work of treaty bodies, one stands out, namely that the state should provide access to art education on the basis of non-discrimination and that the state should take steps to facilitate such education, as for example, by establishing art training schools, providing free or low cost access of students to museums, facilitating youth festivals etc. The Committee on Economic, Social and Cultural Rights has paid some attention to young artists and their needs.161 There is signicant scope for state measures to facilitate the participation of children and youth in cultural life, including sports and the media. This is still uncharted territory on the part of international human rights bodies, which should stimulate analysis and catalyze action through their critical and creative questions to states, as well as their recommendations during the examination of their reports under the various treaties. 3. Persons With Disabilities The Committee on Economic, Social and Cultural Rights has focused on the obligation to respect the principle of non-discrimination and equality of the disabled in terms of their enjoyment of cultural rights. The most important issue here is access, both economic and physical, to places of culture. In General Comment 5 on the disabled, the Committee clearly expects from states to take measures of positive discrimination,162 including access to places of cultural activity, sports and tourism. The elderly must also have access to cultural activities through special measures,163 including special dispensation from entrance fees in cultural establishments, such as museums and theatres.The Vienna Declaration and Programme of Action adopted at the 1993 World Conference on Human Rights states that the place of disabled persons is everywhere. Persons with disabilities should be guaranteed equal

161 162 163

E/1989/22, para. 307 regarding Trinidad and Tobago. General Comment 5, HRI/GEN/1/Rev.3. General Comment 6, ibid.

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opportunity through the elimination of all socially determined barriers, be they physical, nancial, social or psychological, which exclude or restrict full participation in society.164 The new momentum given to the issue of the human rights of persons with disabilities in recent years through the preparation of a convention on the rights of persons with disabilities is expected to further clarify the specic policies and actions required for the fulllment of their cultural rights.165 The Convention on the rights of persons with disabilities represents an advance in terms of specifying what the right to participate in cultural life represents for these persons. The Convention makes particularly clear the requirement for positive measures for the fulllment of cultural rights. Stressing the principle of non-discrimination, the Convention stipulates that persons with disabilities are entitled to the recognition and support of their specic cultural and linguistic identity, including sign languages and deaf culture. The Convention requires states to take all appropriate measures to ensure that persons with disabilities; enjoy access to cultural materials in all accessible formats, enjoy access to television programmes, lms, theatre, and other cultural activities, in all accessible formats; enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance. The Convention includes specic provisions on access to mainstream sporting activities, disability-specic sporting and recreational activities and a specic provision on children with disabilities and their equal access to participation in play, recreation and leisure and sporting activities, including those in the school system.166 Once the Convention enters into force, the challenge will again be implementation at the national and local level. However, the political momentum and civil society support for the issue of disability and the Convention should help stimulate appropriate measures and active monitoring of the cultural rights of persons with disabilities.

164 Vienna Declaration and Programme of Action, A/CONF/157/24, Part II, para. 65. 165 General Assembly resolution A/RES/56/115. The Ofce of the High Commissioner for Human Rights published a study on human rights and disability in 2002 which provides a comprehensive review of the potential of international human rights norms and mechanisms (HR/PUB/02/1). 166 See A/60/266.

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4. Migrant Workers, Refugees, Other Non-Citizens The era of migration of the twentieth century that has been accentuated further through the process of globalization certainly poses new challenges to societies in terms of having to invent new and sometimes urgent ways of dealing with the resulting new multiculturalism in many countries. Whether migration is within countries or across national borders, but especially the latter, it creates new challenges to the principle of non-discrimination, new needs in education, in languages in school, in administration and the justice system, access to media, promotion of intercultural understanding or participation in the setting of cultural policies. Tensions may also be created between migrants and the “receiving population”, with not infrequent outbursts of intolerance and demands for protection of the receiving country’s culture that daily media reect in recent years and that also occupy the justice system. Certainly the aspect of cultural rights that requires inter-cultural education, whether formal or non-formal, as well as through the media, would provide some good public policy responses towards promoting understanding among the cultures of migrants and of the dominant society. The international legal system has been weak until now, especially since the International Convention on the Rights of All Migrant Workers and Members of Their Families only entered into force in 2003. As the migration issue has turned into one of the most burning issues of the human rights agenda, due to the vulnerability of millions affected, some human rights mechanisms have sought to ll the gap in creative ways. As I mentioned in the chapter on minorities and indigenous peoples, the Human Rights Committee, in its General Comment on Article 27 of the International Covenant on Civil and Political Rights, has established that the rights stipulated in that article are also enjoyed by non-citizens. Therefore migrant workers, refugees or even visitors in a State party constituting a national or ethnic, religious and linguistic minority must not be denied the exercise of the rights in Article 27.167 This is conrmed by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which, in Article 31, establishes the obligation of States Parties to ensure respect for the cultural identity of migrant workers and members of

167

CCPR/C/21/Rev.1/Add.5.

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their families and not to prevent them from maintaining their cultural links with their state of origin. In addition, the Convention establishes that the teaching of the mother tongue and culture should be facilitated and that states or origin and states of employment should cooperate in that respect. As the Convention only entered into in force in 2003, there is not yet available any relevant practice of the Committee established under the Convention to monitor these provisions. As I mentioned in the chapter on minorities above, the Committee on the Elimination of Racial Discrimination has shown interest in the cultural rights of migrant workers, especially language rights.168 The Committee on Economic, Social and Cultural Rights has also paid attention to migrant workers’ cultural rights. Admittedly we have noted no attention by the treaty bodies to the cultural rights of other groups of non-citizens, including refugees. The respect and promotion of migrant workers cultural rights is perhaps one of the most urgent matters for countries that have experienced recent waves of migration, as respect or disrespect of those rights may be a determining factor in inter-communal relations. Human rights bodies should send a clear signal to states by a strict monitoring of the cultural rights of migrants. 5. The Poor Poverty, some would say, creates its own culture, the marginalized culture of the poor, be they the poor in the countryside or the city poor. In the anthropological sense of culture, no person or group can be without culture; there cannot be a cultural vacuum. In their “way of life”, the poor create a set “of distinctive spiritual, material, intellectual and emotional features”, their culture encompasses arts, lifestyles, value systems, traditions and beliefs.169 Books have been written and lms made about the poverty cultures past and present in many parts of the world, from the inhabitants of the favellas of Brazil, to the rembettes of Greece, to the poor displaced blacks after the epoch of slavery in the United States of America, to the Buraju of Japan. Sometimes these cultures of survival have produced art that with time has come to be 168 For example A/44/18, para. 51 regarding France where the Committee requests information on the extent to which classes were being taught to the migrant children in their respective languages and cultures of origins. 169 See Chapter Three A above on the concepts of culture.

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appreciated, even adored, by the mainstream, such as the popular art in the shanty towns of Latin America, the naïve paintings of Haiti, the music of the blues of the USA and the rembetika songs of Greece. But while these are success stories that should lead no one to idealize the conditions that give rise to them, poverty, the way people experience it most of the time, imposes human indignity, marginalization and invisibility, exclusion from participating in the cultural life of the rest of society. They poor are viewed as the ‘non-public’ and they do not enjoy the means to ‘culture’ understood as the generality of intellectual and artistic perspectives open to members of a certain elite, of ‘cultured’ people. The poor lack basic education, their economic deprivation coinciding with their cultural deprivation.170 This problem of access of cultural rights by the poor, especially the extremely poor, is an eloquent example of the interdependence of human rights. It has been said that for a poor person to enjoy cultural rights, his well-being and that of his family, especially regarding food, clothing, shelter and medical care, and a minimum of education is necessary for cultural rights to have any signicance.171 The challenges and obligations of states regarding the cultural rights of the poor are manifold. According to the Revised Guidelines regarding the form and contents of reports to be submitted by States parties under the International Covenant on Economic, Social and Cultural Rights,172 the Committee on Economic, Social and Cultural Rights requires governments to report on positive effects and difculties and failures particularly concerning indigenous and other disadvantaged and particularly vulnerable groups, thus recognizing the special attention that must be given to the poor. The Limburg Principles on the implementation of the International Covenant on Economic, Social and Cultural Rights173 provide that particular attention should be given to improve the standard of living of the poor and other disadvantaged groups, taking into account that special measures may be required to protect cultural rights of indigenous peoples and minorities. It is clear

170 Francis Jeanson, “On the notion of ‘non-public’ ”, Cultural Rights as Human Rights, 1970, UNESCO, Studies and Documents on Cultural Policies. 171 B. Boutros-Ghali, “Le droit a la culture et la Declaration Universelle des Droits de l’Homme”, 1968, Revue Egyptienne du Droit International, p. 67. The author continues to say that “Un minimum de bien-etre materiel est necessaire pour que l’idee meme de culture ait la moindre signication”. 172 E/1991/23, Annex IV. 173 E/C.12/2000/13, see appendix.

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that access of the poor to the full spectrum of cultural life requires positive measures by the State. Apart from the overall obligation for progressive implementation of the situation of the poor, examples of specic measures would include free access to museums or other public institutions of culture, scholarships for students of art schools, subsidies to publications to ensure their economic affordability to the poor and others. On the other hand, if the state is not in a position to provide such positive assistance, it could turn towards seeking international assistance, to which developed countries should respond.

CONCLUSIONS AND RECOMMENDATIONS

While a lot is debated about culture in today’s world and a lot more is done in the name of culture in politics, national or international, little attention has been paid to cultural rights. One of the reasons is the concern that cultural rights might invoke cultural relativism and thus undermine the universality concept. Another difculty is the denition of cultural rights which is linked to the concept of culture, itself uid and changing. Some also consider cultural rights as a “luxury”, something only for societies at a certain stage of development. Political sensitivities of governments at the national and international level are also at the root for this neglect, especially the fear that group identities could threaten the so-called nation state. The wording of international human rights instruments in terms of cultural rights may be elliptic, non-systematic or unclear—in short, imperfect—but a careful examination of international legal texts, the jurisprudence and other case law of international bodies and international and national practice reveals the elements of cultural rights that do not appear to the naked eye. Readers who are not specialists in cultural rights may be interested in particular in the confrontation between individual and group rights that has been alluded to many times in these pages and that has of course been a very actively debated question in human rights generally. One thing I want to point to in this conclusion is the signicance of cultural rights in this debate. Cultural rights include both rights of individuals and rights of groups. This book has focused mostly on the right to participate in cultural life, which is the most comprehensive of cultural rights. At the level of the individual, the right to participate in cultural life contains in summary the following normative elements, analyzed extensively in this book: a) Non-discrimination and equality. b) Freedom from interference in the enjoyment of cultural life, and freedom to create and contribute to cultural life. c) Freedom to choose in which culture(s) and cultural life to participate, the freedom to manifest one’s culture.

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d) Freedom of dissemination. e) Freedom to cooperate internationally. f ) Right to participate in the denition, preparation and implementation of policies on culture. In addition, as I have shown, various other human rights and fundamental freedoms are interdependent and interrelated vis-à-vis the right to participate in cultural life, including freedom of movement, freedom of expression, the right to education and the right to work. What I could say more is that the full enjoyment of cultural rights depends on these other rights, but also that there is a weakness in the understanding of these other rights if cultural rights are not factored in. In the case of minorities and indigenous peoples, most cultural rights of the persons belonging to these communities are better or solely implemented within a group context, as they constitute expressions of a way of life of a culturally distinct group. Even more important, the implementation of minority and indigenous peoples’ cultural rights is far from being a soft or secondary agenda or a luxury. It is in fact of great human, moral and political signicance and responds to the sense of identity and some of the most profound aspirations of minority groups and indigenous peoples. In addition to the above normative elements pertaining to the cultural rights of individuals, the cultural rights of minorities and indigenous peoples have the following characteristics and involve the following special obligations for states: a) The state and its agents have an obligation to respect the freedom of persons belonging to minorities and minority groups to participate in cultural life, to assert their cultural identity and to express themselves culturally in the way they choose, i.e. the authorities must not interfere with this freedom unless conditions under (b) below are present, namely conditions that represent conict between a group and the human rights of an individual. The state, as part of the regular discharge of its police and justice functions, must also protect the right to participate in cultural life from infringement by third parties, whether they are individuals, groups, corporations, domestic or foreign. The principles of non-discrimination and equality must guide the state’s actions, in accordance with Article 2(2) of the International Covenant on Economic, Social and Cultural Rights. The state must establish laws and policies regarding non-discrimination

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in the enjoyment of cultural rights. Equality may not amount to forced assimilation. Special positive measures by the state to secure advancement of minorities, i.e. afrmative action, are allowed. The positive actions of the state for the fulllment of cultural rights, i.e. in terms of the provision of resources, subsidies etc., will be guided by the principle of non-discrimination. If the state does not have adequate resources to respond to its obligation to fulll, it should explore the possibility of international assistance. International norms prohibit cultural practices that contravene internationally recognized human rights. Minority and indigenous rights are part of the human rights regime. States should thus adopt preventive and corrective policies and measures and promote awareness of such problems so that practices of this kind can stop. Individuals living within groups are free to participate or not to participate in the cultural practices of the group, and no negative consequences may ensue because of their choice. In other words, the cultural autonomy of the individual is guaranteed. The cultural rights of minorities and indigenous peoples, both as groups and as individuals, consist of: the right to education; the right to use their language in private life and various aspects of public life, such as before judicial authorities and to identify themselves as well as place names; the right to establish their own schools; access to mother tongue education to every extent feasible; access to the means of dissemination of culture, such as the media, museums, theatres etc., on the basis of non-discrimination; the right to practice their religion; the freedom to maintain relations with their kin beyond national boarders, and the right to participate in decisions affecting them through their own institutions; and the preservation of sacred sites, works of art, scientic knowledge (especially knowledge about nature), oral tradition and human remains, i.e. both the tangible and the intangible objects that comprise cultural heritage. In the case of indigenous peoples special cultural rights also include the right to continue certain economic activities linked to the traditional use of land and natural resources. Minorities and indigenous peoples have the right to pursue their cultural development through their own institutions and they have the right to participate in the denition, preparation and implementation of cultural policies that concern them. The state must consult the groups concerned via democratic and transparent processes.

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f ) The state has an obligation to educate the larger society about cultural diversity and minority and indigenous cultures. The media and other institutions should play a special role in promoting such knowledge. g) Although cultural rights have not always been called collective rights in international instruments, it is logically and morally impossible not to recognize the collective elements of cultural rights when speaking about minorities and indigenous peoples. International instruments recognize that cultural rights must be guaranteed for persons belonging to national or ethnic, religious and linguistic minorities and indigenous peoples, not only individually, but also as collectivities in community with other members of their group. The minimum core obligations of states regarding cultural rights consist of the basic elements outlined below, which are extensively analyzed in various chapters of this book, especially Chapter Three D. The elements of the state’s core obligations constitute the other side of the equation that requires human rights to be accompanied by corresponding obligations: a) Non-discrimination in law and practice; b) Non-interference in the freedom of cultural expression and of individuals and groups, including its dissemination within and beyond borders; c) Protection by the state, within the purview of the regular discharge of police and justice functions, of the freedom to participate in cultural life when it is under threat by non-state actors; d) Ensuring representative participation of society, including of minorities and indigenous peoples, in the denition, preparation and implementation of policies on culture. e) Promoting policies of respect for cultural rights and cultural diversity within society, especially through education, formal and nonformal. f ) Taking steps to the maximum of available resources to fulll conditions and correct circumstances that will allow the full enjoyment of cultural rights, especially those of marginalized and disadvantaged groups. The analysis in this book points to guidelines found in international law and practice for states to follow in case of conict of rights. An overall

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principle that summarizes these guidelines is that whenever the state needs to intervene to protect or fulll the cultural rights of indigenous peoples and minorities, and especially when conicts between competing groups need to be managed, the operating principle for laws, policies, resource allocation and other action must be to create an enabling environment for diverse cultures to ourish, within the overall context of internationally recognized human rights. If taken seriously, the implementation of cultural rights can also achieve transfer of resources to minorities and indigenous peoples from the dominant society and thus help mend age-old historic injustices and discriminatory practices. While there are political difculties in any appeal to cultural rights, there are also opportunities that match and outweigh these difculties: cultural rights have a real world political strength, and they also make both moral and “material claims” through which it is possible for some quantity of power to change hands and for historic injustice to be addressed. The research for this book has shown that respect for minority and indigenous peoples’ cultural rights is also linked to issues of conict and peace. For the sake of peaceful societies and peaceful relations among states, the vision of public policies should be away from sustaining, encouraging or creating myths of a cultural or “blood” purity of society, but rather focus on the re-shaping of national identities to include today’s multicultural realities.1 In this century of increasing awareness about the need for preventive measures, it is likely that sooner rather than later politicians will have to deal with this issue, and international organizations should be able to assist in those processes. Human development, in order to be sustainable, will have to take place in a culturally respectful and relevant policy environment that addresses people’s cultural rights. There are people who will present human rights, especially cultural rights, as if these issues were marginal to peace or to economic and social development. This book is written to help avert such impressions. At the same time, crucial as cultural rights are in the preservation or building of peace and in development, they should not be viewed only in terms of their functionality in these crucial areas of each society. 1 Elsa Stamatopoulou, “Protection of national minorities and Kin-States: An International Perspective”, in The Protection of National Minorities by their Kin-State, European Commission for Democracy through Law, 2002, Council of Europe Publishing, Collection: Science and Technique of Democracy No. 32, p. 105.

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Cultural rights should also be appreciated and respected as distinct human rights, as part of each person’s and each group’s humanity and integrity. Women suffer from certain cultural practices and they are also hampered in the exercise of certain of their cultural rights. Their participation in cultural life raises special challenges to the principle of non-discrimination on the basis of gender. Often neither the legal sphere of the state nor the social norms of the community or the family provide a free, equal and democratic space for women to fully enjoy their cultural rights as individuals or as members of culturally distinct groups. Given the fundamental role of women in passing on culture to future generations as creative agents of culture, respect for their cultural rights can have an especially profound impact on society, both in the private and in the public sphere. Many of the challenges of perception, prejudice and occasional violence that societies face due to massive migrations could be dealt with by attending to the cultural rights of migrants. Measures such as intercultural education and access by the migrants’ cultures to the media offer possible policy responses towards promoting understanding between the cultures of migrants and the dominant society. Human rights monitoring bodies should send a clear signal to states by a strict monitoring of the cultural rights of migrants. A review of some UN development programmes shows inadequate attention to cultural rights, despite the general awareness that local cultures should be taken into account. It also demonstrates that culturally sensitive policies can contribute to the sustainability of programmes and their effects over the long term. Taking cultural diversity into account widens the range of options open for everyone and is one of the roots of development, not simply in terms of economic growth, but also as a means for people to achieve a more satisfactory intellectual, emotional, moral and spiritual existence. Conclusions from the review of some UN peace operations include the following: a) If there is an ethnic element in the conict, there is generally a UN focus on cultural rights; yet lack of a full understanding of what cultural rights are weakens their promotion and protection on the ground. b) Focus on cultural rights in the terms of reference of a UN peace mission gives direction to the programmes on the ground.

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c) If a mission does not contain cultural rights elements in its terms of reference, even human rights focal points or units do not usually understand cultural rights to be part of their mandate, or simply do not understand cultural rights at all; however, once awareness of the issue is there, promotion of cultural rights is clearly appreciated as part and parcel of building a long-term peace. This is a major area for capacity-building for UN staff. d) Like UN development programmes, peace operations must be also aware that in order to be effective they have to take local cultures into account and use local cultural means to pursue their peacebuilding efforts, as for example traditional justice systems. The recommendations in this book are based on an evaluation of the gaps in policy attention to and understanding of cultural rights and are meant to stimulate a concerted effort at various levels, with the international bodies having a signicant role to play. Since states have the primary responsibility for the protection and promotion of all human rights of people in their territories, including cultural rights, they should increase their attention to and action on these rights. First, states should act to implement cultural rights at the national level. At the same time, donor countries should increase voluntary contributions for the enhancement of the cultural rights assistance programmes of the various voluntary funds for human rights of the Ofce of the High Commissioner for Human Rights, of other UN agencies, funds and programmes and also provide earmarked resources for peace operations. Donor countries should also increase their attention to cultural rights programmes within the framework of bilateral assistance. Both at the conceptual and at the monitoring level, the Committee on Economic, Social and Cultural Rights should demonstrate leadership in the area of cultural rights. The Committee’s contribution is indispensable, as it is the most appropriate international expert forum to carry out this analysis and share it with states, other international bodies and civil society. The Committee should therefore enhance its effort in preparing a General Comment on Article 15(1)(a), and in this regard should hold another “Day of General Discussion” on the right to participate in cultural life and bring together UNESCO, experts and non-governmental organizations, including indigenous organizations and organizations of minorities and others. In examining states’ reports on implementation of the International Covenant on Economic, Social and Cultural Rights, the Committee should devote systematic

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attention to the right to participate in cultural life. At the same time it is indispensable for the Committee to review the guidelines for reporting by states, so as to spell out the elements of cultural rights that governments will be expected to address in their reports. Another step should be for the Committee to encourage the development of indicators and benchmarks in the area of cultural rights. The Committee should convene a meeting and foster dialogue with other treaty bodies on the subject as well as with UN minority-related mechanisms and UN indigenous-related mechanisms, including the Special Rapporteur on the human rights and fundamental freedoms of indigenous people and the UN Permanent Forum on Indigenous Issues. Finally, in order to increase the visibility of its work on cultural rights, the Committee should review the format and substance of its reports. Human rights treaty bodies and extra-conventional mechanisms of the UN Human Rights Council should pay more attention to the right to participate in cultural life when examining the situation of human rights around the world. The weight of these extra-conventional mechanisms, in human rights, political and legal terms, is such that appropriate attention to cultural rights on their part could have a catalytic effect in country policies. In addition, the peer review of states members of the Human Rights Council should also include the situation of cultural rights in those countries. Given the fact the majority of countries have minorities and indigenous peoples, such attention could help strengthen public policies for the respect of the identity of these communities, even mend historic injustices towards these communities by the majority population, and it could build positive inter-cultural relations. Since cultural rights impact so deeply on identities, even symbolic acts can have a signicant impact in society and set the stage for more positive changes, ones that would go beyond symbolism and also touch on material demands that some cultural rights entail, such as language rights for minorities. Given the link between peace and human rights, the human rights special rapporteurs could become “ambassadors” for cultural rights and show some of the way towards cultural rights policies that could prevent or respond to various conicts, especially those linked to minorities and indigenous peoples. It is regrettable that the input of human rights special rapporteurs in this area, with the exception of the rapporteur on indigenous people, is a still unexplored territory, while the potential for a positive international contribution is enormous. However, in order for this contribution to happen, the most central expert human rights

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treaty body in this area, namely the Committee on Economic, Social and Cultural Rights, needs to take leadership in placing cultural rights squarely on the human rights map. Otherwise, interventions on cultural rights by individual rapporteurs or UN policy-making bodies without a clear sense of what cultural rights are can lead to weak results. UNESCO should be encouraged to be a more active contributor to the work of the Committee on Economic, Social and Cultural Rights, and cooperation between UNESCO and the Ofce of the High Commissioner for Human Rights should be strengthened. UNESCO should also facilitate the participation of indigenous peoples’ organizations in their normative, monitoring and other deliberations, especially those dealing with cultural diversity, traditional knowledge and cultural heritage. Given UNESCO’s limited eld presence and participation in the preparation of UN development programmes, its inuence has not been adequately reected in UN operations. It is therefore important for UNESCO to play a more active role in inter-agency affairs so as to strengthen its inuence in making the link between culture and development at the eld level. UN development programmes, funds and agencies, as well as other intergovernmental and non-governmental organizations, should view cultural development as part of human development, with special emphasis on vulnerable groups or parts of the population. With this consideration in mind they should: a) develop staff multicultural competencies to understand the communities where they operate and work with them to develop the best programme content; b) review programme monitoring and evaluation efforts on successful initiatives that integrate cultural and religious factors into their design and advocacy strategies; c) issue policy decisions on cultural and religious dimensions in programming; d) ensure that knowledge sharing mechanisms include information on culture and religion; e) carefully select appropriate entry points (such as HIV/AIDS) for opening up dialogue with religious and cultural institutions and leaders; f ) expand partnerships and coalitions with key organizations and other actors working in the development area, including indigenous peoples and minorities; g) prepare cultural rights indicators for development programming; h) encourage donors to fund programmes on cultural development; i) develop workable models for the preservation and promotion of the use of traditional knowledge including, as appropriate, legal mechanisms to protect such knowledge against misappropriation; j) support the collection and analysis of information on customary laws and practices relating to

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traditional knowledge; k) ensure the broadest possible participation of local, indigenous and minority communities in deliberations and decision making relating to traditional knowledge; l) and improve awareness of the role of traditional knowledge in fostering local innovation and development. International peace operations should include the promotion and protection of cultural rights in their terms of reference, especially if a situation involves indigenous peoples and minorities; the mission’s budget should include resources for the implementation of the relevant programmes. Training of staff in peace operations should include a unit on the elements of cultural rights and methods for their promotion and protection. Recommendations (a) to (e) and ( j) above are equally valid for peace operations. The UN Security Council should explicitly include items falling under the right to participate in cultural life in the identication of exceptions to sanctions regimes. Given the fundamental signicance of cultural rights, the Security Council should consider appropriate measures that will allow cultural activities by civil society, including international cultural cooperation, to continue, such as participation in artistic events and scientic conferences. Allowing cultural expression of the population of the state under sanctions would help sustain the dignity, the morale and possibly even the spirit of resistance of such populations. It would be useful for the Council to systematize and formalize its ideas on exceptions to sanctions connected with the right to participate in cultural life, thus boldly recognizing the fundamental value of cultural participation for human dignity. The Declaration and Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and related Intolerance, the Programme of Action of the Global Agenda for Dialogue among Civilizations and the Programme of Action of the Second International Decade of the World’s Indigenous People provide a ground on which various actors can undertake new efforts in favour of cultural rights. Technical cooperation programmes, especially those of the Ofce of the UN High Commissioner for Human Rights, should also integrate cultural rights. There is a role that OHCHR can play through its technical cooperation programme and voluntary funds that has not yet been fully explored. In a sense, this is understandable given the relative invisibility of cultural rights in the work of human rights bodies and the difculty of dening the very concept of cultural rights. As progress is made in this area, the hope is that OHCHR will include

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the promotion of cultural rights in the technical cooperation programme and the work of voluntary funds under its administration. Some areas where the Ofce of the High Commissioner and other international actors might nd meaningful ground for technical assistance in the eld of cultural rights would be: (a) promoting language rights; (b) promoting participation of women, youth, children, minorities, indigenous peoples and migrants in cultural life; (c) promoting the adoption of laws and the establishment of administrative structures for non-discrimination in the right to participate in cultural life; (d) promoting the establishment of institutions for the democratic participation of people in national or local decisions affecting culture; ensure that women’s participation is also guaranteed under such participation schemes; (e) promoting media awareness of cultural rights, especially those of disadvantaged vulnerable groups, such as migrants or indigenous peoples; (f ) promoting laws and policies for improving the access to cultural sites (museums, theatres, etc.) for the elderly, the persons with disabilities, the poor and others requiring special attention; (g) promoting community, grassroots projects on cultural rights. The Ofce of the High Commissioner for Human Rights could also initiate a comprehensive awareness-raising effort for cultural rights with its interagency partners, such as pursuing the inclusion of cultural rights in the terms of reference of human rights units of peace operations and requesting monitoring and reporting on the issue in the eld. The Ofce of the High Commissioner could also (a) bring the issue of cultural rights as a theme for discussion at the meetings of Chairpersons of human rights treaty bodies and of Special Rapporteurs; (b) conduct appropriate training of its staff to create awareness of cultural rights. (c) take the initiative for a consultation on cross-fertilization on cultural rights among human rights mechanisms with the participation of experts from treaty bodies, and experts on indigenous rights, minority rights on freedom of religion and others, d) continue its support to UN country teams in the form of elding human rights advisors, holding regional workshops for UN country teams, government ofcials and indigenous organizations; the UN Permanent Forum on Indigenous Issues and OHCHR should collaborate in that regard. Much remains to be done in particular for the cultural rights of indigenous peoples, and the various international mechanisms in place should be activated. At the normative level, solid protection and promotion of these rights should be ensured in the international instruments currently being drafted by the United Nations and the Organization of

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American States. The international human rights monitoring mechanisms, including the United Nations Special Rapporteur on the human rights and fundamental freedoms of indigenous people, should focus on this neglected category of human rights. The UN Permanent Forum on Indigenous Issues should make proposals to the UN system for the active inclusion of cultural rights of indigenous peoples in development programmes. For example, in collaboration with indigenous peoples and governments concerned, the UN could develop a list of sacred and ceremonial sites that require special measures for their protection and conservation, and provide nancial and technical assistance to indigenous peoples and states for these purposes. Respecting the free, prior and informed consent of indigenous peoples in such a project is indispensable-as the cultural protocols and other considerations of indigenous peoples for such sites will need to be followed. The UN operational agencies, as well as the international nancial institutions and regional and bilateral development assistance programmes, should provide nancial and technical support to indigenous communities for capacity-building and exchanges of experience focused on local control of research and education. A great gap that remains to be lled is that between the needs and requests by indigenous communities to fund cultural projects, such as for example community museums, and the availability of resources for such projects. It is time for funders to realize that cultural projects of this kind are far from being a luxury. They can contribute immensely to the morale, self-condence and overall economic and social development of people and their communities, especially for groups long marginalized and discriminated against. Given the signicant lack of awareness and capacity on indigenous issues, the UNPFII and its secretariat should develop a practical toolkit, the primary users of which would be UN country teams, governments and civil society as well as other donors at country level. The UNPFII should develop a basic set of indigenous peoples’ specic targets and indicators to which programme designers at country level can look for reference to implement country programmes. The UNPFII should promote increased referral and advisory services for UN country teams regarding indigenous issues. UN country teams (UNCTs) should advocate and support programmes aimed at enhancing availability of ethnically disaggregated accurate and reliable data. While assessing the situations of indigenous peoples, UNCTs should take into consideration indigenous peoples’

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special social, cultural, political and historical contexts along with statistical data. UNCTs should support and/or undertake programmes aimed at capacity building of their own staff and of indigenous peoples so as to enable them to participate and contribute in programme formulation and to take ownership of programme implementation. Given the increasing impact of the private sector on national and local cultures through globalization, the awareness and contribution of the private sector to cultural rights should be encouraged. The human rights principles to which the private sector is now called to conform should be deepened and elaborated to include cultural rights. While multinational companies are pursuing their interests around the world and while their cultural inuence is undeniable, it is imperative for them to operate within human rights frameworks that include cultural rights. Especially relevant are the duties of the private sector to respect the traditional knowledge and the intellectual property of indigenous and local communities, as explained in Chapter Four A above. Non-governmental organizations, including human rights organizations, women’s organizations and anti-racism organizations as well as other agents of the organized public opinion, should demonstrate an informed interest in cultural rights. There is a challenge for the media in the promotion of cultural rights as they may be inclined to sensationalize what they see as the marginal exotic. The media should be visionary in conveying the potential of human diversity, outside the constraints of cultural prejudice, political correctness or inuential economic and political interests. As the research for this book has shown, the media are of fundamental importance for cultural rights, especially those of minorities, indigenous peoples and other marginalized groups. The media therefore have special social responsibility to facilitate access for minority cultures and to present such cultures to the larger society. Such presentations should avoid sensationalizing the heritage of minority, indigenous or other culturally distinct communities. This approach is not about the media being politically correct. The representation of a culture means rst understanding that culture is the vehicle that allows a person or a group to belong to human society. Communicating to the public a culture different from our own, and in a way that respects human rights, means respecting the dignity of those whose culture we depict. Representation of “the other” should then involve an interpretation of that culture in terms that will help us recognize and understand the

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humanity of people who are of a different culture. Few would disagree that sensationalizing the culture of a socially vulnerable group and turning it into an object of voyeurism hardly respects human dignity. In the absence of legislation, the mass media should adopt measures of self-regulation in order to eliminate vestiges of racism and ethnic discrimination in their programmes and content and actively promote the vision of a multicultural and democratic society. To conclude my conclusions, it is clear that international human rights bodies have interpreted cultural rights as encouraging a pluricultural society where cultures will coexist, freely interact, and benet from each other. No international human rights body has advocated hierarchical models where the dominant or mainstream culture would enjoy the special favour of the state. The challenges are undeniably complex, but the policy efforts aiming at the respect, promotion, and fulllment of cultural rights are feasible and my research suggests that they can have an unexpectedly large impact on society. Readers who have gotten this far will have understood that cultural rights are issues different from those that emerge from the very familiar issue of culture vs. human rights. And yet, in a speculative spirit, it might be worth asking whether in any sense the protection of cultural rights could indeed be seen as a partial solution to the culture vs. human rights problem. Were we to convince policy makers at the national and international level to actively and visibly pursue the promotion and protection of cultural rights, we would have certainly gone a long way towards calming the politics of “culture wars”, racial and other identity politics and the bigotry and identitarian fanaticism they often trigger. We would be on the way towards creating a polis where one would focus less on identities that divide us and more on the many cultures we share and enjoy.

APPENDICES

APPENDIX ONE

UNIVERSAL DECLARATION ON CULTURAL DIVERSITY

* Adopted at the 31st UNESCO General Conference in October 2001

The General Conference, Committed to the full implementation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized legal instruments, and mindful of the two International Covenants of 1966 relating respectively to civil and political rights and to economic, social and cultural rights, Recalling that the Preamble to the Constitution of UNESCO afrms “that the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulll in a spirit of mutual assistance and concern”, Further recalling Article I of the Constitution, which assigns to UNESCO among other purposes that of recommending “such international agreements as may be necessary to promote the free ow of ideas by word and image”, Referring to the provisions relating to cultural diversity and the exercise of cultural rights in the international instruments enacted by UNESCO, Reafrming that culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs, Noting that culture is at the heart of contemporary debates about identity, social cohesion, and the development of a knowledge-based economy,

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Afrming that respect for the diversity of cultures, tolerance, dialogue and cooperation, in a climate of mutual trust and understanding are among the best guarantees of international peace and security, Aspiring to greater solidarity on the basis of recognition of cultural diversity, of awareness of the unity of humankind, and of the development of intercultural exchanges, Considering that the process of globalization, facilitated by the rapid development of new information and communication technologies, though representing a challenge for cultural diversity, creates the conditions for renewed dialogue among cultures and civilizations, Aware of the specic mandate which has been entrusted to UNESCO, within the United Nations system, to ensure the preservation and promotion of the fruitful diversity of cultures, Proclaims the following principles and adopts the present Declaration:

Identity, Diversity and Pluralism Article 1—Cultural Diversity: the Common Heritage of Humanity Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and afrmed for the benet of present and future generations. Article 2—From Cultural Diversity to Cultural Pluralism In our increasingly diverse societies, it is essential to ensure harmonious interaction among people and groups with plural, varied and dynamic cultural identities as well as their willingness to live together. Policies for the inclusion and participation of all citizens are guarantees of social cohesion, the vitality of civil society and peace. Thus dened, cultural

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pluralism gives policy expression to the reality of cultural diversity. Indissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the ourishing of creative capacities that sustain public life. Article 3—Cultural Diversity as a Factor in Development Cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence.

Cultural Diversity and Human Rights Article 4—Human Rights as Guarantees of Cultural Diversity The defense of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples. No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope. Article 5—Cultural Rights as an Enabling Environment for Cultural Diversity Cultural rights are an integral part of human rights, which are universal, indivisible and interdependent. The ourishing of creative diversity requires the full implementation of cultural rights as dened in Article 27 of the Universal Declaration of Human Rights and in Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights. 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 should be able to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms.

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Article 6—Towards Access for all to Cultural Diversity While ensuring the free ow of ideas by word and image care should be exercised that all cultures can express themselves and make themselves known. Freedom of expression, media pluralism, multilingualism, equal access to art and to scientic and technological knowledge, including in digital form, and the possibility for all cultures to have access to the means of expression and dissemination are the guarantees of cultural diversity.

Cultural Diversity and Creativity Article 7—Cultural Heritage as the Wellspring of Creativity Creation draws on the roots of cultural tradition, but ourishes in contact with other cultures. For this reason, heritage in all its forms must be preserved, enhanced and handed on to future generations as a record of human experience and aspirations, so as to foster creativity in all its diversity and to inspire genuine dialogue among cultures. Article 8—Cultural Goods and Services: Commodities of a Unique Kind In the face of present-day economic and technological change, opening up vast prospects for creation and innovation, particular attention must be paid to the diversity of the supply of creative work, to due recognition of the rights of authors and artists and to the specicity of cultural goods and services which, as vectors of identity, values and meaning, must not be treated as mere commodities or consumer goods. Article 9—Cultural Policies as Catalysts of Creativity While ensuring the free circulation of ideas and works, cultural policies must create conditions conducive to the production and dissemination of diversied cultural goods and services through cultural industries that have the means to assert themselves at the local and global level. It is for each State, with due regard to its international obligations, to dene its cultural policy and to implement it through the means it considers t, whether by operational support or appropriate regulations.

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Cultural Diversity and International Solidarity Article 10—Strengthening Capacities for Creation and Dissemination Worldwide In the face of current imbalances in ows and exchanges of cultural goods and services at the global level, it is necessary to reinforce international cooperation and solidarity aimed at enabling all countries, especially developing countries and countries in transition, to establish cultural industries that are viable and competitive at national and international level. Article 11—Building Partnerships Between the Public Sector, the Private Sector and Civil Society Market forces alone cannot guarantee the preservation and promotion of cultural diversity, which is the key to sustainable human development. From this perspective, the preeminence of public policy, in partnership with the private sector and civil society, must be reafrmed. Article 12—The Role of UNESCO UNESCO, by virtue of its mandate and functions, has the responsibility to: (a) Promote the incorporation of the principles set out in the present Declaration into the development strategies drawn up within the various intergovernmental bodies; (b) Serve as a reference point and a forum where States, international governmental and non-governmental organizations, civil society and the private sector may join together in elaborating concepts, objectives and policies in favour of cultural diversity; (c) Pursue its activities in standard-setting, awareness-raising and capacity-building in the areas related to the present Declaration within its elds of competence; (d) Facilitate the implementation of the Action Plan, the main lines of which are appended to the present Declaration.

ANNEX

Main Lines of an Action Plan for the Implementation of the UNESCO Declaration on Cultural Diversity The Member States commit themselves to taking appropriate steps to disseminate widely the “UNESCO Declaration on Cultural Diversity”, in particular by cooperating with a view to achieving the following objectives: 1. Deepening the international debate on questions relating to cultural diversity, particularly in respect of its links with development and its impact on policy-making, at both national and international level; taking forward notably consideration of the opportunity of an international legal instrument on cultural diversity. 2. Advancing in the denition of principles, standards and practices, on both the national and the international levels, as well as of awareness-raising modalities and patterns of cooperation, that are most conducive to the safeguarding and promotion of cultural diversity. 3. Fostering the exchange of knowledge and best practices in regard to cultural pluralism with a view to facilitating, in diversied societies, the inclusion and participation of persons and groups from varied cultural backgrounds. 4. Making further headway in understanding and clarifying the content of cultural rights as an integral part of human rights. 5. Safeguarding the linguistic heritage of humanity and giving support to expression, creation and dissemination in the greatest possible number of languages. 6. Encouraging linguistic diversity—while respecting the mother tongue—at all levels of education, wherever possible, and fostering the learning of several languages from the youngest age. 7. Promoting through education an awareness of the positive value of cultural diversity and improving to this end both curriculum design and teacher education. 8. Incorporating, where appropriate, traditional pedagogies into the education process with a view to preserving and making full use of culturally appropriate methods of communication and transmission of knowledge.

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9. Encouraging “digital literacy” and ensuring greater mastery of the new information and communication technologies, which should be seen both as educational discipline and as pedagogical tools capable of enhancing the effectiveness of educational services. 10. Promoting linguistic diversity in cyberspace and encouraging universal access through the global network to all information in the public domain. 11. Countering the digital divide, in close cooperation in relevant United Nations system organizations, by fostering access by the developing countries to the new technologies, by helping them to master information technologies and by facilitating the digital dissemination of endogenous cultural products and access by those countries to the educational, cultural and scientic digital resources available worldwide. 12. Encouraging the production, safeguarding and dissemination of diversied contents in the media and global information networks and, to that end, promoting the role of public radio and television services in the development of audiovisual productions of good quality, in particular by fostering the establishment of cooperative mechanisms to facilitate their distribution. 13. Formulating policies and strategies for the preservation and enhancement of the cultural and natural heritage, notably the oral and intangible cultural heritage, and combating illicit trafc in cultural goods and services. 14. Respecting and protecting traditional knowledge, in particular that of indigenous peoples; recognizing the contribution of traditional knowledge, particularly with regard to environmental protection and the management of natural resources, and fostering synergies between modern science and local knowledge. 15. Fostering the mobility of creators, artists, researchers, scientists and intellectuals and the development of international research programmes and partnerships, while striving to preserve and enhance the creative capacity of developing countries and countries in transition. 16. Ensuring protection of copyright and related rights in the interest of the development of contemporary creativity and fair remuneration for creative work, while at the same time upholding a public right of access to culture, in accordance with Article 27 of the Universal Declaration of Human Rights. 17. Assisting in the emergence or consolidation of cultural industries

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in the developing countries and countries in transition and, to this end, cooperating in the development of the necessary infrastructures and skills, fostering the emergence of viable local markets, and facilitating access for the cultural products of those countries to the global market and international distribution networks. 18. Developing cultural policies, including operational support arrangements and/or appropriate regulatory frameworks, designed to promote the principles enshrined in this Declaration, in accordance with the international obligations incumbent upon each State. 19. Involving civil society closely in framing of public policies aimed at safeguarding and promoting cultural diversity. 20. Recognizing and encouraging the contribution that the private sector can make to enhancing cultural diversity and facilitating to that end the establishment of forums for dialogue between the public sector and the private sector. The Member States recommend that the Director-General take the objectives set forth in this Action Plan into account in the implementation of UNESCO’s programmes and communicate the latter to institutions of the United Nations system and to other intergovernmental and non-governmental organizations concerned with a view to enhancing the synergy of actions in favour of cultural diversity. *

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APPENDIX TWO

THE LIMBURG PRINCIPLES ON THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND THE MAASTRICHT GUIDELINES ON VIOLATIONS OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS1

Part I. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights The Nature and Scope of States Parties’ Obligations A. General Observations 1. Economic, social and cultural rights are an integral part of international human rights law. They are the subject of specic treaty obligations in various international instruments, notably the International Covenant on Economic, Social and Cultural Rights.

1 Excerpt from E/C.12/2000/13. A group of distinguished experts in international law, convened by the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, United States of America), met in Maastricht from 2 to 6 June 1986 to consider the nature and scope of the obligations of States parties to the International Covenant on Economic, Social and Cultural Rights, the consideration of States parties’ reports by the newly constituted Committee on Economic, Social and Cultural Rights, and international cooperation under Part IV of the Covenant. The 29 participants came from Australia, the Federal Republic of Germany, Hungary, Ireland, Mexico, the Netherlands, Norway, Senegal, Spain, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Yugoslavia, the United Nations Centre for Human Rights, the International Labour Organization (ILO), the United Nations Educational, Scientic and Cultural Organization (UNESCO), the World Health Organization (WHO), the Commonwealth Secretariat and the sponsoring organizations. Four of the participants were members of the Committee on Economic, Social and Cultural Rights. The participants agreed unanimously upon a set of principles, which they believe reect the present state of international law, with the exception of certain recommendations indicated by the use of “should” instead of “shall”.

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2. The International Covenant on Economic, Social and Cultural Rights, together with the International Covenant on Civil and Political Rights and the Optional Protocol, entered into force in 1976. The Covenants serve to elaborate the Universal Declaration of Human Rights: these instruments constitute the International Bill of Human Rights. 3. As human rights and fundamental freedoms are indivisible and interdependent, equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights. 4. The International Covenant on Economic, Social and Cultural Rights (hereafter the Covenant) should, in accordance with the Vienna Convention on the Law of Treaties (Vienna 1969), be interpreted in good faith, taking into account the object and purpose, the ordinary meaning, the preparatory work and the relevant practice. 5. The experience of the relevant specialized agencies as well as of United Nations bodies and intergovernmental organizations, including the United Nations working groups and special rapporteurs in the eld of human rights, should be taken into account in the implementation of the Covenant and in monitoring States parties’ achievements. 6. The achievement of economic, social and cultural rights may be realized in a variety of political settings. There is no single road to their full realization. Successes and failures have been registered in both market and non-market economies, in both centralized and decentralized political structures. 7. States parties must at all times act in good faith to full the obligations they have accepted under the Covenant. 8. Although the full realization of the rights recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time. 9. Non-governmental organizations can play an important role in promoting the implementation of the Covenant. This role should accordingly be facilitated at the national as well as the international level. 10. States parties are accountable both to the international community and to their own people for their compliance with the obligations under the Covenant.

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11. A concerted national effort to invoke the full participation of all sectors of society is, therefore, indispensable to achieving progress in realizing economic, social and cultural rights. Popular participation is required at all stages, including the formulation, application and review of national policies. 12. The supervision of compliance with the Covenant should be approached in a spirit of cooperation and dialogue. To this end, in considering the reports of States parties, the Committee on Economic, Social and Cultural Rights, hereinafter called “the Committee”, should analyse the causes and factors impeding the realization of the rights covered under the Covenant and, where possible, indicate solutions. This approach should not preclude a nding, where the information available warrants such a conclusion, that a State party has failed to comply with its obligations under the Covenant. 13. All organs monitoring the Covenant should pay special attention to the principles of non-discrimination and equality before the law when assessing States parties’ compliance with the Covenant. 14. Given the signicance for development of the progressive realization of the rights set forth in the Covenant, particular attention should be given to measures to improve the standard of living of the poor and other disadvantaged groups, taking into account that special measures may be required to protect cultural rights of indigenous peoples and minorities. 15. Trends in international economic relations should be taken into account in assessing the efforts of the international community to achieve the Covenant’s objectives. B. Interpretative Principles Specically Relating to Part II of the Covenant Article 2.1: “to take steps . . . by all appropriate means, including particularly the adoption of legislation” 16. All States parties have an obligation to begin immediately to take steps towards full realization of the rights contained in the Covenant. 17. At the national level States parties shall use all appropriate means, including legislative, administrative, judicial, economic, social and educational measures, consistent with the nature of the rights in order to full their obligations under the Covenant.

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18. Legislative measures alone are not sufcient to full the obligations of the Covenant. It should be noted, however, that article 2.1 would often require legislative action to be taken in cases where existing legislation is in violation of the obligations assumed under the Covenant. 19. States parties shall provide for effective remedies including, where appropriate, judicial remedies. 20. The appropriateness of the means to be applied in a particular State shall be determined by that State party, and shall be subject to review by the United Nations Economic and Social Council, with the assistance of the Committee. Such review shall be without prejudice to the competence of the other organs established pursuant to the Charter of the United Nations. “to achieve progressively the full realization of the rights” 21. The obligation “to achieve progressively the full realization of the rights” requires States parties to move as expeditiously as possible towards the realization of the rights. Under no circumstances shall this be interpreted as implying for States the right to deter indenitely efforts to ensure full realization. On the contrary all States parties have the obligation to begin immediately to take steps to full their obligations under the Covenant. 22. Some obligations under the Covenant require immediate implementation in full by all States parties, such as the prohibition of discrimination in article 2.2 of the Covenant. 23. The obligation of progressive achievement exists independently of the increase in resources; it requires effective use of resources available. 24. Progressive implementation can be effected not only by increasing resources, but also by the development of societal resources necessary for the realization by every one of the rights recognized in the Covenant. “to the maximum of its available resources” 25. States parties are obligated, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all. 26. “Its available resources” refers to both the resources within a State and those available from the international community through international cooperation and assistance.

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27. In determining whether adequate measures have been taken for the realization of the rights recognized in the Covenant, attention shall be paid to equitable and effective use of and access to the available resources. 28. In the use of the available resources due priority shall be given to the realization of rights recognized in the Covenant, mindful of the need to assure to everyone the satisfaction of subsistence requirements as well as the provision of essential services. “individually and through international assistance and co-operation especially economic and technical” 29. International cooperation and assistance pursuant to the Charter of the United Nations (arts. 55 and 56) and the Covenant shall have in view as a matter of priority the realization of all human rights and fundamental freedoms, economic, social and cultural as well as civil and political. 30. International cooperation and assistance must be directed towards the establishment of a social and international order in which the rights and freedoms set forth in the Covenant can be fully realized (cf. article 28 of the Universal Declaration of Human Rights). 31. Irrespective of differences in their political, economic and social systems, States shall cooperate with one another to promote international social, economic and cultural progress, in particular the economic growth of developing countries, free from discrimination based on such differences. 32. States parties shall take steps by international means to assist and cooperate in the realization of the rights recognized by the Covenant. 33. International cooperation and assistance shall be based on the sovereign equality of States and be aimed at the realization of the rights contained in the Covenant. 34. In undertaking international cooperation and assistance pursuant to article 2.1 the role of international organizations and the contribution of non-governmental organizations shall be kept in mind. Article 2.2: Non-discrimination 35. Article 2.2 calls for immediate application and involves an explicit guarantee on behalf of the States parties. It should, therefore, be made subject to judicial review and other recourse procedures.

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36. The grounds of discrimination mentioned in article 2.2 are not exhaustive. 37. Upon becoming a party to the Covenant, States shall eliminate de jure discrimination by abolishing without delay any discriminatory laws, regulations and practices (including acts of omission as well as commission) affecting the enjoyment of economic, social and cultural rights. 38. De facto discrimination occurring as a result of the unequal enjoyment of economic, social and cultural rights, on account of a lack of resources or otherwise, should be brought to an end as speedily as possible. 39. Special measures taken for the sole purpose of securing adequate advancement of certain groups or individuals requiring such protection as may be necessary in order to ensure to such groups or individuals equal enjoyment of economic, social and cultural rights shall not be deemed discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different groups and that such measures shall not be continued after their intended objectives have been achieved. 40. Article 2.2 demands from States parties that they prohibit private persons and bodies from practising discrimination in any eld of public life. 41. In the application of article 2.2 due regard should be paid to all relevant international instruments, including the Declaration and Convention on the Elimination of all Forms of Racial Discrimination, as well as to the activities of the supervisory committee (CERD) under the said Convention. Article 2.3: Non-nationals in developing countries 42. As a general rule the Covenant applies equally to nationals and non-nationals. 43. The purpose of article 2.3 was to end the domination of certain economic groups of non-nationals during colonial times. In the light of this the exception in article 2.3 should be interpreted narrowly. 44. This narrow interpretation of article 2.3 refers in particular to the notion of economic rights and to the notion of developing countries. The latter notion refers to those countries which have gained independence and which fall within the appropriate United Nations classications of developing countries.

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Article 3: Equal rights for men and women 45. In the application of article 3 due regard should be paid to the Declaration and Convention on the Elimination of All Forms of Discrimination against Women and other relevant instruments and the activities of the supervisory committee (CEDAW) under the said Convention. Article 4: Limitations 46. Article 4 was primarily intended to be protective of the rights of individuals rather than permissive of the imposition of limitations by the State. 47. The article was not meant to introduce limitations on rights affecting the subsistence or survival of the individual or integrity of the person. “determined by law”2 48. No limitation on the exercise of economic, social and cultural rights shall be made unless provided for by national law of general application which is consistent with the Covenant and is in force at the time the limitation is applied. 49. Laws imposing limitations on the exercise of economic, social and cultural rights shall not be arbitrary or unreasonable or discriminatory. 50. Legal rules limiting the exercise of economic, social and cultural rights shall be clear and accessible to everyone. 51. Adequate safeguards and effective remedies shall be provided by law against illegal or abusive imposition on application of limitations on economic, social and cultural rights. “promoting the general welfare” 52. This term shall be construed to mean furthering the well-being of the people as a whole.

2 The Limburg Principles 48–51 are derived from the Syracuse Principles 15–18, United Nations document E/CN.4/1984/4 of 28 September 1984 and Human Rights Quarterly, vol. 7, 1985, p. 5.

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53. The expression “in a democratic society” shall be interpreted as imposing a further restriction on the application of limitations. 54. The burden is upon a State imposing limitations to demonstrate that the limitations do not impair the democratic functioning of the society. 55. While there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the Charter of the United Nations and the Universal Declaration of Human Rights may be viewed as meeting this denition. “compatible with the nature of these rights” 56. The restriction “compatible with the nature of these rights” requires that a limitation shall not be interpreted or applied so as to jeopardize the essence of the right concerned. Article 5 57. Article 5.1 underlines the fact that there is no general, implied or residual right for a State to impose limitations beyond those which are specically provided for in the law. None of the provisions in the law may be interpreted in such a way as to destroy “any of the rights or freedoms recognized”. In addition article 5 is intended to ensure that nothing in the Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources. 58. The purpose of article 5.2 is to ensure that no provision in the Covenant shall be interpreted to prejudice the provisions of domestic law or any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected. Neither shall article 5.2 be interpreted to restrict the exercise of any human right protected to a greater extent by national or international obligations accepted by the State party.

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Compare Syracuse Principles 19–21, idem.

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C. Interpretative Principles Specically Relating to Part III of the Covenant Article 8: “prescribed by law”4 59. See the interpretative principles under the synonymous term “determined by law” in article 4. “necessary in a democratic society” 60. In addition to the interpretative principles listed under article 4 concerning the phrase “in a democratic society”, article 8 imposes a greater restraint upon a State party which is exercising limitations on trade union rights. It requires that such a limitation is indeed necessary. The term “necessary” implies that the limitation: (a) Responds to a pressing public or social need; (b) Pursues a legitimate aim; and (c) Is proportional to that aim. 61. Any assessment as to the necessity of a limitation shall be based upon objective considerations. “national security” 62. National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force. 63. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order. 64. National security cannot be used as a pretext for imposing vague or arbitrary limitations and may be invoked only when there exist adequate safeguards and effective remedies against abuse. 65. The systematic violation of economic, social and cultural rights undermines true national security and may jeopardize international peace and security. A State responsible for such violation shall not invoke national security as a justication for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population. 4 The Limburg Principles 59–69 are derived from the Syracuse Principles 10, 15–26, 29–32 and 35–37, ibid., pp. 4–7.

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66. The expression “public order (ordre public)” as used in the Covenant may be dened as the sum of rules which ensures the functioning of society or the set of fundamental principles on which a society is founded. Respect for economic, social and cultural rights is part of public order (ordre public). 67. Public order (ordre public) shall be interpreted in the context of the purpose of the particular economic, social and cultural rights which are limited on this ground. 68. State organs or agents responsible for the maintenance of public order (ordre public) shall be subject to controls in the exercise of their power through the parliament, courts, or other competent independent bodies. “rights and freedoms of others” 69. The scope of the rights and freedoms of others that may act as a limitation upon rights in the Covenant extends beyond the rights and freedoms recognized in the Covenant. D. Violations of Economic, Social and Cultural Rights 70. A failure by a State party to comply with an obligation contained in the Covenant is, under international law, a violation of the Covenant. 71. In determining what amounts to a failure to comply, it must be borne in mind that the Covenant affords to a State party a margin of discretion in selecting the means for carrying out its objects, and that factors beyond its reasonable control may adversely affect its capacity to implement particular rights. 72. A State party will be in violation of the Covenant, inter alia, if: It fails to take a step which it is required to take by the Covenant; It fails to remove promptly obstacles which it is under a duty to remove to permit the immediate fullment of a right; It fails to implement without delay a right which it is required by the Covenant to provide immediately; It wilfully fails to meet a generally accepted international minimum standard of achievement, which is within its powers to meet;

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It applies a limitation to a right recognized in the Covenant other than in accordance with the Covenant; It deliberately retards or halts the progressive realization of a right, unless it is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure; It fails to submit reports as required under the Covenant. 73. In accordance with international law each State party to the Covenant has the right to express the view that another State party is not complying with its obligations under the Covenant and to bring this to the attention of that State party. Any dispute that may thus arise shall be settled in accordance with the relevant rules of international law relating to the peaceful settlement of disputes.

Part II. Consideration of States Parties’ Reports and International Cooperation Under Part IV of the Covenant A. Preparation and Submission of Reports by States Parties 74. The effectiveness of the supervisory machinery provided in Part IV of the Covenant depends largely upon the quality and timeliness of reports by States parties. Governments are therefore urged to make their reports as meaningful as possible. For this purpose they should develop adequate internal procedures for consultations with the competent government departments and agencies, compilation of relevant data, training of staff, acquisition of background documentation, and consultation with relevant non-governmental and international institutions. 75. The preparation of reports under article 16 of the Covenant could be facilitated by the implementation of elements of the programme of advisory services and technical assistance as proposed by the chairmen of the main human rights supervisory organs in their 1984 report to the General Assembly (A/39/484). 76. States parties should view their reporting obligations as an opportunity for broad public discussion on goals and policies designed to realize economic, social and cultural rights. For this purpose wide publicity should be given to the reports, if possible in draft. The preparation of reports should also be an occasion to review the extent to which relevant national policies adequately reect

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78.

79.

80.

81.

82.

appendix two the scope and content of each right, and to specify the means by which it is to be realized. States parties are encouraged to examine the possibility of involving non-governmental organizations in the preparation of their reports. In reporting on legal steps taken to give effect to the Covenant, States parties should not merely describe any relevant legislative provisions. They should specify, as appropriate, the judicial remedies, administrative procedures and other measures they have adopted for enforcing those rights and the practice under those remedies and procedures. Quantitative information should be included in the reports of States parties in order to indicate the extent to which the rights are protected in fact. Statistical information and information on budgetary allocations and expenditures should be presented in such a way as to facilitate the assessment of the compliance with Covenant obligations. States parties should, where possible, adopt clearly dened targets and indicators in implementing the Covenant. Such targets and indicators should, as appropriate, be based on criteria established through international cooperation in order to increase the relevance and comparability of data submitted by States parties in their reports. Where necessary, Governments should conduct or commission studies to enable them to ll gaps in information regarding progress made and difculties encountered in achieving the observance of the Covenant rights. Reports by States parties should indicate the areas where more progress could be achieved through international cooperation and suggest economic and technical cooperation programmes that might be helpful toward that end. In order to ensure a meaningful dialogue between the States parties and the organs assessing their compliance with the provisions of the Covenant, States parties should designate representatives who are fully familiar with the issues raised in the report.

B. Role of the Committee on Economic, Social and Cultural Rights 83. The Committee has been entrusted with assisting the Economic and Social Council in the substantive tasks assigned to it by the Covenant. In particular, its role is to consider States parties’ reports

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and to make suggestions and recommendations of a general nature, including suggestions and recommendations as to fuller compliance with the Covenant by States parties. The decision of the Economic and Social Council to replace its sessional working group by a committee of independent experts should lead to a more effective supervision of implementation by States parties. In order to enable it to discharge fully its responsibilities the Economic and Social Council should ensure that sufcient sessions are provided to the Committee. It is imperative that the necessary staff and facilities for the effective performance of the Committee’s functions be provided, in accordance with Economic and Social Council resolution 1985/17. In order to address the complexity of the substantive issues covered by the Covenant, the Committee might consider delegating certain tasks to its members. For example, drafting groups could be established to prepare preliminary formulations or recommendations of a general nature or summaries of the information received. Rapporteurs could be appointed to assist the work of the Committee, in particular to prepare reports on specic topics and for that purpose consult States parties, specialized agencies and relevant experts, and to draw up proposals regarding economic and technical assistance projects that could help overcome difculties States parties have encountered in fullling their Covenant obligations. The Committee should, pursuant to articles 22 and 23 of the Covenant, explore with other organs of the United Nations, specialized agencies and other concerned organizations the possibilities of taking additional international measures likely to contribute to the progressive implementation of the Covenant. The Committee should reconsider the current six-year cycle of reporting in view of the delays which have led to simultaneous consideration of reports submitted under different phases of the cycle. The Committee should also review the guidelines for States parties to assist them in preparing reports and propose any necessary modications. The Committee should consider inviting States parties to comment on selected topics, leading to a direct and sustained dialogue with the Committee. The Committee should devote adequate attention to the methodological issues involved in assessing compliance with the obligations contained in the Covenant. Reference to indicators, insofar as they

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may help measure progress made in the achievement of certain rights, may be useful in evaluating reports submitted under the Covenant. The Committee should take due account of the indicators selected by or in the framework of the specialized agencies and draw upon or promote additional research, in consultation with the specialized agencies concerned, where gaps have been identied. 90. Whenever the Committee is not satised that the information provided by a State party is adequate for a meaningful assessment of progress achieved and difculties encountered, it should request supplementary information, specifying as necessary the precise issues or questions it would like the State party to address. 91. In preparing its reports under Economic and Social Council resolution 1985/17, the Committee should consider, in addition to the “summary of its consideration of the reports”, highlighting thematic issues raised during its deliberations. C. Relations between the Committee and Specialized Agencies and other International Organs 92. The establishment of the Committee should be seen as an opportunity to develop a positive and mutually benecial relationship between the Committee and the specialized agencies and other international organs. 93. New arrangements under article 18 of the Covenant should be considered where they could enhance the contribution of the specialized agencies to the work of the Committee. Given that the working methods with regard to the implementation of economic, social and cultural rights vary from one specialized agency to another, exibility is appropriate in making such arrangements under article 18. 94. It is essential for the proper supervision of the implementation of the Covenant under Part IV that a dialogue be developed between the specialized agencies and the Committee with respect to matters of common interest. In particular, consultations should address the need for developing indicators for assessing compliance with the Covenant; drafting guidelines for the submission of reports by States parties; making arrangements for submission of reports by the specialized agencies under article 18. Consideration should also be given to any relevant procedures adopted in the agencies. Participation of their representatives in meetings of the Committee would be very valuable.

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95. It would be useful if Committee members could visit specialized agencies concerned, learn through personal contact about programmes of the agencies relevant to the realization of the rights contained in the Covenant and discuss the possible areas of collaboration with those agencies. 96. Consultations should be initiated between the Committee and international nancial institutions and development agencies to exchange information and share ideas on the distribution of available resources in relation to the realization of the rights recognized in the Covenant. These exchanges should consider the impact of international economic assistance on efforts by States parties to implement the Covenant and possibilities of technical and economic cooperation under article 22 of the Covenant. 97. The Commission on Human Rights, in addition to its responsibilities under article 19 of the Covenant, should take into account the work of the Committee in its consideration of items on its agenda relating to economic, social and cultural rights. 98. The Covenant on Economic, Social and Cultural Rights is related to the Covenant on Civil and Political Rights. Although most rights can clearly be delineated as falling within the framework of one or other Covenant, there are several rights and provisions referred to in both instruments which are not susceptible to clear differentiation. Both Covenants, moreover, share common provisions and articles. It is important that consultative arrangements be established between the Committee on Economic, Social and Cultural Rights and the Human Rights Committee. 99. Given the relevance of other international legal instruments to the Covenant, early consideration should be given by the Economic and Social Council to the need for developing effective consultative arrangements between the various supervisory bodies. 100. International and regional intergovernmental organizations concerned with the realization of economic, social and cultural rights are urged to develop measures, as appropriate, to promote the implementation of the Covenant. 101. As the Committee is a subsidiary organ of the Economic and Social Council, non-governmental organizations enjoying consultative status with the Economic and Social Council are urged to attend and follow the meetings of the Committee and, when appropriate, to submit information in accordance with Economic and Social Council resolution 1296 (XLIV).

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102. The Committee should develop, in cooperation with intergovernmental organizations and non-governmental organizations, as well as research institutes, an agreed system for recording, storing and making accessible case law and other interpretative material relating to international instruments on economic, social and cultural rights. 103. As one of the measures recommended in article 23 it is recommended that seminars be held periodically to review the work of the Committee and the progress made in the realization of economic, social and cultural rights by States parties.

THE MAASTRICHT GUIDELINES ON VIOLATIONS OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS1

I. The Signicance of Economic, Social and Cultural Rights 1. Since the Limburg Principles were adopted in 1986, the economic and social conditions have declined at alarming rates for over 1.6 billion people, while they have advanced also at a dramatic pace for more than a quarter of the world’s population.2 The gap between rich and poor has doubled in the last three decades, with the poorest fth of the world’s population receiving 1.4 per cent of the global income and the richest fth 85 per cent. The impact of these disparities on the lives of people—especially the poor—is dramatic and renders the enjoyment of economic, social and cultural rights illusory for a signicant portion of humanity. 2. Since the end of the Cold War, there has been a trend in all regions of the world to reduce the role of the State and to rely on the market to resolve problems of human welfare, often in response to conditions generated by international and national nancial markets and institutions and in an effort to attract investments from the multinational enterprises whose wealth and power exceed that of many States. It is no longer taken for granted that the realization of economic, social and cultural rights depends signicantly on action

1 On the occasion of the tenth anniversary of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (hereinafter “the Limburg Principles”), a group of more than 30 experts met in Maastricht from 22 to 26 January 1997 at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, United States of America) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands). The objective of this meeting was to elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies. The participants unanimously agreed on the following guidelines which they understand to reect the evolution of international law since 1986. These guidelines are designed to be of use to all who are concerned with understanding and determining violations of economic, social and cultural rights and in providing remedies thereto, in particular monitoring and adjudicating bodies at the national, regional and international levels. 2 UNDP, Human Development Report 1996, para. 29.

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by the State, although, as a matter of international law, the State remains ultimately responsible for guaranteeing the realization of these rights. While the challenge of addressing violations of economic, social and cultural rights is rendered more complicated by these trends, it is more urgent than ever to take these rights seriously and, therefore, to deal with the accountability of Governments for failure to meet their obligations in this area. 3. There have also been signicant legal developments enhancing economic, social and cultural rights since 1986, including the emerging jurisprudence of the Committee on Economic, Social and Cultural Rights and the adoption of instruments, such as the revised European Social Charter of 1996 and the Additional Protocol to the European Charter providing for a System of Collective Complaints, and the San Salvador Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988. Governments have made rm commitments to address more effectively economic, social and cultural rights within the framework of seven United Nations world summit conferences (1992–1996). Moreover, the potential exists for improved accountability for violations of economic, social and cultural rights through the proposed optional protocols to the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women. Signicant developments within national civil society movements and regional and international NGOs in the eld of economic, social and cultural rights have taken place. 4. It is now undisputed that all human rights are indivisible, interdependent, interrelated and of equal importance for human dignity. Therefore, States are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights. 5. As in the case of civil and political rights, the failure by a State party to comply with a treaty obligation concerning economic, social and cultural rights is, under international law, a violation of that treaty. Building upon the Limburg Principles,3 the considerations below relate primarily to the International Covenant on Economic, Social and Cultural Rights (hereinafter “the Covenant”). They are equally

3

See above. The relevant Limburg Principles are: 70, 71, 72, 73.

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relevant, however, to the interpretation and application of other norms of international and domestic law in the eld of economic, social and cultural rights.

II. The Meaning of Violations of Economic, Social and Cultural Rights Obligations to Respect, Protect and Full 6. Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect, protect and full. Failure to perform any one of these three obligations constitutes a violation of such rights. The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus, the right to housing is violated if the State engages in arbitrary forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. The obligation to full requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Thus, the failure of States to provide essential primary health care to those in need may amount to a violation. Obligations of Conduct and of Result 7. The obligations to respect, protect and full each contain elements of obligation of conduct and obligation of result. The obligation of conduct requires action reasonably calculated to realize the enjoyment of a particular right. In the case of the right to health, for example, the obligation of conduct could involve the adoption and implementation of a plan of action to reduce maternal mortality. The obligation of result requires States to achieve specic targets to satisfy a detailed substantive standard. With respect to the right to health, for example, the obligation of result requires the reduction of maternal mortality to levels agreed at the 1994 Cairo International Conference on Population and Development and the 1995 Beijing Fourth World Conference on Women.

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Margin of Discretion 8. As in the case of civil and political rights, States enjoy a margin of discretion in selecting the means for implementing their respective obligations. State practice and the application of legal norms to concrete cases and situations by international treaty monitoring bodies as well as by domestic courts have contributed to the development of universal minimum standards and the common understanding of the scope, nature and limitation of economic, social and cultural rights. The fact that the full realization of most economic, social and cultural rights can only be achieved progressively, which in fact also applies to most civil and political rights, does not alter the nature of the legal obligation of States which requires that certain steps be taken immediately and others as soon as possible. Therefore, the burden is on the State to demonstrate that it is making measurable progress toward the full realization of the rights in question. The State cannot use the “progressive realization” provisions in article 2 of the Covenant as a pretext for non-compliance. Nor can the State justify derogations or limitations of rights recognized in the Covenant because of different social, religious and cultural backgrounds. Minimum Core Obligations 9. Violations of the Covenant occur when a State fails to satisfy what the Committee on Economic, Social and Cultural Rights has referred to as “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights . . . Thus, for example, a State party in which any signicant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, violating the Covenant”.4 Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors and difculties.

4 See Committee on Economic, Social and Cultural Rights, General Comment No. 3 (Fifth session, 1990) (E/1991/23, annex III, para. 10).

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Availability of Resources 10. In many cases, compliance with such obligations may be undertaken by most States with relative ease, and without signicant resource implications. In other cases, however, full realization of the rights may depend upon the availability of adequate nancial and material resources. Nonetheless, as established by Limburg Principles 25–28, and conrmed by the developing jurisprudence of the Committee on Economic, Social and Cultural Rights, resource scarcity does not relieve States of certain minimum obligations in respect of the implementation of economic, social and cultural rights. State Policies 11. A violation of economic, social and cultural rights occurs when a State pursues, by action or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant, or fails to achieve the required standard of conduct or result. Furthermore, any discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant. Gender Discrimination 12. Discrimination against women in relation to the rights recognized in the Covenant, is understood in the light of the standard of equality for women under the Convention on the Elimination of All Forms of Discrimination against Women. That standard requires the elimination of all forms of discrimination against women including gender discrimination arising out of social, cultural and other structural disadvantages. Inability to Comply 13. In determining which actions or omissions amount to a violation of an economic, social or cultural right, it is important to distinguish

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appendix two the inability from the unwillingness of a State to comply with its treaty obligations. A State claiming that it is unable to carry out its obligations for reasons beyond its control has the burden of proving that this is the case. A temporary closure of an educational institution due to an earthquake, for instance, would be a circumstance beyond the control of the State, while the elimination of a social security scheme without an adequate replacement programme could be an example of unwillingness by the State to full its obligations.

Violations through Acts of Commission 14. Violations of economic, social and cultural rights can occur through the direct action of States or other entities insufciently regulated by States. Examples of such violations include: (a) The formal removal or suspension of legislation necessary for the continued enjoyment of an economic, social and cultural right that is currently enjoyed; (b) The active denial of such rights to particular individuals or groups, whether through legislated or enforced discrimination; (c) The active support for measures adopted by third parties which are inconsistent with economic, social and cultural rights; (d) The adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realization of economic, social and cultural rights for the most vulnerable groups; (e) The adoption of any deliberately retrogressive measure that reduces the extent to which any such right is guaranteed; (f ) The calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant, unless the State is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure; (g) The reduction or diversion of specic public expenditure, when such reduction or diversion results in the non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for everyone.

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Violations through Acts of Omission 15. Violations of economic, social and cultural rights can also occur through the omission or failure of States to take necessary measures stemming from legal obligations. Examples of such violations include: (a) The failure to take appropriate steps as required under the Covenant; (b) The failure to reform or repeal legislation which is manifestly inconsistent with an obligation of the Covenant; (c) The failure to enforce legislation or put into effect policies designed to implement provisions of the Covenant; (d) The failure to regulate activities of individuals or groups so as to prevent them from violating economic, social and cultural rights; (e) The failure to utilize the maximum of available resources towards the full realization of the Covenant; (f ) The failure to monitor the realization of economic, social and cultural rights, including the development and application of criteria and indicators for assessing compliance; (g) The failure to remove promptly obstacles which it is under a duty to remove to permit the immediate fullment of a right guaranteed by the Covenant; (h) The failure to implement without delay a right which it is required by the Covenant to provide immediately; (i) The failure to meet a generally accepted international minimum standard of achievement, which is within its powers to meet; ( j) The failure of a State to take into account its international legal obligations in the eld of economic, social and cultural rights when entering into bilateral or multilateral agreements with other States, international organizations or multinational corporations.

III. Responsibility for Violations State Responsibility 16. The violations referred to in section II are in principle imputable to the State within whose jurisdiction they occur. As a consequence,

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Alien Domination or Occupation 17. Under circumstances of alien domination, deprivations of economic, social and cultural rights may be imputable to the conduct of the State exercising effective control over the territory in question. This is true under conditions of colonialism, other forms of alien domination and military occupation. The dominating or occupying power bears responsibility for violations of economic, social and cultural rights. There are also circumstances in which States acting in concert violate economic, social and cultural rights. Acts by Non-State Entities 18. The obligation to protect includes the State’s responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behaviour of such non-State actors. Acts by International Organizations 19. The obligations of States to protect economic, social and cultural rights extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their inuence to ensure that violations do not result from the programmes and policies of the organizations of which they are members. It is crucial for the elimination of violations of economic, social and cultural rights for international organizations, including international nancial institutions, to correct their policies and practices so that they do not result in deprivation of economic, social and cultural rights. Member States of such organizations, individually or through the governing bodies, as well as the secretariat and non-governmental organizations, should encourage and

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generalize the trend of several such organizations to revise their policies and programmes to take into account issues of economic, social and cultural rights, especially when these policies and programmes are implemented in countries that lack the resources to resist the pressure brought by international institutions on their decision-making affecting economic, social and cultural rights.

IV. Victims of Violations Individuals and Groups 20. As is the case with civil and political rights, both individuals and groups can be victims of violations of economic, social and cultural rights. Certain groups suffer disproportionate harm in this respect, such as lower-income groups, women, indigenous and tribal peoples, occupied populations, asylum seekers, refugees and internally displaced persons, minorities, the elderly, children, landless peasants, persons with disabilities and the homeless. Criminal Sanctions 21. Victims of violations of economic, social and cultural rights should not face criminal sanctions purely because of their status as victims, for example, through laws criminalizing persons for being homeless. Nor should anyone be penalized for claiming their economic, social and cultural rights.

V. Remedies and other Responses to Violations Access to Remedies 22. Any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both national and international levels.

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Adequate Reparation 23. All victims of violations of economic, social and cultural rights are entitled to adequate reparation, which may take the form of restitution, compensation, rehabilitation and satisfaction or guarantees of non-repetition. No Ofcial Sanctioning of Violations 24. National judicial and other organs must ensure that any pronouncements they may make do not result in the ofcial sanctioning of a violation of an international obligation of the State concerned. At a minimum, national judiciaries should consider the relevant provisions of international and regional human rights law as an interpretative aide in formulating any decisions relating to violations of economic, social and cultural rights. National Institutions 25. Promotional and monitoring bodies such as national ombudsman institutions and human rights commissions, should address violations of economic, social and cultural rights as vigorously as they address violations of civil and political rights. Domestic Application of International Instruments 26. The direct incorporation or application of international instruments recognizing economic, social and cultural rights within the domestic legal order can signicantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases. Impunity 27. States should develop effective measures to preclude the possibility of impunity of any violation of economic, social and cultural rights and to ensure that no person who may be responsible for violations of such rights has immunity from liability for their actions.

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Role of the Legal Professions 28. In order to achieve effective judicial and other remedies for victims of violations of economic, social and cultural rights, lawyers, judges, adjudicators, bar associations and the legal community generally should pay far greater attention to these violations in the exercise of their professions, as recommended by the International Commission of Jurists in the Bangalore Declaration and Plan of Action of 1995.5 Special Rapporteurs 29. In order to further strengthen international mechanisms with respect to preventing, early warning, monitoring and redressing violations of economic, social and cultural rights, the United Nations Commission on Human Rights should appoint thematic special rapporteurs in this eld. New Standards 30. In order to further clarify the contents of States’ obligations to respect, protect and full economic, social and cultural rights, States and appropriate international bodies should actively pursue the adoption of new standards on specic economic, social and cultural rights, in particular the right to work, to food, to housing and to health. Optional Protocols 31. The optional protocol providing for individual and group complaints in relation to the rights recognized in the Covenant should be adopted and ratied without delay. The proposed optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women should ensure that equal attention is paid to violations of economic, social and cultural rights. In addition, consideration should be given to the drafting of an optional complaints procedure under the Convention on the Rights of the Child. 5

Reproduced in ICJ Review, No. 55, December 1995, pp. 219–227.

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Documenting and Monitoring 32. Documenting and monitoring violations of economic, social and cultural rights should be carried out by all relevant actors, including NGOs, national Governments and international organizations. It is indispensable that the relevant international organizations provide the support necessary for the implementation of international instruments in this eld. The mandate of the United Nations High Commissioner for Human Rights includes the promotion of economic, social and cultural rights and it is essential that effective steps be taken urgently and that adequate staff and nancial resources be devoted to this objective. Specialized agencies and other international organizations working in the economic and social spheres should also place appropriate emphasis upon economic, social and cultural rights as rights and, where they do not already do so, should contribute to efforts to respond to violations of these rights.

APPENDIX THREE

PRINCIPLES AND GUIDELINES FOR THE PROTECTION OF THE HERITAGE OF INDIGENOUS PEOPLES1

Principles 1. The effective protection of the heritage of the indigenous peoples of the world benets all humanity. Cultural diversity is essential to the adaptability and creativity of the human species as a whole. 2. To be effective, the protection of indigenous peoples’ heritage should be based broadly on the principle of self-determination, which includes the right and the duty of indigenous peoples to develop their own cultures and knowledge systems, and forms of social organization. 3. Indigenous peoples should be recognized as the primary guardians and interpreters of their cultures, arts and sciences, whether created in the past, or developed by them in the future. 4. International recognition and respect for indigenous peoples’ own customs, rules and practices for the transmission of their heritage to future generations is essential to these peoples’ enjoyment of human rights and human dignity. 5. Indigenous peoples’ ownership and custody of their heritage must continue to be collective, permanent and inalienable, as prescribed by the customs, rules and practices of each people. 6. The discovery, use and teaching of indigenous peoples’ knowledge, arts and cultures are inextricably connected with the traditional lands and territories of each people. Control over traditional territories and resources is essential to the continued transmission of indigenous peoples’ heritage to future generations, and its full protection. 7. To protect their heritage, indigenous peoples must control their own means of cultural transmission and education. This includes their right to the continued use and, wherever necessary, the restoration of their own languages and orthographies. 1 Elaborated by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Mrs. Erica-Irene Daes (E/CN.4/ Sub.2/1995/26).

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8. To protect their heritage, indigenous peoples must also exercise control over all research conducted within their territories, or which uses their people as subjects of study. 9. The free and informed consent of the traditional owners should be an essential precondition of any agreements which may be made for the recording, study, use or display of indigenous peoples’ heritage. 10. Any agreements which may be made for the recording, study, use or display of indigenous peoples’ heritage must be revocable, and ensure that the peoples concerned continue to be the primary beneciaries of commercial application.

Guidelines Denitions 11. The heritage of indigenous peoples is comprised of all objects, sites and knowledge the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory. The heritage of an indigenous people also includes objects, knowledge and literary or artistic works which may be created in the future based upon its heritage. 12. The heritage of indigenous peoples includes all moveable cultural property as dened by the relevant conventions of UNESCO; all kinds of literary and artistic works such as music, dance, song, ceremonies, symbols and designs, narratives and poetry; all kinds of scientic, agricultural, technical and ecological knowledge, including cultigens, medicines and the rational use of ora and fauna; human remains; immoveable cultural property such as sacred sites, sites of historical signicance, and burials; and documentation of indigenous peoples’ heritage on lm, photographs, videotape, or audiotape. 13. Every element of an indigenous peoples’ heritage has traditional owners, which may be the whole people, a particular family or clan, an association or society, or individuals who have been specially taught or initiated to be its custodians. The traditional owners of heritage must be determined in accordance with indigenous peoples’ own customs, laws and practices.

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Transmission of Heritage 14. Indigenous peoples’ heritage should continue to be learned by the means customarily employed by its traditional owners for teaching, and each indigenous peoples’ rules and practices for the transmission of heritage and sharing of its use should be incorporated in the national legal system. 15. In the event of a dispute over the custody or use of any element of an indigenous peoples’ heritage, judicial and administrative bodies should be guided by the advice of indigenous elders who are recognized by the indigenous communities or peoples concerned as having specic knowledge of traditional laws. 16. Governments, international organizations and private institutions should support the development of educational, research, and training centres which are controlled by indigenous communities, and strengthen these communities’ capacity to document, protect, teach, and apply all aspects of their heritage. 17. Governments, international organizations and private institutions should support the development of regional and global networks for the exchange of information and experience among indigenous peoples in the elds of science, culture, education and the arts, including support for systems of electronic information and mass communication. 18. Governments, with international cooperation, should provide the necessary nancial resources and institutional support to ensure that every indigenous child has the opportunity to achieve full uency and literacy in his/her own language, as well as an ofcial language. Recovery and Restitution of Heritage 19. Governments, with the assistance of competent international organizations, should assist indigenous peoples and communities in recovering control and possession of their moveable cultural property and other heritage. 20. In cooperation with indigenous peoples, UNESCO should establish a programme to mediate the recovery of moveable cultural property from across international borders, at the request of the traditional owners of the property concerned.

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21. Human remains and associated funeral objects must be returned to their descendants and territories in a culturally appropriate manner, as determined by the indigenous peoples concerned. Documentation may be retained, displayed or otherwise used only in such form and manner as may be agreed upon with the peoples concerned. 22. Moveable cultural property should be returned wherever possible to its traditional owners, particularly if shown to be of signicant cultural, religious or historical value to them. Moveable cultural property should only be retained by universities, museums, private institutions or individuals in accordance with the terms of a recorded agreement with the traditional owners for the sharing of the custody and interpretation of the property. 23. Under no circumstances should objects or any other elements of an indigenous peoples’ heritage be publicly displayed, except in a manner deemed appropriate by the peoples concerned. 24. In the case of objects or other elements of heritage which were removed or recorded in the past, the traditional owners of which can no longer be identied precisely, the traditional owners are presumed to be the entire people associated with the territory from which these objects were removed or recordings were made. National Programmes and Legislation 25. National laws should guarantee that indigenous peoples can obtain prompt, effective and affordable judicial or administrative action in their own languages to prevent, punish and obtain full restitution and just compensation for the acquisition, documentation or use of their heritage without proper authorization of the traditional owners. 26. National laws should deny to any person or corporation the right to obtain patent, copyright or other legal protection for any element of indigenous peoples’ heritage without adequate documentation of the free and informed consent of the traditional owners to an arrangement for the sharing of ownership, control, use and benets. 27. National laws should ensure the labelling and correct attribution of indigenous peoples’ artistic, literary and cultural works whenever they are offered for public display or sale. Attribution should be in

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29.

30.

31.

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the form of a trademark or an appellation of origin, authorized by the peoples or communities concerned. National laws for the protection of indigenous peoples’ heritage should be adopted following consultations with the peoples concerned, in particular the traditional owners and teachers of religious, sacred and spiritual knowledge, and, wherever possible, should have the informed consent of the peoples concerned. National laws should ensure that the use of traditional languages in education, arts and the mass media is respected and, to the extent possible, promoted and strengthened. Governments should provide indigenous communities with nancial and institutional support for the control of local education, through community-managed programmes, and with use of traditional pedagogy and languages. Governments should take immediate steps, in cooperation with the indigenous peoples concerned, to identify sacred and ceremonial sites, including burials, healing places, and traditional places of teaching, and to protect them from unauthorized entry or use.

Researchers and Scholarly Institutions 32. All researchers and scholarly institutions should take immediate steps to provide indigenous peoples and communities with comprehensive inventories of the cultural property, and documentation of indigenous peoples’ heritage, which they may have in their custody. 33. Researchers and scholarly institutions should return all elements of indigenous peoples’ heritage to the traditional owners upon demand, or obtain formal agreements with the traditional owners for the shared custody, use and interpretation of their heritage. 34. Researchers and scholarly institutions should decline any offers for the donation or sale of elements of indigenous peoples’ heritage, without rst contacting the peoples or communities directly concerned and ascertaining the wishes of the traditional owners. 35. Researchers and scholarly institutions must refrain from engaging in any study of previously undescribed species or cultivated varieties of plants, animals or microbes, or naturally occurring pharmaceuticals, without rst obtaining satisfactory documentation that the specimens were acquired with the consent of the traditional owners.

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36. Researchers must not publish information obtained from indigenous peoples or the results of research conducted on ora, fauna, microbes or materials discovered through the assistance of indigenous peoples, without identifying the traditional owners and obtaining their consent to publication. 37. Researchers should agree to an immediate moratorium on the Human Genome Diversity Project. Further research on the specic genotypes of indigenous peoples should be suspended unless and until broadly and publicly supported by indigenous peoples to the satisfaction of United Nations human rights bodies. 38. Researchers and scholarly institutions should make every possible effort to increase indigenous peoples’ access to all forms of medial, scientic and technical education, and participation in all research activities which may affect them or be of benet to them. 39. Professional associations of scientists, engineers and scholars, in collaboration with indigenous peoples, should sponsor seminars and disseminate publications to promote ethical conduct in conformity with these guidelines and discipline members who act in contravention. Business and Industry 40. In dealings with indigenous peoples, business and industry should respect the same guidelines as researchers and scholarly institutions. 41. Business and industry should agree to an immediate moratorium on making contracts with indigenous peoples for the rights to discover, record and use previously undescribed species or cultivated varieties plants, animals or microbes, or naturally occurring pharmaceuticals. No further contracts should be negotiated until indigenous peoples and communities themselves are capable of supervising and collaborating in the research process. 42. Business and industry should refrain from offering incentives to any individuals to claim traditional rights of ownership or leadership within an indigenous community, in violation of their trust within the community and the laws of the indigenous peoples concerned. 43. Business and industry should refrain from employing scientists or scholars to acquire and record traditional knowledge or other heritage of indigenous peoples in violation of these guidelines.

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44. Business and industry should contribute nancially and otherwise to the development of educational and research institutions controlled by indigenous peoples and communities. 45. All forms of tourism based on indigenous peoples’ heritage must be restricted to activities which have the approval of the peoples and communities concerned, and which are conducted under their supervision and control. Artists, Writers and Performers 46. Artists, writers and performers should refrain from incorporating elements derived from indigenous heritage into their works without the informed consent of the traditional owners. 47. Artists, writers and performers should support the full artistic and cultural development of indigenous peoples, and encourage public support for the development and greater recognition of indigenous artists, writers and performers. 48. Artists, writers and performers should contribute, through their individual works and professional organizations, to the greater public understanding and respect for the indigenous heritage associated with the country in which they live. Public Information and Education 49. The mass media in all countries should take effective measures to promote understanding of and respect for indigenous peoples’ heritage, in particular through special broadcasts and public-service programmes prepared in collaboration with indigenous peoples. 50. Journalists should respect the privacy of indigenous peoples, in particular concerning traditional religious, cultural and ceremonial activities, and refrain from exploiting or sensationalizing indigenous peoples’ heritage. 51. Journalists should actively assist indigenous peoples in exposing any activities, public or private, which destroy or degrade indigenous peoples’ heritage. 52. Educators should ensure that school curricula and textbooks teach understanding and respect for indigenous peoples’ heritage and history and recognize the contribution of indigenous peoples to creativity and cultural diversity.

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International Organizations 53. The Secretary-General should ensure that the task of coordinating international cooperation in this eld is entrusted to appropriate organs and specialized agencies of the United Nations, with adequate means of implementation. 54. In cooperation with indigenous peoples, the United Nations should bring these principles and guidelines to the attention of all Member States through, inter alia, international, regional and national seminars and publications, with a view to promoting the strengthening of national legislation and international conventions in this eld. 55. The United Nations should publish a comprehensive annual report, based upon information from all available sources, including indigenous peoples themselves, on the problems experienced and solutions adopted in the protection of indigenous peoples’ heritage in all countries. 56. Indigenous peoples and their representative organizations should enjoy direct access to all intergovernmental negotiations in the eld of intellectual property rights, to share their views on the measures needed to protect their heritage through international law. 57. In collaboration with indigenous peoples and Governments concerned, the United Nations should develop a condential list of sacred and ceremonial sites that require special measures for their protection and conservation, and provide nancial and technical assistance to indigenous peoples for these purposes. 58. In collaboration with indigenous peoples and Governments concerned, the United Nations should establish a trust fund with a mandate to act as a global agent for the recovery of compensation for the unconsented or inappropriate use of indigenous peoples’ heritage, and to assist indigenous peoples in developing the institutional capacity to defend their own heritage. 59. United Nations operational agencies, as well as the international nancial institutions and regional and bilateral development assistance programmes, should give priority to providing nancial and technical support to indigenous communities for capacity-building and exchanges of experience focused on local control of research and education. 60. The United Nations should consider the possibility of drafting a convention to establish international jurisdiction for the recovery of indigenous peoples’ heritage across national frontiers, before the end of the International Decade of the World’s Indigenous People.

APPENDIX FOUR

OVERVIEW OF SELECT NATIONAL CONSTITUTIONS

1. Africa Kenya is analyzed due to the fact of the existence of indigenous peoples in its territory. Tunisia has reported regularly to human rights treaty bodies, and there is adequate documentation that allows for a more complete overview of the situation. There are no references to cultural rights in either one of their Constitutions.1 In the case of Kenya there appears to be policy awareness of the need for radio broadcasts in the many indigenous and ethnic languages of the country. In the case of Tunisia, which underlines the cultural homogeneity of the population and emphasizes the promotion of Arab, North African and Islamic cultures, there is policy awareness of the need for cultural contacts with other cultures outside the country. Kenya According to a report of the Government of Kenya to the Committee on the Rights on the Child,2 Kenya has over 40 predominantly African indigenous cultural ethnic groups, each with its culture and language. These account for about 99 per cent of the population. The groups are located across 67 administrative districts, whose boundaries are largely co-terminus with ethnic boundaries. Kenyans thus display diverse cultures in terms of language and social organization. They are further divided into clans and families based on blood relationships. They maintain a variety of traditional cultural beliefs and practices. Key inuences on cultural change are patterns of migration and urbanization, education change, economic development and the growing inuence of globalization. Kenya recognizes both positive and negative effects of cultural practices on children. 1 For the Constitution of Kenya, see http://www.idlo.int/texts/leg5519.pdf. For the Constitution of Tunisia, see http://www.oefre.UNibe.ch/law/icl/ts00000_.html. 2 CRC/C/3/Add.62, para. 40.

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The Government has an extensive radio broadcasting service. There are two national services in English and Kiswahili, and a regional service, which broadcasts in 17 local languages that cover the rural areas. Although Kenya does not have special provisions on cultural rights in the Constitution, it points out in its report to the Committee on the Rights of the Child that in matters relating to personal laws, the communities have freedom to do things according to their traditions and customs, “except where these are repugnant to morality and justice”.3 Tunisia Tunisia has traditionally been responsive in its reporting obligations under the international human rights treaties and has submitted ve reports under the various instruments.4 Despite the lack of reference to cultural rights in the Constitution, the intention of the Tunisian legislator in this area appears through various legislative acts, where it is repeatedly stressed that Tunisian society is homogenous, while at the same promoting openness to international culture. The Child Protection Code, for example, states that the objective is to raise the child to be proud of his national identity and have a sense of belonging to the national, North African and Islamic cultures, while immersing himself in the culture of the brotherhood of mankind and openness to others.5 When reporting under article 30 of the Convention on the Rights of the Child, Tunisia points out in a report in 2001 that, given its cultural, linguistic and ethnic homogeneity, there is no issue of children belonging to a minority or an indigenous group. A 2002 report states that Tunisia has a profound and homogenous identity and that the preservation and consolidation of that identity form a strategic priority of its cultural policy.6 The document continues to point out that this choice does not contradict the equally important requirement of openness to other cultures, respect for differences, dialogue and exchanges with other peoples and the prohibition of all forms of cultural intolerance and chauvinism. A 1993 report indicates that as Tunisia’s population is an integrated Arab/Berber one, a Berber

3

Ibid., para. 555. CEDAW/C/TUN/3–4, CRC/C/83/Add.1. CERD/C/431/Add.4. CERD/ C/226/Add.10, E/1990/6/Add.14. 5 CEDAW/C/TUN/3–4, para. II.2.6. 6 CERD/C/431/Add.4, para. 86. 4

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problem has never existed and that, as a result of ethnic mixing, no one can claim to be exclusively Arab or exclusively Berber.7

2. Americas Despite some similarities, Guatemala and Guyana have very different histories, including in terms of involvement of the international community. The coverage of cultural rights in these countries varies as well, with Guatemala having one of the most developed legislations in this eld. Guatemala Guatemala has one of the most advanced systems of legislation regarding cultural rights. The country’s history of conict and the intense peace efforts led to the adoption of a number of agreements and laws that validate the cultural rights of the population, especially of the indigenous peoples, and underline their signicance in terms of a lasting peace. Although the new Constitution was not approved by the referendum of 16 March 1999, the legislation still in place remains a positive tool of policy, which has provided guidance for programmes, including those of international agencies, as is explained in Chapter XI below. Eight reports have been submitted by Guatemala since 1995 under the human rights treaties mentioned and they give ample information on various aspects of cultural rights.8 In 1999 the Government of Guatemala and the opposition signed the Firm and Lasting Peace Agreement, putting an end to over three decades of armed conict. The Agreement incorporates various other agreements, including the Agreement on the Identity and Rights of Indigenous Peoples, signed in March 1995. The Agreement recognized that direct participation of indigenous peoples in the solution to their own problems is fundamental and should be expanded and strengthened, as should the structures, conditions, opportunities and guarantees regarding participation of indigenous peoples. In the Agreement the Government committed itself to tackle all aspects of legal and de facto 7

CERD/C/226/Add.10, para. 29. CCPR/C/GTM/99/2, CCPR/C/81/Add.7, CEDAW/C/GUA/3–4, CRC/ C/65/Add.10, CRC/C/3/Add.33, CERD/C/292/Add.1, E/1990/6/Add.34, E/1990/5/Add.24. 8

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discrimination and undertook to recognize and respect the identity and the political, economic and cultural rights of the Maya, the Garifuna and Xinca peoples. Recognition was granted to Mayan religions as a component of their world-view, and also to the right to pass on their values. The Agreement also recognizes the importance of respecting indigenous spiritual leaders, ceremonies and sacred sites and establishes committees concerned with the granting of ofcial status to indigenous languages and with sacred sites. Access to media and information is another part of the Agreement on Identity and Rights of Indigenous Peoples, where the Government commits itself to taking steps to “create opportunities in the ofcial media for the dissemination of expressions of indigenous culture and promote a similar opening in private media”, and “to regulate and support a system of international, scientic, artistic and educational programmes on indigenous cultures in their languages, through the national radio, television and the written media”.9 Article 75 of the Children and Adolescents Code calls upon the media to disseminate, transmit, print and publish material and programmes in the Maya, Garifuna and Xinca languages.10 In October 1998, Congress amended article 66 of the Constitution relating to the “Protection of ethnic groups” to read as follows: “Identity and religious beliefs of indigenous peoples. The State recognizes, respects and protects the right to identity of the Maya, Garifuna and Xinca peoples; their ways of life, social organization, customs and traditions; the wearing of indigenous costume by men and women and their various forms of religion, language and dialect, and the right to pass these on to their descendants . . . The State also recognizes these right to practice, preserve and develop their arts, sciences and techniques, and their right of access to sacred sites, according to the modalities established by law”. Unfortunately the amendment was rejected by the population in the referendum of March 1999. The efforts made to end the political, economic and cultural exclusion and isolation of indigenous peoples have led to the abolition of laws in which discrimination was evident, particularly de facto discrimination. This is why it has been said that in Guatemala discrimination is worst when viewed from a cultural perspective.11 9 10 11

CRC/C/65/Add.10, para. 118. Ibid., para. 119. CCPR/C/GTM/99/2, para. 431.

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Educational reform was seen as playing a vitally important role in the development of intercultural relation in Guatemala, covering culturally relevant educational programmes,12 relations in bilingual and multilingual contexts, State representation through culturally relevant local administration, and regionalization based on areas of cultural and linguistic association. Measures in cultural understanding have included the establishment of a Mayan language and culture track within the country’s general curriculum for the indigenous and Latino population, which means that the population, without any discrimination, has the opportunity to study Mayan languages, just as it has the obligation to take instruction in the Spanish language.13 The Guatemalan Constitution provides in article 76 that in the schools established in predominantly indigenous areas, teaching will preferably be bilingual.14 A positive legislative framework, such as the one in Guatemala, allows the government, indigenous organizations and the international community to carry out catalytic work in the eld of cultural rights. For this reason I discuss Guatemala again, in Chapter XI, regarding the integration of cultural rights in United Nations operational activities. Guyana Guyana’s legal system, as described in reports submitted under human rights treaties, has few provisions on cultural rights, although the country’s painful political conict, with racial undertones and polarized tactics, could benet considerably from due attention to this area. Guyana’s reports under the human rights treaties pay little attention to cultural rights of the African-decent, Indian-decent, Amerindian or other groups.15 Unlike in Guatemala, no attention seems to be paid to intercultural education. In its 1995 report under the International Covenant on Economic, Social and Cultural Rights, the Government pointed out that the State honours and respects the different cultures that make up the society and seeks constantly to promote national appreciation of them at all levels. 12 In recognition of the country’s ethnic diversity, the Language Institute of Rafael Landivar University produced translated into the four Mayan languages a collection of stories for girls which emphasizes the important role of women (CEDAW/C/ GUA/3–4). 13 CERD/C/292/Add.1, para. 58. 14 http://www.georgetown.edu/pdba/Constitutions/Guate/guate85.html. 15 CCPR/C/GUY/99/2, CRC/C/8/Add.47, E/1990/5/Add.27.

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The government proclaims as national holidays dates associated with Islam, Hinduism and Christianity. The Government admits that more can be done by the media to educate the public and promote tolerance at all levels. It also points out that efforts are made to promote an awareness of indigenous culture and to preserve indigenous languages through language classes, reading groups and adult interest groups.16 The Government reported, under the Convention on the Rights of the Child, that the Children’s Festival of Art and Poetry, organized in 1999, addressed the articles of the Convention dealing with freedom of expression, freedom of thought, development of talents and the the right to participate in artistic activities.This festival took the form of two competitions, and children across the country between the ages of 4 and 18 were eligible to participate. Its theme was “Children, their rights and the environment”. A public display of the talent and creativity of these children was held later in the year with the aim of boosting the morale and self-esteem of all children. “Creative Day for the Child”, another innovative project involving the Ministry of Education and head teachers commenced in May 1999. It aimed at enriching the lives of children through their involvement in creative activities, mainly art and poetry.17

3. Asia Bangladesh Bangladesh is home to various indigenous peoples, most of them living in the Chittagong Hill Tracts (CHT). The country’s laws refer to them as tribal rather than indigenous, although the terms are used more or less interchangeably at the international level. In a 2003 report under the Convention on the Rights of the Child,18 the Government of Bangladesh recognized as one of the two root causes for the two decade-long conict in the CHT a resistance to assimilation into the majority culture on the part of the tribal peoples. The Peace Accord concluded in December 1997 includes provisions on the preservation of tribal culture and support for its expression at the 16 17 18

E/1990/5/Add.27, paras. 153, 159 and 160. CRC/C/8/Add.47, paras. 86–89. CRC/C/65/Add.22, paras. 402 to 407.

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national level. The Government report clearly recognized the connection between the preservation of land rights and tribal culture by pointing out that a number of Bangladesh’s tribal peoples have faced problems in preserving their cultural traditions as a result of loss of land due to deforestation of their natural habitat, encroachment by surrounding communities and settlement of families from other areas. Despite this statement, it is well known that the Government has in practice encouraged a policy of settlement and deforestation in the CHT. Under article 23 of its Constitution,19 the State is to take steps to conserve the traditions and heritage of the people. Although the right of citizens to participate in cultural activities is not specically mentioned in the Constitution, the Government refers to its conscious policy to encourage ethnic and religious minorities to preserve and practice their respective cultural activities.20 Philippines The 1987 Constitution of the Philippines is rather eloquent on the cultural rights of “indigenous cultural communities”.21 This includes the legislative powers of autonomous regions over the preservation and development of cultural heritage. The State is to protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social and cultural well-being. The State is to recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions and to consider these rights in the formulation of national plans and policies. In a 2002 report under the International Covenant on Civil and Political Rights, the Government stated that in the formulation and implementation of national policies and programmes, the State takes into consideration respect for indigenous peoples’ customs, traditions and beliefs—religious and otherwise, language and interest within the framework of national unity and development.22 The Rules and Regulations Implementing RA 8371 of 9 June 1998 resulted from broad-based nationwide consultations with indigenous communities. 19 20 21 22

http://www.bangladeshgov.org/pmo/constitution/index.htm. CERD/C/379/Add.1, para. 55. http://www.supremecourt.gov.ph/Constitution/Constitution.html. CCPR/C/PHL/2002/2, para. 985.

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The Rules provide details on free, prior and informed consent and how indigenous communities may choose to reject any project or programme that may impact on them. It also included principles on cultural diversity, consensus and peace building, cultural integrity, human dignity, subsidiarity, solidarity and total human development, and transparency and capacity building.23 According to the Special Protection Act regarding children, the State is to institute an alternative system of education for indigenous cultural communities which is culture-specic and is relevant to their needs and the situation in their communities.24 The law states that education should be provided, using the dialect of the community as medium of instruction whenever possible.25

4. Europe An examination of Bulgaria and Ukraine is useful in light of recent history, given the interest demonstrated by both to accommodate minority situations in their own re-denition of themselves as contemporary pluralistic democracies. There is similarity between them, in that their new constitutions and laws demonstrate the political will to establish regimes respectful of the rights of persons belonging to minorities, especially cultural rights. Ukraine in particular recognizes national and cultural autonomy for national minorities, which it denes essentially in terms of cultural rights. Cultural rights are given the weight of a new international credibility passport by these countries, as demonstrated by their reporting to international human rights treaty bodies. The turbulent recent history of the area, especially in the Balkans, has prompted governments to focus attention on the respect, promotion and fulllment of cultural rights in the eyes of the international community. Bulgaria Bulgaria with a history of minority issues that have created friction with its neighbors, especially Turkey, and has therefore adopted interesting

23 24 25

Ibid., para. 999. CRC/C/3/Add.23, para. 253. CERD/C/299/Add.12, para. 33.

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provisions in its new 1991 Constitution,26 giving concrete content to cultural rights for minorities, even if not always calling them “cultural rights”. The Bulgarian Constitution recognizes in article 36 the right of Bulgarian citizens whose mother tongue is not Bulgarian to study and use their own language alongside the compulsory study of the Bulgarian language. Article 37 provides that the state shall assist the maintenance of tolerance and respect among the believers from different denominations, and among believers and non-believers, thus recognizing an active role of the state in inter-religious and inter-cultural relations. In an interesting reach to the global culture, the Constitution (article 54) recognizes the right of everyone to avail himself of the national and universal human cultural values and to develop his own culture in accordance with his ethnic self-identication “which shall be recognized and guaranteed by the law”. Bulgaria goes as far as placing the prohibition of forced assimilation in article 29, paragraph1 that also prohibits torture and other degrading treatment or punishment thus showing the Bulgarian legislator’s wish to do away with past practices that had tarnished the country’s reputation. Bulgaria has also been eager to take credit for its constitutional provisions and enabling laws when reporting to United Nations human rights treaty bodies, namely the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of All Forms of Racial Discrimination. In its 1996 report to CERD,27 Bulgaria reported extensively on the use of mother tongue studies in Hebrew, Armenian, Roma and Turkish as well as the use of these languages in the family and society and in cultural and religious festivities. In further implicit acknowledgement of minority cultural rights, Bulgaria further reported that persons belonging to minorities were free to disseminate any information in their mother tongue, including through their own media or as part of mainstream media; that mainstream media had promoted programmes bringing to the forefront discussion on problems of equality between majority Bulgarian citizens and those belonging to minorities; that there were no restrictions to importing literature, as well as maintaining personal contacts with members of the same ethnic, religious and linguistic groups living in other countries; that there were no legal or political obstacles for Bulgarian citizens of Turkish origin

26 27

http://www.oefre.unibe.ch/law/icl/bu00000_.html. CERD/C.299/Add.7.

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to organize cultural and educational functions, to create organizations, libraries and reading rooms, performing arts groups, artistic unions and cultural centers, to preserve and promote their culture. In other words, Bulgaria highlighted new measures on cultural rights of persons belonging to national, ethnic, religious or linguistic minorities to demonstrate a positive new policy turn towards more respect for human rights based on the principle of non-discrimination. Bulgarian legislation does not recognize collective human rights and the term “national minority” appears neither in the Constitution nor in legislation. Bulgaria was more sparse in reporting under article 15 of the International Covenant on Economic, Social and Cultural Rights28 and did not go into the detail it described to CERD. In its dialogue with the Bulgarian delegation in 1997, Committee on Economic, Social and Cultural Rights did not make comments on cultural rights, except on minority language-related rights, about which it recommended the undertaking of measures to provide the opportunity to minorities to be educated in their own languages.29 In another more general comment, the Committee on Economic, Social and Cultural Rights expressed concern over the lack of explanation as to the procedures available to minorities to submit complaints about the status of their economic, social and cultural rights.30 Ukraine Ukraine showed particular interest in minority issues after the dissolution of the Soviet Union and was one of the countries to take the initiative for the rst resolution on minorities at the General Assembly in a post-Soviet era. The new Ukrainian Constitution of 199631 contains guarantees the development, use and protection of Russian, and other languages of national minorities of Ukraine (article 10), the development of the ethnic, cultural, linguistic and religious identity of all indigenous peoples and national minorities of Ukraine (article 11) and the right for citizens belonging to national minorities to receive instruction in their native language in state and communal educational

28 29 30 31

E/1994/104/Add.16. E/C.12/1/Add.3, para. 27. Ibid., para. 12. http://www.rada.kiev.ua/const/conengl.htm.

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establishments and through national cultural societies (article 53). It is unclear what the meaning in article 92 is when it states that the procedure for the use of languages is determined exclusively by the laws of Ukraine. The Constitution leaves it up to local state administration in places of compact residence of indigenous peoples and national minorities to implement national and regional programmes for their national and cultural development (article 119). In an article devoted to the competence of the Autonomous Republic of Crimea (article 138) the Constitution indicates that this competence includes elaborating, approving and realizing programmes for socio-economic and cultural development, and ensuring the operation and development of the state language and national languages and cultures, as well as the protection and use of historical monuments. Since 1994, Ukraine has submitted a number of reports to the various human rights treaty bodies,32 marking an era of new cooperation with the international community on human rights and placing a special emphasis on minority rights, cultural rights in particular. Comprehensive measures to develop the cultures of national minorities were pursued since 1994. Ukraine indicates that its constitution and laws promote cultural autonomy for minorities. According to article 6 of the Ukrainian Act on National Minorities, the State guarantees to all national minorities the right to national and cultural autonomy. The article then proceeds to specify the contents of this autonomy: the right to use and teach their national language or study their national language in State educational establishments or through national cultural societies, to develop national cultural traditions, to use national symbols, to hold national festivals, to profess their religion, to meet needs for literature, art and mass media and to establish national cultural and educational establishments. Monuments to the history and culture of national minorities on the territory of Ukraine are protected by law. The law also provides for the duty of citizens to respect the culture, language, traditions, customs and ceremonies of national minorities. Specic funding is provided by the State to help implement various aspects of cultural rights, such as training of teaching staff in minority languages. Participation of minorities in cultural policy making

32 CCPR/C/UKR/99/5, CCPR/C/95/Add.2, CEDAW/W/C/UKR/4–5 and Corr.1, CRC/C/70/Add.11, CRC/C/8/Add.10/Rev.1, CERD/C/384/Add.2, CERD/C/299/Add.14, E/C.12/4/Add.2, E/1994/104/Add.4.

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is pursued mainly through the Council of Representatives of Public Associations of National Minorities, and various national minority associations are allowed to meet freely. Cross-border contacts with persons of their nationality are guaranteed for minorities through legislation. Similar measures as those for minorities are foreseen for the Tatars whom Ukrainian law views as indigenous people.

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Rodolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, E/CN.4/2002/97. Danilo Turk, Study on Economic, Social and Cultural Rights, E/CN.4/Sub.2/1996/16. Ben Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, E/CN.4/Sub.2/1985/6/Corr.1. Special Rapporteur on Yugoslavia and the former Yugoslavia A/49/641 A/52/490 A/53/322 A/54/396 A/55/282 Special Rapporteur on Myanmar A/52/484 A/54/440 A/56/312 A/56/505 E/CN.4/1993/37 Special Representative on Iran A/52/472 A/54/365 A/55/363 A/56/278 E/CN.4/1993/41 E/CN.4/1998/59 Special Rapporteur on Sudan A/54/467 A/56/336 E/CN.4/1994/48 E/CN.4/1995/58 E/CN.4/1996/62 E/CN.4/1997/58 Special Rapporteur on the human rights and fundamental freedoms of indigenous people E/CN.4/2002/97 E/CN.4/2003/90 (focusing on large scale development projects) E/CN.4/2003/90/Add.2 (mission to Guatemala) E/CN.4/2003/90/Add.3 (mission to the Philippines) E/CN.4/2004/80 (focusing on the administration of justice) E/CN.4/2004/80/Add.2 (mission to Mexico) E/CN.4/2004/80/Add.3 (mission to Chile) E/CN.4/2005/88 (focusing on the right to education) E/CN.4/2005/88/Add.2 (mission to Colombia) E/CN.4/2005/88/Add.3 (mission to Canada) Special Rapporteur on violence against women E/CN.4/2002/83 Special Rapporteur on the right to education E/CN.4/2000/6 and Add.1 and 2, E/CN.4/1999/49 Special Rapporteur on the right to food E/CN.4/1998/21, E/CN.4/1996/61, E/ CN.4/2001/53, E/CN.4/2002/58/Add.1 Working Group on arbitrary detention E/CN.4/1993/24 Special Rapporteur on Freedom of Religion or Belief, E/CN.4/1993/62, E/ CN.4/1995/91, A/50/440, A/51/542 and Add.1, E/CN.4/1996/95 and Add.1 and 2, E/CN.4/1997/91 and Add.1, E/CN.4/1999/58, E/CN.4/2002/73/Add.2.

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Special Rapporteur on Bosnia and Herzegovina and the Federal Republic of Yugoslavia A/56/460 Special Rapporteur on the Occupied Territories in the Middle East A/56/440 Special Rapporteur on Iraq A/56/340 Special Rapporteur on the Democrati Republic of Congo A/56/327 Special Representative on Cambodia A/56/230 and A/56/209 Special Representative on Afghanistan A/56/409 and Addendum Special Rapporteur on Burundi A/56/479 Special Rapporteur on migrants, A/56/310 UNESCO Related Documents and Publications Convention for the Protection of the World Cultural and Natural Heritage (1972), United Nations, Treaty Series, vol. 1037, No. 15511. Safeguarding the Intangible Heritage, UNESCO’s Action. Local and Indigenous knowledge, UNESCO’s Action. Cultural Tourism, UNESCO’s Action. UNESCO and Cultural Heritage, UNESCO’s Action. Statement on Cultural Rights as Human Rights. Studies and Documents on Cultural Policies. Experts meeting on “Cultural Rights as Human Rights, Paris, 8–13 July 1968 UNESCO, 1970, 125 pages. Cultural Rights as Human Rights, UNESCO, 1970. UNESCO Recommendation on Participation by the People at large in Cultural life and their Contribution to it (adopted by the UNESCO General Conference), 10th Session, Nairobi, 26 November 1976). Kishoré Singh, “UNESCO and Cultural Rights” in Cultural Rights and Wrongs; Halina Niec ed., UNESCO Publishing/Institute of Art and Law, 1988 pp. 146–160. Recommendation on the Safeguarding of Traditional Culture and Folklore (1989), UNESCO, Records of the General Conference, Twenty-fth Session, 17 October–16 November 1989, Vol. I: Resolutions, Annex IB. World Conference on Linguistic Rights: Barcelona Declaration, UNESCO Executive Board, Hundred and ftieth Session, 150 EX/37, Paris, 10 October 1996. Oral statement by Kishoré Singh, Representative of UNESCO, to the 25th Session of the CESCR (Geneva, 23 April–11 May 2001), Implementation of the Rights to Education and Cultural Rights: UNESCO’s Role in the Context of the Work of the Committee on Economic, Social and Cultural Rights. United Nations Year for Cultural Heritage, 2002, General Assembly resolution A/RES/56/8 of 4 December 2001. Universal Declaration on the Human Genome and Human Rights, UNESCO (www.UNESCO. org). Universal Declaration on Cultural Diversity, UNESCO (www.UNESCO.org). (See also appendix to this book). Publications of the Ofce of the UN High Commissioner for Human Rights Human Rights Action: A handbook on national plans of action for the promotion and protection of human rights, 2002. Enriching the Universality of Human Rights: Islamic Perspectives on the Universal Declaration of Human Rights, Report of a Seminar organized by OHCHR in cooperation with the Organization of Islamic Countries, Geneva, 9–10 November 1998, HR/IP/ SEM/1999/1.

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Development-Related Publications Synthesis Report of the Resident Coordinator Annual Reports for 2000, prepared by the United Nations Development Group Ofce, United Nations, October 2001. Good Practices and Lessons Learned from Reviews of UNDAF Documents (August 2000–August 2001) prepared by the United Nations Development Group Ofce. Development Programme for Displaced Persons, Refugees and Returnees in Central America (PRODERE): External Evolution Report, prepared by the Arias Foundation for Peace and Human Advancement, Refugee Policy Group, Friedrich Ebert Foundation, International Centre for Economic Development and the Organization for Economic Cooperation and Development, New York, 6 February 1995. The Social Situation in the European Union, 2002, publication of the European Commission, Directorate-General for Employment and Social Affairs. Carlos M. Correa, Traditional Knowledge and Intellectual Property: A Discussion Report (commissioned by the Quaker United Nations Ofce, Geneva, 2001). Good Practices and Lessons Learned from Reviews of UNDAF Documents, August 2000–August 2001, 2nd synthesis Report, CCA/UNDAF Learning Network, prepared by UNDGO, New York. Evaluación Común de País, Sistema de la Naciones Unidas en Bolivia, La Paz, Junio 2000. Sistema de Naciones Unidas en el Perú, Evaluación conjunta de País (Common Country Assessment), 1998. Peru Case Study: A Human Rights Approach, UNICEF, 2002. Sistema de la Naciones Unidas, Marco Común de Cooperación para el Desarollo, Guatemala (UNDAF), 2001–2004, 15 August 2000. Analisis de la Situación del País, Guatemala, Sistema de Naciones Unidas, May 2000. Operationalization for ESAR of UNICEF. Global Guidelines for Human Rights Programming, 29 October 2001, UNICEF Regional Ofce (ESARO), Nairobi. HURIST, A Joint Programme for Human Rights Strengthening by UNDP and the Ofce of the High Commissioner for Human Rights. Common Country Assessment (CCA) and United Nations Development Assistance Framework (UNDAF) Guidelines, 1999 and 2002. The World Bank Operational Manual, Operational Policies, Indigenous Peoples, DraftOP 4.10, March 23, 2001. Report on UNFPA Internal Expert Consultation on Culture and Religion, New York, 21–23 January 2002. Human Development Report, Cultural Liberty in Today’s World, 2004, UNDP, www.undp.org. World Intellecual Property Organization Publications Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions/Expressions of Folklore, Background Paper no. 1, originally published in 2003, WIPO Publication No.785(E). National Experiences with the Protection of Expressions of Folklore/Traditional Cultural Expressions: India, Indonesia and the Philippines, Study No. 2, originally published in 2002, WIPO Publication No. 912(E). WIPO Technical Study on Patent Disclosure Requirements Related to Genetic Resources and Traditional Knowledge, Study No. 3, originally published in 2004, WIPO Publication No. 786(E). WIPO-UNEP Study on the Role of Intellectual Property Rights in the Sharing of Benets Arising from the Use of Biological Resources and Associated Traditional Knowledge, Study No. 4, (year not indicated), WIPO Publication No. 769(E). Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions/Folklore: Information Resources, 2005, WIPO/GRTKF/PAN/INF/1.

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World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance document, A/CONF.189/12 Report of the International Seminar on Cooperation for the Better Protection of the Rights of Minorities (Durban, September 2001), E/CN.4/2002/92 Report of the Secretary-General on National Institutions for the Protection and Promotion of Human Rights, A/56/255 Report of the Secretary-General on Human Rights and Cultural Diversity, A/56/204, A/56/204/Add.1 Report of the Secretary-General on East Timor, A/56/337 Report of the Secretary-General on Sierra Leone, A/56/281 Report of the Secretary-General on Human Rights and Cultural Diversity, A/57/ 311 Protection of children affected by armed conict, Report of the Special Representative of the Secretary-General for Children and Armed Conict, A/57/402. Reports of the United Nations Permanent Forum on Indigenous Issues at its Second, Third and Fourth Sessions, E/C.19/2003/43, E/C.19/2004/43 and E/ C.19/2005/43. Protecting and Promoting Traditional Knowledge; Systems, National Expriences and International Dimensions, Sophia Twarog and Promila Kapur, (Eds.) United Nations Conference on Trade and Development, 2004. Documents Related to the “Dialogue among Civilizations” A. K. Aboulmagd, L. Arizpe, H. Ashrawi, R. Cardoso, J. Delors, L. Gelb, N. Gordimer, Prince El Hassan bin Talal, S. Kapitza, H. Kawai, T. Koh, H. Kung, G. Machel, A. Sen, S. Jian, D. Spring, Tu Weiming, R. von Weizsacker, J. Zarif and Giacomenico Picco, Personal Representative of the Secretary-General for the Dialogue Among Civilizations, Crossing the Divide: Dialogue among Civilizations, 2001, School of Diplomacy and International Relations, Seton Hall University, South Orange. • A/RES/56/6, “Global Agenda for Dialogue among Civilizations”. • A/54/546, “United Nations Year of Dialogue among Civilizations”, Report of the Secretary-General. • A/56/523, “United Nations Year of Dialogue among Civilizations”, Report of the Secretary-General. • A/56/P.V./40, 41, 42, 43, Ofcial Remarks of the General Assembly under item 25, “United Nations Year of Dialogue Among Civilizations”.

INDEX

Aboriginal 14 n. 4, 193, 208–11, 219 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 214 Annan, Ko v Anaya, James 166 n. 6, 169 n. 14, 183 n. 37, 184, 184 nn. 38–39, 205 n. 113, 214 n. 128 Afrmative action 28, 117, 133, 171, 247 Afro descendants 28–29, 168 Albania 177–78 American Anthropological Association 21, 21 nn. 15–16 Art 310 Artist 12, 35, 72–73, 79, 101, 136, 139, 143–46, 151–53, 208–11, 230, 237, 239, 264, 267, 303 Assimilation 12–13, 44, 64, 67, 116–17, 157, 169, 171, 174–75, 186, 227, 227 n. 147, 228, 247, 310, 313 Australia 13, 14 n. 4, 180 n. 26, 185 nn. 45, 52, 200 n. 101, 208, 211, 219–20, 269 n. 1 Autonomy 97, 111, 131, 132 n. 32, 147–48, 165, 172, 178, 180, 185–87, 204, 206–207, 207 n. 118, 247, 312, 315 Awas Tingni Mayagna (Sumo) Communities 184 Benchmarks 158, 252 Benet sharing 215, 221, 225 Bilingual education 84, 99, 135, 193–94, 197–98 Borders xvi, 33, 68, 97, 100, 121, 135, 144–45, 151, 162, 164–65, 176, 187, 203, 232, 236, 241, 248, 299 Bosnia and Herzegovina 62 n. 35, 63 Brazil 87 n. 88, 88 n. 89, 92 n. 98, 184, 184 n. 39, 242 Buraju 242 Canada 13, 34 n. 49, 68, 75, 80, 181–82, 183 n. 36, 193, 193 n. 86 Child, rights of 40–41, 238

Chile 12, 34 n. 49, 61 n. 33, 148, 167 n. 10, 193, 202, 202 n. 106 Collective rights 6, 49, 67, 163, 165–66, 172, 175, 188, 213 n. 124, 248 Colonialism 28, 169, 203, 292 Convention on Biodiversity (CBD) 195 n. 88, 214–15 Commission on Human Rights 2, 4, 12, 17, 20, 24, 57–61, 63, 63 n. 41, 64–65, 67, 69, 81, 121, 137, 141, 149 n. 67, 161 n. 84, 169, 183, 283, 295 Committee on Economic, Social and Cultural Rights 1, 3 n. 6, 4, 6, 12 n. 2, 25, 27, 48, 48 n. 9, 52, 54–55, 60, 66, 70, 82, 109 n. 5, 115–17, 122, 124–25, 130, 132–34, 134 n. 37, 136, 138–40, 142, 149–50, 150 n. 69, 151 n. 70, 154, 157 n. 74, 158, 160, 185, 189, 200, 204 n. 112, 221, 230, 239, 242–43, 251, 253, 269 n. 1, 271, 283, 286, 288, 288 n. 4, 289, 313–14 Committee on the Elimination of Racial Discrimination (CERD) 55, 185, 190, 207, 227, 242, 274, 306 nn. 4, 6, 307 nn. 7–8, 309 n. 13, 311 n. 20, 312 n. 25, 313, 313 n. 27, 314, 315 n. 32 Committee on the Elimination of Discrimination against Women (CEDAW) 24, 55–56, 230, 275, 306 nn. 4–5, 307 n. 8, 309 n. 12, 315 n. 32 Committee on the Rights of the Child (CRC) 56, 56 nn. 26, 28, 239, 305 n. 2, 306, 306 n. 4, 307 n. 8, 308 n. 9, 309 n. 15, 310 nn. 17–18, 312 n. 24, 315 n. 32 Common Country Assessment (CCA) 86, 86 nn. 86–87, 87, 87 n. 88, 89–90, 159 Convention on the Elimination of All Forms of Discrimination against Women 23–24, 56, 149, 161, 230, 275, 286, 289, 295

328

index

Convention on the Prevention and Punishment of the Crime of Genocide 11, 14, 108 n. 1, 191, 196 n. 89 Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions 60, 80–81, 83, 136–138 Convention on the Rights of the Child 23, 40, 56, 81, 149, 174, 238, 295, 306, 310 Coomaraswamy, Rhadika 24–25, 25 n. 21 Copyright 12, 208, 211–12, 216, 220, 267, 300 Core obligations 109 n. 5, 125, 153–54, 158, 248 Council of Europe 7 n. 9, 45, 125 n. 29, 174, 196 n. 89, 249 n. 1 Crees 170 n. 15, 181 Croatia 63 Cultural heritage 35, 45–47, 62, 66, 68, 77–78, 100, 102, 110, 112, 137–38, 172, 174, 176, 184, 186, 201, 207–208, 211–13, 213 n. 124, 214, 219, 221–24, 236, 247, 253, 267, 311 Cultural relativism 1 n. 3, 2–4, 8, 18, 23–25, 34, 72, 92, 108, 112, 245 Cultural pluralism 7, 20, 34, 78, 112, 263, 266 Culture, concept of 5, 77, 107, 245 Culture wars 8 n. 10, 258 Custom 5, 23, 28, 42–44, 56, 67–68, 88–89, 110, 121, 168, 170, 175–76, 184, 186, 188, 204, 208, 214, 224, 226, 227 n. 147, 229, 234, 297–98, 306, 308, 311, 315 Daes, Erica-Irene 113 n. 11, 213, 297 n. 1 Declaration on the Rights of Indigenous Peoples 16, 66–67, 67 n. 52, 144, 170, 175, 188, 190 n. 77, 203–204, 226–28 Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities 16, 23, 65, 69 n. 53, 144, 174, 187, 190 n. 77, 203–204, 226, 228 Denmark 15, 88 n. 89, 135, 230 n. 149

Development 2, 3 n. 6, 4–5, 7–8, 14 n. 4, 16–17, 19, 21 n. 16, 24, 24 n. 20, 28, 32, 38, 40–41, 43, 45–47, 49, 51–52, 57–58, 61, 61 n. 33, 62, 67, 70–71, 75, 78, 83–86, 86 n. 86, 87–94, 94 n. 103, 95–96, 99, 105, 112, 114, 133–39, 139 n. 55, 140, 147, 156, 158–60, 165, 169, 172, 175, 181, 186, 193, 198, 204–206, 212, 214, 218 n. 133, 224, 231, 237–38, 245, 247, 249–54, 256, 261–63, 265–68, 271–72, 283, 288, 291, 299, 303–305, 309–12, 314–15 Dialogue Among Civilizations 2–3, 8 n. 12, 34–35, 71, 254 Disabilities, persons with 4, 54, 75, 81, 111, 115, 121, 121 n. 20, 161, 164, 230, 239–40, 255, 293 Dissemination 28, 35, 40, 50, 52, 79, 93, 133–34, 148, 154, 172, 187, 216, 236, 247–48, 264, 266–67, 308 Diversity 7, 12, 21, 29, 31, 33, 40, 46, 68, 78–79, 84–85, 89, 92–93, 108, 136, 139, 174, 176, 195, 215, 217–18, 257, 262–64, 266–67 Dwarf-tossing 118, 120 Equality 18 n. 8, 27 n. 42, 28, 31, 39–40, 42, 44, 56 n. 25, 91, 93, 112, 115–17, 120, 126 n. 30, 130, 141, 148, 171, 176, 178, 188, 226–28, 230–33, 236–39, 245–47, 271, 273, 289–90, 313 Ethnocide 14, 15 n. 6, 189, 189 n. 73 European Court of Human Rights 125, 125 n. 29 Finland 26 n. 24, 34 n. 49, 88 n. 89, 181, 194 n. 87, 206 n. 114 France 12, 57 n. 29, 80, 111 n. 10, 118, 118 n. 18, 119–20, 126 n. 30, 182, 185 n. 50, 242 n. 168 Framework Convention for the Protection of National Minorities 44, 174 Framework Convention on the Value of Cultural Heritage 45 Free, prior and informed consent 67, 175, 221–22, 224, 256, 312 Freedom from interference 236, 245 Freedom of dissemination 50, 52, 132–34, 236, 246

index Freedom of expression 44, 55, 63–64, 69, 79, 120, 123–24, 131, 133, 138, 141 n. 60, 146–47, 155, 200, 225, 246, 264, 310 Freedom of religion 13, 55, 62–63, 126, 126 n. 30, 129, 146, 199–200, 255 Freedom to cooperate internationally 124, 145, 236, 246 Freedom to create 114, 139, 236, 245 Gay 6, 111, 164 General Assembly 12–13, 15, 19 n. 9, 25, 34–35, 51, 55, 60, 60 n. 32, 61, 67 n. 52, 68–69, 71–72, 74, 75 n. 65, 81, 82 n. 80, 84 n. 83, 114, 121 n. 20, 170, 188 n. 68, 197 n. 92, 201, 240 n. 165, 279, 314 Genocide 11, 14–15, 15 n. 6, 108 n. 1, 189 n. 73, 191, 191 n. 80, 196 n. 89 Globalization xvi, 6, 8, 28–29, 57–58, 78, 83, 108, 112, 137, 139, 212, 232, 241, 257, 262, 305 Greece 114, 242–43 Greenland 113–14, 166 n. 7 Group rights xv, 5, 11, 16, 165, 234, 236, 245 Guatemala 34, 61 n. 33, 66, 86, 89–90, 92 n. 98, 96, 98–99, 100 n. 111, 149, 169, 193–94, 198, 198 n. 95, 201, 202 n. 107, 307–309 Hannum, Hurst xi, 180 n. 22, 190 n. 75 Hawai’i 168 Henkin, Louis v, xi, 34 n. 50 Heritage 12, 29, 45–46, 78, 89, 97, 109–10, 136, 140, 174, 185, 202, 202 n. 108, 206 n. 115, 212–14, 221, 224, 257, 262, 264, 266–67, 297–304, 311 High Commissioner for Human Rights xi, 58, 60, 91 n. 96, 105 n. 116, 296 High Commissioner on National Minorities 44, 65, 197, 203 n. 109, 206, 207 n. 117, 227 Historical injustice 166, 229 Human Development Report 84–85, 85 n. 84, 97, 97 n. 109, 139, 139 n. 56, 163 n. 2, 188, 188 n. 69,

329

189 n. 72, 194, 195 n. 88, 223, 223 n. 141, 285 n. 2 Human Rights Committee 2, 27, 38, 48, 55, 107, 118–20, 132, 142, 142 n. 62, 167, 173, 179–80, 185, 187, 190, 205, 226, 241, 283 Human Rights Council 60, 60 n. 32, 67, 67 n. 52, 81, 170, 170 n. 16, 175 n. 18, 188 n. 68, 203 n. 110, 252 Human rights education 33, 234, 235 n. 158, 238 Humphrey, John 12–13, 200 Identity xv, 1, 8, 13, 28, 30, 33, 35, 37, 40–44, 65, 67–68, 71, 76, 78–79, 85, 95, 97 n. 110, 98, 110–12, 124, 129, 131, 138, 144–46, 154, 168, 171, 174–76, 182–86, 197, 199–201, 203, 206–208, 218 n. 133, 223, 226–27, 227 n. 147, 228, 240–41, 246, 252, 258, 261, 263–64, 306, 308, 314 International Labour Organisation on Indigenous and Tribal Peoples Convention (No. 169) 170 Indicators 28, 82, 86, 86 n. 86, 94–95, 154, 158–60, 160 nn. 81–82, 192, 194, 238, 252–53, 256, 280–82, 291 Indigenous Peoples xv, 2, 4, 8, 16, 20, 28–29, 32–33, 38, 44, 47–48, 51, 53, 55, 61, 61 n. 33, 62, 65–72, 78–79, 81, 84, 84 n. 82, 87–88, 88 n. 90, 89–91, 94–95, 97, 97 n. 110, 98, 100 n. 111, 104, 110, 115–16, 125, 131–32, 142, 144–46, 148–49, 152, 154–55, 157, 163–64, 166 n. 6, 168–69, 170 n. 15, 171–73, 175–76, 179–80, 183–84, 184 n. 40, 185–87, 189–90, 192–93, 195, 197–202, 202 n. 108, 203–205, 205 n. 113, 206, 208, 208 n. 120, 213–14, 214 n. 128, 215, 218–19, 221–25, 227, 227 n. 147, 228–30, 238 n. 160, 241, 243, 246–49, 252–57, 263, 267, 271, 297–305, 307–308, 310–11, 314–15 Information xvi, 22, 31–33, 35, 39–40, 68, 70, 73, 88, 98, 102, 124, 133, 139, 145, 158, 176, 201–202, 204, 216–19, 223, 232, 238, 242 n. 168, 253, 262, 267, 271, 280–83, 299, 302–304, 307–308, 313 Inuit 113, 166 n. 7 Intangible cultural heritage 77, 208, 267

330

index

Intellectual property xv, 12, 57, 68, 122, 125, 176, 212, 212 n. 124, 213, 215–17, 219–20, 222–23, 257, 304 Integration 31, 35, 40–41, 67, 99, 116, 227, 227 n. 145, 309 Inter-American Court of Human Rights 173, 184 International Convention on the Elimination of All Forms of Racial Discrimination 39, 149, 225 International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families 190 n. 77 International Covenant on Civil and Political Rights 15, 27, 27 n. 42, 38, 55, 118, 119 n. 19, 120, 123, 142 n. 62, 149, 167, 173, 179, 180 n. 22, 183, 205, 226, 226 n. 144, 241, 270, 311 International Covenant on Economic, Social and Cultural Rights 1, 3, 3 n. 6, 6, 16, 17 n. 7, 38, 44, 46, 48 n. 9, 53 nn. 18, 20, 59, 79, 110 n. 8, 116, 122–24, 124 n. 24, 130, 133, 135, 138 n. 54, 139–41, 149, 150 n. 67, 154, 156, 159–61, 161 n. 84, 171, 230, 243, 246, 251, 263, 269, 269 n. 1, 270, 285 n. 1, 286, 309, 314 International Decade of the World’s Indigenous People 75, 84, 194 n. 87, 201 n. 105, 254, 304 Iran 34, 34 n. 49, 35, 57 n. 29, 62 n. 35, 63, 63 n. 40, 64–65, 92 n. 98, 127, 151 n. 70 Japan 180 n. 27, 185 n. 46, 201 n. 102, 242 Jurisprudence xv, 38, 48, 118 n. 18, 126, 132, 173, 176, 183, 200, 236, 245, 286, 289 Justice 34 n. 49, 61 n. 33, 96, 99, 105, 105 n. 117, 155, 166 n. 7, 167, 169, 171, 188, 194, 198, 241, 246, 248, 251, 261, 306 Justiciability 52, 149, 160–62 Khoi 193 Konate, Samba Kor 49–50, 78 n. 75, 83, 110 n. 8, 124, 138, 138 n. 53, 158 Kosovo 8, 96 , 101–102, 102 n. 112, 104, 104 nn. 114–15

Language rights 61, 62 n. 35, 71, 145–46, 148, 152, 157, 182, 185–87, 190, 192, 198–99, 236, 238, 238 n. 160, 242, 252, 255 Limburg Principles on the Implementation of Economic, Social and Cultural Rights 141, 243, 285 n. 1 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 50, 53, 123 n. 23, 140 n. 58 Maori 95, 117 n. 16, 192–93, 196 n. 89, 198–99, 220 Mapuche 202 Media 6, 29, 32–33, 40, 55, 61, 63, 68–69, 79, 96, 98–99, 103, 133, 139 n. 55, 151, 156, 172, 176, 185, 187, 189, 199, 202, 204, 223, 238–39, 241, 247–48, 250, 255, 257–58, 264, 267, 301, 303, 308, 310, 313, 315 Mexico 12, 51, 185 n. 50, 190, 190 n. 76, 192, 198, 198 n. 95, 199, 220, 226, 269 n. 1 Migrant workers 4, 42, 44, 51, 112, 115, 180, 180 n. 22, 230, 241–42 Millennium Declaration 135, 157 n. 72, 197, 197 n. 92, 234 n. 156 Millennium Development Goals (MDGs) 91, 95, 135, 157, 157 n. 72, 234 n. 156 Minimum core obligations 4, 150, 152–54, 157, 248, 288 Minorities xv, 2, 4, 8, 12–16, 20, 23, 28–30, 32–33, 38, 41–42, 44, 47, 53, 55, 61, 62 n. 35, 63–66, 68–69, 71–72, 76, 78, 81, 94, 96–97, 101, 101 n. 112, 102, 104, 110–12, 115–17, 125, 131–32, 144, 146, 148–49, 152, 154–56, 161, 163–64, 168–70, 170 n. 15, 171–74, 176–80, 180 n. 22, 185–92, 195–96, 199–207, 221–22, 225–27, 227 n. 147, 228–30, 238 n. 160, 241–43, 246–49, 251–55, 257, 263, 271, 293, 311–16 Mother tongue education 69, 70 n. 59, 135, 172, 178–79, 186, 195, 197, 247 Myanmar 61 n. 35, 63–64, 75 n. 65 Nama 193 Namibia 88, 88 n. 89, 193 New Zealand 6 n. 8, 95, 117 n. 16, 181, 183, 186 n. 56, 192–93, 196 n. 89, 198, 220

index Nicaragua 135 n. 38, 183–84, 184 n. 38 Non-citizens 4, 180, 180 n. 2, 185, 230, 241–42 Non-discrimination 28, 31, 44, 46, 50, 52, 93, 112, 115–17, 120, 134, 142, 148, 151–52, 154, 161–62, 169, 171–72, 185, 187–88, 201, 221, 226–27, 230, 233, 239–41, 245–48, 250, 255, 271, 314 Non-governmental organizations 19–20, 30, 49, 58–60, 65, 71, 81, 102, 143, 251, 253, 257, 265, 268, 270, 273, 280, 283–84, 292 Normative content 4, 33, 35, 79, 107, 110, 236 Obaid, Thoraya 91–92, 92 n. 100 Obligations of the state 4, 47, 125, 152, 154, 161, 177, 226 Ofce of the High Commissioner for Human Rights 65, 67 n. 52, 74, 75 nn. 65–66, 76, 101–102, 150 n. 68, 159, 170 n. 16, 175 n. 18, 203 n. 110, 224, 240 n. 165, 251, 253–55 Optional Protocol to the International Covenant on Civil and Political Rights 167, 270 Organization for Security and Cooperation in Europe (OSCE) 205–206 Organization of American States (OAS) 170, 183, 183 n. 37, 205 Panama 117 n. 16, 217 n. 132, 219 n. 134, 220, 220 n. 136 Participation 12, 28–29, 31, 35, 39, 42, 44, 47, 49, 54, 64, 68, 71, 73, 76, 81, 83, 87, 90, 92–93, 95, 98, 100, 100 n. 111, 102–103, 114–16, 116 n. 13, 124, 131, 133, 135, 139, 141, 141 nn. 59–60, 142–43, 148, 151–52, 155, 162, 166 n. 7, 177, 183, 186, 190, 205–206, 212, 220, 223, 228, 231–33, 233 n. 155, 235, 237–41, 248, 250, 253–55, 262, 266, 271, 282, 292, 302, 307, 315 Peace xvi, 2, 4, 8, 17, 57, 65–66, 71, 90, 96–99, 101, 104–105, 111, 149, 189, 203, 238, 249–52, 254–55, 261–62, 277, 307, 310, 312 Permanent Court of International Justice 173, 176, 177 n. 19

331

Permanent Forum on Indigenous Issues 66, 70, 84–85, 87, 87 nn. 88–89, 91 n. 95, 95, 95 n. 105, 116 n. 15, 135, 157, 157 n. 73, 160, 196 n. 89, 197, 201, 218 n. 133, 219 n. 134, 221 n. 139, 223, 252, 255–56 Philippines 26 n. 24, 61 n. 33, 88 n. 89, 149, 220, 311 Police 99, 151, 155, 166 n. 7, 171, 246, 248 Polynesia 182 Poor, the 4, 89, 115, 230, 242–44, 255, 271, 285 Positive state measures 225, 229 Race 13, 39, 86, 115, 119 n. 19, 127, 154, 160, 178, 227 n. 144, 289 Robinson, Mary xi, xvi, 74, 150 n. 69, 231 n. 151 Reconciliation 101, 166, 168–69 Refugees 4, 6, 20, 85, 100, 161, 230, 241–42, 293 Right to choose in which culture(s) to participate 186 Right to education 2–3, 3 n. 6, 41, 49, 53, 61 n. 33, 62, 117 n. 15, 137, 143, 148, 153, 172, 189, 190 n. 74, 246–47 Right to participate in cultural life 2–3, 3 n. 6, 4, 37, 43, 45, 49–50, 72–73, 86, 107, 110, 110 n. 8, 115, 133, 139–41, 145, 148, 151 n. 70, 154, 158, 171, 200, 204, 230, 240, 245–46, 251–52, 254–55 Roma 28, 30, 101–103, 168, 313 Roosevelt, Eleanor 13, 150 n. 67 Rushdie, Salman 151 n. 70, 165, 165 n. 5 Russian Federation 51, 71, 193, 220 Saami 158 n. 74, 182–83, 193, 194 n. 87 Sacred sites 61, 97–98, 100, 162, 172, 201, 201 n. 102, 214, 247, 298, 308 San 88, 193 Sanctions 72, 72 n. 62, 73, 162, 254, 293 Scarf 126 n. 30 Scheinin, Martin 205–206, 206 n. 114, Security Council 72–73, 101, 254 Self-determination 57, 67, 143, 175, 204–206, 297 Senegal 49, 234–35, 269 n. 1

332

index

Sierra Leone 62 n. 35, 96, 105 n. 117 Sinti 28, 30, 168 Skutnabb-Kangas, Tove 70 n. 59, 195–96, 196 n. 89 South Africa 7, 167 n. 10, 193 State obligations 4, 28, 47, 108, 110, 114, 122, 151, 155, 226 Statisitics 32, 160 n. 81, 194 Stavenhagen, Rodolfo 61, 189 nn. 71, 73 Sub-Commission on Prevention of Disrimination and Protection of Minorities 12, 15, 15 n. 6, 66, 113 n. 11, 158 n. 78, 170 n. 15, 213, 297 n. 1 Sub-Commission on the Promotion and Protection of Human Rights 66, 213 Subanen 220 Sudan 26 n. 25, 34 n. 49, 57 n. 29, 62 n. 35, 63–64, 185 n. 50 Sweden 27 n. 37, 51, 88 n. 89, 132, 157 n. 74, 182, 186 n. 60, 193 Traditional knowledge xv, 61, 68, 77, 79, 109 n. 4, 146, 176, 197, 208–209, 211–25, 236, 253–54, 257, 267, 302 Traditional practices 12, 23–27, 41, 132, 214, 217, 230 Travelers 28, 30, 168 Treaty bodies 2, 4, 32, 48, 56 n. 26, 65, 107, 132, 149, 161, 186–87, 231 n. 150, 234, 239, 242, 252, 255, 305, 312–13, 315 Turkey 8, 125, 125 n. 29, 126–28, 312 UNESCO 1, 1 n. 1, 3 n. 6, 5, 5 n. 7, 6, 6 n. 8, 11, 21–22, 22 n. 18, 37, 43, 49, 60, 71–72, 76, 76 n. 67, 77, 77 nn. 72–73, 78, 78 n. 76, 79–82, 82 n. 81, 83–85, 90, 94, 109–10, 112, 136, 136 nn. 44–46, 137–38, 139 n. 55, 141, 141 n. 60, 145, 159, 198, 212, 212 n. 123, 213–14, 219, 223–24, 234, 238, 243 n. 170, 251, 253, 261–62, 265–66, 268, 269 n. 1, 298–99 UNESCO Universal Declaration on Cultural Diversity 5 n. 7, 22, 43, 66, 77 n. 74, 78, 83, 95, 109 n. 3, 110 n. 7, 121, 130, 136, 261 United Nations Development Assistance Framework (UNDAF) 86, 86 n. 87, 87, 87 n. 88, 90, 159

United Nations Development Programme (UNDP) 84–85, 85 n. 84, 88 n. 89, 90, 97 n. 109, 105, 139, 139 n. 56, 147, 163 n. 2, 188, 188 n. 69, 189 n. 72, 194, 195 n. 88, 223, 223 n. 141, 250–51, 253, 285 n. 2 Universal Declaration of Human Rights xv, 1, 3, 5, 11, 14–17, 20–21, 21 n. 16, 22, 37, 39, 44, 46, 59, 72, 74, 76, 79, 82, 108 n. 1, 112, 113 n. 11, 121, 130, 146–47, 150 n. 67, 191–92, 200, 200 n. 99, 261, 263, 267, 270, 273, 276 United Nations Fund for Children (UNICEF) 72, 89, 89 n. 91, 90, 102, 105 n. 117, 198, 235 United Nations Fund for Population Activities (UNFPA) 91, 91 n. 95, 92, 92 nn. 98–100, 93, 94 n. 104, 95, 233 n. 154 United Nations Mission in Guatemala (MINUGUA) 90, 96–97, 97 nn. 108, 110, 99–100, 100 n. 111, 104, 105 n. 117 United Nations Mission in Kosovo (UNMIK) 96, 97 n. 108, 101, 101 n. 112, 102–104 USA 52, 108 n. 1, 114, 116, 150 n. 67, 243 USSR 13, 14 n. 4 Van der Stoel, Max 206 Vienna Declaration and Programme of Action 19–20, 24, 158, 239, 240 n. 164 Violence against women 23–24, 26, 56, 62, 230, 234 Women xv, 4, 20, 23–25, 26–28, 35, 39–40, 55, 56 n. 25, 62–64, 88–91, 100, 102, 115, 127–28, 130, 132 n. 34, 143, 149, 161, 192, 218 n. 133, 223, 229–31, 231 n. 152, 232–33, 233 nn. 154–55, 234–36, 236 n. 158, 237–38, 250, 255, 257, 275, 286–87, 289, 293, 295, 308, 309 n. 12 Working Group on Indigenous Populations 66–67, 213 Working Group on Minorities 68–69, 206 World Bank 62 n. 36, 88 n. 90, 90, 109 n. 4, 137 n. 51

333

index World Conference Against Racism, Racial Discrimination, Xenophobia and related Intolerance 7, 28, 30–31, 33, 168, 254 World Conference on Human Rights 19, 24, 26, 150 n. 67, 239 World Intellectual Property Organization (WIPO) 208 n. 121, 213, 215, 215 n. 131, 216, 217 n. 132, 218–19, 219 n. 135, 220 n. 136, 224

World Trade Organization 224 Xenophobia 254

80, 139,

7, 28, 30–31, 33, 168,

Yanomami 184 Youth 4, 30, 115, 116 n. 15, 143, 156, 195, 208 n. 120, 230, 238–39, 255 Yugoslavia 13, 62 n. 35, 63, 72, 72 n. 62, 73, 185 n. 50, 269 n. 1

The Universal Declaration of Human Rights Series Editor: Professor Hurst Hannum 1. Weissbrodt, D. The Right to a Fair Trial. Articles 8, 10 and 11 of the Universal Declaration of Human Rights. 2001. ISBN 90 411 1507 2 2. Stamatopoulou, E. Cultural Rights in International Law. Article 27 of the Universal Declaration of Human Rights and Beyond. 2007. ISBN 978 90 04 15752 1