Post on 25-Jan-2023
CULTURAL RIGHTS
Dr Alexandra XanthakiLaw School, Brunel University
Table of contents
Introduction General Monographs and Edited Collections Articles and ChaptersCulture, cultural identity and human rightsCultural rights and cultural diversityCultural rights and cultural heritageIndividual cultural rightsCultural rights of minoritiesMulticultural dilemmas and cultural rights Cultural rights of indigenous peoples
INTRODUCTION
Cultural rights are often called the ‘Cinderella of human
rights’, as they have not been explored in depth either by
international human rights bodies or in the academic
literature. Although specific issues such as minority
practices have recently attracted the attention of
international lawyers, and theoretical approaches relating to
cultural rights have featured prominently in discussions
within political theory, international law is still lacking a
comprehensive discussion of cultural rights.
International law has recognised the importance of culture,
for example in UNESCO documents. However, for long, culture
was seen as capital or creativity and cultural rights were
seen as rights of individuals or rights of states. This
changed recently especially after the explosion of minority
and indigenous cultural rights and culture is now defined
broadly as the way of life. Recent UNESCO work on ‘cultural
heritage’ has also affected the scope of cultural rights.
Although the law of cultural heritage is much wider than the
human rights considerations, it raises important issues
related to cultural rights.
At the centre of cultural rights is the generic ‘right to
culture’, recognised in article 15 of the International
Covenant on Economic, Social and Cultural Rights. The article
recognises the right to take part in cultural life; to enjoy
the benefits of scientific progress and its applications; and
rights of scientists and artists. It also recognises ‘the
freedom indispensible for scientific research and creative
activity’. The right to participation in culture has recently
been seen in its broad sense to include ‘the right to benefit
from cultural values created by the individual or the
community’.i States must also ensure that there is no
unjustified discrimination in the enjoyment and participation
in cultural activities (Article 5(e)(vi) of the International
Convention on the Elimination of All Forms of Racial Discrimination). Cultural
rights of minorities and indigenous peoples are further
protected by specific instruments, including article 27 of the
International Covenant on Civil and Political Rights (ICCPR) as elaborated in
the UN Declaration on Persons belonging to Ethnic or National, Religious and
Linguistic Minorities (Declaration on Minorities) and the UN Declaration on the
Rights of Indigenous Peoples and raise issues that are either not
fully explored, such as customary legal systems and group
rights to intangible culture, or are seen under the prism of
other rights, such as minority dress codes discussed mainly
under the right to religion. This chapter will focus on
cultural rights stricto sensu.
1. GENERAL MONOGRAPHS AND EDITED COLLECTIONS
Although a number of works have been published touching on
cultural rights, only two monographs have been written on
cultural rights: Elsa Stamatopoulou 2007 provides a solid
basis offered on a positivistic wrap for further analysis on
the existing standards on cultural rights, whereas Donders
2002 focuses on the right to cultural identity and argues, in
contrast to Stamatopoulou that ‘translating cultural identity
into a separate right is neither desirable nor necessary’;
according to her, individual rights have to be put above
cultural identity.
Among the edited collections on cultural rights, one may
distinguish the Niec collection, one of the first such
collections focussing on understandings and challenges of
culture and cultural rights around the world. Francioni and
Scheinin offer a solid overview of the various issues
regarding cultural rights, including analyses of WTO and the
EU’s initiatives on cultural rights as well as wider
discussions on cultural identity, while Donders and Volodin
offer some interesting chapters on aspects of cultural rights
not often discussed, such as justifiability, indicators and
access to benefits. Borelli and Lenzerini are an up-todate
mellange of chapters on cultural rights and cultural heritage.
Finally, Nafziger, Paterson and Renteln is the only textbook
that exists on cultural law. Although crossing human rights,
IP rights and other areas, it offers an important selection of
relevant discussions and case-studies.
a. Elsa Stamatopoulou. Cultural Rights in International Law.
Leiden/Boston: Martinus Nijhoff Publishers, 2007.
Pp. 258. €105. ISBN 9789004157521
The book focuses on the work of the United Nations monitoring
bodies in analysing and pushing forward the contours of
cultural rights and the right to participate in cultural life,
as this has been the main focus of cultural rights. It
includes a solid section on cultural rights of minorities and
indigenous peoples.
b. Yvonne Donders, Towards a Right to Cultural Identity?
Antwerp, Intersentia, 2002, 422 pp., ISBN 9050952380
One of the very rare monographs on aspects of cultural rights,
Donders critiques the soft law recognising the right to
cultural identity as well as the relationship between cultural
identity and human dignity. The monograph disagrees with both
the recognition of the right to cultural identity and its
recognition as a collective right. Although a decade later
collective cultural rights and the right to are more firmly
recognised, the monograph continues to offer an interesting
analysis discussing valid arguments.
c. Francioni, Francesco, and Martin Scheinin, eds. Cultural
Human Rights. Leiden, The Netherlands, and Boston:
Martinus Nijhoff, 2008. DOI: 10.1163/ej.9789004162945.i-
372
Having a firm focus on collective cultural rights, this edited
collection includes chapters on the relationship between
cultural rights and the state, cultural rights and self-
determination, cultural rights of minorities and of indigenous
peoples and discussions around cultural identity. Chapters
review UNESCO’s, WTO’s and EU’s instruments and initiatives on
cultural rights and address cultural identity and religious
freedom.
d. Halina Niec, Cultural Rights and Wrongs (Leicester:
Institute of Art and Law and UNESCO, 1998), ISBN-10:923103555X
One of the first attempts to discuss cultural rights, this
edited collection attempts to show the differences in the way
culture is understood and to highlight the different issues
related to cultural rights in the different continents of the
world. Contains an rare chapter on the right to artistic
freedom.
e. Yvonne Donders and Vladimir Volodin (eds), Human
Rights in Education, Science and Culture, Legal Developments and
Challenges (UNESCO Publishing, Ashgate, 2008)
Contains interesting topics that have not been explored,
including the justiciability of cultural rights; the
development of indicators for participation in cultural rights
and access to the benefits of science; and the right to enjoy
the benefits of scientific and technological progress.
f. James A R Nafziger, Robert Kirkwood Paterson, Alison
Dundes Renteln, Cultural Law, International, Comparative
and Indigenous (Cambridge university Press, 2010)
The only textbook on cultural law, it includes pieces from a
plethora of courses regarding culture and cultural rights n
their broad sense. Discusses state practice, important cases,
comparative perspectives and wider issues regarding culture
and the law.
g. Sylvia Borelli and Federico Lenzerini (eds), Cultural
heritage, cultural rights, cultural diversity: New developments in
international law (Brill Publishers, 2012) ISBN13:
9789004228399
An up-to date discussion of several issues regarding broadly
understood cultural rights, including manifestations of
cultural diversity, clashes between global interests and
communities cultural rights, underwater heritage and
restitution.
2. ARTICLES AND CHAPTERS
There are not a lot of pieces that discuss the standards of
cultural rights in international law. Symonides identified
early on the lack of focus on cultural rights and the
reluctance of states to talk such rights. In his well-known
piece, Stavenhagen pushed for a wider understanding of the
notion of culture away from creativity and property to the
more embracing notion of it as a way of life. Turning to a
discussion on standards on cultural rights, O’Keefe
discusses article 15 ICESCR and its interpretation by the
monitoring Committee, whereas McGoldrick discusses generally
the standards of cultural rights with particular emphasis on
the ICESCR General Comment No 17. Stamatopoulou focuses more
on the work of the United Nations monitoring bodies in
expanding the notion and protection of cultural rights,
while Yusuf puts forward a comprehensive overview of
UNESCO’s work on cultural rights. Finally, of great interest
is the report by the Northern Ireland Human Rights
Commission on the right to culture in post-conflict
societies, a very interesting topic that has just started
attracting more interest.
a. Symonides, Janusz. “Cultural Rights: A Neglected
Category of Human Rights.” International Social Science
Journal 50.158 (1998): 559–572.
This article traces the extent to which cultural rights
are a neglected category in international law and
practice. An important reason for this neglect would be
states’ concerns about minorities’ and indigenous
peoples’ claims of separate cultural identities.
Symonides discusses UNESCO’s groundbreaking work here,
the potential positive impact of new information and
communication technologies, and the mixed blessings of
cultural globalization.
b. Rodolfo Stavenhagen, ‘Cultural rights: A social
science perspective’ in H. Niec, Cultural Rights and
Wrongs (Leicester: Institute of Art and Law and
UNESCO, 1998), pp. 1-20.
Discusses different conceptions of culture and consequences of
an anthropological, wide definition of culture for the
protection of cultural rights.
c. Roger O’Keefe, ‘ “The right to take part in cultural
life” under article 15 ICESCR’ 47 (1998) 4
International and Comparative Law Quarterly 904- 923.
A classic piece, it discusses the interpretation of article 15
ICESCR by its monitoring Committee. It highlights the positive
nature of states obligations, including access to cultural
works, protection of the cultural environment, accessibility
of cultural heritage, protection of creative freedom and
protection from the homogenisation of culture. It also
highlights the clear interpretation of the Committee that the
provision includes minority and indigenous protection for
their cultures.
d. D Mc Goldrick, ‘Culture, Cultures and Cultural
Rights’ in M Baderin and R McCorquodale (eds),
Economic, Social and Cultural Rights in Action (OUP, 2007),
pp. 447-474.
It sheds light on the General Comment 17 of the International
Committee on Economic, Social and Cultural Rights which
differentiates between human rights and intellectual property
rights; and the politics, successes and shortcomings of the
UNESCO Convention on the Diversity of Cultural Expressions.
e. E Stamatopoulou, ‘Monitoring Cultural Human Rights:
the Claims of Culture on Human Rights and the
Response of Cultural Rights’ 34 (2012) 4 Human Rights
Quarterly 1170-1192
The article argues that the United Nations human rights
monitoring bodies have played an important role in the
validation of international cultural rights. It follows the
development of cultural rights in the United Nations and
examines more in depth the work of the Human Rights Committee,
the Committee on Economic, Social and Cultural Rights and the
Independent Expert on Cultural Rights.
f. Abdulqawi A Yusuf, Standard-setting in UNESCO, Volume I :
Normative Action in Education, Science and Culture, UNESCO
Reference Works series, (UNESCO Publishing / Martinus
Nijhoff Publishers, 2007), 978-92-3-104067-2
Although not focused on cultural rights per se, it explores
the work of UNESCO on important relevant topics, including
copyright, ethics and human genetics, cultural heritage,
natural heritage, cultural exchange and diversity and
tolerance and understanding.
g. Information presented by the Northern Ireland Human
Rights Commission on The Derry/Londonderry Report on
Upholding the Human Right to Culture in Post-
Conflict Societies, UN Doc. A/HRC/25/NI/5 (2014)
A rare discussion of the concept and application of cultural
rights in societies emerging from ethnic conflict. Discusses
how the application of cultural rights without adaptation to
particular post-conflict situations may lead to surprising and
inadequate results.
3. CULTURE, CULTURAL IDENTITY AND HUMAN RIGHTS
Cultural identity and cultural politics have attracted a lot
of attention from political theory and sociology, but this has
not fully rubbed off to the international law literature. A
series of pieces have been written on theoretical
underpinnings of cultural rights, which have influenced
international lawyers. Kymlicka’s ground-breaking thesis that
protection of cultural membership and liberalism are indeed
compatible changed the landscape of international cultural
rights and paved the way for the wider acceptance of
collective cultural rights by liberals. Kukathas disagrees on
the importance of cultural allegiances and puts forward the
traditional liberal argument on the need to allow for free
agency and individual rights. Donnelly’s book is a key
reference on the debate of universalism v. cultural relativism
from the western liberal’s perspective favouring openly the
idea of universalism. In contrast, An-Na’im’s collection of
essays offers a more varied discussion on the importance and
challenges of cultural membership that also relates to non-
European understandings of human rights. Prott’s piece is a
solid overview of arguments and counter-arguments on
collective cultural rights. Lenzerini offers his thoughts on
the discussion using the work of international bodies.
Finally, Vrdoljak discusses how cultural dimensions of human
rights have important consequences in the way we view big
concepts and how international institutions have dealt with
such questions.
a. Will Kymlicka, Liberalism, Community and Culture
A ground-breaking text that re-interpets liberalism to show
that respect for minority cultural rights is compatible with
liberal equality. Based in political theory but widely used in
international law texts related to cultural rights.
b. Chandran Kukathas, ‘Are there any cultural rights’
(1992) 22 Political Theory 105-139
A response to Kymlicka’s thesis which re-asserts the need for
individual rights and exposes the problems associated with
collective cultural rights and stresses the importance of the
right to exit.
c. J Donnelly, ‘Cultural Relativism and Universal Human
Rights’ (1984) 6 Human Rights Quarterly 400-419
A classic article that discusses universalism v cultural
relativism favouring universalist approaches to international
human rights standards.
d. Abdulah An-Na’im (ed), Human Rights in Cross-Cultural
Perspectives, A Quest for Consensus (University of
Pennsylvania Press, 1992)
A reference source for anyone interested in the cultural
dimensions of international human rights. Discusses wider
issues such as western liberalism and communitarianism, as
well as thematic case-studies (p.ex. gender, indigenous
peoples, self-determination) and regional case-studies (p.e.x
Australia, Brazil)
e. Lyndel Prott, ‘Understanding one another on cultural
rights’ in Halina Niec (ed), Cultural Rights and Wrongs
(Leicester: Institute of Art and Law and UNESCO,
1998), ISBN-10: 923103555X
A thoughtful overview of the arguments and counter-arguments
relating to cultural rights, especially individual and
collective cultural rights.
f. Ana Vrdoljak (ed), The cultural dimension of human rights
(Oxford University Press, 2013)
Not focused on cultural rights per se but an important
addition to anyone working on cultural rights, this volume
discusses the cultural dimensions of human rights and focuses
on the effect that culture has on individuals and
collectivities. It explores how big concepts such as
democracy, liberty and equality have been affected by culture
and looks at the effects culture has had on the work of
several organisations, including the EU, the WTO and the
reservations in Human Rights Treaties.
g. Federico Lenzerini, The Culturalisation of Human Rights
(OUP, 2014)
Analysing the usage of the concept of culture in human rights
theory and practice, this volume uses the work of
international law bodies to discuss –in mystifying language at
times- the conflict and co-existence of universalism v
cultural relativism.
4. CULTURAL RIGHTS AND CULTURAL DIVERSITY
Cultural diversity has not been attached in the legal
literature to cultural rights, but more broadly to
international law, often using the (2005) UNESCO Convention on
the Diversity of Cultural Expressions as a starting point.
Although the convention does not recognise cultural rights,
discussions are related to such rights and hence are of
interest to the researcher in this field. The edited
collection by Kono and van Uytsel is a comprehensive analysis
of the main issues arising from the UNESCO Convention on the
Diversity of Cultural Expressions, whereas the Stoll and von
Scholmeler collection offers a more detailed commentary of the
convention. Donders discusses the gradual changes in UNESCO’s
focus of culture and analyses the shortcomings of the above-
mentioned convention. Moving on away from this convention,
UNESCO’s report on cultural diversity presents contributions
from all over the world discussing global ethics and the
protection of cultural diversity. Julie Ringleheim’s
collection is also very interesting as it brings together
discussions on difficult and topical issues such as
multiculturalism, integration and secularism and discusses how
national courts have dealt with such concepts.
a. UNESCO World Commission on Culture and Development
(WCCD) Report, Our Creative Diversity
Trying to find a balance between cultural relativism and
universalism and at times being vague and contradictory, this
volume is nevertheless a worthy exercise in highlighting the
duality of cultural diversity and common global ethics that
draw on norms common to all cultures and religions.
b. Toshiyuki Kono and Steven Van Uytsel (eds), The
UNESCO Convention on the Diversity of Cultural Expressions, A
Tale of Fragmentation in International Law (Intersentia,
2012)
Discusses the origins and provisions of this Convention in
depth, including intellectual property and cultural
expression, the rights of minorities and indigenous peoples
and sustainable development.
c. Peter Tobias Stoll and Sabine von Scholmeler (eds),
The UNESCO Convention for the Promotion and Protection of the
Diversity of Cultural Expressions: A Commentary (Springer,
2012) ISBN 978-3-642-25995-1
Offers a comprehensive analysis of the Convention as it
is drafted in a Commentary style and one by one the
articles of the Convention. Each chapter includes the
drafting history of the relevant article.
d. Donders, Yvonne, ‘The cultural diversity convention
and cultural rights: included or ignored?’ in
Toshiyuki Kono and Steven Van Uytsel (eds.), The
Convention on the Promotion and the Protection of Diversity of
Cultural Expressions (Intersentia, 2012) ISBN 978-94-
000-0003-2.
The chapter gives an overview of the UNESCO work related to
cultural rights and focuses on Cultural Diversity
Convention. It argues that the Convention is rather
disappointing as is not a cultural rights instrument and is
limited in scope by its focus on national cultures and on
‘diversity of cultural expressions’.
e. Julie Ringelheim (ed), Le droit and la diversite culturelle
(Bruylant, 2011) ISBN978-2-8027-3451-2
A valuable collection of essays coming from continental
Europe with several chapters on how the state, with
particular focus on Belgium, applies concepts such as
neutrality, multiculturalism and integration and how the
courts, national, European and international, consider
difficult challenges related to cultural diversity in
social, family and penal law. In French.
5. CULTURAL RIGHTS AND CULTURAL HERITAGE
Although cultural heritage has recently started attracting
more attention and several collections of essays have appeared
on the topic, its relationship with cultural heritage has not
been fully untangled. One of the earliest attempts to
distinguish the concept of culture to that of cultural
heritage has been made by Blake in her article. More recently,
Nafziger and Nicgorski’ s collection explores cultural rights
and cultural heritage in depth and focuses especially on the
human rights considerations raised by efforts to identify and
protect cultural heritage. William Logan pinpoints the
specific challenges that cultural heritage raises. Very
interestingly, the 2011 UN Special Rapporteur Report discusses
the more unambiguous concept of ‘access to cultural heritage’
as a human right, its scope and protection. Ubertazzi and Vadi
both integrate several areas of law when discussing cultural
heritage and show in this way how cultural rights are attached
to such legal areas. Ubertazzi discusses which approach, the
intellectual property one or the cultural rights one, is more
helpful for claims of cultural misappropriation, whereas Vadi
places cultural rights next to other discussions of cultural
heritage as property, as economic interest and as public good.
Finally, Langfield, Logan and Craith give us interesting
examples of how cultural heritage is protected (or not) in
various parts of the world.
a. Janet Blake, ‘On defining the cultural heritage’ 49
(2000) 1 International and Comparative Law Quarterly 61-85
One of the earlier attempts in legal literature to discuss
cultural heritage, the article cautions of the problems that
may be attached to the usage of the word ‘cultural heritage’
instead of ‘cultural property’ and discusses the differences
between the former and ‘culture’.
b. James A R Nafziger and Ann M Nicgorski (eds), Cultural
Heritage Issues: The Legacy of Conquest, Colonisation and
Commerce (Martinus Nijhoff Publishers, 2009), ISBN
9004160361
This volume goes to the heart of cultural heritage and in
doing so, also explores themes relevant to cultural heritage
and human rights. Contributors discuss first, broad issues,
including the concept of cultural heritage, the role of
governments and the responsibility of museums, secondly the
legal instruments and parameters, and thirdly, important case-
studies from different parts of the world, including US,
Canada, New Zealand, Africa and Iraq.
c. ‘Access to cultural heritage, Report of the Special
Rapporteur in the field of cultural rights, Fareda
Shahid’, UN Doc A/HRC/17/38, 21 March 2011.
Making the case for a human rights-based approach to cultural
heritage matters, the report has a comprehensive discussion of
all international law provisions related to cultural heritage
and human rights. Explores human rights issues surrounding
cultural heritage, including states’ obligations and
limitations. Also includes recommendations.
d. William S Logan, ‘Closing Pandora’s Box: Human
Rights Conundrums in Cultural Heritage Protection’
in Helaine Silverman and D Fairchild Ruggles (eds),
Cultural heritage and Human Rights (Springer, 2007) ISBN
978-0-387-76579-2
Discusses the challenges to the protection of cultural rights
associated to cultural heritage, including rights of non-state
groups to their cultural heritage, selective interpretations
of cultural heritage and cultural practices that contravene
human rights. Logal demonstrates in his chapter the ways in
which cultural heritage law is linked and influences cultural
rights.
e. Benedetta Ubertazzi, ‘Territorial and Universal
Protection of Intangible Cultural Heritage from
Misappropriation’ 8 (2010) New Zealand Yearbook of
International Law 69- 109
A very interesting article which discusses specific cases of
misappropriation of cultural heritage. In order to overcome
the territoriality of the protection given by the current IP
protection of cultural heritage, Ubertazzi discusses the
universality offered by human rights protection to cultural
heritage, either through drawing analogies with the
international crime of piracy; or through existing human
rights relevant to cultural heritage; or through rules
relevant to the UNIDROIT Convention.
f. Valentina Vadi, ‘The Cultural Wealth of Nations in
international law’ (2012) Tulane Journal of International
and Comparative Law 87-133.
Argues in favour of cultural law becoming a new separate
brunch of international law. In doing so, Vadi discusses the
different legal streams that are relevant to cultural
heritage, whihc include cultural rights. The article is
important because it places cultural rights within the wider
discussions taking place on cultural heritage.
g. M Langfield, W Logan and M Nic Craith (eds), Cultural
diversity, heritage and human rights: intersections in theory and
practice, Intersections of Theory and Practice (London and New
York: Routledge, 2010)
Focused on case studies from all over the world, including
Iraq, Australia, Cyprus, Namibia and Burma, this collection of
essays highlights the current problems related to cultural
heritage and the inadequacy of responses in current
international law standards.
6. INDIVIDUAL CULTURAL RIGHTS
Very few sources of international law discuss the individual
right to culture and even fewer the right to artistic freedom.
Eide’s piece sets out the main parameters of the individual
right to culture. Decaux’s article, another classic, focuses
on the rights of artists and its limitations. The same right
is also analysed by the UN Special Rapporteur Fareda Shahid.
In her study the Special Rapporteur discusses current aspects
of the right, including artistic freedom as political consent
and religious defamation. The European Convention on Human
Rights does not include an article on the right to culture;
however the Court ahs on several occasions discussed the
contours of this right. This is the focus of the European
Court of Human Rights 2011 document. Keans discusses
specifically how the Court has failed to adequately protect
such a right in the name of a very broadly understood margin
of appreciation. Finally, Almqvist as well as Donders
monographs are a homage on the individual right to culture and
its protection by international law standards. Using different
arguments, they are very much in tune in their efforts to
protect the individual right to culture.
a. EIDE Asbjørn, « Cultural rights as individual rights » in
EIDE Asbjørn et al.(éd.), Economic, Social and Cultural Rights,
Dordrecht, Martinus Nijhoff Publishers, 2001(2ème éd),
pp.229ss.
Gives a comprehensive overview of individual cultural rights.
An excellent basis for any research on the topic.
b. Emmanuel Decaux, ‘On the Freedom of the Author and the
Artist’ in Francioni and H. Niec, Cultural Rights and Wrongs
(Leicester: Institute of Art and Law and UNESCO, 1998)
An earlier work that continues to be relevant. The paper
discusses limits to the freedom of artist as set by the
international instruments as well as the case-law of the
ECourtHR in the 90s.
c. ‘The right to freedom of artistic expression and
creativity, Report of the Special Rapporteur in the field
of cultural rights, Fareda Shahid’, UN Doc A/HRC/23/34,
14 March 2013
A rare discussion of the human rights standards surrounding
the individual right to artistic freedom and creativity. It
offers a comprehensive analysis of the human rights framework
and discusses the challenges, including artistic freedom as
political dissent, religious defamation and offence, and
corporate interests.
d. European Court of Human Rights, Cultural Rights in the case-law
of the European Court of Human Rights (Council of Europe,
January 2011)
Although the European Convention does not include a
provision on cultural rights, the Court has held a number of
decisions on individual cultural rights broadly speaking,
including the right to artistic expression, academic freedom
as well as rights falling within cultural rights in a broad
sense, such as linguistic rights and rights to education.
e. Paul Keans, ‘The Judicial nemesis: Artistic Freedom and
the European Court on Human Rights’ (2012) 1 Irish Law
Journal 56-92.
A rare article that discusses artistic freedom. It argues that
the protection of artistic freedom by the European Court on
Human Rights is inadequate largely because of the imposition
of moral considerations which the Court allows as part of a
very widely defined margin of appreciation.
f. Yvonne Donders, Towards a right to cultural identity? (Antwerp,
Intersentia, 2002)
Donders disagrees with both the recognition of the right to
cultural identity and its recognition as a collective right.
Although a decade later collective cultural rights and the
right to are more firmly recognised, the monograph continues
to offer an interesting analysis discussing valid arguments.
g. Jesica Almqvist, Human Rights, culture and the rule of law (Hart,
2006)
Discusses the concept of culture and its place in
international human rights law. She argues that culture is
better understood as property possessed by the individual.
Linking culture to communities is argued to be a flawed
concept of human rights that erodes individual freedom.
7. CULTURAL RIGHTS OF MINORITIES
Contrary to other areas of international law, the cultural
rights of minorities have attracted quite a lot of attention.
Yupsanis uses the general human rights provision recognising
cultural rights as the starting point to discuss how minority
cultural rights are recognised. Holt uses the minority
instruments as the basis for her discussion of the cultural
rights of minorities in international law. Several pieces have
been written on specific rights that are considered part of
cultural rights in its strict or broader sense. Ringleheim and
Peroni’s chapters have both appeared in an edited collection
by Eva Brems that aims at re-wrtiing some of the most
important cases of the ECourtHR. In commenting the Chapman
case, Ringelheim discusses the right to traditional lifestyle
within the parameters of the European human rights standards,
while Peroni focuses on the right to names as an aspect of
one’s cultural identity. In another piece in a Henrard
collection, Ringelheim focuses on the minority right to
education as a vehicle to maintain and develop the minority’s
culture. The chapter also includes a discussion on separate
minority schools, a highly controversial topic in some states.
Finally, May discusses language rights for minorities again as
an important way of maintaining cultural identity.
a. A Yupsanis, “The Meaning of ‘Culture’ in Article 15
(1)(a)of the ICESCR – Positive Aspects of CESCR’s
General Comment No. 21 for the Safeguarding of
Minority Cultures” (2012) 55 German Yearbook of
International Law 345- 383
The article discusses the notion of culture in international
law as perceived in a traditional way as high art to a more
anthropological way as a way of life and the positive
contribution of CESCR’s GC No 21 in endorsing this latter
understanding of the concept.
b. Sally Holt, ‘Family, Private Life and Cultural
Rights’ in Marc Weller (ed), Universal Minority Rights, A
Commentary on the Jurisprudence of International Courts and
Treaty Bodies (Oxford University Press, 2007) pp. 203-
252
It offers a solid overview of the sources and the
international jurisprudence relevant to minority and
indigenous cultural rights; clarifies the States’ duties
regarding the protection and promotion of minority cultural
rights; and discusses the permissible limitations.
c. J. Ringelheim. ‘Chapman redux: the European
Convention f Human Rights and Roma traditional
lifestyle’ in Eva Brems (ed), Diversity and European
Human Rights, Rewriting Judgments of the ECHR (Cambridge
University Press, 2013) ISBN978-1-107-02660-5
In a very interesting volume that discusses how judgements of
the European Court on Human Rights which touch on diversity
could be re-written, Ringelheim criticises the Chapman
judgment and pushes for the recognition by the Court of
minorities’ right to pursue their traditional lifestyle as
part of the non-discrimination principle.
d. Lourdes Peroni in Eva Brems (ed), Diversity and European
Human Rights, Rewriting Judgments of the ECHR (Cambridge
University Press, 2013) ISBN978-1-107-02660-5
In the same volume as above, Peroni re-writes the Kemal Taskin
and others v. Turkey, which involves names and cultural
identity. Again, a rare discussion of how the European Court
of HR deals with cultural diversity and cultural rights.
e. Julie Ringelheim, ‘Between Identity Transmission and
Equal Opportunities: The Multiple Dimensions of
Minorities’ Right to Education; in Kristin Henrard
(ed), The Interrelation between the Right to Identity of
Minorities and their Socio-Economic Participation (Martinus
Nijhoff Publishers, 2013), pp. 91-104 ISBN 978-90-
04-24432-0
Discusses how international human rights law deals with the
challenge of promoting equal education while attending
minorities’ specific needs. Discusses cultural dimensions of
education rights, including the transmission of the minority
identity, the promotion of intercultural education, and the
question separation, including of minority separate schools.
f. Stephen May, ‘Language rights: the “Cinderella”
Human Right’ 10 (2011) 3 Journal of Human Rights 265-289
Discusses language rights mainly of minorities. It first
discusses language rights in political theory before it
analyses the international law related to language rights and
finally it discusses the Catalan case.
8. MULTICULTURAL DILEMMAS AND CULTURAL RIGHTS
Multicultural societies face currently several dilemmas which
go to the heart of cultural rights. In this section, authors
look at specific dilemmas which have been discussed under the
remit of cultural rights in international law. One of the most
important such dilemmas is the conflict between freedom of
speech and minority cultural identity; Ghanea gives us a
comprehensive overview of the relevant standards of
international law and the challenges posed. Keane uses the
controversy of Danish Cartons to discuss conflicts between
artistic expression and offence of religious, cultural and
ethnic identity. The issue of minority dress code is often
seen through the lens of the right to religion; Borelli links
it to cultural identity and rights. In a more comprehensive
manner, Mullally discusses in depth how feminism and women’s
rights and cultural claims/ rights may co-exist. Turning to
multiculturalism as such, McGoldrick discusses the limited
role that the concept has played in the development of
international human rights standards. In contrast, Xanthaki
argues that although references to multiculturalism are
scarse, minority standards as currently discussed by the UN
bodies, incorporate many elements of multiculturalism. Wiater
argues that the European Court of Human Rights places great
emphasis on intercultural dialogue as a means of resolving
challenges related to cultural diversity.
a. Nazila Ghanea, ‘Minorities and Hatred: Protections and
Implications’ 17 (2010) International Journal on Minority and
Group Rights 423-446.
Discusses the conflict between freedom of speech and minority
rights. It includes a comprehensive analysis of the relevant
standards of international human rights law and a discussion
on the different approaches that the ECHR and the HRC have
taken.
b. D Keane, ‘Cartoon violence and freedom of expression’ (2008) 30
Human Rights Quarterly 845-876
A case study on freedom of artistic expression and religious
offence, this article elaborates on the relevant human rights
standards and how they apply to the Danish cartoons case.
Interestingly, it also includes a discussion on other cartoons
that offend ethnic and racial groups.
c. Silvia Borelli, ‘Of Veils, Crosses and Turbans: The
European Court of Human Rights and Religious Practices as
Manifestations of Cultural Diversity’ in S. Borelli and
F. Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural
Diversity: New Developments in International Law (Martinus
Nijhoff, 2012), pp. 55-82.
Although many articles have been written on religious dress
code and symbols as part of the right to religion, Borelli
successfully views the debate as part of cultural rights as
well.
d. Siobhan Mullally, Gender, Culture and Human Rights: Reclaiming
Universalism (Hart, 2006)
Mullally discusses specifically cultural claims that restrict
women’s rights and explores a way to reconcile human rights,
including cultural rights, with women’s rights and feminism.
e. Dominic McGoldrick, ‘Multiculturalism and its
discontents’ in Nazila Ghanea and Alexandra Xanthaki
(eds), Minorities, Peoples and Self-Determination: Essays in Honour of
Patrick Thornberry (Martinus Nijhoff Publishers, 2005) ISBN
90 04 14301 7
The article discusses the limited role that multiculturalism
has played in the international human rights landscape. It
presents the arguments and the controversies that dominated
the multicultural debate and argues in favour of the
prevalence of equality over cultural claims.
f. Alexandra Xanthaki, ‘Multiculturalism and International
Law: Discussingf Universal Standards’ 32 (2010) Human
Rights Quarterly 21-48.
Although international law standards do not include references
to multiculturalism, the article argues that minority
instruments as interpreted by the United Nations bodies
promote such a policy. Xanthaki also discusses how conflicts
between cultural rights and other human rights may be resolved
by using international law tools.
g. Wiater, Patricia. Intercultural Dialogue in the Framework of
European Human Rights Protection. White Paper Series 1.
Strasbourg, France: Council of Europe Publishing, 2010.
Wiater explores the importance that the ECtHR places on
intercultural dialogue in managing cultural diversity relates
the legal approach that the ECtHR adopts toward cultural
diversity. The analysis focuses on the freedoms of religion,
expression, and association.
9. CULTURAL RIGHTS OF INDIGENOUS PEOPLES
The literature on the cultural rights of indigenous peoples
has exploded recently, especially after the adoption of the UN
Declaration on the Rights of Indigenous Peoples. Daes had
already discussed the issue of cultural property vis-à-vis
cultural heritage in the early 90s: her work is still very
relevant. In her monograph, Xanthaki goes more in depth into
the challenges that indigenous understandings of culture pose
for the current human rights system and ways to overcome such
challenges. Wiessner discusses the principles that should
govern discussions on indigenous cultural rights, while
Stamatopoulou analyses in depth the content of the UN
Declaration on the Rights of Indigenous Peoples on cultural
rights. Xanthaki tackles a common argument regarding
individual rights and in specific, women’s rights that States
and traditional liberals give against the recognition of
indigenous cultural rights. Gibson analyses indigenous
cultural rights related to Intellectual Property rights.
Finally, Vrodljak discusses the return of indigenous cultural
objects.
a. Study on the protection of the cultural and
intellectual property of indigenous peoples, by
Erica Irene Daes, Special Rapporteur of the Sub-
Commission on Prevention of Discrimination and
Protection of Minorities and Chairperson of the
Working Group of Indigenous Populations, UN Doc.
E/CN.4/Sub.2/1993/28, 28 July 1993
An early work but still very relevant. Touches upon important
violations of indigenous rights, including on sacred sites,
human remains, authenticity of artworks, communal rights to
designs, tourism and the effect on indigenous cultural rights
and confidentiality. Includes recommendations that are still
relevant.
b. Alexandra Xanthaki, Indigenous Rights and United Nations
Standards (Cambridge University Press, 2007), ISBN
978-0-521-17289-9, chapter 5
In her monograph Xanthaki discusses how indigenous cultural
claims fit in the human rights conundrum. Differences as to
the meaning of culture, its collective element and its
commercial element pose challenges to the adequate protection
of indigenous cultural rights. It includes states’ statements
on the issue from the elaboration of the UN Declaration.
c. S Wiessner, ‘The cultural rights of indigenous
peoples: Achievements and continuous challenges’
(2011) European Journal of International Law 121- 140
The article views indigenous peoples as organic groups and
discusses the principles that should guide any discussion on
indigenous cultural rights.
d. Elsa Stamatopoulou, ‘Taking Cultural Rights
Seriously: The Vision of the UN Declaration on the
Rights of Indigenous Peoples’ in S Allen and A
Xanthaki (eds.), Reflections on the UN Declaration on the
Rights of Indigenous Peoples (Hart publishing, 2011) ISBN
9781841138787
Offers a historical overview of indigenous cultural rights,
including the prohibition of genocide. The piece outlines the
relevant provisions of the UN Declaration on the Rights of
Indigenous Peoples and discusses them in the light of the case
law and practice of international bodies. It has a specific
section on the obligations of the states.
e. Alexandra Xanthaki, ‘The UN Declaration on the
Rights of Indigenous Peoples and Collective Rights:
What's the Future for Indigenous Women?’ in S Allen
and A Xanthaki (eds.), Reflections on the UN Declaration on
the Rights of Indigenous Peoples (Hart publishing, 2011)
ISBN 9781841138787
The piece discusses the concerns raised that recognition of
collective cultural rights of indigenous peoples may trump the
rights of indigenous women. Xanthaki advocates against
perceiving indigenous peoples as a separate case, as this, she
argues, would deprive them from using the tools that
international law offers to deal with such conflicts.
f. Joanna Gibson, ‘Community rights to culture’ in S
Allen and A Xanthaki (eds.), Reflections on the UN
Declaration on the Rights of Indigenous Peoples (Hart
publishing, 2011) ISBN 9781841138787
Discusses traditional knowledge, communal ownership and
customary access and links them to cultural self-
determination, cultural relativism, public domain and
community based documentation. Gibson explains why
conventional intellectual property rights may not be
appropriate to protect indigenous rights; however, disparate
forms of recognition of customary law may also not be helpful
in the long run as they undermine the potential of finding a
sui generis universal protection.
g. Ana Filipa Vrdoljak, International Law, Museums and the
Return of Cultural Objects (Cambridge University Press,
2010)
A historical analysis of how colonised peoples, and especially
indigenous communities, had their cultural objects taken away
since the nineteenth century. Discusses restitution of
indigenous artefacts as part of decolonisation. Although
completed before the adoption of the UN Declaration on the
Rights of Indigenous peoples, the analysis is still very
relevant.