At the End of the World Decade for Cultural Development
The World Commission on Culture and Development proposed several steps to be taken by the international community to secure the protection of cultural rights. These included an inventory of cultural rights which are not protected by existing international instruments, an International Code of Conduct on Culture which could be included in the Draft Code of Crimes against the Peace and Security of Mankind, which the International Law Commission has been working on for some time, and a system of enforcement procedures based on an Ombudsperson for Cultural Rights.
The reality, however, on the eve of the 50th anniversary of the Universal Declaration of Human Rights (UDHR), which proclaimed cultural rights as human rights and broadly defined the scope of these rights is that cultural rights are "the Cinderellas of the human rights family", meaning that from a legal standpoint these rights are the least developed rights within the human rights spectrum. This characterization may surprise those who have observed the magnitude of work done by international bodies including UNESCO and the Committee on Economic, Social and Cultural Rights. However, this precarious legal position results from the different historical origins of the recognition of cultural rights.
2. From Conception to Recognition
In the process of transforming the content of the UDHR into treaty binding provisions, cultural rights, economic and social rights, were separated from classical political and civil rights by their inclusion in two separate treaties. Despite the fact that the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both refer to the unity of all human rights, the division was widely recognized as a victory for those who denied the legal character of economic, social and cultural rights.
Those who denied the legal character of economic, social and cultural rights insisted upon the two separate Covenants. Their argument stemmed from their belief in the difference between the natures of the rights: while the enforcement of political and civil rights requires the State firstly to refrain from specific actions, the enforcement of economic, social and cultural rights requires the State to take a proactive role involving funds, time and processes. Moreover, this difference in nature, they argued, demanded a difference in States' obligations to implement the rights. As a result, in the realm of political and civil rights, there are clearly defined obligations of States to establish a means of judicial redress within their internal legal system (obligation of conduct). The fulfillment of these obligations can be easily assessed by an international community acting through specially designed treaty organs. No such clarity of the States' obligations regarding economic, social and cultural rights exists. Because of the inherent nature of economic, social and cultural rights, and because the implementation of these rights has the character of the obligation of results, it was argued that these rights could be defined as programmatic rights, which means they are not justiciable rights, hence are not legal rights, and therefore States do not have to stand up to international scrutiny.
This extreme view has been challenged by many jurists, human rights activists, and different organs of the UN system, and was "eradicated" by many international declarations which uphold these rights as legal. For example, paragraph 1 of the Vienna Declaration and Programme of Action of 1993 states, "The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfill their obligations to promote universal respect for, and observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question." Paragraph 3 of the same document adds, "all human rights are universal, indivisible and inter-dependent and inter-related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis." A paper such as this does not allow a complete listing of documents which reiterate the acknowledgment of economic, social and cultural rights as legal rights, but in summation, we can turn to the writings of Steiner and Alston: "However, at least in formal terms for the purposes of international law, debate over whether economic rights are 'really' rights was settled long ago." The obstacles which remain today are to define these rights and, according to the above quoted authors, ". . . to identify effective approaches to implementation--i.e. to the means by which economic, social and cultural rights can be given effect and governments can be held accountable to fulfill their obligations."
3. The Reasons behind the Neglect
While economic, social and cultural rights have been the subject of international debate for years, it is the category of cultural rights which remains the least developed in terms of legal content and enforceability. This degree of neglect has led some critics of the situation to refer to cultural rights as "a decorative element" of the triad. The reasons for this neglect include political and ideological tensions surrounding this set of rights, as well as internal tensions which surface when an individual's rights conflict with group rights including those of States. Potential scenarios of such conflict include cases when an individual cultural identity conflicts with a collective or national identity, or when a group claiming that the full realization of its cultural identity supersedes the recognized frame of cultural autonomy. An additional obstacle stems from the fact that cultural rights are rights to culture. This point is obvious; what is not obvious is what exactly the term "culture" includes, despite numerous existing definitions included in various international documents. The difficulty arises when trying to determine which rights are cultural rights, and which rights are not cultural rights but have cultural aspects.
Yet another contributing factor in defining the content of cultural rights is the conflict between the universality of human rights and the concept of cultural relativism. On the one hand, individuals seek preservation of the group culture which has shaped and defined their identity as a member of that collective group. But when the individual identifies certain manifestations of his or her culture, such as traditional practices, as harmful or in violation of his or her universally acknowledged human rights (but does not choose to divorce him or herself entirely from the culture), is it the individual who has the right to declare aspects of the group's cultural identity a violation of their human rights, or is it the group who has the right to maintain its practices and rituals in the name cultural identity? Whose rights and therefore legal standing are of paramount importance in such a conflict, the individual's or the community's? In the Vienna Declaration and Programme of Action quoted above, it is stated that "all human rights are universal", and according to the 1992 UN Declaration On The Rights of Minorities, minorities are prohibited from continuing those practices which are in direct conflict with international law and violate universal human rights. However, the problem of and the tensions surrounding cultural relativism versus universal human rights still exist, and the issue deserves open discussions which are not obscured by political pressure.
4. General remarks on the process of inventorying of Cultural Rights
The process of determining which rights belong in the category of cultural rights is an ongoing one which began with the inception of the UDHR. It is appropriate to check, from time to time, the developing catalogue of rights to see whether through international practices its content is becoming more mature and solid. The aim of this exercise is twofold: to create an awareness of what cultural rights include and to inform the States of their obligations regarding these rights. This last aspect is particularly important because in the realm of these rights there is a need to strengthen the accountability of States as to whether they are fulfilling their obligations or not, or to what degree they are doing so.
When we examine international human rights law, we find that cultural rights as human rights are declared both at the universal and regional levels. At the universal level, these rights are declared in the UDHR in Article 27 which states:
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
And in Article 22 of the same document:
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Cultural rights acquired a treaty binding character in Article 15 of the ICESCR which states:
1. The State Parties to the present Covenant recognize the right of everyone:
2. The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The State Parties to the present Covenant undertake to represent the freedom indispensable for scientific research and creative activity.4. The State Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.
On the regional level, the rights to culture are declared in the Inter-American Declaration on Human Rights (Article 13), the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Article 14), and in the African Charter on Human and Peoples' Rights (Article 17). The above noted sources of cultural rights declare these rights most specifically for the individual.
Within the international frame of human rights there also exists the recognition of cultural rights as a collective right. For example, the first Articles of both the ICESCR and the ICCPR state that "All peoples have the right of self-determination. By virtue of that right they ... freely pursue their economic, social and cultural development." This free pursuit of cultural development, linked to and strengthened by the political right of self-determination, in turn allows people to preserve their cultural identity--a concept recognized in the Mexico City Declaration on Cultural Policies from the 1982 World Conference on Cultural Policies held in Mexico City which recommends that States "Respect and work to preserve the cultural identity of all countries, regions, and peoples, and oppose any discrimination with regard to the cultural identity of other countries, regions and peoples."
The collective right to culture supplements the individual's cultural rights, and it is also proclaimed in the African Charter on Human and Peoples' Rights as the right of all people to cultural development. This right is strengthened by the duty of all individuals "To preserve ... the positive African cultural values." However, in international human rights law, the protection of ethnic, religious and linguistic minorities is constructed, in principle, as the individual protection of the rights of members of those communities. This is reflected in Article 27 of ICCPR. But, the recognition of the collective character of minority rights on the universal level of human rights law cannot be overlooked. In the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, there is a more explicit recognition of the group as an entity with rights than is present in the ICCPR. The Declaration refers to a group dimension in Article 1: "States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their perspective territories, and shall encourage conditions for the promotion of that identity."
On one hand, we may say that Article 15 of ICESCR can be seen as a general, normative framework for a catalogue of cultural rights, but it only enumerates four general categories of rights without specifically laying out what the concrete entitlements of those categories are. The process of filling those categories with legal meaning is difficult and complicated, but it was very wise to build such a skeletal frame, for cultural rights, more so than any other human rights, have an internal dynamic due to the fact that culture is a living and growing organism, always manifesting itself in new ways.
5. Developing an Inventory of Cultural Rights
So, while the skeleton exists, flesh must be added to the bones, and this is both an advantage and a burden. The content of cultural rights has been interpreted and defined through many legal instruments, especially in quasi-legislative processes of UNESCO, as well as in the practice of different international bodies such as the UN Committee on Economic Social and Cultural Rights. But what is the result of this? It is that a corpus of cultural rights is growing, though its precise content is still unclear.
In creating any inventory, we must remember the fundamental guiding principles which form the foundation of international human rights law. These principles are designed to safeguard the universality and indivisibility of all human rights. The most basic principle is the obligation to respect and preserve the inherent dignity of every human being. The next vital principle, is that of equality which is often pronounced in non-discriminatory and equal opportunity clauses. These principles are what guide us to the core elements of cultural rights. The most base element of this core is the right of access to a cultural life. The next, is the right of "participation in cultural life" as stated in the 1976 UNESCO Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It. This participatory dimension of cultural rights is further strengthened in the UN Declaration on the Right to Development which declares the participatory element as essential to all human rights for all including individuals, members of minorities, indigenous people, and the most vulnerable population groups. This Declaration also stresses the active component of participation.
In the process of making the right of access to a cultural life and the right to participate in cultural life more concrete, the application of the above stated principles, combined with a wealth of normative instruments, enables us to develop a catalogue by identifying components of these rights. However, some of these components may be considered separate, new cultural rights like the right to cultural heritage, while others may be seen as altogether separate rights with cultural components. An example of this latter is the right to information. This right is a civil right, per se, and is listed in Article 19 of the ICCPR and in Article 10 of the European Convention on Human Rights. It is agreed that the right to information is a well-defined, justiciable right. But the right to information cannot be considered exclusively a civil right, for the right to participate in a cultural life cannot possibly be achieved without the right to information. With these complications in mind, we can see that determining which rights should be included in an inventory of cultural rights is not a simple task.
Rather, building such an inventory of rights is extremely difficult, and numerous versions currently exist. Their size and content often depend on the aims of the classification. For example, the Culture and Development Co-ordination Office at UNESCO commissioned a preliminary survey of cultural rights already defined in existing instruments. The researcher who did the work catalogued 50 different cultural rights classified according to eleven categories. The categories include Rights to physical and cultural survival, Rights to association and identification with cultural community, Rights to and respect for cultural identity, Rights to physical and intangible heritages, Rights to religious belief and practice, Rights to freedom of opinion, expression and information, Rights to choice of education and training, Rights to participation in elaboration of cultural policies, Rights to participation in cultural life and rights to create, Rights to choice of endogenous development, and Rights to people's own physical and cultural environment.
In contrast, the Institute for Interdisciplinary Ethical and Human Rights Studies at Fribourg University in Switzerland produced a Preliminary Draft Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms on the Recognition of Cultural Rights. The list of cultural rights included in this document is not as lengthy as the previous one and the intent appears to have been quite different--to list cultural rights which are unquestionably justiciable so that claims of violation of those rights could be brought before the European Court of Human Rights. The draft states:
Everyone both has as an individual and shares with others the right to respect for and expression of his values and cultural traditions in so far as they are not contrary to the requirements of human dignity, human rights and fundamental freedoms; that right includes:
a. freedom to engage in cultural activity, whether in public or in private, and more particularly to speak the language of one's choice;
b. the right to identify with the cultural communities of one's choice and to maintain relations with them; this implies freedom to alter such choice or not to identify with any cultural community;
c. the right not to be prevented from discovering the whole range of cultures, which together constitute the common heritage of humanity;
d. the right to knowledge of human rights and to take part in establishing a culture governed by human rights.
1. Everyone has the right to an education which allows full and unrestricted development of his cultural identity in a manner recognising and respecting the diversity of cultures.
2. This right includes freedom to teach and be taught one's own culture and language and to set up whatever institutions are necessary for that purpose in accordance with national law.
3. It includes entitlement to public provision, in proportion to needs and resources, of the means necessary to safeguard the right.
Another example, the Preliminary Draft Declaration of Cultural Rights, was produced at a meeting of experts held in Fribourg in 1995. The chief aims of this group can perhaps be considered more practical than the above examples. The Declaration was prepared with two concerns. In studying the current state of cultural rights, the authors determined that the primary cause, both at the theoretical and normative levels, of the "underdevelopment" of cultural rights results from the negligence to the role of cultural identity. Second, the authors agreed that one comprehensive document which details the "logic specific to cultural rights and the cultural dimension of human rights as a whole" was crucial in order to replace the many existing documents which splinter the topic. The rights listed in the Preliminary Draft are too lengthy to reproduce in this paper, but in general the rights include the right to: respect for cultural identity, identification with a cultural community, participation in cultural life, education and training, information, freedom of access to heritages, protection of research, creative activity and intellectual property, and to participate in cultural policies. (It should be noted that these rights are construed as individual rights which can be enjoyed "either alone or in a community with others.")
6. From the Inventory to Obligation
The attempt to clarify the content of cultural rights, thereby improving their legal character, is a long term endeavor and cannot be viewed as a panacea for the underdevelopment and neglect that afflicts this category of rights. There is also a parallel need to address the efficacy of the multifaceted implementation process of these rights in which the States' accountability is of paramount importance. By strengthening the element of the obligation of States and implementing a method of accountability which more accurately reflects the States' realization of their obligations, we will, in turn, increase the level of real enjoyment of cultural rights.
According to Article 2 of the ICESCR, States are obliged to take immediate steps to the maximum of their availability of resources in order to progressively achieve the full realization of the rights stated in the Covenant. Therefore, it can be interpreted that States' obligations, on the most part, are obligations of results. This author is not alone in the opinion that the element of progressive achievement lends itself to an open-endedness of the States' obligations which, in turn, diminishes the legal character of the obligations. If we want to evaluate the degree of progress of a State's fulfillment of their obligations, legal instruments are not applicable due to this presumably weak legal character.
The turning point, in legal terms, of assessing the legal character and of measuring the fulfillment of obligations came with the introduction of The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. A group of experts attended the Limburg conference held in Maastricht, Netherlands in June, 1986, to consider the nature and scope of the obligations of State to the ICESCR. They presented a solid and convincing interpretation of the legal character of States' obligations. According to them, all States must begin immediately to take steps using all appropriate means necessary (including legal, administrative, judicial, economic, social and educational measures) and regardless of the level of their economic development, to achieve full realization of the rights listed; some obligations require immediate full implementation such as the prohibition of discrimination; by no means may a State interpret the Covenant as an opportunity to defer indefinitely their efforts to fulfill their obligations; and when determining whether or not a State has taken adequate measures towards realization of these rights, their use of and access to available resources will be considered.While the authors of the Limburg Principles make great strides in defining States' obligations in legal terms, perhaps the greatest outcome of their efforts is that they enumerated for the first time, situations in which States could be held responsible for the failure to comply with the obligations listed in the ICESCR.
The concept of legally clarifying the duties of States in regards to cultural rights was further enhanced by the Committee on Economic, Social and Cultural Rights, General Comment No. 3 (1990) which stressed that while many obstacles may hamper States abilities to fulfill their obligations, States are, nevertheless, not released from their duties to "take steps". In the same General Comment, the committee pronounced the most important element of the minimum core of obligations, stating that "even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes."
7. Incorporating a Monitoring Mechanism
Further, at a conference organized by the International Commission of Jurists (ICJ) held in Bangalore, India, a group of experts upheld the Limburg Principles. In addition, they supported the idea of setting up an international complaints mechanism to monitor States' compliance with the rights included in the ICESCR, an idea already being developed by the Committee on Economic, Social and Cultural Rights in the form of An Optional Protocol on Economic, Social and Cultural Rights.
The Committee on Economic, Social and Cultural Rights presented an analytical paper to the Preparatory Committee of the World Conference on Human Rights in 1993, which put forth strong arguments supporting, firstly, the need for the above mentioned Protocol. Secondly, the arguments illustrated that a violations approach to monitoring the ICESCR was essential if economic, social and cultural rights were to be viewed as legal rights, in turn, this would facilitate the process of determining the content of cultural rights.
The paper states that in a complaints procedure, "the real problems confronting individuals and groups come alive in a way that can never be the case in the context of the abstract discussions that arise in the setting of report procedures. Second, the focus on a particular case provides a framework for inquiry which is otherwise absent . . . Fourth, the existence of a potential remedy at the international level provides an incentive to individuals and groups to formulate some of their economic and social claims in more precise terms and in relation to the specific provisions of the Covenant."
While some voices can already be heard throughout the international legal community which are in favor of this Optional Protocol, when it comes to the question of which rights would be covered by the procedure, they are some who are for the exclusion of cultural rights. It is this author's opinion that international organizations, UNESCO in particular, governmental organizations and non-governmental organizations should work to inform the general public on the value of an Optional Protocol, and one which serves the spectrum of economic, social and cultural rights, rather than serving them up à la carte.
8. Suggestions for Future Work
In relation to the previous paragraph, I would like to submit that international organizations should develop advocacy components in their programmes connected with cultural rights, components with a three-fold purpose and intent: to make people aware that they have cultural rights, that these rights can be violated, and that States can be held accountable for violations. In addition, I suggest that an international organizations such as UNESCO work to build a network composed of non-governmental organizations dealing with cultural issues. The purposes of this network would include: to collect information on violations of cultural rights; to assist individuals and groups in preparing and presenting their cases of violations against States; to assist States in preparing their reports to the Committee on Economic, Social and Cultural Rights; and to petition governments to include information on cultural rights in these reports (for it should be noted that often they only refer to economic and social rights). In building this network, it is important to persuade the most powerful, influential and internationally respected non-governmental organizations (such as Amnesty International and Human Rights Watch) to take part, for such organizations already have advanced research technologies and well-established connections throughout the world.
Also, work on inventorying cultural rights needs to be intensified. This exercise should be run by experts, but it should also be used as an educational instrument where the "experts" meet and exchange ideas with those on whom their policies have the greatest effect.
In conclusion, I would like to reassert the idea that when working to improve the full enjoyment of cultural rights, we are working to improve the enjoyment of human rights as a whole. Though the rights are separated into workable categories on paper, it is agreed that in essence they are interrelated and indivisible. And like threads that make up a fabric, if you try to separate them or pull even one away, the whole piece unravels.
Dr Halina Niec is Adjunct Professor of Law, Jagiellonian University Chair of Public International Law, Cracow, Co-ordinator of Academic and Educational Activities, currently conducting lectures and seminars on public international law, international and European human rights law and refugee law. At the Jagiellonian University Human Rights Centre, she co-ordinates and oversees educational and community-oriented student activities. Head of the Jagiellonian University Human Rights Legal Clinic which provides cost-free legal support to refugees and asylum seekers in Poland.