The Recognition of the Right to Cultural Identity under (and beyond) international Human Rights law.

Author:Ferri, Marcella
Position::Special Issue: Cultural Rights and Global Development
 
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Introduction

A brief assessment of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) would show that these two treaties enshrine two different concepts of culture, and consequently of cultural rights. In the ICCPR, the only reference to cultural rights is represented by Article 27, which secures the right "to enjoy their own culture" to persons belonging to ethnic, religious and linguistic minorities. (1) This provision is based on a notion of culture which, on the one hand, supposes a broad conception of culture and on the other, makes reference to an anthropological meaning. In this regard, it is worth recalling the Study on the rights of persons belonging to ethnic, religious and linguistic minorities elaborated in 1979 by Professor Francesco Capotorti, as Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights--as well as the General Comment No. 23 (1994) adopted by the Human Rights Committee (HRC) on the rights of minorities. Both of these documents make reference to a broad notion of culture, encompassing not only literature, art, education, cultural heritage of minorities, but also customs, traditions and all elements

At the same time, Article 27 of the ICCPR borrows an anthropological and "identitarian" notion of culture, according to which culture provides minorities' members with values and meanings by which they build their identity. This conception emerges firstly from the definition of "minority" proposed by Capotorti in his Study. This definition is based both on objective elements (the minorities' numerically inferior condition, their non-dominant position and the ethnic, religious or linguistic characteristics of their members) and on subjective elements, namely the shared sense of belonging aiming to preserve the minority's identity. (3) In other words, the notion of minority in itself implies a reference to the sense of identity and belonging characterising its members. This element is even more evident as for indigenous groups. (4) Indeed, as specified by the definition proposed in 1987 by Mr. Jose R. Martinez Cobo, another Special Rapporteur of the Sub-Commission, the notion of indigenous peoples differs from the general definition of minority in two aspects: first, the origin of indigenous peoples, which traces back to the pre-colonisation period; and second, the close connection existing between their cultural identity and their ancestral lands. (5) The anthropological notion of culture adopted by Article 27 finds confirmation in General Comment No. 23 (1994); indeed, the Committee underlines that the provision's scope is to ensure the protection and development of minorities' identity.

As for the ICESCR, cultural rights are secured by Articles 13, 14, and 15. The first two articles concern the right to education and the parents' right to educate their children according to their own religious and moral convictions. Article 15 enshrines the right to (a) to take part in cultural life; (b) to enjoy the benefits of scientific progress and its applications; and (c) to benefit from the protection of the moral and material interests resulting from scientific, literary or artistic productions. The analysis of the Travaux Preparatoires of ICESCR, and particularly of Art. 15, para. 1(a), shows that these provisions were elaborated adopting a materialistic notion of culture. The original aim pursued by the drafters was to overcome inequality then characterising the access to cultural institutions (theatres, libraries, museum, and so on), and to guarantee everyone equal enjoyment of the highest and noblest expressions of human creativity and intellectual activities, such as philosophy, art, literature, music. While, as underlined by a commentator (Craven, 1994:162), the notions of culture and cultural life were perceived by delegates as "self-explanatory", (and they had not been debated during the discussions taking place at the General Assembly before the adoption of the ICESCR), (6) the statements made by some delegations exemplify the materialistic approach prevailing at that time. For example, an Indian representative underlined the scope of provision corresponding to future Article 15, para. 1(a) stating that it "was to recognize the loftiest aspects of culture after defining the right to education [...and] referred to culture in its most intellectual" (General Assembly, 1957b: 18-19). Similarly, other delegates demonstrated their compliance with the right to take part in cultural life by referring to the number of scholarships offered by their country to study art, science and literature, as well as the number of libraries, theatres, cinemas and printed books. (7)

In distinction to Article 27 ICCPR, the ICESCR's provisions on cultural rights, and in particular Article 15(1)(a) on the right to take part in cultural life, were elaborated, as noted, by drawing on a materialistic notion of culture: it was conceived as including the highest and noblest manifestations of intellectual activities, and ultimately it was assimilated to a material good, while remaining lofty and noble. Strangely perhaps, the two International Covenants embraced two different notions of culture, and consequently of cultural rights--on the one hand, the right to enjoy one's own culture, recognised in relation to members of minorities and indigenous peoples, and which had an identitarian meaning and anthropological function; on the other hand, the right to take part in cultural life, to which everyone is entitled, regardless of their belonging to a minority or an indigenous groups, and which was conceived in a materialistic sense.

Over the years, legal scholars, influenced by anthropological studies, have promoted a significant reflection on notions of culture and cultural rights. They have pointed out the necessity to stress the identitarian and anthropologican nature of culture in relation to everyone, and not only to persons belonging to minorities and indigenous peoples. Among these authors, it is worth recalling the reflection elaborated by the Fribourg Group, a working group composed of international experts, organised from the Interdisciplinary Institute for Ethics and Human Rights (IIEDH) of the University of Fribourg (Switzerland), and coordinated by Professor Patrice Meyer-Bisch. The Group was created in 1991 after a Conference on "Les droits culturels: une categorie sous-developpee de droits de l'homme" (Meyer-Bisch, 1993), and since its origin has worked in strong connection with the Council of Europe and UNESCO, and with the Office of the United Nations High Commissioner for Human Rights. (8)

Developing the legal and philosophical reflection on cultural rights, the Fribourg Group has elaborated an articulate theorisation which allowed it to propose, in 2007, the Fribourg Declaration on Cultural Rights. While the Declaration does not possess any legal status, it is of considerable significance. It does not define new cultural rights, but has gathered in a single document all the cultural rights already recognised under international human rights law, albeit "in a dispersed manner" (Declaration 2007: Preamble, IX recital). This systematisation consents to clearly identify cultural rights, precisely define their content, and ultimately encourage their full implementation. This merit has been widely recognised by human rights treaty bodies, and in particular by the Committee on Economic, Social and Cultural Rights (CESCR). As a matter of fact, the notion of culture elaborated by this organ has undergone a meaningful evolution, which has led to elaborate a new interpretation of the right to take part in cultural life. And this interpretation has been widely influenced by the Fribourg Declaration.

This article will proceed as follows. Firstly, it will summarise the reflection elaborated on by legal scholars concerning notions of culture and cultural rights, and do so by paying a great deal of attention to the proposal made by the Fribourg Group, formalised in the Fribourg Declaration on Cultural Rights. Secondly, it will analyse the evolutive interpretation elaborated by the CESCR on the right to take part in cultural life; and special attention will be given to the General Comment No. 21 (2009), in which the Committee came to embrace a broad interpretation of the right to take part in cultural life, and to recognise a right to cultural identity. Thirdly, this article delves into the protection assured by the Committee on the Rights of the Child (CRC) to the child's right to take part in cultural life, and more generally to the cultural identity of children. Finally, the article will briefly analyse the judgement rendered by the International Criminal Court in the case Prosecutor vs. Ahmad Al Faqi Al Mahdi on the international crime of attacking cultural heritage. The protection of cultural heritage under international law is not a topic to be discussed here; however, the Al Mahdi decision is of utmost importance as the Court stressed the human dimension of cultural heritage and endorsed the interpretation of cultural identity elaborated by human rights treaty bodies.

  1. The Scholars' Reflection on Culture and Cultural Rights

    The development of contemporary anthropology since the 1960s eventually had a significant measure of impact on international lawyers in their reflection on the notions of culture and cultural rights adopted by the two International Covenants. A survey of the legal literature would show that one of the most shared definitions is that proposed by Stavenhagen (1995) and then adopted by other notable authors (Eide, 1995; O'Keefe, 1998; Stamatopoulou, 2007; Psychogiopoulou, 2008; Yupsanis, 2012). In Stavenhagen's view, it is possible to identify different definitions of the "right to culture" depending on the...

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