18 Cultural Rights in International Law

Prof. Rehan Abeyratne

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Introduction

Cultural rights receive broad protection under international law. They were first recognized in the Universal Declaration of Human Rights (UDHR) and subsequently enforced by the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and various other international agreements.

This chapter will introduce students to the international human rights framework protecting cultural rights, including the major international and regional instruments as well as non-binding principles and other sources of international law.

Learning Outcomes:

After completing this module, students should know and understand:

  • The international human rights framework protecting cultural rights. Enforcement of cultural rights in international human rights law.
  • The American, African, and European regional human rights frameworks with respect to cultural rights.

International Human Rights Instruments on Cultural Rights

A. The Core Human Rights Framework Cultural rights were first recognized as international human rights through the Universal Declaration on Human Rights (UDHR) in 1948. The rights declared in the UDHR constitute part of an indivisible and interdependent scheme of rights that complement and reinforce one another. Therefore, states may not violate cultural rights on the basis that such a violation was necessary to uphold other  rights. The UDHR was originally drafted as a set of aspirational, common standards that all states must work towards achieving. Yet, today, the UDHR is generally understood to constitute part of customary international law.

Article 22 of the UDHR recognizes everyone’s right to economic, social and cultural rights (ESCRs) that are indispensable to the dignity and the free development of each individual. However, this provision allows states to realize these rights progressively and in light of resource constraints. Article 27 of the UDHR protects individuals’ right to participate in cultural life, enjoy art, and benefit from scientific advancement. This provision places emphasis on ‘participation’ and ‘benefits’, as opposed to recognizing the rights of individuals to profess or practice their culture in itself. Some scholars claim that while this provision protects a state’s majority culture, but does not adequately recognize or protect minority rights to participate in their own cultural life.

Along with the UDHR, the two major treaties of international human rights law are the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both treaties protect cultural rights. The preamble of the ICCPR recognizes everyone’s right to enjoy cultural rights. In addition, Article 1 states that, by virtue of the right to self-determination, persons have the right to freely pursue their cultural development. Article 27 explicitly recognizes the right of minorities to profess and practice their culture. In other words, persons belonging to ethnic, religious or linguistic minorities cannot be denied the right to profess and practice their culture.

The ICESCR, as its title suggests, provides more comprehensive protection of cultural rights. Article 15(1) of the ICESCR builds on the UDHR’s declaration of cultural rights by recognizing: (a) the right to take part in cultural life; (b) to enjoy the benefits of scientific progress; and (c), to benefit from the protection of moral and material interests from any scientific, literary or artistic production. Article 15(2) further provides that states shall take steps to fully realize these rights, including measures to ensure “the conservation, the development and the diffusion of science and culture.” Article 15(3) requires states to undertake to respect the freedom necessary for research and creative activity. Note, however, that cultural rights, like all rights in the ICESCR, are subject to progressive realization under Article 2, and states are therefore allowed to realize these rights gradually in accordance with their development capabilities and resource constraints.

Non-Binding International Instruments on Cultural Rights

In addition to binding treaties like the ICCPR and ICESCR, cultural rights appear in, and are reinforced by, various non-binding international declarations and principles. Some of these sources address the importance and value of culture in general, while others pertain specifically to the cultural rights of minorities.

General declarations on the importance of culture and cultural rights include, for instance, the UN Declaration on the Right to Development. In 1986, the UN General Assembly adopted Resolution 41/128, which declared a universal human right to development. Article 1.1 of the Declaration provides, that development is “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” Thus, states must specifically address cultural development in realizing the right to development. In 1996, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a “Declaration of Principles of International Cultural Cooperation” in its annual General Conference. Article 1 of the UNESCO Principles explicitly recognizes the respect towards cultural rights, and the rights of persons to develop and practice their culture. It further provides that it is essential for culture to respected and preserved, as each culture has an inherent value and dignity.

With respect to minority cultural rights, the 1978 UNESCO Declaration on Race and Racial Prejudice contains several important provisions.8 Article 1(3), for instance, recognizes the pluralism of cultural identities around the world, noting that the “identity of origin in no way affects the fact that human beings can and may live differently, nor does it preclude the existence of differences based on cultural, environmental and historical diversity nor the right to maintain cultural identity.” Article 5 further recognizes the need to protect distinct cultures within national boundaries. It provides that states must respect “the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international contexts.” This is reaffirmed by UN General Assembly Declaration 47/135 – the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992).9 Article 1 of this Declaration asks states to ensure the protection, inter alia, of cultural minorities and their identities. Article 2 calls on states to adopt suitable legislation to further the ends set forth in Article 1 and asks states to guarantee the right of minority groups to effectively participate in decisions that affect them.

Enforcement of Cultural Rights in International Law

Both the ICCPR and the ICESCR have mechanisms to monitor and enforce cultural rights. The Human Rights Committee (HRC), established through Part IV of the ICCPR, is composed of eighteen independent experts, who are empowered to examine complaints filed against a state party either by other states or by individuals whose rights are violated by that state. As per Article 40, States must also report to the Committee on their progress in implementing the ICCPR’s provisions within one year of ratifying the treaty, and then every 5 years thereafter.

In Lansman et al v. Finland (1994), the HRC was asked to adjudicate whether Finland had violated the cultural rights of a minority group under Article 27 of the ICCPR.11 The complaint was filed by the Sami indigenous group in Northern Finland. They alleged that the Finnish government had engaged in quarrying and logging activities near their settlements, which depleted the supply of lichen – a important source of food for reindeer. The Sami people claimed that reindeer herding was an essential component of their culture and that this government activity therefore violated their cultural rights and traditional livelihood.

The HRC found no violations of cultural rights under Article 27, as the quarrying was limited and did not substantially affect the Sami people. However, before coming to its conclusion, the HRC placed great emphasis on the cultural rights of the Sami under Article 27. It declared that reindeer herding was an essential element of Sami culture and warned the state that future large scale mining could result in violations of Sami cultural rights. The Committee also suggested that the state consult with the Samis before expanding mining operations in Northern Finland. Thus, even though Finland had not violated the ICCPR, this HRC decision was significant in recognizing minority cultural rights and for stating its willingness, in future cases, to enforce them against states.

The ICESCR is enforced by the by the Economic and Social Council along with the Committee on Economic, Social and Cultural Rights. This Committee, like the Human Rights Committee, is an independent panel of 18 experts, which monitors the implementation of the ICESCR. All state parties to the Covenant must submit regular reports to the Committee on how social, economic and cultural rights are being implemented. They must report initially within two years of accepting the Covenant and every five years thereafter according to guidelines set forth by the Committee. The Committee examines each report and addresses its concerns and recommendations to the State party. In May 2013, the Optional Protocol to the ICESCR came into force, allowing the Committee to hear individual complaints filed against state parties. However, as of October 2014, it has only 15 state parties, and is therefore inapplicable to the majority of states in the international community.

Regional Human Rights Frameworks for the Protection of Cultural Rights

Cultural rights are universally recognized human rights that are protected on a regional level in ways that reinforce the protections provided in the ICCPR and ICESCR. This section examines the American, African and European regional frameworks on cultural rights and seeks to explain the basic structure of each framework.

The Inter-American Framework on Cultural Rights

In 1948, prior to the announcement of the UDHR, the Ninth International Conference of American States set forth the American Declaration of the Rights and Duties of Man. The American Declaration was not thought to be legally binding at first, but it has come to be understood as containing enforceable obligations against the members of the Organization of American States (OAS). All 35 independent countries of the Americas (North, Central and South America) are members of OAS and are therefore bound by the provisions of the American Declaration. Article XIII of the Declaration, much like Article 27 of the UDHR, sets forth the right to participate in cultural rights and to the enjoyment of art and the benefits of intellectual (especially scientific) progress. Article XIII further grants authors the right to the intellectual property of their literary, artistic or scientific works.

The American Convention on Human Rights (1969) builds on the American Declaration by recognizing cultural rights in two provisions. Article 16 of the Convention provides for freedom of association, which includes “the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes” (emphasis added). Article 26, entitled “Progressive Development”, requires states to adopt measures towards the full realization of “economic, social, educational, scientific, and cultural standards” set forth in the OAS Charter. The Convention is a binding instrument that requires ratification before obligations can be imposed on state parties. It has 25 state parties, but several countries, including the United States and Canada, have not ratified it.

The Protocol of San Salvador to the American Convention provides the most comprehensive protection of economic, social and cultural rights. It has been ratified by 16 states and came into force in 1999. Article 14 of the Protocol is entitled “Rights to the Benefits of Culture”. It elaborates on Article XIII of the American Declaration to require member states to recognize the right of all persons to take part in he cultural and artistic life of the community as well as to benefit from the moral and material interests of authorship in artistic, literary or scientific works. Article 14 further requires states to “to respect the freedom indispensable for scientific research and creative activity.”

These regional instruments are monitored and enforced by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Commission is charged with monitoring the human rights situation in each OAS country and investigating individual petitions alleging human rights violations. The Court can can hear cases filed by member states or referred by the Inter-American Commission on Human Rights as well as issue advisory opinions on the interpretation of OAS legal instruments and the human rights implications of domestic laws.

The African Framework on Cultural Rights

The principal regional human rights instrument in Africa is the African Charter on Human and Peoples’ Rights (1981). 53 African states have ratified the Charter, which includes every country in the continent except South Sudan. The Charter contains several provisions that pertain to cultural rights. Article  guarantees the right of individuals to take part in cultural life of the community. It also imposes an obligation on states to promote and protect the morals and traditional values of each person’s community. Article 22 of the Charter guarantees the right to cultural development and equal enjoyment of the common heritage of mankind. The African Charter also includes explicitly regional cultural values. For instance, Article 29(7) provides that individuals shall have the duty to “To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society.” Thus the African Charter places great emphasis on preserving traditional values in the African continent and, unlike other international or regional instruments, imposes this duty on individuals as well as states.

Like the Americas, the African framework has a dual enforcement structure. The African Commission on Human and Peoples’ Rights is empowered to receive and examine reports from state parties on their compliance with the Charter’s obligations. The African Court of Human and People’s Rights, by contrast, has the power to issue binding judgments against member states. The Court was created through the Protocol to the African Charter (2004). 27 of the 54 African states have ratified the Protocol and are therefore subject to the jurisdiction of the Court. Thus, the Court has jurisdiction over only half of all African states.

The European Framework on Cultural Rights

The European Convention on Human Rights (ECHR) is the main human rights treaty in Europe. Yet, it only explicitly protects civil and political rights – there is no mention of cultural rights in the Convention. However, the European Court of Human Rights has implied various cultural rights into the Convention, including the right of cultural groups to form groups under the freedom of association in Article 11 and the right of minorities to particular forms of living arrangements under the right to respect for family and private life in Article 8.

The European Social Charter (adopted in 1961, revised in 1996) offers comprehensive economic, social and cultural rights protection to citizens of member states. 43 out of 47 members of the Council of Europe have ratified the Charter. While there is no particular provision on cultural rights, the right to participate in cultural life forms part of many rights within the Charter. For example, Article 15(3) requires states to undertake to promote the full social integration and participation of disabled persons in cultural activities. Article 23 similarly obligates states to allocate adequate resources to ensuring that elderly persons can play an active role in “public, social and cultural life.” Article 30, which establishes a right to protection against poverty and social exclusion, requires states to take measures to, inter alia, promote effective access to culture for persons at risk of living in a situation of poverty or social exclusion.

The Charter is enforced by the European Committee of Social Rights. The Committee performs two main functions. First, it requires all member states to submit annual reports of their compliance with the Charter’s provisions and issues “conclusions” as to whether countries have fulfilled their obligations. Second, it issues “decisions” in response to complaints filed through the “Collective Complaint Procedure”. This allows certain organizations, including local trade unions and designated NGOs, to file complaints against member states alleging non-compliance with the Charter’s provisions.

Summary

Cultural Rights receive broad protection in international human rights law. They were first recognized at an international level in the Universal Declaration of Human Rights (1948), which articulated rights to participate in cultural life, to partake in arts and the benefits of scientific advancements, and to the protection of artistic, literary and scientfic works of which one is the author. The UDHR is reinforced by the International Covenant of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These treaties expland upon and give legally binding effect to provisions in the UDHR. The ICCPR protects a right to free cultural development as well as a right for minority groups to profess and practice their own culture. The ICESCR requires states to recognize the rights to participate in cultural life and to authorship interests in artistic, literary and scientific works. It also requires states to take affirmative steps to ensure “the conservation, the development and the diffusion of science and culture” and to respect the freedom necessary for research and creative activity. These legally enforceable instruments are supplemented by range of declarations and principles, such as the UN Declaration on the Right to Development and the UNESCO Declaration on Race and Racial Prejudice, that call upon states to fully realize cultural rights and take special measures to protect minority cultures.

Cultural rigths are primarily enforced at the international level by the Human Rights Committee of the ICCPR and the Committee on Economic, Social and Cultural Rights. Both are expert committees that require state parties to report on their progress in realizing, inter alia, cultural rights provisions in the ICCPR and ICESCR. Of the two bodies, the Human Rights Committee has broader jurisdiction over hearing and deciding complaints against state parties filed by individuals and other states. In Lansman et al v. Finland (1994), the HRC decided that Finland not had violated the cultural rights of a minority group (the Sami people) under Article 27 of the ICCPR, but nonetheless emphasized the importance of those rights and warned the state not infringe upon them in the future.

At the regional level, the Inter-American, African and European human rights frameworks all protect cultural rights to varying degrees and through different means. While cultural rights are explicitly enumerated in the American and African human rights instruments, they are not mentioned at all in the European Convention on Human Rights and are only included within other rights in the European Social Charter. Nonetheless, the European Court of Human Rights has read cultural rights into the Convention, and the Charter, taken as a whole, protects a broad right to participate in cultural life.

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Reference

  • United    Nations    Treaty   Collection:    Universal   Declaration   of   Human   Rights,   available  at: http://www.un.org/en/documents/udhr/.
  • International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability, Human Rights and Rule of Law Series No. 2, available at: http://www.refworld.org/docid/4a7840562.html.
  • Laura Reidel, What are Cultural Rights?, 9 Journal of Human Rights 65 (2010).
  • United Nations Treaty Collection: International Covenant on Civil and Political Rights, available at: https://treaties.un.org/Pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-4&chapter=4&lang=en#Participants.
  • United Nations Treaty Collection: International Covenant on Economic, Social and Cultural Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en – EndDec.
  • United Nations General Assembly, Declaration on the Right to Development, United Nations Human Rights, available at: http://www.refworld.org/docid/3b00f22544.html.
  • United Nations Educational, Scientific, and Cultural Organization, Declaration of Principles of International Cultural Co-operation, available at: http://portal.unesco.org/en/ev.php-URL_ID=13147&URL_DO=DO_TOPIC&URL_SECTION=201.html.
  • United Nations Educational, Scientific, and Cultural Organization, Declaration on Race and Racial Prejudice,1978, available at: http://www.unesco.org/webworld/peace_library/UNESCO/HRIGHTS/107-116.HTM.
  • United Nations General Assembly, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992), United Nations Human Rights, available at: http://www.ohchr.org/documents/publications/guideminoritiesdeclarationen.pdf.
  • United Nations Treaty Collection: International Covenant on Civil and Political Rights, available at: https://treaties.un.org/Pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=IV-4&chapter=4&lang=en#Participants.
  • Lansman et al v. Finland, HRC Communication No. 511/1992, available at: http://www1.umn.edu/humanrts/undocs/html/vws511.htm (1994).
  • United Nations Treaty Collection: Optional Protocol to International Covenant on Economic, Social and Cultural Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en.
  • Organization of American States, Member States, available at: http://www.oas.org/en/about/member_states.asp/.
  • Inter-American Commission on Human Rights, American Convention on Human Rights, available at: https://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm.
  • Organization of American States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: Signatories and Ratifications, available at: http://www.oas.org/juridico/english/sigs/a-52.html/
  • Organization of American States, Member States, available at: http://www.oas.org/en/about/member_states.asp/.
  • African Commission on Human and Peoples’ Rights, African Charter on Human and Peoples’ Rights, available at: http://www.achpr.org/instruments/achpr/#a17.
  • Sidiropoulos v. Greece, European Court of Human Rights, Appl. No. 57/1997/841/1047 (1998).
  • Chapman v. United Kingdom, European Court of Human Rights, Appl. No. 27238/95 (2001). 
For a detailed discussion of the European approach to cultural rights, see Module 18.
  • Council of Europe, Member States of the Council of Europe and the European Social Charter, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp.
  • Council of Europe, European Social Charter: Organizations Entitled to Lodge Complaints with the Committee, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/OrganisationsEntitled/OrgEntitled_en.asp.