The 'right to participate in cultural life'
The international community has been very late the exploration of 'Cultural Rights'. The beginning of this exploration arguably commenced in 1990, (1) when a group of academics and activists approached the UN Committee on Human Rights in order to elaborate a 'General Comment' on the Article 15.1 (a) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR); it recognizes 'the right of everyone to take part in cultural life'. (2)
This international Covenant, (approved in 1966 and came into force in 1976), can be seen as the cornerstone of the UN work on cultural rights insofar as it is the only international legally-binding document that explicitly mentions 'the right to participate in cultural life'. (3) It is foundational for any document on culture produced in the context of the UN human rights system. (4) In order to understand the relevance of the ICESCR, one figure is worth highlighting: 165 countries have signed and ratified the ICESCR (and 5 countries more have only signed it). (5) This figure may be compared to the 144 countries that have ratified, accepted or accessed, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. (6)
In order to be operational, the articles and paragraphs of the ICESCR need to be 'explained': the creation of a conceptual and operational frame, as clear as possible, mapping the reach of each human right, is essential. These 'explanatory' or 'standard-setting' documents are named 'General Comment' and written (and adopted) in order to explain exactly what is behind a specific right. In the area of cultural rights, the early work in the 1990s and the early years of 2000, guided mainly by academics and activists, led to the adoption in December 2009 of an important document: the 'General Comment 21: Right of everyone to take part in cultural life' (UN - Committee on Economic, Social and Cultural Rights, 2009). The numbering of the General Comments is chronological: as a reference, the General Comment 4 was adopted in 1992 and addressed the 'right to adequate housing'; the General Comment 13 was adopted in 1999 and addressed the right to education, whereas General Comment 15, adopted in 2003, addresses the right to water. (7) It must also be acknowledged that Article 15.1 (c), which recognizes the right of everyone 'to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which [she or he] is the author' was also the object of a General Comment, number 16, adopted in 2006.
The 'General Comment 21: Right of everyone to take part in cultural life' includes a 'normative content', with accurate definitions of each one of the key concepts of the article (such as 'everyone', 'take part' or 'cultural life'). The General Comment also analyses 'special topics of broad application' as well as 'persons and communities requiring special attention'. An interesting example is paragraph 11, which relates culture to cultural life: 'culture is a broad, inclusive concept encompassing all manifestations of human existence'. The expression 'cultural life' is an explicit reference to culture as a living process, historical, dynamic and evolving, with a past, a present and a future'. The General comment further explains the 'states parties' obligations', in two different lists of areas: firstly, a detailed list is provided in paragraphs 48 to 54, with a total of 23 policy areas, according to the key concepts of 'respect, protect and fulfil' (with this 'fulfil' still unfolded in 'facilitate, promote and provide'); (8) secondly, in paragraph 55, the General Comment summarises the right in five 'core obligations applicable with immediate effect'. These are as follows:
(a) To take legislative and any other necessary steps to guarantee non-discrimination and gender equality in the enjoyment of the right of everyone to take part in cultural life.
(b) To respect the right to identify or not identify themselves with one or more communities, and the right to change their choice.
(c) To respect and protect the right of everyone to engage in their own cultural practices, while respecting all human rights which entails, in particular, respecting freedom of thought, belief and religion; freedom of opinion and expression; a person's right to use the language of his or her choice; freedom of association and peaceful assembly; and freedom to choose and set up educational establishments.
(d) To eliminate any barriers or obstacles that inhibit or restrict a person's access to the person's own culture or to other cultures, without discrimination and without consideration for frontiers of any kind.
(e) To allow and encourage the participation of persons belonging to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect them. In particular, States parties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk.
These five 'core obligations' become a very useful list that provides a conceptual frame for cultural rights. (9) And the relevance of this for cities and local government will soon form a focus for this article.
The work of the Special Rapporteur on Cultural Rights
The General Comment 21 was adopted in 2009 and, in parallel, the Human Rights Council created a new position, the 'Independent Expert in the field of Cultural Rights'. (10) The first person to be appointed as Independent Expert in the field of Cultural Rights was Ms Farida Shaheed, a Pakistani sociologist and activist. Three years later, in 2012, the Human Rights Council decided to 'upgrade' this mandate, which was given the status of 'Special Rapporteur in the field of Cultural Rights', and the mandate of Farida Shaheed was extended for a period of three more years. In 2015, this mandate was further extended for a period of three more years and a new Special Rapporteur was appointed Professor Karima Bennoune for this position. (11)
The two special rapporteurs on Cultural Rights have elaborated several thematic reports. Among others, reports have been published on cultural heritage (2011), the enjoyment of cultural rights by women on an equal basis with men (2012), freedom of artistic expression and creativity (2013), advertising and marketing (2014) and the intentional destruction of cultural heritage (2016). Several of these reports contain important considerations related to local sustainable development as well as useful observations on local cultural policies.
Also, the special rapporteurs have elaborated 'country reports', after investigatory visits to countries such as Brazil (2010), Morocco (2011), the Russian Federation (2012), Bosnia-Herzegovina (2013), Botswana (2014) and Cyprus (2016), among others. Again, in these reports similar considerations on issues that are significant for cities and local government can be found.
An in-depth analysis of the implications for local policies on culture to be found within all the reports (thematic and national)--the significant local 'relevance' of the 'acquis' on cultural rights produced in the last decade by the Special Rapporteurs--is beyond the scope of this paper. (12) In order to cross-analyse (in the next section) whether the work undertaken by the special rapporteurs on cultural rights is especially significant for local policies on culture, this paper has chosen to reference the last general report (A/HRC/31/59), written by Karima Bennoune in 2016. In this report, the Special Rapporteur...
-- Reminds that 'the purpose of the mandate is not to protect culture or cultural heritage per se, but rather the conditions allowing all people, without discrimination, to access, participate in and contribute to cultural life in a continuously developing manner' (para 9).
-- Understands 'cultural rights as protecting, in particular: (a) human creativity in all its diversity and the conditions for it to be exercised, developed and made accessible; (b) the free choice, expression and development of identities, which includes the right to choose not to be a part of particular collectives, as well as the right to change one's mind or exit a collective, and indeed to take part on an equal basis in the process of defining it; (c) the rights of individuals and groups to participate--or not to participate--in the cultural life of their choice and to conduct their own cultural practices; (d) their right to interact and exchange, regardless of group affiliation and of frontiers; (e) their rights to enjoy and have access to the arts, to knowledge, including scientific knowledge, and to their own cultural heritage, as well as that of others; and (f) their rights to participate in the interpretation, elaboration and development of cultural heritage and in the reformulation of their cultural identities' (para 9).
-- Announces the priorities for the mandate holder (para 33-44), to be the following: (i) the intentional destruction of cultural heritage, (ii) the impact of fundamentalism and extremism on the enjoyment of cultural rights, (iii) the situation of artists, scientists and intellectuals at risk; (iv) the right to artistic expression and creativity, including censorship and unemployment; (v) the cultural rights of refugees and migrants; (vi) public space; (vii) the cultural rights of children and youth, both girls and boys, and education about the importance of cultural rights and cultural heritage; (viii) the cultural rights of people with mixed or multiple identities, and (ix) the relationship between culture and new technology.
-- Develops in some detail two areas as deserving special attention: (1) the relationship between individuals and groups, especially the use of the concept 'community' and 'communities'...