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Culture and Human Rights

Source:
Encyclopedia of Human Rights
Author(s):

Yvonne M. Donders

Culture and Human Rights 

Yanomami Indians in Brazil fighting for protection of their traditional lifestyle; Indians of the Awas Tingni community in Nicaragua claiming the demarcation of their land; Aborigines in Australia trying to overcome a history of inhumane treatment; Kurds in Turkey seeking political recognition and language rights; Muslims and Sikhs protesting a 2004 French law banning the wearing of conspicuous religious symbols in schools; Sami in Scandinavia trying to protect their reindeer-herding activities; Roma in several parts of Europe battling racism and discrimination—these are all examples of communities and individuals striving for the preservation and protection of their cultures.

People attach great importance to culture, because it shapes thinking and behavior, is a dynamic source of creativity, and provides a sense of belonging. In other words, culture is an important part of human dignity. With globalization, the increased flow of people and communications has fostered multicultural societies and even the sense of a universal culture. At the same time, individuals and communities fear erosion or loss of their traditional cultures, leading to a growing reaffirmation of local specificities. As a result, there is an increasing demand for the protection of culture as a human right.

All of the core United Nations human rights treaties pertain to cultural rights (in order of adoption): the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965); the International Covenant on Civil and Political Rights (ICCPR, 1966); the International Covenant on Economic, Social, and Cultural Rights (ICESCR, 1966); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979); the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT, 1984); the Convention on the Rights of the Child (CRC, 1989); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW, 1990); the Convention on the Rights of Persons with Disabilities (CRPD, 2008); and the International Convention for the Protection of All Persons from Enforced Disappearance (which had not yet entered into force as of early 2009).

Cultural Rights in the Human Rights Discourse

Cultural rights have always been part of the human rights discourse, being one of the so-called categories of human rights, along with civil, economic, political, and social rights. However, cultural rights have historically received less attention than these other rights, and consequently are conceptually and legally less developed. The place of cultural rights in the human rights discourse has also been problematic. Debate has centered on whether the promotion and protection of cultural rights are consistent with the idea of the universality of human rights, and whether cultural rights, by emphasizing differences, are inherently in contradiction with the human rights principles of equality and nondiscrimination. Moreover, no clear consensus exists about which rights fall within the category of cultural rights. Must such rights explicitly refer to culture or do they include all human rights that have a cultural implication? This lack of clarity has further obscured the implementation of cultural rights.

Universality versus cultural relativism.

One long-standing debate concerns the competing theories of universality and cultural relativism. Universality asserts that every person has certain rights by virtue of being human. These rights are meant to protect human dignity; they are therefore inalienable and are understood to belong to all persons. While the universal enjoyment of human rights is generally not a matter of dispute, the universal character or content of these rights is rebutted by the theory of cultural relativism. Cultural relativism claims that there are no universal human values or rights, and that the variety of cultures in the world implies that human rights can, and may, be interpreted differently.

The question arises as to whether the promotion and protection of cultural rights, which lead to an increased emphasis on and valuing of cultural specificities, are a form of cultural relativism. Some have argued that the promotion and protection of cultural rights are themselves inconsistent with the notion of the universality of human rights. Others have maintained that the fact that cultural rights draw special attention to the customs and behaviors of particular communities does not stand in the way of the universality of human rights norms. The universality of human rights implies that human rights are enjoyed by all persons on the basis of their human dignity. At the same time, the implementation of these rights may allow for cultural relativism. This is what the scholar Jack Donnelly has called “relative universality.” In this view, variation in practices by countries or cultures can be consistent with the principal of universality. For example, while the right to political participation is a universal norm, the implementation of this right may, or perhaps should, be adjusted to regional or local necessities.

Similarly, cultural rights could be universally applicable to all communities and individuals regardless of their language, traditions, geographic place, and so on, on the ground that culture is an important element of human dignity. Thus cultural rights could be understood to have a universal character.

Equality and nondiscrimination.

Cultural rights have also been seen as clashing with the fundamental human rights principles of equality and nondiscrimination. Cultural rights seem to be based on the fact that individuals and communities want to be recognized as different in some respects from the larger society, and to be treated differently. It has thus been asserted that cultural rights have a specifying and differentiating effect instead of achieving equality, as human rights are intended to do.

A counterargument is that equality and nondiscrimination, as key principles of human rights, entail the recognition of diversity and the right to be different. Having equal rights is not the same thing as being treated equally. Indeed, equality and nondiscrimination imply not only that equal situations be treated equally but that unequal situations be treated unequally. At the international level, the UN's Human Rights Committee, which monitors implementation of the ICCPR, recognized in 1989 that “the enjoyment of rights and freedoms on an equal footing … does not mean identical treatment in every instance” (General Comment No. 18, “Non-Discrimination,” para. 8). Not all difference in treatment constitutes discrimination, as long as the criteria for such difference are reasonable and objective and serve a legitimate aim. Legal doctrine generally distinguishes between “differentiation,” “distinction,” and “discrimination.” Differentiation is lawful difference in treatment; distinction is a neutral category used when it has not yet been determined whether difference in treatment is lawful or not; and discrimination is difference in treatment that is arbitrary and unlawful. Consequently, only treatment that results in discrimination is prohibited.

It has been established in international law that “affirmative” or “positive” action is not in contradiction with nondiscrimination. Affirmative action is sometimes also referred to as “positive discrimination,” but some have argued that this is a contradiction in terms: either the distinction is justified and legitimate and thus cannot be called discrimination, or it is not justified and thus cannot be called positive. Affirmative action to remedy historical injustices and social discrimination, or to create diversity and proportional group representation in order to obtain effective equality, has been acknowledged as lawful under several international human rights instruments. The ICERD, for instance, states the following in Article 1, paragraph 4:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

The Human Rights Committee has further stated that the principle of equality under Article 26 of the ICCPR may sometimes require states to take affirmative action to diminish or eliminate conditions that cause or help to perpetuate discrimination prohibited by the covenant (General Comment No. 18, “Non-Discrimination,” para. 10). Affirmative action may also be relevant in relation to cultural rights. For example, in 1999 the Committee on Economic, Social, and Cultural Rights, which monitors implementation of the ICESCR, determined that temporary special measures intended to bring about de facto equality between men and women and/or for disadvantaged groups in regard to education is not a violation of the right to nondiscrimination. Such special measures could also include separate educational systems or institutions, as long as these do not lead to completely separate standards for different groups (General Comment No. 13, “The Right to Education,” paras. 32–33).

In other words, it can only be determined on a case-by-case basis whether the actual implementation of cultural rights constitutes a lawful or justified distinction or whether it is discrimination. Although cultural rights seem to differentiate, they could be based on the principle of equality insofar as they are to be enjoyed by all communities and individuals alike and are intended to obtain effective equality. With regard to their implementation, there may be differences in treatment and necessary means without this being in contradiction with the principle of equality.

Nature and Scope of Cultural Rights

The preambles to both the ICCPR and the ICESCR state that all human rights—civil, political, economic, social, and cultural—are interrelated, indivisible, interdependent, and equally important. Nonetheless, the different categories of human rights have not developed at an equal pace. The development of cultural rights has been inhibited by the vagueness of the term “culture,” which raises doubts as to which rights are cultural rights and leaves their normative content unclear.

Which rights are cultural rights?

Although cultural rights are mentioned in the name of the ICESCR, the text of the covenant does not specify which of its provisions are cultural rights. Since there is no definition of “cultural rights” in any of the international human rights instruments, there is no agreement on which rights should be labeled cultural. Which rights are included depends on the underlying concept of culture that is used. (For a discussion of the multitude of ways in which “culture” is defined and understood, see Kroeber and Kluckhohn.)

“Culture” is a broad term that can refer to different things. One can think of the human culture in general, the culture of a specific community or period, or the culture of individuals in the context of their civilization. Over the years, the concept of culture has developed from a singular, normative notion conveying an elitist idea of civilization and necessary progress, to a plural, value-free notion that is used to describe differences among individuals and communities. The modern notion of culture is not easy, perhaps even impossible, to define. Without providing an overall definition, though, we can describe several characteristics of culture. An important feature of culture is that it is dynamic and does not have precise boundaries. It is a complex system of beliefs and practices that can change and develop. Consequently, culture is not inactive or static, but dynamic; it is not only a product, such as arts and literature, but also a process. Culture has both an objective and a subjective dimension. The objective dimension is reflected in visible characteristics such as language, religion, or customs, while the subjective dimension is reflected in shared attitudes, ways of thinking, feeling, and acting. Also, culture has both an individual and a collective dimension. Cultures are developed and shaped by communities, which individuals identify with, building their personal cultural identities. Culture is developed and passed on by cultural institutions such as educational and media organizations, as well as historical archives, museums, and theaters.

How can such a broad notion be translated into human rights norms? The complexity of the concept of culture is visible in the development of thinking about cultural rights. One could say that the broader the concept of culture, the broader the scope of cultural rights. If culture is considered from a narrow perspective as corresponding to cultural products such as arts, literature, and material and immaterial cultural heritage, then cultural rights could include the protection of such cultural heritage, as well as the right to have access to cultural products and heritage in museums, theaters, and libraries. If culture is considered in broader terms, from the perspective of the process of artistic and scientific creation, cultural rights would include, for example, the rights to freedom of expression, artistic and intellectual freedom, and rights related to the protection of producers of cultural products, including copyright. And finally, if culture is considered as a way of life, the sum of material and spiritual activities and products of a community, then cultural rights comprise all kinds of rights pertaining to the maintenance and development of cultures, such as the right of self-determination, including cultural development, the rights to freedom of thought, religion, and association, and the right to education. In this broad sense, cultural rights are sometimes seen as equivalent to the right to culture, in the sense of the right to preserve, develop, and have access to a culture. Others prefer to make a distinction between cultural rights as a category of human rights that relate to culture, and separate cultural rights, such as the right to culture, that fall within this category.

Drawing from the international human rights instruments that address cultural rights, a general distinction can be made between cultural rights in the narrow sense and cultural rights in the broad sense. The group of narrow cultural rights contains those provisions that explicitly refer to culture, such as the right to participate in cultural life [ICESCR, Article 15, para. 1(a); CEDAW, Article 13(c); CRC, Article 31; and ICRMW, Article 43], or the right to equal participation in cultural activities (ICERD, Article 5). Other cultural rights in the narrow sense include minorities’ rights to enjoy culture (ICCPR, Article 27), the right to education for children with due respect for their cultural identity (CRC, Article 29), and the rights of migrant workers to respect for their cultural identity and to maintain cultural links with their country of origin (ICRMW, Article 31). The group of broad cultural rights might also include other civil, economic, political, or social rights that have a link with culture. It might be defensible to say that all human rights have a link with culture, but the rights specifically meant here are the rights to self-determination (ICCPR and ICESCR, Article 1), to freedom of thought and religion (ICCPR, Article 18; ICRMW, Article 12), to freedom of expression (ICCPR, Article 19; ICRMW, Article 13), to freedom of association (ICCPR, Article 22; ICRMW, Article 40), and to education (ICESCR, Articles 13 and 14; CEDAW, Article 10; ICRMW, Article 30).

Apart from the general human rights instruments, cultural rights can be found in human rights instruments designed for minorities and indigenous peoples. Since the culture of these communities is often in jeopardy, the protection of their cultural rights has here a prominent place. The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities (1992) enumerates several cultural rights, such as rights to enjoy one's culture, to use one's language, and to practice one's religion (Article 2), as well as educational rights (Article 4). States also have the duty to protect the cultural, religious, ethnic, and linguistic identity of minorities (Article 1). The UN Declaration on the Rights of Indigenous Peoples (2007) also lists several cultural rights, such as the right not to be subject to the destruction of one's culture and the right not to be deprived of one's cultural values (Article 8), and the right to practice and revitalize cultural traditions and customs, including manifestations of culture (Articles 11 and 12). It should be noted that these declarations, unlike the core human rights treaties, are not legally binding. They reflect principles that have a moral and political force and should therefore be respected by states.

The regional human rights instruments in Europe, Africa, and the Americas also address cultural rights. The European Convention on Human Rights and Fundamental Freedoms (ECHR, 1951) and the European Social Charter (1961, revised 1996), adopted by the member states of the Council of Europe, do not contain cultural rights in the narrow sense. They do, however, incorporate cultural rights in the broad sense, such as nondiscrimination and the right to freedom of religion and association. The right to education is included in the First Protocol to the ECHR. Cultural rights in the narrow and in the broad sense are present in several European instruments on minorities, including the European Charter for Regional or Minority Languages, adopted in 1992, and the Framework Convention for the Protection of National Minorities, adopted in 1995. An attempt to draft an additional protocol to the ECHR on cultural rights failed. Provisions discussed among experts and states included, for instance, a right to cultural identity, the right to choose to belong to a group, the protection of cultural heritage, the right to participate in cultural activities, the right to set up cultural and educational institutions, the right to use the language of one's choice, and the right to a name. In the end, however, the member states of the Council of Europe hesitated to adopt legally binding provisions on culture, because they found their potential consequences and implications too uncertain. They also argued that most of the proposed rights would in practice not add much to the provisions already in the ECHR. In January 1996 a decision was made to suspend work on this protocol, and as of 2008 no new attempt to adopt an instrument on cultural rights had been undertaken at the European level.

The American Declaration on Human Rights (1948), adopted by the member states of the Organization of American States, contains cultural rights in the broad and in the narrow sense, including the right to take part in the cultural life of the community (Article 8). The American Convention on Human Rights (1969) contains, inter alia, the rights to equal protection, to property, and to freedom of religion, movement, and residence. In 1988 the signatories to this convention signed the Protocol of San Salvador, which focuses on economic, social, and cultural rights and contains provisions similar to those of the ICESCR, including the right to education and the right to take part in the cultural life of the community (Article 14).

The states represented in the African Union adopted the African Charter on Human and Peoples’ Rights (1981), which incorporates all categories of human rights—civil, cultural, economic, political, and social—in a single instrument. The charter includes cultural rights in the broad sense, such as freedom of religion and association and the right to education. It also contains cultural rights in the narrow sense, such as the right to take part in the cultural life of the community (Article 17) and the right of peoples to their own cultural development (Article 22).

Cultural dimension of human rights.

Although some human rights, at first glance, may not have a direct link with culture, most have important cultural implications. Several international judicial bodies, including the European Court of Human Rights and the Inter-American Court of Human Rights, have acknowledged the cultural dimension of human rights provisions.

The European Court has, for example, decided that the right to freedom of association (ECHR, Article 11) extends to cultural organizations, in cases such as Sidiropoulos and others v. Greece (1998), Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001), and Gorzelik and others v. Poland (2001). The European Court further addressed the cultural dimension of the right to private life (ECHR, Article 8) when it recognized that living in caravans is part of the traditional lifestyle of gypsies (the term used by the Court for Roma) to be protected under this right. This was determined, for example, in the cases of Buckley v. the United Kingdom (1996) and Chapman v. the United Kingdom (2001).

The Inter-American Commission on Human Rights has issued several judgments on indigenous peoples and the protection of their cultures under the right to life and the right to health. An interesting case in this respect is that of Yanomami Community v. Brazil (1985). The Inter-American Court of Human Rights has acknowledged the specific interpretation of the right to property with respect to the culture of indigenous peoples. The landmark case in this regard is Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua (2001).

The UN's Committee on Economic, Social, and Cultural Rights, in monitoring the ICESCR, has acknowledged the cultural elements of, for instance, the rights to food, health, and housing. It has determined that the right to adequate housing implies, among other things, that the construction of houses, building materials, and building policies “must appropriately enable the expression of cultural identity and diversity of housing” (General Comment No. 4, “The Right to Adequate Housing,” 1991, para. 8[g]). With regard to the right to adequate food, the committee has stated that the guarantees provided should be culturally appropriate and acceptable (General Comment No. 12, “The Right to Adequate Food,” 1999, paras. 7, 8, and 11). With regard to the right to health, the committee has determined that “all health facilities, goods and services must be … culturally appropriate, i.e., respectful of the culture of individuals, minorities, peoples and communities” [General Comment No. 14, “The Right to the Highest Attainable Standard of Health,” 2000, para. 12(c)].

Cultural rights as individual or collective rights.

Cultural rights can be considered as individual rights, as group rights (rights of individuals as part of a community), or as collective rights (rights of communities as a whole). While most provisions in international human rights instruments define cultural rights as individual rights, their enjoyment is firmly associated with the larger community. The individual right to participate in cultural life, for example, can only be enjoyed by members of a cultural community. In other words, cultural rights have an individual and a collective dimension.

Almost all provisions in international human rights instruments have been defined in individual terms. Only the right of self-determination is included in the ICESCR and the ICCPR (common Article 1) as a right of “all peoples.” Another exception is seen in the African Charter on Human and Peoples’ Rights, which includes several collective cultural rights of peoples, as mentioned above.

Generally speaking, however, the state approach toward cultural rights has focused mainly on the individual. States remain cautious about empowering communities as a whole with cultural rights for fear that such a collective approach might endanger the stability of the society. Despite this concern, the collective dimension of cultural rights has not been entirely disregarded, as is illustrated by the development of rights of minorities and indigenous peoples. Such claims for collective rights, especially in relation to culture, have been met. For instance, the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities refers to minorities as such on several occasions. However, these provisions are formulated as duties on the part of states and not as rights for the communities involved. States, for example, have the duty to protect the cultural, religious, ethnic, and linguistic identity of minorities (Article 1). This means that minorities are not the subjects, but the beneficiaries, of these provisions. The UN Declaration on the Rights of Indigenous Peoples goes further in its collective approach. This declaration enumerates several collective rights for indigenous peoples, including cultural rights in both the narrow and broad sense.

State Obligations Corresponding to Cultural Rights

Rights imply a claim by the holder against an addressee, who is expected to do something or to refrain from doing something with respect to the holder. In the case of human and cultural rights alike, the chief addressee is the state. What is the nature of state obligations with regard to cultural rights?

Negative and positive obligations.

Generally, state obligations can be divided into negative and positive. Negative obligations require the state to refrain from some action, whereas positive obligations require state action. Although in the past a firm but not absolute distinction was made between rights that demand state abstention, or negative obligations, and rights that require state action, or positive obligations, there is now general consensus that all categories of rights may be subject to positive as well as to negative state obligations. After all, states must sometimes take positive measures to protect civil and political rights. They must, for example, be proactive in scheduling and organizing elections, as well as in creating and maintaining court systems. Also, economic and social rights may sometimes require states not to act, for example, with respect to educational and scientific freedoms.

Accordingly, cultural rights may involve positive as well as negative obligations. But while there is general agreement that states have negative obligations in relation to cultural rights, positive obligations associated with these rights have been the subject of dispute. For example, if a state has a negative obligation to respect the use of individuals’ language of choice in the home, does it then have a positive obligation to provide language facilities so that these individuals can use their language of choice when dealing with public authorities? If the United States, for example, allows the use of Spanish in various cultural festivals, can it then require all citizens to use English in court proceedings and on election ballots? Another example concerns the right to education. The state may be obligated to respect a cultural community, small or large, that wishes to organize the teaching of its own values. But is the state also obliged to financially support the development of educational facilities for all minority communities, no matter their size and number?

“Progressive realization” of economic, social, and cultural rights.

Cultural rights that are part of the ICESCR fall under the supervisory regime of that treaty. The key provision in the ICESCR with regard to state obligations is Article 2, paragraph 1, which specifies that states should take steps to the maximum of their available resources, “with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” The debate on the meaning of “progressive realization” is ongoing. An important interpretation of Article 2, paragraph 1, of the ICESCR is General Comment No. 3 concerning the nature of state obligations, adopted by the Committee on Economic, Social, and Cultural Rights in 1990. In this document, the committee stated that the obligation to take steps or measures as laid down in Article 2, paragraph 1, has an immediate character. States should start the implementation immediately and move as fast as possible toward the goal of total realization. Furthermore, taking the appropriate measures implies not only legislative measures, but also administrative, financial, educational, social, and other measures. States are free to determine which measures they consider best to implement the material provisions of the ICESCR, whereby the committee determines whether the state has taken the appropriate steps.

Article 2, paragraph 2, of the ICESCR contains a provision that obliges states to take measures to immediately ban de jure discrimination in the enjoyment of the rights in the covenant. The idea of progressive realization is not applicable here, since the term “to ensure” is used. The principle of nondiscrimination may also have implications for the implementation of cultural rights. If, for example, the state finances a cultural institution for one community, it should also take financial measures for the benefit of other communities.

The ICESCR's progressive realization principle applies only to cultural rights in the ICESCR. The ICCPR and other relevant human rights instruments demand that immediate steps be taken by states, irrespective of the availability of resources. Article 2 of the ICCPR requires states to undertake to respect and ensure the rights of the ICCPR. The understanding in the treaty is that cultural rights, such as freedom of religion, expression, and association, should be guaranteed immediately and without discrimination.

Tripartite typology: obligations to respect, protect, and fulfill.

Three types of state obligations can, in principle, result from all human rights, whether civil, political, economic, social, or cultural in nature: the obligation to respect, the obligation to protect, and the obligation to fulfill. This so-called tripartite typology, developed by scholars, was articulated at the international level in 1987 by Asbjørn Eide, then the UN's special rapporteur on the right to food. The obligation to respect means that states should refrain from “anything that violates the integrity of the individual or infringes on his or her freedom, including the freedom to use the material resources available to that individual in the way he or she finds best to satisfy the basic needs.” The obligation to protect means that the state should take the necessary measures “to prevent other individuals or groups from violating the integrity, freedom of action, or other human rights of the individual—including the prevention of infringement of the enjoyment of his material resources.” The obligation to fulfill means that the state should take measures “to ensure for each person within its jurisdiction opportunities to obtain satisfaction of those needs, recognized in the human rights instruments, which cannot be secured by personal efforts” (Final Report of the Special Rapporteur on the Right to Food, paras. 67–69).

The tripartite typology has gained international recognition and is widely used by academics. The Committee on Economic, Social, and Cultural Rights has used it in its general comments on, for example, the rights to food, education, health, and water, to determine the corresponding state obligations of these rights. The typology is designed to clarify the different levels of obligations of states in relation to specific rights. It is therefore not helpful for the clarification of cultural rights as an entire category, but could be used to determine certain state obligations of specific cultural rights.

For example, when applied to the right to take part in cultural life, the three levels of obligations imply a variety of measures to be taken. States should first respect the freedom of the individual to choose, develop, assert, and change a preferred cultural orientation, as well as the freedom to collect and distribute cultural information. Second, states should protect the individual's right to take part in cultural life against third parties who, by the assertion of their culture or engagement in cultural activities, disrupt the enjoyment of this right. Finally, states have an obligation to fulfill that is met by taking active steps to achieve widespread cultural participation and accessibility. Concrete measures may, for example, include improving access to cultural life through cultural funds or the establishment of an institutional infrastructure to promote popular participation in cultural life. The obligation to fulfill also entails, for example, state protection of cultural heritage for generations to come, including the protection of monuments, sites, cultural property, and museums. More specific measures could be exemptions from laws that penalize cultural practices, for example, special hunting and usufruct laws; the funding of ethnic associations or multilingual ballots or special voting measures; or the protection of symbolic claims, such as religious holidays. Since the right to take part in cultural life includes not only access to culture but active participation in the decision-making process on cultural matters, the state should also ensure that individuals are free to take part in the general political process. States should, for example, ensure representation of different communities in relevant decision-making bodies, or at least consult them or have them participate in matters of their concern, such as cultural development.

Limits on the Enjoyment of Cultural Rights

It has been argued that the promotion and protection of cultural rights can lead to support for questionable cultural activities such as the discriminatory treatment of women, examples of which are forced marriages, bride price, female genital mutilation, widow cleansing (a traditional practice in which a widow is forced to have sexual relations in order to be “cleansed” of her husband's evil spirit and/or to secure property within the family), and unequal treatment with regard to land ownership or inheritance. Cultural rights, as is true of other human rights, cannot be enjoyed without limit. The general framework of such limitations is outlined in Article 29, paragraph 2, of the Universal Declaration of Human Rights, in which it is stated that “in the exercise of his rights and freedoms, everyone shall be subject to only 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.”

From this text it can be derived that the enjoyment of cultural rights may be limited by law. Article 4 of the ICESCR, for example, gives states the possibility of limiting the enjoyment of the rights in the covenant, but only on the condition that these limitations are “determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” This limitation clause is not meant to provide states with a simple excuse not to implement the provisions of the ICESCR. Limitations may not be in contradiction with the nature of the rights in the covenant; otherwise, the provisions would no longer have any value and substance.

Second, as outlined in Article 29, paragraph 2, of the UDHR, the enjoyment of human rights by one person may not unjustifiably limit or violate the enjoyment of human rights by others. In other words, the enjoyment of cultural rights can be limited by the enjoyment of human rights by others. In fact, many human rights are inherently capable of clashing in certain situations. For example, the 2005 publication in a Danish newspaper of cartoons depicting the Prophet Muhammad, which led to widespread protests and rioting by Muslims, demonstrated tension between freedom of religion and freedom of expression. As there is no hierarchy with respect to the different human rights, there are no general rules as to which right should prevail over another. Instead, particular situations must be carefully evaluated to determine which right prevails.

The question remains how to deal with cultural activities or practices—which are not the same as cultural rights—that are in conflict with or limit the enjoyment of human rights. Such practices, it is argued, should not be protected by cultural rights. It is hard to make general statements about the acceptability of cultural practices and their relation to human rights, since these practices are diverse and their possible conflict with human rights could best be treated on a case-by-case basis. However, some have argued that cultural practices that are clearly in conflict with international human rights norms cannot be justified on the basis of protection granted by “cultural rights.” As Article 29, paragraph 3, of the UDHR outlines, “These rights and freedoms may in no case be exercised contrary to the purpose and principles of the United Nations.” An appropriate criterion could therefore be that cultural practices should not be in conflict with the value of human dignity and internationally accepted human rights norms. However, it remains difficult to assess to what extent certain cultural practices are in conflict with these values and norms.

It has been argued that cultural practices considered inconsistent with human rights are most successfully challenged from within the cultural community itself, rather than change being imposed from outside. Human rights instruments, however, affirm the responsibility of states to find ways to promote such change. CEDAW, for instance, 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 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted in 2003, includes a similar provision in Article 2, paragraph 2: “States Parties shall commit themselves to modify the social and cultural patterns of conduct of women and men … with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes.”

Continuing Development of Cultural Rights

Attention to cultural rights increased in the late twentieth century as scholars and policy makers addressed cultural diversity and the problematic issues arising from multicultural societies. Developments have taken place in the form of the adoption of international standards and elaboration of the normative content of cultural rights. In the opening decade of the twenty-first century the member states of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) adopted two instruments on cultural diversity: the Universal Declaration on Cultural Diversity (2001) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). While both instruments emphasize the importance of cultural rights, neither contains substantive cultural-rights provisions.

Article 5 of the Universal Declaration on Cultural Diversity, which describes cultural rights as “an enabling environment for cultural diversity,” states the following:

Cultural rights are an integral part of human rights, which are universal, indivisible and interdependent. The flourishing of creative diversity requires the full implementation of cultural rights as defined 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 have therefore the right to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue; all persons are entitled to quality education and training that fully respect their cultural identity; and all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms.

This provision confirms the importance of cultural rights and enumerates several of them, including the right to participate in cultural life, the right to freedom of expression, and the right to education. No specific reference is made to the right to freedom of religion, because the member states could not agree on its inclusion in the Declaration. As a result, an important aspect of cultural diversity and cultural rights is not referred to in this document. Article 5 further deals with the limits to the enjoyment of cultural rights, namely that the conduct of cultural practices must be respectful of human rights. The Declaration on Cultural Diversity is not a legally binding instrument and mainly contains principles to be respected by the member states of UNESCO. After its adoption, the member states discussed drafting a binding instrument on cultural diversity. One option considered was to adopt a new instrument on cultural rights. Instead, the UNESCO member states adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

According to Article 2, paragraph 1, of this convention:

Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law or to limit the scope thereof.

Here also, several cultural rights are enumerated and the possible limitation of these rights is included.

Although the convention does not contain substantive cultural rights of individuals or communities, several provisions speak of measures that may be taken by states to protect cultural diversity. These measures are similar to state measures following from human rights treaties for the implementation of cultural rights. For example, according to the convention, states may take measures that “provide opportunities for … the creation, production, dissemination, distribution and enjoyment of such domestic cultural activities, goods and services, including provisions relating to the language used for such activities, goods and services” (Article 6, para. b). This provision furthermore speaks of measures to establish and support public institutions, to support artists and others involved in the creation of cultural expression, as well as measures to enhance the diversity of the media (Article 6, paras. f–h). Such measures could also include public financial assistance (Article 6, para. d). The convention also holds that states should encourage individuals and groups to create, produce, disseminate, distribute, and have access to their own cultural expressions, “paying due attention to the special circumstances and needs of women as well as various social groups, including persons belonging to minorities and indigenous peoples” (Article 7, para. a).

In the 1990s a group of academics from around the world began working on the elaboration and clarification of cultural rights. Their deliberations resulted in the Fribourg Declaration on Cultural Rights, which was presented to international intergovernmental and nongovernmental organizations in May 2007. The aim of the declaration was not to adopt a new set of rights, but to group cultural-rights provisions from existing international human rights instruments in order to enhance their visibility and coherence and to advance their realization. The declaration has been widely supported by scholars and institutions, as well as by members of the various treaty bodies of the UN. As it is an academic document, it does not have legally binding force on states. It could, however, serve as a reference document for the further development and advancement of cultural rights.

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                                                by Yvonne M. Donders