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Article Excerpt
Traditionally, culture has been treated as an object in international documents. As a consequence, cultural rights in international human rights law have been conceived of as rights of access and consumption. This conception of cultural rights sets them up to appear less fundamental to human dignity than political, civil, and economic rights. However, much of the empirical evidence on human rights abuses suggests that the abuse of minorities' cultural rights and the abuse of other of their human rights are linked in ways that makes it artificial to treat abuses of culture as less fundamental.
Recently, an alternative conception of culture has emerged from international documents treating indigenous peoples. Within these documents culture is treated as an activity rather than a good. This activity is ascribed to peoples as well as persons; and protecting the capacity of both peoples and persons to engage in culture is taken to be as basic a component of human dignity as are freedom of movement, freedom of speech, and freedom from torture. This activity conception of culture represents an important advance for the international legal framework within which human rights to culture are protected because it promotes a better understanding of what cultural rights protect. (1)
It is not an accident that this treatment of culture has emerged from international documents treating indigenous peoples, for indigenous peoples' cultural rights can be fully understood only against the background of their basic rights to self-determination. However, the value of this treatment of culture extends beyond the human rights of indigenous peoples. Treating culture as an activity establishes an understanding of what cultural rights protect that clarifies the relationship between cultural rights and other mechanisms for protecting minorities and frames the role of cultural communities in the realization of human dignity as an important physical and political issue, not just a psychological one. This reveals a greater degree of coherence among international norms regarding the protection and preservation of minority cultures than is often recognized and defuses many of the standard worries about competition between human rights of peoples and human rights of individuals. In addition, it offers an account of what is wrong with violating cultural rights such that violations of a group's cultural rights are clearly and straightforwardly linked to violations of its rights to persist and to flourish. For these reasons, the norms regarding cultural rights that are emerging from international documents treating indigenous peoples are a much-needed step forward for peoples' rights more generally.
The Human Right to Culture
There is a long history among international human rights instruments and within the United Nations system of treating cultural integrity and access to cultural heritage as a constituent element of human dignity in its own right and not merely instrumentally necessary. (2) Cultural rights are widely acknowledged to be human rights, and the right to participate in culture appears as a matter of course in human rights declarations, treaties, and interpretive documents. For example, the Universal Declaration of Human Rights states: "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." (3) And the Vienna Declaration reminds states that "persons belonging to minorities have the right to enjoy their own culture, to profess and practice their own religion and to use their own language in private and in public, freely and without interference or any form of discrimination." (4) In its General Comment 13: The Right to Education, the Committee on Economic, Social, and Cultural Rights (CESCR, the monitoring body for the International Covenant on Economic, Social, and Cultural Rights, the ICESCR) notes that the covenant obliges states to provide education that is not only relevant and of good quality in its form and content but also culturally appropriate. (5) The Convention on the Rights of the Child states that a child belonging to an ethnic, religious, linguistic, or indigenous minority "shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language." (6) The Organization of American States (OAS) Protocol of San Salvador on economic, social, and cultural rights commits the states who are party to it to recognize the right of everyone "to take part in the cultural and artistic life of the community," including minority communities. (7) And article 5 of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live includes the right of aliens to retain their own language, culture, and tradition alongside the rights to life, to protection against arbitrary interference with their privacy, to equality before the law, to freedom of conscience, and to found a family. (8)
To say that cultural rights are human rights is to say that depriving an individual of her culture wrongs her directly, over and above any wrong done by undermining other aspects of her dignity. As the Human Rights Committee (HRC, the treaty-monitoring body for the International Covenant on Civil and Political Rights [ICCPR]) notes in connection with article 27 of the ICCPR, cultural rights are "distinct from and additional to, all the other rights which, as individuals in common with everyone else, [the members of a group] are already entitled to enjoy under the Covenant"; "the protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned" and accordingly "these rights must be protected as such and should not be confused with other personal rights." (9) This statement implies not only that cultural rights do not depend on other rights for their justification, but that they may themselves ground rights to conditions, objects, or goods that are instrumentally necessary for a people's culture. (10)
This treatment of cultural rights has proved to be an important resource for nonstate peoples. (11) In particular, the fact that cultural rights are basic and universal has proved valuable in blocking certain kinds of arguments by states' representatives against the admissibility of complaints arising from denials of access to or control over ancestral land and resources. For example, in Hopu and Bessert v. France the HRC was able to accept the complainants' argument that building a hotel on their ancestral burial grounds constituted a violation of their rights to privacy and to family in part because the fundamental importance of cultural interests establishes an obligation to use the complainants' interpretation of who counts as a member of their family when determining whether a violation has occurred. (12) In Lansmann v. Finland, the HRC rejected the government's argument that state officials may balance a culturally based claim to land or resources against national interests in economic development on the grounds that insofar as the interest in culture includes an interest in the persistence of the group's way of life, a group's cultural interest in being able to access or use territory or resources may not be sacrificed for the sake of economic development. (13)
Nonetheless, the conception of culture at work in many international documents is problematic in several respects. In particular, there is a tendency to treat culture as a type of good--as an object or a state of affairs, valuable for its potential to be consumed, experienced, or used. For example, the UNESCO Declaration of the Principles of International Cultural Cooperation states: "Each culture has a dignity and value which must be respected and preserved" (emphasis added), and it describes cultures as "part of the common heritage belonging to all mankind." (14) The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects defines cultural objects as those "of importance for archaeology, prehistory, history, literature, art or science." (15) And the preamble to the European Charter for Regional or Minority Languages motivates and situates the cultural protections included in that document by noting that "the protection of the historical regional or minority languages of Europe, some of which are in danger of eventual extinction, contributes to the maintenance and development of Europe's cultural wealth and traditions." (16)
This conception of culture encourages an understanding of what cultural rights protect that emphasizes objects, behaviors, and psychological states. And so, the statements of cultural rights in many international documents have emphasized rights of access, preservation, and use. For example, in the European Framework Convention for the Protection of National Minorities, state parties are directed parties to "promote the conditions necessary for persons belonging to national...
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