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.

i Report of the International Committee on Economic, Social and Cultural Rights,Seventh Session, UN Doc. E/1993/22, paras. 202 and 223.