Cultural Rights

by

Alexandra Xanthaki

• LAST REVIEWED: 29 May 2015
• LAST MODIFIED: 29 May 2015
• DOI: 10.1093/obo/9780199796953-0123

Introduction

Cultural rights are often called the “Cinderella of human rights,” since they have not been explored in depth either by international human rights bodies or in the academic literature. Although specific issues such as minority practices have recently attracted the attention of international lawyers, and theoretical approaches relating to cultural rights have featured prominently in discussions within political theory, international law is still lacking a comprehensive discussion of cultural rights. International law has recognized the importance of culture—in UNESCO documents, for example. However, culture was long seen as capital or creativity, and cultural rights were seen as rights of individuals or rights of states. This view has changed recently, especially after the explosion of minority discussions in international law in the 90s and indigenous cultural rights in the 00s; hence culture is now defined broadly as a way of life. Recent UNESCO work on “cultural heritage” has also affected the scope of cultural rights. Although the law of cultural heritage is much wider than the human rights considerations, it raises important issues related to cultural rights. At the center of cultural rights is the generic “right to culture,” recognized in Article 15 of the International Covenant on Economic, Social and Cultural Rights. The article recognizes the right to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and the rights of scientists and artists. It also recognizes “the freedom indispensable for scientific research and creative activity.” The right to participation in culture has recently been seen in its broad sense to include “the right to benefit from cultural values created by the individual or the community” (Report of the International Committee on Economic, Social and Cultural Rights, Seventh Session, UN Doc E/1993/22, para. 202 and 223). States must also ensure that there is no unjustified discrimination in the enjoyment and participation in cultural activities (Article 5(e)(vi) of the International Convention on the Elimination of All Forms of Racial Discrimination). Cultural rights of minorities and indigenous peoples are further protected by specific instruments, including Article 27 of the International Covenant on Civil and Political Rights (ICCPR), as elaborated in the UN Declaration on Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Declaration on Minorities) and the UN Declaration on the Rights of Indigenous Peoples. Such rights also raise issues that are either not fully explored, such as customary legal systems and group rights to intangible culture, or that are seen under the prism of other rights, such as minority dress codes, discussed mainly under the right to religion. This chapter will focus on cultural rights stricto sensu.

General Monographs and Edited Collections

Although a number of works have been published touching on cultural rights, only two monographs have been written on cultural rights: Stamatopoulou 2007 discusses the foundations of cultural rights in international law and especially as recognized by the United Nations, whereas Donders 2002 focuses on the right to cultural identity and argues, in contrast to Stamatopoulou, that “translating cultural identity into a separate right is neither desirable nor necessary.” According to Donders, individual rights have to be put above cultural identity. Among the edited collections on cultural rights, one may distinguish Nieć 1998, one of the first such collections focusing on understandings and challenges of culture and cultural rights around the world. Francioni and Scheinin 2008 offers a solid overview of the various issues regarding cultural rights, including analyses of WTO and the EU initiatives on cultural rights, as well as wider discussions on cultural identity. Donders and Volodin 2007 offers some interesting chapters on aspects of cultural rights not often discussed, such as justifiability, indicators and access to benefits. Borelli and Lenzerini 2012 is an up-to-date mélange of chapters on cultural rights and cultural heritage. Finally, Nafziger, et al. 2010 is the only textbook that exists on cultural law. Although crossing human rights, intellectual property (IP) rights, and other areas, it offers an important selection of relevant discussions and case studies.

• Borelli, Silvia, and Federico Lenzerini, eds. Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law. Leiden, The Netherlands: Brill, 2012.

  An up-to-date discussion of several issues regarding broadly understood cultural rights, including manifestations of cultural diversity, clashes between global interests and communities’ cultural rights, underwater heritage, and restitution.

• Donders, Yvonne. Towards a Right to Cultural Identity? Antwerp: Intersentia, 2002.

  One of the rare monographs on cultural rights; Donders argues against the recognition of the right to cultural identity in soft law, especially in its collective capacity. Although, a decade later, collective cultural rights are more firmly recognized, the monograph continues to offer an interesting analysis discussing valid arguments.

• Donders, Yvonne, and Vladimir Volodin, eds. Human Rights in Education, Science and Culture, Legal Developments and Challenges. Paris: UNESCO, 2007.

  Contains interesting topics that have not been explored, including the justiciability of cultural rights; the development of indicators for participation in cultural rights and access to the benefits of science; and the right to enjoy the benefits of scientific and technological progress.

• Francioni, Francesco, and Martin Scheinin, eds. Cultural Human Rights. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2008.

  DOI: 10.1163/ej.9789004162945.i-372

  Having a firm focus on collective cultural rights, this edited collection includes chapters on the relationship between cultural rights and the state, that between cultural rights and self-determination, cultural rights of minorities and of indigenous peoples, and discussions around cultural identity. Chapters review UNESCO, WTO, and EU instruments and initiatives on cultural rights, and address cultural identity and religious freedom.

• Nafziger, James A. R., Robert Kirkwood Paterson, and Alison Dundes Renteln. Cultural Law: International, Comparative, and Indigenous. Cambridge, UK: Cambridge University Press, 2010.

  DOI: 10.1017/CBO9780511751004

  The only textbook on cultural law, it includes pieces from a plethora of courses regarding culture and cultural rights in their broad sense. Discusses state practice, important cases, comparative perspectives, and wider issues regarding culture and the law.

• Nieć, Halina. Cultural Rights and Wrongs. Paris: UNESCO, 1998.

  One of the first attempts to discuss cultural rights, this edited collection attempts to show the differences in the way culture is understood and to highlight the different issues related to cultural rights in the different continents of the world. Contains a rare chapter on the right to artistic freedom.

• Stamatopoulou, Elsa. Cultural Rights in International Law. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2007.

  DOI: 10.1163/ej.9789004157521.i-336

  The book focuses on the work of the United Nations monitoring bodies in analyzing and pushing forward the contours of cultural rights and the right to participate in cultural life, as this has been the main focus of cultural rights. It includes a solid section on cultural rights of minorities and indigenous peoples.