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Right to culture

Introduction
Rights at Stake
International and Regional Instruments of Protection and Promotion
National Assistance, Protection and Service Agencies
Advocacy, Educational and Training Materials
Other Resources


Introduction

The right to culture in human rights law is essentially about the celebration and protection of humankind’s creativity and traditions. The right of an individual to enjoy culture and to advance culture and science without interference from the state is a human right. Under international human rights law governments also have an obligation to promote and conserve cultural activities and artefacts, particularly those of universal value. Culture is overwhelmingly applauded as positive in the vast majority of human rights instruments. However, some statutes recognize that certain kinds of cultural and social practices may have a negative impact on an individual’s health and well-being.


 


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Rights at Stake

International and regional instruments protect a number of key rights relating to culture:

(a) Right to culture

This includes a variety of components:
- right to take part in cultural life
- right to enjoy the benefits of scientific progress
- right of individual to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
- right to freedom from the interference of the state in scientific or creative pursuits.

The term “culture” is not clearly defined in human rights law. Dictionary definitions states that culture is “the total range of activities and ideas of a group of people with shared traditions which are transmitted and reinforced by members of a group” or “the artistic and social pursuits, expression, and tastes valued by a society or class, as in the arts, manners, dress etc.” (Collins English Dictionary) The protection of culture in human rights law encompasses two concepts. Firstly, the right of peoples to practice and continue shared traditions and activities. Secondly, the protection of culture in international law covers the scientific, literary and artistic pursuits of society.

(b) Right to ensure that culture is conserved and developed

State parties have an obligation to take steps necessary for the conservation, development and diffusion of science and culture in order to ensure the full realisation of this right. The obligations of states to respect and protect world cultural heritage sites have particularly been strengthened through treaties adopted under the auspices of UNESCO. Special provisions have been adopted regarding the responsibilities of belligerant parties at times of war. Such issues have been raised in recent conflicts in Afghanistan with the bombing of world heritage sites and in Iraq with the failure to prevent the looting of antiquities from museums.

(c) Right to be protected from harmful cultural practices

Most human rights treaties are silent on the issue of harmful cultural practices, stressing instead the value of different cultures. The African Charter on the Rights and Welfare of the Child recognises that some traditional social and cultural practices may be harmful to the health of a child and prohibits these. Although there is no exhaustive list in the treaty, such practices would include female genital mutilation for example.

(d) Importance of international cultural cooperation

The importance of international cultural cooperation is stressed in a number of treaties. The equal value and dignity of all cultures is highlighted. States are particularly expected to incorporate cultural studies in their education programmes through the teaching of foreign languages, civilizations and cultural heritage. Cultural education is seen as a tool of enhancing peace and stability and in combating ethnic and racial disputes.


Key Assistance Agencies

UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANISATION (UNESCO)
The main objective of UNESCO is to contribute to peace and security in the world by promoting collaboration among nations through education, science, culture and communication in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.
To fulfill its mandate, UNESCO performs five principal functions:
-Prospective studies: what forms of education, science, culture and communication are relevant for tomorrow's world
-The advancement, transfer and sharing of knowledge: relying primarily on research, training and teaching activities.
-Standard-setting action: the preparation and adoption of international instruments and statutory recommendations.
-Expertise: provided to Member States for their development policies and projects in the form of "technical co-operation".
-Exchange of specialized information.




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International and Regional Instruments for Protection and Promotion

International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human right to adequate food and water. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.

The following are the international treaties, declarations and commitments that determine standards for the protection and promotion of cultural rights:


UNITED NATIONS

Universal Declaration of Human Rights (1948) (article 27)
Cultural rights are incorporated in article 27: "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. 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."

 

International Covenant on Economic, Social and Cultural Rights (1966) (article 15)
The ICESCR, adopted by the General Assembly in December 1966 and entered into force in 1976. It elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions.

Article 15 upholds the right of everyone to:
"1. (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States 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 States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields."

The Committee on Economic, Social and Cultural Rights was set up in 1985 and is composed of 18 independent experts to oversee the implementation of the Convention. Reports can be made on violations of economic, social and cultural rights to this committee. It was not established by the Convention but by the UN Economic and Social Council (ECOSOC) for the purpose of monitoring the Convention. State parties are required to submit periodic reports to the Committee. The committee can also receive information from international organisations, NGOs and elsewhere. Since 1990, there has been discussion regarding the adoption of an optional protocol to enable individuals and groups to submit complaints of violations directly to the Committee.

Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1986)
These were approved by a group of experts in international law meeting in 1986 in Maastricht, Netherlands and give an interpretation of state obligations under the ICESCR. They apply more broadly to economic, social and cultural rights but do have a bearing on the implementation of cultural rights specifically.

Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997)
These were developed by a group of 30 experts in 1997. The guidelines elaborate the standards contained in the Limburg principles on the implementation of the International Covenant on Economic, Social and Cultural Rights. They apply more broadly to economic, social and cultural rights but do have a bearing on the implementation of cultural rights specifically.

Declaration of the Principles of International Cultural Co-operation (1966)
This declaration was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization in 1966. It stresses the importance of cultural cooperation at an international level and the benefits in terms of increased understanding between peoples.

Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms (1974)
This recommendation was adopted by the General Conference of UNESCO in 1974. It emphasises the importance of ensuring culture forms part of educational programmes as a means of enhancing cultural understanding and combating race relations.

Convention on the Rights of the Child (1989) (article 29)
A broad treaty covering every aspect of a child’s life was adopted in 1989 and specifically includes cultural rights. The treaty recommends in article 29, that the education of a child is geared towards developing a respect for his or her cultural identity, language and values, for the cultural values of the country in which the child is living, the country from which he or she may originate and for civilizations different from his or her own. Violations of these rights can be taken up with the UN Committee on the Rights of the Child.

UNESCO has adopted a number of treaties aimed at preserving monuments, architectural and archeological sites. Under these treaties states have a duty to respect and protect world heritage sites which are of universal value.

Convention Concerning the Protection of the World Cultural and Natural Heritage was adopted by UNESCO in 1972 and a World Heritage Committee was set up to oversee its implementation. A special convention governing the responsibilities of states at times of war, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, entered into force in 1956 with a second protocol being added more recently in 1999. This covers a variety of issues including the targeting of such sites and the responsibilities of occupying powers to prevent theft from such sites.


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AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)

African Charter on Human and Peoples’ Rights (1981) (article 22)
This treaty guarantees the right of all peoples to economic, social and cultural development.

African Charter on the Rights and Welfare of the Child (1990) (article 21)
The African treaty on children's rights brings a new dimension to the discussion of cultural rights as it introduces article 21 aimed at protecting children from harmful social and cultural practices. This obliges states to eliminate harmful practices which are prejudicial to the health or life of a child and are discriminatory on the grounds of sex or other status. Child marriage and betrothal of boys and girls is also prohibited and states are required to specific 18 as the minimum age for marriage.


 

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EUROPEAN UNION

Charter of Fundamental Rights of the European Union (2000) (article 22)
The Charter stipulates that member states of the European Union shall respect cultural, religious and linguistic diversity.


ORGANIZATION OF AMERICAN STATES (OAS)

American Convention on Human Rights (1969) (article 26)
The American Convention on Human Rights, which entered into force in 1978, protects economic, social and cultural rights and places an obligation on states to progressively realise these rights.

Protocol of San Salvador: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (1988) (article 14)
An Additional Protocol on Economic, Social and Cultural Rights (the “San Salvador protocol”) entered into force in 1999 and elaborates on these principles. The treaty recognizes the right of everyone to take part in the cultural and artistic life of the community; enjoy the benefits of scientific and technological progress; benefit from the protection of moral and material interests deriving from any scientific, literary or artistic production of which he is the author. States shall take steps to ensure the full exercise of this "right to the benefits of culture", must guarantee the freedom indispensable for scientific research and creative activity, and should encourages international cooperation in the fields of science, arts and culture.

 

 

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National Assistance, Protection and Service Agencies

Countries which have ratified these international and regional treaties have agreed to meet their obligations under these conventions by implementing these provisions fully at national level. Monitoring the implementation of the right to culture is not a particularly systematised process. The UNESCO World Heritage Committee considers some aspects of protecting the right to culture with its work on the conservation of world heritage sites. Documentation about the national implementation of the right to culture can be found at the website of the UN Committee on Economic, Social and Cultural Rights.


 


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Advocacy, Educational and Training Materials

For advocates

Module on Cultural Rights in: Circle of Rights. Economic, Social & Cultural Rights Activism: A Training Resource (International Human Rights Internship Program/Forum-Asia)
This module discusses some of the difficulties activists face in addressing cultural rights issues; reviews the major international and regional legal provisions guaranteeing cultural rights; discusses the indivisibility and interdependence of cultural rights with other human rights; and highlights particularly problematic issues associated with cultural rights, including "cultural specificity," indigenous peoples and cultural rights,
women’s rights and culture, and scientific progress and culture.

Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic, Social and Cultural Rights (International Human Rights Internship Program)
This book concentrates on various advocacy strategies and tools for ESC rights activism, limiting its theoretical or historical analyses to those issues which workshop participants mentioned as having a direct bearing on their present-day work.

Thesaurus of Economic, Social and Cultural Rights: Terminology and Potential Violations (Stephen Hansen)
This thesaurus organises, classifies and cross-references rights, terminology, and potential violations pertaining to articles 1-15 of the International Covenant on Economic, Social and Cultural Rights both structurely and thematically.


For educators

All Different, All Equal education pack (Council of Europe)
The material was developed for audiences 14 years of age and older. The Education Pack is a book intended for use in informal education settings but activities may also be incorporated into the classroom setting.

Neighbours: Learning to respect one another (Jana Ondrácková)
The aim of this teacher manual is to acquaint young people between the ages of 12-18 (upper primary and secondary school age range) with the multicultural history and tradition of their country and to inculcate in them the spirit of mutual understanding and respect between individuals and groups, members of the majority and minorities.


 


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Other Resources

Courses and training opportunities about economic, social and cultural rights

Organisations advocating for the right to culture, cultural rights

 

 

 

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This guide was developed by Asmita Naik.

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