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Cultural Heritage, Cultural Rights,
Cultural Diversity
Studies in Intercultural
Human Rights
Editor-in-Chief
Siegfried Wiessner
St. Thomas University
Board of Editors
W. Michael Reisman, Yale University • Mahnoush H. Arsanjani, United Nations
Nora Demleitner, Hofstra University • Christof Heyns, University of Pretoria
Eckart Klein, University of Potsdam • Kalliopi Koufa, University of Thessaloniki
Makau Mutua, State University of New York at Bufalo • Martin Nettesheim,
University of Tübingen; University of California at Berkeley • Thomas Oppermann,
University 0f Tübingen • Herbert Petzold, Former Registrar, European Court of
Human Rights • Martin Scheinin, European University Institute, Florence
VOLUME
This series ofers pathbreaking studies in the dynamic eld of intercultural human
rights. Its primary aim is to publish volumes which ofer interdisciplinary analysis
of global societal problems, review past legal responses, and develop solutions which
maximize access by all to the realization of universal human aspirations. Other original
studies in the eld of human rights are also considered for inclusion.
The titles published in this series are listed at brill.nl/sihr
This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters
covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities.
For more information, please see www.brill.nl/brill-typeface.
ISSN -
ISBN ---- (hardback)
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Copyright 2012 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing,
IDC Publishers and Martinus Nijhof Publishers.
All rights reserved. No part of this publication may be reproduced, translated, stored in
a retrieval system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without prior written permission from the publisher.
Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV
provided that the appropriate fees are paid directly to The Copyright Clearance Center,
222 Rosewood Drive, Suite 910, Danvers, MA , USA.
Fees are subject to change.
This book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Cultural heritage, cultural rights, cultural diversity : new developments in international law / edited
by Silvia Borelli and Federico Lenzerini.
p. cm. – (Studies in Intercultural Human Rights ; 4)
ISBN 978-90-04-22839-9 (hardback : alk. paper) – ISBN 978-90-04-22838-2 (e-book)1.Cultural
property – Protection (International law)2.Cultural property – Protection – Law and legislation.
3.Cultural pluralism.4.Culture and law.I.Borelli, Silvia.II.Lenzerini, Federico.
K3791.C84 2012
344’.09—dc23
2012019097
Table of Contents
Foreword ix
List of Contributors xi
Select Abbreviations xiii
Table of Conventions and International Instruments xvii
PART I
THE EVOLUTION OF INTERNATIONAL LAW ON CULTURAL HERITAGE
CHAPTER The Evolving Framework for the Protection of Cultural Heritage
in International Law
Francesco Francioni
PART II
BEYOND TANGIBLE PROPERTY: CULTURAL DIVERSITY, INTANGIBLE
CULTURAL HERITAGE AND HUMAN RIGHTS
CHAPTER Cultural Diversity as a Human Right? General Comment No. 21
of the Committee on Economic, Social and Cultural Rights
Laura Pineschi
CHAPTER Of Veils, Crosses and Turbans: The European Court of
Human Rights and Religious Practices as Manifestations of
Cultural Diversity
Silvia Borelli
CHAPTER Food as a Cultural Choice: A Human Right to Be Protected?
Maria Clara Mafei
Table of Contents
vi
CHAPTER Human Rights and Illicit Trade in Cultural Objects
Ana Filipa Vrdoljak
CHAPTER “Remedying Historical Injustice”: Ethical and Historical
Considerations in Returning Cultural Materials
Robert Peters
CHAPTER The Tension between Communities’ Cultural Rights and
Global Interests: The Case of the Māori Mokomokai
Federico Lenzerini
CHAPTER The Denition of Intangible Cultural Heritage
Tullio Scovazzi
CHAPTER The Role for Communities, Groups and Individuals under the
Convention for the Safeguarding of the Intangible Cultural
Heritage
Sabrina Urbinati
CHAPTER Culinary Traditions as Cultural Intangible Heritage and
Expressions of Cultural Diversity
Maria Clara Mafei
PART III
NEW DYNAMICS OF INTERNATIONAL CULTURAL HERITAGE LAW
CHAPTER The Right to Recovered Underwater Cultural Heritage:
The Neglected Importance of Article 149 of the UN Law of the
Sea Convention
Nicola Ferri
CHAPTER The Merits of the UNESCO Convention on the Protection
of the Underwater Cultural Heritage
Tullio Scovazzi
CHAPTER Historic Shipwrecks and the Limits of the Flag State
Exclusive Rights
Patrizia Vigni
Table of Contents vii
CHAPTER The Dilemma of the Right to Ownership of Underwater
Cultural Heritage: The Case of the “Getty Bronze”
Alessandra Lanciotti
CHAPTER The Human Dimension to Landscape Protection in
International Law
Amy Strecker
CHAPTER Multi-Level Cooperation to Safeguard the Human Dimension
of Cultural Heritage and to Secure the Return of Wrongfully
Removed Cultural Objects
Alessandro Chechi
CHAPTER The Human Dimension of State Succession to
Cultural Property: The Balkan Lesson
Andrzej Jakubowski
CHAPTER Key Issues in the Relationship between the World Heritage
Convention and Climate Change Regulation
Ottavio Quirico
CHAPTER Culture, Development and International Law:
The Linkage between Investment Rules and the Protection
of Cultural Heritage
Valentina Sara Vadi
INDEX
Foreword
The past twenty years have witnessed a far reaching and intense development of inter-
national legal standards concerning the safeguarding of cultural heritage and cultural
diversity. At the same time as the 1972 World Heritage Convention was achieving an
almost universal scope of application, a new international conscience has progressively
matured within the international community as to the proper scope of the notions of
culture and cultural heritage. That new conscience is rooted in the awareness that the
concept of cultural heritage represents a holistic notion which reaches far beyond the
original conception encompassing only tangible artistic and monumental expressions.
Recent international practice has emphasized the strong connections between the vari-
ous and multi-faceted expressions of cultural heritage and the identity of peoples, the
safeguarding of which represents a fundamental prerequisite for ensuring the enjoy-
ment in practice of basic human rights at both the collective and individual level. These
developments constitute a sea-change in the way in which the international community
deals with questions concerning cultural heritage and cultural diversity and provides a
new legal background against which to address the new and dicult challenges that the
international community faces in matters relating to cultural heritage as it progresses
into the new millennium. Among the new elements of reection raised by the said devel-
opments, the process of “humanization” of international cultural heritage law is promi-
nent. The inextricable connection between culture and human rights is today evident,
both in terms of their mutually supporting nature, as well as in the sense that enjoyment
of one’s own culture represents an essential prerequisite for allowing the person con-
cerned fully to benet from her internationally recognized human rights. This intercon-
nection has been made even more evident due to the armation of collective human
rights, the justiciability of which is today increasingly recognized, thus contributing to
the promotion of a new holistic and spiritual vision of culture.
The present volume examines these challenges and their legal implications from the
perspective of the lex ferenda. In the various contributions, the link between cultural
heritage, cultural diversity and human rights, emphasizing the indivisibility of these
elements in construing the identity of the human person, of human communities and,
ultimately, of the world’s community is apparent. Assessments of how the international
approach to the protection of culture has evolved – shifting from a sovereignty-based
x
Foreword
idea of cultural property to a fuller perception of the human dimension of cultural
heritage – are carried out through the lens of the most signicant and recent problems
faced by the international community in the context of the international and domestic
protection of cultural heritage. The numerous cutting-edge topics addressed in the vari-
ous chapters making up this book include cultural rights and identity, cultural diversity,
the safeguarding of intangible cultural heritage, the protection of underwater cultural
heritage, the evolution of the concept of “cultural landscape”, as well as the inter-relation
of cultural heritage law with other international legal regimes, including international
investment law and the legal framework on climate change.
The philosophy underlying the project of which this book is the product was to ofer
a fresh and original assessment of the current reality and future perspectives of inter-
national cultural heritage law, in an epoch in which – as noted above – a fundamental
transformation has taken place in the perception of the signicance of culture by the
international community. If this collection of essays fulls its aims, the lion’s share of
the merit is undoubtedly attributable to the contributors, who have ofered their exper-
tise, their time, as well as their dedication to the subject with a spirit of cooperation
and friendship, thereby greatly facilitating our work as editors. Taken as a whole, their
contributions ofer a rich variety of viewpoints which we believe enrich the volume and
enhance its value. Nevertheless, we are aware that some of the views expressed may be
open to debate from either a legal or ideological perspective. It of course goes without
saying that the author is personally responsible for the positions expressed in each con-
tribution, and those positions are not necessarily shared by the editors.
This book is the result of a research project (PRIN 2007) nanced by the Italian Min-
istry of Education, University and Research and supervised by Professors Francesco
Francioni, Laura Pineschi and Tullio Scovazzi, to each of whom a huge debt is due. We
also wish to thank Amy Strecker for her excellent linguistic assistance, as well as Simon
Olleson for his willingness to provide advice on sundry linguistic and scientic questions
during the course of the editorial work. Last but not least, we wish to express our grati-
tude to the publisher and in particular to Marie Sheldon, Alexandra Mitton and Melissa
Andersen for their courtesy and continuous assistance, as well as to the Editor-in-Chief
of the Series of Studies in Intercultural Human Rights, Professor Siegfried Wiessner, for
having encouraged the inclusion of this book in the series.
London – Siena, 10 February 2012
Silvia Borelli and Federico Lenzerini
List of Contributors
Silvia Borelli Principal Lecturer in International Law, University of Bedfordshire
Alessandro Chechi Post-doctoral Researcher, Art-Law Centre, University of Geneva
Nicola Ferri Ph.D. candidate, University of Milano-Bicocca, Milan
Francesco Francioni Professor of International Law, European University Institute,
Florence
Andrzej Jakubowski Assistant Professor, Institute of Law Studies, Polish Academy of
Sciences, Warsaw
Alessandra Lanciotti Professor of International Law and EU Law, University of Perugia
Federico Lenzerini Assistant Professor of International Law and EU Law, University
of Siena
Maria Clara Mafei Assistant Professor of International Law, University of Parma
Robert Peters Ph.D. in Law, European University Institute, Florence. Legal O-
cer working for the German Federal Government Commissioner for
Culture and the Media
Laura Pineschi Professor of International Law, University of Parma
Ottavio Quirico Lecturer, School of Law, University of New England, New South
Wales
Tullio Scovazzi Professor of International Law, University of Milano-Bicocca, Milan
Ami Strecker Ph.D. candidate, European University Institute, Florence
Sabrina Urbinati Post-doctoral Researcher, University of Milano-Bicocca, Milan
Valentina Sara Vadi Marie Curie Postdoctoral Fellow, Maastricht University
Patrizia Vigni Assistant Professor of International Law, Faculty of Law, University
of Siena
Ana Filipa Vrdoljak Professor, Faculty of Law, The University of Technology, Sydney;
and Visiting Professor, Legal Studies Department, Central Euro-
pean University, Budapest
Selected Abbreviations
African Charter / ACHPR African Charter on Human and Peoples’
Rights (1981)
African Commission African Commission on Human and Peoples’
Rights
AJIL American Journal of International Law
American Convention / ACHR American Convention on Human Rights
(1969)
American Declaration on Human Rights American Declaration on the Rights and
Duties of Man (1949)
Biodiversity Convention Convention on Biological Diversity (1992)
BYIL British Yearbook of International Law
CEDAW Convention on the Elimination of All Forms
of Discrimination again Women (1979)
CETS Council of Europe Treaty Series / European
Treaty Series
CERD Convention on the Elimination of All Forms
of Racial Discrimination (1965)
ESCR Committee Committee on Economic Social and Cultural
Rights
Cultural Diversity Convention Convention on the Protection and Promo-
tion of the Diversity of Cultural Expressions
(2005)
ECHR / European Convention European Convention for the Protection of
Human Rights and Fundamental Freedoms
(1950)
ECJ European Court of Justice
ECtHR / European Court European Court of Human Rights
EJIL European Journal of International Law
FYIL Finnish Yearbook of International Law
Hague Protocol I Protocol to the Convention for the Protec-
tion of Cultural Property in the Event of
Armed Conict (1954)
xiv Selected Abbreviations
Hague Protocol II Second Protocol to the Convention for the Protection of
Cultural Property in the Event of Armed Conict (1999)
ICRC International Committee of the Red Cross
IACommHR Inter-American Commission of Human Rights
IACtHR Inter-American Court of Human Rights
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
(1966)
ICESCR International Covenant on Economic, Social and Cultural
Rights (1966)
ICH Convention Convention for Safeguarding of the Intangible Cultural
Heritage (2003)
ICJ International Court of Justice
ICLQ International and Comparative Law Quarterly
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IJCP International Journal of Cultural Property
ILA International Law Association
ILM International Legal Materials
ILR International Law Reports
IYIL Italian Yearbook of International Law
Kyoto Protocol Kyoto Protocol to the UN Framework Convention on
Climate Change (1997)
OJ Ocial Journal of the European Union
RDI Rivista di diritto internazionale
Recueil des Cours Recueil des Cours de l’Académie de Droit International
RGDIP Revue Générale de Droit International Public
UCH Convention Convention on the Protection of the Underwater Cultural
Heritage (2001)
UDHR Universal Declaration of Human Rights (1948)
UN Charter Charter of the United Nations (1945)
UN Minorities Declaration UN Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities
(1992)
UNCCC United Nations Framework Convention on Climate
Change (1992)
UNCLOS United Nations Convention on the Law of the Sea (1982)
UNDRIP UN Declaration on the Rights of Indigenous Peoples
(2007)
xv
Selected Abbreviations
UNESCO Cultural Diversity Declaration UNESCO Universal Declaration on
Cultural Diversity (2001)
UNESCO Intentional Destruction Declaration UNESCO Declaration concerning the
Intentional Destruction of Cultural
Heritage (2003)
UNTS United Nations Treaty Series
VCLT Vienna Convention on the Law of Trea-
ties (1969)
World Heritage Convention Convention concerning the Protection
of the World Cultural and Natural Heri-
tage (1972)
1954 Hague Convention Convention for the Protection of Cul-
tural Property in the Event of Armed
Conict (1954)
1970 UNESCO Convention Convention on the Means of Prohibit-
ing and Preventing the Illicit Import,
Export and Transfer of Ownership of
Cultural Property (1970)
Table of Conventions and International Instruments
Convention (II) with Respect to the Laws and Customs of War on Land and Annex,
Regulations concerning the Laws and Customs of War on Land (The Hague, 29 July 1899);
entered into force 4 September 1900; Parry’s CTS, vol. 187 (1898-99), p. 429; AJIL Supp.,
vol. 1 (1907), p. 129.
Convention (IV) respecting the Laws and Customs of War on Land, and Annex,
Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October
1907); entered into force 26 January 1910; Parry’s CTS, vol. 208 (1907), p. 77; AJIL Supp.,
vol. 2 (1908), 90.
Charter of the International Military Tribunal, Nuremberg annexed to the Agreement by
United Kingdom, United States, France and USSR for the Prosecution and Punishment
of the Major War Criminals of the European Axis (London, 8 August 1945); AJIL Supp.,
vol. 39 (1945), p. 257; 82 UNTS 279.
American Declaration on the Rights and Duties of Man (American Declaration), OAS
Res. XXX (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-
American System, OAS/Ser.L/V/I.4 Rev. 9 (2003); AJIL Supp., vol. 43 (1949), p. 133.
Geneva Convention (VI) relative to the Protection of Civilian Persons in Time of War,
12 August 1949; entered into force 21 October 1950; 75 UNTS 287.
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights) (Rome, 4 November 1950); entered into force 3 September
1953; CETS No. 5; 213 UNTS 221.
Convention for the Protection of Cultural Property in the Event of Armed Conict (The
Hague, 14 May 1954), entered into force 7 August 1956; 249 UNTS 240.
Protocol to the Convention for the Protection of Cultural Property in the Event of Armed
Conict (The Hague, 14 May 1954); entered into force 7 August 1956; 249 UNTS 358.
xviii Table of Conventions and International Instruments
Convention on the Elimination of All Forms of Racial Discrimination (New York,
21 December 1965), entered into force 4 January 1969; GA Res. 2106 (XX), Annex, p. 20;
660 UNTS 195.
International Covenant on Civil and Political Rights (New York, 16 December 1966),
entered into force 23 March 1976, GA Res. 2200A (XXI); 999 UNTS 171.
International Covenant on Economic, Social and Cultural Rights (New York, 16 December
1966), entered into force 3 January 1976; GA Res. 2200A(XXI); 993 UNTS 3.
Optional Protocol to the International Covenant on Civil and Political Rights (New
York, 16 December 1966), entered into force 23 March 1976; GA Res. 2200A(XXI); 999
UNTS 171.
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), entered into force
27 January 1980, UN doc. A/CONF.39/27; 1155 UNTS 331.
American Convention on Human Rights (San José, 21 November 1969), entered into force
18 July 1978; OAS Treaty Series No. 36; 1144 UNTS 123.
Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among states in Accordance with the Charter of the United Nations, GA
Res. 2625(XXV), 24 October 1970; ILM, vol. 9 (1970), p. 1292.
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property (Paris, 14 November 1970), entered into force
24 April 1972; 823 UNTS 231.
Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX), 12 December 1974;
ILM, vol. 14 (1975), p. 251.
Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conict (Geneva, 8 June 1977); entered into
force 7 December 1979; 1125 UNTS 3.
Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conict (Geneva, 8 June 1977),
entered into force 7 December 1978; 1125 UNTS 609.
Convention on the Elimination of All Forms of Discrimination again Women (New York,
18 December 1979); entered into force 3 September 1981; GA Res 34/180; 1249 UNTS 13.
African Charter of Human and Peoples’ Rights (Banjul, 27 June 1981), entered into force
21 October 1986; OAU doc. CAB/LEG/67/3 rev.3; ILM, vol. 21 (1982), p. 58.
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982);
entered into force 16 November 1994; 1833 UNTS 3.
xix
Table of Conventions and International Instruments
Declaration on the Right to Development, GA Res. 41/128, 4 December 1986.
ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent
Countries (Geneva, 27 June 1989); entered into force 5 September 1991; 1650 UNTS 383.
Convention on the Rights of the Child (New York, 20 November 1989), entered into force
2 September 1990; GA Res. 44/25; 1577 UNTS 3.
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families (New York, 18 December 1990); entered into force 1 September
2003; GA Res. 45/158, Annex; 2220 UNTS 3.
United Nations Framework Convention on Climate Change (New York, 9 May 1992); 1771
UNTS 107.
Convention on Biological Diversity (Rio di Janeiro, 5 May 1992); entered into force 29
December 1993; 1760 UNTS 79.
UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, GA Res. 47/135, 18 December 1992.
Vienna Declaration and Programme of Action, adopted 25 June 1993; UN doc.
A/CONF.157/23; ILM, vol. 32 (1993), p. 1661.
Framework Convention for the Protection of National Minorities (Strasbourg, 1 February
1995); entered into force 1 February 1998; CETS No. 157.
UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 24 June
1995), entered into force 1 July 1998; ILM, vol. 34 (1995), p. 1322.
Protocol to the United Nations Framework Convention on Climate Change (Kyoto,
11 December 1997); 2303 UNTS 148.
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property
in the Event of Armed Conict (The Hague, 26 March 1999); entered into force 9 March
2004; 2253 UNTS 172.
UN Convention against Transnational Organized Crime, adopted by GA Res. 55/25,
15 November 2000; entered into force 29 September 2003; 2237 UNTS 319.
Convention on the Protection of the Underwater Cultural Heritage (Paris, 2 November
2001); entered into force 2 January 2009; 2562 UNTS 1.
Universal Declaration on Cultural Diversity, adopted by the General Conference of
UNESCO, 2 November 2001; UNESCO doc. 31C/Res. 25, Annex I; ILM, vol. 41 (2002), p. 57.
xx
Table of Conventions and International Instruments
Convention for Safeguarding of the Intangible Cultural Heritage (Paris, 17 October 2003);
entered into force 20 April 2006; 2368 UNTS 3.
Declaration concerning the Intentional Destruction of Cultural Heritage, adopted by the
General Conference of UNESCO, 17 October 2003; UNESCO doc. 32C/Res. 33, Annex.
Convention on the Protection and Promotion of the Diversity of Cultural Expressions
(Paris, 20 October 2005); entered into force 18 March 2007; 2440 UNTS 311.
2005 World Summit Outcome Final Document, adopted by GA Res. 60/1, 24 October
2005.
Convention on the Rights of Persons with Disabilities (New York, 13 December 2006);
entered into force 3 May 2008; GA Res. 61/106; 2515 UNTS 3.
UN Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, 13 September
2007.
CHAPTER 2 Cultural Diversity s Human Right?
General Comment No. of the Committee
on Economic, Social and Cultural Rights
Laura Pineschi*
. Introduction
The protection of cultural diversity is an essential aspect of the human dimension of
cultural heritage. At the international level, the indivisibility of the protection of cultural
diversity (“a dening characteristic of humanity”) and the respect for human dignity,
on the one hand, and the strict interconnection between the protection of fundamental
freedoms and the defense of cultural heritage and cultural diversity, on the other, are
generally recognized. This relationship is also mutual. Thus, while efective protection
of the cultural heritage is essential for the respect of the manifold cultural expressions
of various groups and individuals and their cultural identity, it is only by means of the
* Professor of International Law, University of Parma.
Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris,
20 October 2005); 2440 UNTS 311 (hereinafter “Cultural Diversity Convention”), Preamble,
para. 1.
See Article 4 of the UNESCO Universal Declaration on Cultural Diversity, 2 November 2001,
UNESCO doc. 31C/Res. 25, Annex I, ILM, vol. 41 (2002), p. 57 (hereinafter “UNESCO Cultural
Diversity Declaration”); General Comment No. 21, Right of everyone to take part in cultural
life (Article 15, para. 1 (a), International Covenant on Economic, Social and Cultural Rights),
adopted by the Committee on Economic Social and Cultural Rights (“ESCR Committee) in
November 2009 (UN doc. E/C.12/GC/21, 21 December 2009), contains nearly the same lan-
guage at para. 40 (reproduced below, section 3.1). This document and all United Nations
documents quoted below are available at http://documents.un.org.
See General Comment No. 21 (above n. 2), para. 50. For further considerations see F. Fran-
cioni, “Culture, Heritage and Human Rights: An Introduction”, in F. Francioni and M. Schei-
nin (eds), Cultural Human Rights (Martinus Nijhof, 2008), p. 1.
See, e.g., Article 5(e) of the Council of Europe Framework Convention on the Value of Cul-
tural Heritage for Society (Faro, 27 October 2005; CETS No. 199; hereinafter “the Faro Conven-
tion”), where Parties consider “cultural heritage protection as a central factor in the mutually
supporting objectives of sustainable development, cultural diversity and contemporary cre-
ativity” (emphasis added).
Laura Pineschi
30
efective protection of cultural diversity that the preservation of cultural heritage can be
achieved in its entirety and in its broadest meaning.
Cultural diversity has been the subject-matter of scientic research for many years and
a number of important international instruments for its protection have been adopted
at the universal and regional levels. At the universal level, the contribution by UNESCO
through the adoption of the Universal Declaration on Cultural Diversity of 2 Novem-
ber 2001, the Convention for the Safeguarding of the Intangible Cultural Heritage, and
the UNESCO Convention on Cultural Diversity are the most prominent results. At the
regional level, signicant developments have been achieved by the Council of Europe.
For instance, the Faro Convention considers cultural heritage as a resource both for
human development and for the enhancement of cultural diversity.
The issue becomes more complex if cultural diversity is considered from the human
rights perspective. The freedom of any State to choose its cultural model, beyond its own
political, economic and social system, is a broad sovereign right, albeit not an unlimited
one. Nevertheless, the resistance of States to the drafting of international ad hoc rules
has always been very strong and continues to be manifest nowadays, despite unprec-
edented migratory movements and the world-wide acknowledgement that pluralism –
understood not only as the acceptance of diferent opinions and convictions, but also as
the respect of diferent cultural traditions – is an essential value of a democratic society.
In addition, the reconciliation of conicting rights and interests between States, indi-
viduals and groups of individuals – which is always a delicate and complicated under-
taking – becomes a particularly arduous exercise in the eld of culture. The problem
of alleged inconsistencies between certain traditional practices and the protection of
human rights or possible cultural conicts between an individual and the community to
which he or she belongs are only some controversial aspects which may be mentioned
by way of example.
On the notion of culture in its anthropological meaning, see section 3.1 below.
See above n. 2.
UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (“ICH Conven-
tion”) (Paris, 17 October 2003); 2368 UNTS 3.
See above n. 1.
See above n. 4.
For further considerations see S. Laghmani, “Droit international et diversité culturelle”,
RGDIP, vol. 112 (2008), p. 241. Obviously, unlike political and economic systems, cultural mod-
els have deep social roots, that a State could never change. The problem, therefore, arises in
particular in relation to minorities, indigenous peoples and aliens, i.e. those who risk being
considered the expression of a “lower” culture.
This neglect of cultural rights can be explained in diferent ways. For discussion, see
E. Stamatopoulou, “The Right to Take Part in Cultural Life”, background paper submitted to
the ESCR Committee during the 2008 day of general discussion on the right to take part in
cultural life, UN doc. E/C.12/40/9, 9 May 2008, pp. 7-8.
Cultural Diversity s Human Right? 31
Much has been written about the supposed existence of a human right to cultural
identity and, therefore, to cultural diversity. In the following paragraphs this issue will
be discussed from a narrow perspective, focusing on General Comment No. 21 on the
right of everyone to take part in cultural life, which was adopted by the ESCR Commit-
tee in 2009.
. Article of the International Covenant on Economic, Social and Cultural Rights
The scant attention paid by the international community to the protection of cultural
rights during the 20th century is well represented by the ICESCR. The rst legally-binding
instrument to explicitly mention cultural rights in its title contains only one provision
directly referring to culture (Article 15). The right of everyone to take part in cultural
life, the core of Article 15(1)(a), is a very general and vague assertion. Neither a literal
interpretation of this provision nor the consultation of its travaux préparatoires are of
much help in understanding the exact meaning of either “cultural life” or “to take part
in cultural life”.
The ESCR Committee organized a general discussion on the right to take part in cul-
tural life under Article 15 of the ICESCR in December 1992. A number of reasons might
be invoked to explain why this issue came under consideration at the beginning of the
1990s; in particular, it cannot be ignored that at this time, serious concern was growing
in international fora about the increasing number of internal conicts with ethnic or
religious implications. This is evidenced, for instance, by An Agenda for Peace, submit-
ted by the Secretary-General of the United Nations, Boutros Boutros-Ghali, to the Gen-
eral Assembly and the Security Council in June 1992, in which eforts to solve cultural
problems were expressly identied as being instrumental in preventing the breakdown
In particular see UNESCO, Cultural Rights as Human Rights (UNESCO, 1970) and Y. Donders,
Towards a Right to Cultural Identity? (Intersentia, 2002).
See above n. 2.
During the same period, the attention paid by scholars to the topic has also been very mod-
est. For a survey of major contributions on cultural rights at the time, see A. Eide, “Cultural
Rights as Individual Human Rights”, in A. Eide, C. Krause and A. Rosas (eds), Economic, Social
and Cultural Rights (Kluwer, 2001), p. 289, at p. 289, footnote 2.
Article 27 of the Universal Declaration of Human Rights (GA Res. 217A (III), 10 December
1948, hereinafter “UDHR”) already envisaged the right of everyone “to participate in the cul-
tural life of the community’. Article 15 of ICESCR is a step forward with respect to Article 27
of UDHR, because it abandons its unsatisfactory wording (“the cultural life of the commu-
nity”). Nevertheless, it adds nothing to Article 27 of UDHR as far as the assertion of a human
right to cultural identity is concerned.
An Agenda for Peace, Preventive diplomacy, peacemaking and peace-keeping, UN doc. A/47/277-
S/24111 (17 June 1992) (hereinafter “An Agenda for Peace”).
Laura Pineschi
32
of international peace and security and in enhancing the construction of a peaceful envi-
ronment on a durable foundation in the aftermath of an armed conict.
During the 1992 Day of General Discussion before the ESCR Committee, a working
paper prepared by a member of the Committee, Mr Samba Cor Konaté, was used as a
basis for discussion. Although no General Comment on Article 15 was adopted follow-
ing the debate in question, the report drafted by Mr Konaté has been a crucial point of
reference for many years.
A General Comment on the right of everyone to take part in cultural life under Article
15(1)(a) of the ICESCR was adopted by the ESCR Committee seventeen years later, in
November 2009. In May 2008, a Day of General Discussion had been organized on the
same issue, while new Guidelines for the Reporting Procedure under the ICESCR had
been issued in March 2009. Under the revised Guidelines, States are inter alia invited
to “[i]ndicate the measures taken to protect cultural diversity, promote awareness of
the cultural heritage of ethnic, religious or linguistic minorities and of indigenous com-
munities, and create favourable conditions for them to preserve, develop, express and
disseminate their identity, history, culture, language, traditions and customs”.
The ESCR Committee’s renewed attention for the protection of cultural rights can be
explained by a number of factors. In particular, globalization, migration and terrorism –
in many respects the cause and consequence of an emerging “battle of cultures” –
at the international level led to growing awareness of the importance of protecting cul-
tural rights as an indispensable tool for fostering tolerance and public safety. It is also
important to recall, however, that since 2001 diferent bodies and agencies of the United
Nations have undertaken major initiatives for the protection of cultural rights. Beyond
the action developed by UNESCO, a World Conference against racism, racial discrimi-
nation, xenophobia and related intolerance was convened by the United Nations in Dur-
See ibid., paras 11, 56 and 57. See also Supplement to an Agenda for Peace. Position Paper of
the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, UN
doc. A/50/60-S/1995/1 (3 January 1995), para. 22. For a concise illustration of the initiatives
undertaken in the 1990s on cultural rights within and outside the United Nations system, see
J. Symonides, “Cultural Rights”, in J. Symonides (ed.), Human Rights: Concept and Standards
(Ashgate and UNESCO, 2000), p. 175, at pp. 176-179.
Analytical Study of Article 15 of the International Covenant on Economic, Social and Cultural
Rights, UN doc. E/C.12/1992/WP.4 (25 November 1992).
See General Comment No. 21 (above n. 2).
The written contributions to the discussion are available at http://www2.ohchr.org/english/
bodies/cescr/discussion090508.htm (last accessed 30 January 2012).
See UN doc. E/C.12/2008/2 (24 March 2009).
Ibid., para. 68. Remarkable is also para. 67(b), according to which States are required to indi-
cate the measures taken “[t]o encourage participation in cultural life by children, including
children from poorer families, and migrant or refugee children”.
See Stamatopoulou (above n. 11), p. 9.
See section 1 above.
Cultural Diversity s Human Right? 33
ban, South Africa, in 2001, while in 2009 the United Nations Human Rights Council
appointed an Independent Expert in the eld of cultural rights, Ms Farida Shaheed, to
be in charge of a new special procedure.
It may be excessive to infer a deliberate convergence of action from these initia-
tives. Nevertheless, things are moving and General Comment No. 21 contains interesting
innovations.
. General Comment No. : Positive Aspects
The main purpose of General Comment No. 21 is to clarify the normative content of
Article 15(1)(a) ICESCR, including the range and scope of the specic obligations which
that provision imposes on States Parties to the Covenant, and the steps that States
Parties must take in order to give efective implementation to their obligations at the
national level. In the following paragraphs, attention will focus principally on the con-
tribution of the ESCR Committee to the development of the right to cultural identity.
However, before reaching a conclusion on that issue, it is useful to illustrate the posi-
tive innovations contained in the General Comment, as well as its inherent limits and
ambiguities.
3.1.The Endorsement of “Culture” in Its Anthropological Meaning
The notion of culture and, as a consequence, the notion of the right to take part in cul-
tural life, can be interpreted in diferent ways. In principle, however, two fundamental
approaches can be identied: a narrow interpretation, conned to a traditional meaning
of culture (“the arts”, i.e. literature, music, theatre, monuments, paintings and sculpture),
and a wider notion, where “culture” is understood in an anthropological sense, including
the distinctive lifestyle, traditions and values of a certain community and the individu-
als belonging to it. The latter approach has been widely supported by scholars during
recent years, despite the fact that, as noted by some commentators, the protection of
The Declaration and the Programme of Action adopted by the World Conference, contain-
ing important references to cultural rights and cultural identity, are available at http://www.
un.org/WCAR/durban.pdf (last accessed 30 January 2012).
Resolution 10/23 of 26 March 2009, available at http://ap.ohchr.org/documents/E/HRC/
resolutions/A_HRC_RES_10_23.pdf (last accessed 30 January 2012).
For discussion of the shortcomings and ambiguities of the General Comment, see Section 4,
below.
See, in particular, UNESCO, Cultural Rights as Human Rights (above n. 12), pp. 15 f.
In particular, see R. O’Keefe, “The ‘Right to Take Part in Cultural Life’ under Article 15 of the
ICESCR”, ICLQ, vol. 47 (1998), p. 904 and Y. Donders, “Cultural Life in the Context of Human
Rights”, background paper submitted to the ESCR Committee for the Day of General Discus-
sion on the right to take part in cultural life, UN doc. E/C.12/40/13, 9 May 2008.
Laura Pineschi
34
culture in its anthropological sense has not yet been fully reected in international law
provisions.
The rst positive contribution of General Comment No. 21 is the denitive endorse-
ment of “cultural life” in its anthropological dimension. Although the General Comment
makes no express mention of the notion of “anthropologic approach”, the acceptance of
culture in its widest meaning is evident in every part of the document.
First of all, not only does the ESCR Committee explicitly say that “culture is a broad,
inclusive concept encompassing all manifestations of human existence”, but it also pro-
vides an extensive list of values and practices falling within the notion of “culture” under
Article 15(1)(a) ICESCR. The broad scope of this notion is further strengthened by the
nature of the list, which is simply illustrative, and not exhaustive, as the expression “inter
alia” clearly suggests:
The Committee considers that culture, for the purpose of implementing article 15(1)(a),
encompasses, inter alia, ways of life, language, oral and written literature, music and song,
non-verbal communication, religion or belief systems, rites and ceremonies, sport and games,
methods of production or technology, natural and man-made environments, food, clothing and
shelter and the arts, customs and traditions through which individuals, groups of individuals
and communities express their humanity and the meaning they give to their existence, and
build their world view representing their encounter with the external forces afecting their
lives. Culture shapes and mirrors the values of well-being and the economic, social and political
life of individuals, groups of individuals and communities.
Second, the comprehensive and multifaceted nature of the notion of culture endorsed
by the ESCR Committee is also evident in its efort to give a specic content to “the right
to participation in cultural life”. In this respect, the inclusion of lifestyle in the notion
of culture is particularly revealing of an anthropologic approach. As a consequence,
General Comment No. 21 provides that the right of access to cultural life includes the
right of everyone “[...] to follow a way of life associated with the use of cultural goods and
resources such as land, water, biodiversity, language or specic institutions”, while the
See, e.g., I. Bernier, “Cultural Expressions under Threat in the UNESCO Convention on the
Diversity of Cultural Expressions”, available at http://www.fd.ulaval.ca/site//chier1232.pdf
(last accessed 30 January 2012), p. 8.
The broad approach adopted by the Committee is also conrmed by the long list of cultural
goods and services that in the opinion of the Committee must be available as a condition for
the full realization of the right of everyone to take part in cultural life. See General Comment
No. 21 (above n. 2), para. 16(a). It can be useful to stress that the denition of culture adopted
by the ESCR Committee is broader than the notion embodied in Article 2(a) of the Fribourg
Declaration on cultural rights, launched by the Observatory of Diversity and Cultural Rights,
together with the Organisation Internationale de la Francophonie and UNESCO on 7 May
2007 and available at https://www.unifr.ch/iiedh/assets/les/declarations/eng-declaration
.pdf (visited on 10 March 2010).
General Comment No. 21 (above n. 2), para. 15(b) (emphasis added).
Cultural Diversity s Human Right? 35
obligation to respect includes a requirement of the adoption by States Parties of specic
measures to ensure the enjoyment by all persons of the right “[...] to express their cul-
tural identity freely and to exercise their cultural practices and way of life”.
The acceptance of the notion of culture according to an anthropologic approach is
further evidenced by a third important element, i.e. the consideration of the protection
of cultural diversity as an inseparable aspect of respect for human dignity. The General
Comment claries that:
The protection of cultural diversity is an ethical imperative, inseparable from respect for human
dignity. It implies a commitment to human rights and fundamental freedoms, and requires the
full implementation of cultural rights, including the right to take part in cultural life.
As several commentators correctly emphasized during the 2008 Day of General Discussion,
attacks upon or lack of respect for personal beliefs and the way of life of a certain group
and its members violate the dignity of individual members, since they destroy or reduce
the sense of self-respect of the individuals belonging to that group. General Comment
No. 21 conrms this interpretation, considering the right to take part in cultural life as
essential for the maintenance of human dignity. This is perfectly consistent with the
Preamble of the ICESCR, according to which economic, social and cultural rights “derive
from the inherent dignity of the human person”. However, this conclusion could not
be reached if culture were to be considered in a narrow and not in an anthropological
conception.
Finally, the broad approach adopted by the Committee is conrmed both by the pref-
erence given to a dynamic, instead of a static, notion of culture endorsed by General
Comment No. 21 (“The expression ‘cultural life’ is an explicit reference to culture as a
living process, historical, dynamic and evolving, with a past, a present and a future”)
and the emphasis placed on the interplay between cultures as a process of mutual inu-
ence and enrichment:
Ibid., para. 49(a) (emphasis added).
Ibid., para. 40. This statement basically reiterates the rst part of the UNESCO Cultural Diver-
sity Declaration (above n. 2).
See, e.g., Donders (above n. 12), p. 328; C. Groni, “The Right to Take Part in Cultural Life”
(written contribution to the Day of General Discussion on the right to take part in cultural
life), UN doc. E/C.12/40/3, 9 May 2008, pp. 5-6 and J. Ringelheim, “La société démocratique
comme espace culturel, pluraliste. Réexions sur la jurisprudence de la Cour Européenne des
droits de l’homme”, background paper submitted at the Day of General Discussion on the
right to take part in cultural life, UN doc. E/C.12/40/5, 9 May 2008, p. 4. On the lack of respect
for personal beliefs and the use of coercion to change them as an afront to human dignity
see also O. Schachter, “Human Dignity as a Normative Concept”, AJIL, vol. 77 (1983), p. 848.
ICESCR, Preamble, para. 2.
General Comment No. 21 (above n. 2), para. 11.
Laura Pineschi
36
The concept of culture must be seen not as a series of isolated manifestations or hermetic
compartments, but as an interactive process whereby individuals and communities, while
preserving their specicities and purposes, give expression to the culture of humanity. This
concept takes account of the individuality and otherness of culture as the creation and product
of society.
The endorsement of culture in its broadest meaning combined with a dynamic notion
of participation to cultural life has some important consequences. First, the right to take
part in cultural life cannot be interpreted as the right to have access to and take part in
the cultural life of the dominant group only, as it is also the right of any group to main-
tain and develop its specic culture (or, in other words, its cultural identity). Second,
the evolutionary notion of culture and the interaction of cultures exclude the superior-
ity of one culture over another and plainly condemn the imposition of one culture on
other cultures. Third, the dynamic approach makes it clear that multiculturalism is an
element of integration and strengthening of a society as a whole, and not a ground for
its fragmentation and disruption.
3.2.The Recognition of the Right to Take Part in Cultural Life Both as an Individual and
as a Collective Right
This is one of the major contributions of General Comment No. 21. As far as the recog-
nition of an individual right to take part in cultural life is concerned, special emphasis
is placed by the Committee on the characterization of this right as a freedom and, in
particular, as the freedom to choose and to change cultural identity:
Participation covers in particular the right of everyone – alone, or in association with others
or as a community – to act freely, to choose his or her own identity, to identify or not with one or
several communities or to change that choice, to take part in the political life of society, to engage
in one’s own cultural practices and to express oneself in the language of one’s choice.
The recognition of the right of every individual to assert cultural values which can depart
both from those shared by the dominant group and from those of the community to
which the individual belongs, or to adhere to the cultural models of the dominant group,
is a remarkable development.
The necessity to take into account the problem of alleged conicts between the cul-
tural rights and interests of a group and the rights of single members of that group has
already been acknowledged in the practice of other international human rights moni-
toring bodies including, for instance, the Human Rights Committee. Some interesting
Ibid., para. 12.
Ibid., para. 15 (emphasis added).
See, for instance, Apirana Mahuika et al. v. New Zealand (Comm. No. 547/1993), UN doc.
CCPR/C/70/D/547/1993, 27 October 2000, para. 9.6.
Cultural Diversity s Human Right? 37
developments with regard to the protection of the most vulnerable members of a cultural
group can also be inferred from States’ practice. For instance, some European States, as
the Netherlands, have adopted a specic strategy on “honour-related” violence, inti-
mately linked with the Government’s integration and immigration strategy and aimed
at strengthening the capacity of government bodies to investigate and prosecute the
perpetrators of such acts.
Nevertheless, a lot has still to be done. On the one hand, the adoption of specic
measures at the national level is required to prevent the most heinous forms of violence
against vulnerable members of a group. On the other, the freedom of individuals to
choose and to change their cultural identity remains an illusory right if States fail to pro-
tect a number of fundamental civil and political rights, including the right to education
and information and the freedom of expression of all individuals both within their State
and within their community. According to this assumption, General Comment No. 21
properly highlights the importance of the right of access to education (including human
rights education) not only to foster cultural identity, but also to promote knowledge of
alternative ways of life as well as the development of individual autonomy and a critical
approach.
At the same time, it cannot be ignored that in the implementation of the duty to
provide necessary protection to all individuals who are prevented by their cultural group
from freely expressing their opinions and choices, States may be faced with practical
diculties and with a real conundrum, considering the very delicate balance to be
found between two conicting obligations: the protection of individual rights and the
duty to refrain from any undue interference with the cultural rights enjoyed by each
group.
In principle, under this expression women or girls are subjected to, or threatened with, vio-
lence because they do not conform to their family’s cultural traditions on social or sexual
behaviour.
For further details see Report of the Special Rapporteur on violence against women, its causes
and consequences, Yakin Ertürk. Addendum, Mission to the Netherlands, UN doc. A/HRC/4/34/
Add.4, 7 February 2007, paras 45 f. It could also be mentioned that since 2010 the Italian Min-
istry for Equal Opportunities has applied to sue for damages in the criminal prosecution of
individuals responsible for “honour-related” killings. See, e.g., the case of El Kataoui Dafani,
a Moroccan man who brutally killed his daughter and injured her Italian boyfriend because
he could not accept his daughter’s refusal to conform to her family’s cultural traditions. On
14 June 2010 the Tribunal of Pordenone sentenced the man to life imprisonment and referred
to civil proceedings the assessment of damages to the Ministry of Equal Opportunities.
See, e.g., UN doc. A/HRC/4/34/Add.2, 5 January 2007, paras 79 f., containing the recommen-
dations of the Special Rapporteur, Yakin Ertürk, to Turkey to foster a zero-tolerance policy
towards all forms of violence against women, including forced suicide or disguised suicide.
See General Comment No. 21 (above n. 2), in particular paras 2, 26-27.
See, e.g., the observations of Yakin Ertürk in her Report on Sweden, with regard to the par-
ticular challenges posed by honour-related violence to law enforcement authorities, UN doc.
A/HRC/4/34/Add.3, 6 February 2007, para. 36.
Laura Pineschi
38
With regard to the second aspect outlined above – the recognition of the right to
take part in cultural life as a collective right – in State practice there has been a certain
reluctance to recognize collective rights, not only in the period following the Second
World War, but also during more recent decades. The considerable length of the nego-
tiations preceding the United Nations Declaration on the Rights of Indigenous Peoples,
adopted by the United Nations General Assembly on 13 September 2007 after more than
twenty years of discussion is particularly telling. Two principal reasons are gener-
ally considered to be at the origin of this resistance: the concern of sovereign States in
relation to any possible threats to their territorial integrity and the fear of hostile reac-
tions by the rest of the population to the recognition of substantive rights to cultural
minorities.
The position of international scholars is less controversial. Nevertheless, while certain
authors assert without hesitation that “There is no juridical reason why the right embod-
ied in Article 15 cannot be characterized as both an individual and a group right, depend-
ing on the context in which it sought to be exercised”, others are more prudent.
In General Comment No. 21, the ESCR Committee denitively cuts through any hesi-
tation and ambiguity on this issue. Relying on the broad notions of “culture” and “cul-
tural life” embodied in Article 15(1)(a) and (b) of the Covenant, and the position already
adopted in General Comment No. 17 on Article 15(1)(c), General Comment No. 21
explicitly recognizes that the right embodied in Article 15(1)(a) is both an individual and
a collective right. The wording of the relevant paragraphs is plain. Not only does the
Committee reiterate that “[...] cultural rights may be exercised by a person (a) as an
individual, (b) in association with others, or (c) within a community or group, as such”,
but it also emphasises that
Participation covers in particular the right of everyone – alone, or in association with others or
as a community – to act freely, to choose his or her own identity, to identify or not with one or
several communities or to change that choice.
Suce here to mention the problematic negotiation of Article 27 UDHR.
UN doc. A/61/L.67, 7 September 2007. The Declaration was adopted with four votes against
(Australia, Canada, New Zealand, and United States).
See, e.g., Stamatopoulou (above n. 11), p. 8.
O’Keefe (above n. 29), p. 917. For an interesting discussion on the collective dimension of
cultural rights see also E. Nimni, “Collective Dimensions of the Right to Take Part in Cultural
Life’, background paper submitted to the ESCR Committee for the 2008 Day of General Dis-
cussion on the right to take part in cultural life, UN doc. E/C.12/40/17, 9 May 2008.
See, e.g., Groni (above n. 35), p. 8.
The same position had been taken by the Committee in General Comment No. 17, The right
of everyone to benet from the protection of the moral and material interests resulting from
any scientic, literary or artistic production of which he or she is the author (article 15, para-
graph 1 (c), of the Covenant), UN doc. E/C.12/GC/17, 12 January 2006, para. 8.
General Comment No. 21 (above n. 2), para. 9.
Ibid., para. 15 (emphasis added).
Cultural Diversity s Human Right? 39
A nal assertion, leaving no doubt as to the position taken by the ESCR Committee with
regard to the collective dimension of the rights protected by Article 15(1)(a) ICESCR, is
contained in the specic section devoted to “Persons and communities requiring special
protection”, where the position of indigenous peoples is specically taken into account.
Here the Committee unequivocally recognizes the collective right of indigenous peoples
to take part in cultural life also under its procedural dimension, i.e. to take action to
ensure the efective protection of their rights:
Indigenous peoples have the right to act collectively to ensure respect for their right to maintain,
control, protect and develop their cultural heritage, traditional knowledge and traditional
cultural expressions, as well as the manifestations of their sciences, technologies and cultures,
including human and genetic resources, seeds, medicines, knowledge of the properties of
fauna and ora, oral traditions, literature, designs, sports and traditional games, and visual and
performing arts.
In conclusion, under General Comment No. 21 both individuals and cultural groups
are equally entitled to the rights embodied in Article 15(1)(a). As a consequence, the
members of these communities are protected as individuals, like other individuals, but
they are also entitled to act collectively for the protection of the cultural identity of
their group. Furthermore, any cultural community has the right to submit legitimate
claims under Article 15(1)(a) ICESCR, including, e.g., claims for the restitution of lands
or any other adequate compensation. This approach should be strengthened, inter alia,
by the entry into force of the Optional Protocol to ICESCR under which, according to
Article 2, communications may be submitted
[...] by or on behalf of individuals or groups of individuals under the jurisdiction of a State
Party, claiming to be victims of a violation of any of the economic, social and cultural rights
set forth in the Covenant by that State Party.
3.3.The Recognition of the Right to Take Part in Cultural Life as a Justiciable Right
The justiciability of economic and social rights is an old and a widely-debated issue.
The main arguments put forward by those who contend that these rights cannot be
Ibid., pp. 6 f. (emphasis added).
Ibid., para. 37 (emphasis added).
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(New York, 10 December 2008) (hereinafter “ICESCR Optional Protocol”), emphasis added.
The problem of the justiciability of economic and social rights was extensively debated dur-
ing the negotiations preceding the adoption of the ICESCR Optional Protocol; see in particu-
lar UN doc. E/CN.4/2004/44, 15 March 2004 and UN doc. E/CN.4/2005/52, 10 February 2005.
See also A. Nolan, B. Porter and M. Langford, The Justiciability of Social and Economic Rights:
An Updated Appraisal, Center for Human Rights and Global Justice Working Paper No. 15
(2007).
Laura Pineschi
40
treated as true enforceable rights are essentially two: the progressive nature of economic
and social rights and the vague wording in which many of these rights are formulated.
As far as the rst point is concerned, obviously the progressive realization of ICESCR
obligations does not amount to saying that the adoption of adequate measures by States
Parties can be deferred ad libitum. The ICESCR simply requires Parties “to take steps
[...] to the maximum of [their] available resources”; however, the ESCR Committee has
clearly emphasized in its General Comment No. 3 that:
[...] while the full realization of the relevant rights may be achieved progressively, steps
towards that goal must be taken within a reasonably short time after the Covenant’s entry into
force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly
as possible towards meeting the obligations recognized in the Covenant.
As to the second point, in order to know whether the rights envisaged by ICESCR are
suciently precise, some scholars have stressed the need to reverse the traditional per-
spective, based on the justiciability of individual’s rights, and to focus attention on the
justiciability of State obligations. Therefore, it is useful to assess whether certain obli-
gations are suciently clear and, as a consequence, which States’ conduct can be con-
sidered satisfactory and, to the contrary, the conduct of which States amounts to a clear
violation of these obligations.
Adopting this approach with specic reference to the obligations of State Parties stem-
ming from Article 15(1)(a) ICESCR, Part III of General Comment No. 21 ofers a major con-
tribution in clarifying the content of the obligations of States Parties. In particular, the
ESCR Committee provides several examples of States’ obligations of immediate efect. It
is sucient here to mention the negative duty of States to abstain from “[...] any form
of discrimination based on cultural identity, exclusion or forced assimilation” which
could impair “[...] the right of all persons to freely express their cultural identity and
to exercise their cultural practices and way of life”. The General Comment also men-
tions the positive duties “[...] [to] respect and protect cultural heritage in all its forms,
in times of war and peace, and natural disaster” and to “prevent third parties from
General Comment No. 3, The Nature of States Parties Obligations (Article 2, para. 1), UN doc.
E/1991/23, Annex III, p. 86 (14 December 1990), para. 2. See also the Report of the United
Nations High Commissioner for Human Rights focused on the concept of “progressive real-
ization” of economic, social and cultural rights in international human rights law, UN doc.
E/2007/82, 25 June 2007.
For further considerations on this issue see, in particular, O. De Schutter, “Le Protocole facul-
tatif au Pacte International relatif aux droits économiques, sociaux et culturels”, Revue belge
de droit international, vol. 42 (2006), p. 1, at pp. 18 f.
General Comment No. 21 (above n. 2), para. 49(a). On the duty of non-discrimination see
also General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights
(Article 2, para. 2), UN doc. E/C.12/GC/20, 10 June 2009.
General Comment No. 21 (above n. 2), para. 49(a).
Ibid., para. 50(a).
Cultural Diversity s Human Right? 41
interfering with the exercise of the freedoms connected with the right to take part in
cultural life”. As a consequence, all conduct aimed at the destruction or desecration of
cultural objects or spaces are always prohibited. Moreover, States Parties to the ICESCR
are under a duty both to adopt efective measures in the case of clashes and tensions
between adherents to diferent cultural groups and to protect the members of the weak-
est communities from any wrongful interference with their rights. Under this heading,
the ESCR Committee also explicitly recognizes the property rights of indigenous peoples,
recalling that the duty to respect “[...] includes protection from illegal or unjust exploita-
tion of their lands, territories and resources by State entities or private or transnational
enterprises and corporations”. Therefore, the omission by a State to adopt and enforce
appropriate laws to exclude such forms of interference or the failure to provide appropri-
ate remedies to enable indigenous peoples to fully exercise their rights will amount to an
infringement of Article 15(1)(a) ICESCR.
Other positive measures, such as the promotion of “the exercise of the right of asso-
ciation for cultural and linguistic minorities for the development of their cultural and
linguistic rights”, the establishment of conditions for “a constructive intercultural rela-
tionship between individuals and groups based on mutual respect, understanding and
tolerance” and the organization of “public campaigns [...] with a view to eliminat-
ing any form of prejudice against individuals or communities, based on their cultural
identity” may include the adoption of nancial measures. This is a delicate issue; it
cannot be ignored, however, that compliance with this obligation is not to be assessed
through taking into account only the nancial resources efectively available, but also,
and above all, the choices made in the allocation of funds. As it has already been pointed
Ibid., para. 62. See also P. Meyer-Bisch, “Denir les droits culturels”, Working Document No. 1
of the Seminar on Implementing Cultural Rights. Nature, Issues at Stake and Challenges
(Geneva, 1-2 February 2010), available at http://www2.ohchr.org/english/issues/cultural_
rights/documentation.htm (visited on 30 January 2012), para. 30: “L’obligation de respecter
ne se réduit pas à un devoir d’abstention de l’Etat, puisque, lorsque des violations sont per-
pétrées, l’abstention devient une complicité. Respecter ne signie pas seulement ne pas faire,
ne pas nuire, mais agir de façon à ne pas nuire”.
General Comment No. 21 (above n. 2), para. 50 (c).
Ibid., para. 52 (c).
Ibid., para. 52 (h).
Ibid., para. 52 (i).
Ibid., para. 52.
For an interpretation of the expression “to the maximum of its available resources” under
Article 2(1) ICESCR, see General Comment No. 3 (above n. 58), para. 10, and the statement
of the ESCR Committee, “An Evaluation of the Obligation to Take Steps to the ‘Maximum
of Available Resources’ under an Optional Protocol to the Covenant”, UN doc. E/C.12/2007/1
(21 September 2007). In particular see para. 4, where the Committee recalls that: “The ‘avail-
ability of resources’, although an important qualier to the obligation to take steps, does not
alter the immediacy of the obligation, nor can resource constraints alone justify inaction”.
Laura Pineschi
42
out, a reduction in cultural variety can be determined by a convergence of funds towards
initiatives supporting the dominant culture.
Finally, particular emphasis is placed by General Comment No. 21 on
[t]he enactment of appropriate legislation and the establishment of efective mechanisms
allowing persons, individually, in association with others, or within a community or group,
to participate efectively in decision-making processes, to claim protection of their right to
take part in cultural life, and to claim and receive compensation if their rights have been
violated.
By this wording General Comment No. 21 reiterates, with specic reference to the right
to take part in cultural life, the position already asserted by the ESCR Committee in its
General Comment No. 3, i.e. that – even though the ICESCR does not contain a provision
couched in the same terms as Article 2 of the ICCPR – there exists a general obligation of
States Parties to ICESCR to ensure the efective enjoyment of the rights embodied in the
Covenant, which implies not only the adoption of appropriate legislative measures (as
explicitly said in Article 2(1), but also the efective provision of judicial remedies at the
national level. General Comment No. 21 also contains a list of specic measures that
should be adopted by States Parties in that regard. Under this heading, three obliga-
tions deserve special attention: investigation of alleged infringements, disclosure of the
results and the provision of “the necessary administrative, judicial or other remedies to
compensate victims”.
An efective investigation is a basic assumption when the alleged violation of a human
right is claimed at national or international level. However, the need to comply with the
obligation of efective investigations “seriously and not as a mere formality” becomes
a compulsory obligation wherever serious discriminations or repressive policies by the
dominant group against minorities or cultural groups are at stake. With specic refer-
ence to cultural rights, in the Case of the Plan de Sánchez Massacre v. Guatemala the
Inter-American Court of Human Rights strongly condemned the unreasonable delay in
investigations (more than 22 years had elapsed since the massacre and 10 since the cor-
See, e.g., O’Keefe (above n. 29), p. 915. Several investments could also be made at the
national and international level to foster cultural diversity and cultural dialogue. See, e.g.,
the recommendations contained in the UNESCO World Report, Investing in Cultural Diversity
and Intercultural Dialogue (Paris, 2009), pp. 34 f., available at http://unesdoc.unesco.org/
images/0018/001847/184755e.pdf (visited on 30 January 2012).
General Comment No. 21 (above n. 2), para. 54(a). On the need to promote knowledge about
existing methods for redress, see Report of the independent expert in the eld of cultural rights,
Ms. Farida Shaheed. Addendum. Preliminary note on the mission to Brasil (8-19 November 2010),
UN doc. A/HRC/17/38/Add. 1, 21 March 2011, para. 95 (a).
General Comment No. 3 (above n. 58), para. 5.
General Comment No. 21 (above n. 2), para. 72.
Case of the Plan de Sánchez Massacre v. Guatemala (Reparations), IACtHR, Judgment of
19 November 2004, Series C No. 105, para. 96.
Cultural Diversity s Human Right? 43
responding investigations), the inadequacy of the inquiries as well as the threatening
and obstructive behaviour of States’ agents, essentially aimed at preventing the victims
from “[...] reporting the massacre, avoiding elucidation of the facts, and concealing
those responsible”.
The obligation to publicize is another important measure to strengthen cultural rights
if they have been infringed, to restore the dignity of the subjects that have sufered a
detrimental harm to their fundamental rights as well as to promote the development of a
correct balance between diferent cultural expressions. Again, by way of example, in the
above mentioned Plan de Sánchez Massacre case not only did the Inter-American Court
order the State to organize a public act acknowledging its responsibility for the events
that had occurred as a form of reparation for the victims, but it also requested the State
to publicly honor the memory of those executed (the majority of whom were members
of the Mayan indigenous community), to publish pertinent parts of the judgments of the
Court in the Ocial Gazette and in another daily newspaper with national circulation,
in Spanish and in the Maya-Achí language, and to translate the judgments of the Court
into the latter language.
Finally, “other remedies” cover all the measures that go beyond compensation for
pecuniary and non-pecuniary damage, including apologies and guarantees of non-
repetition. Obviously, all these measures concur to give an initial sign of respect for the
victims and their dignity, but they can also be interpreted as an efective recognition of
their identity and their cultural rights.
In sum, as a result of General Comment No. 21, the content of certain basic obligations
of States Parties under Article 15(1)(a) becomes suciently clear to conclude that the tra-
ditional argument of those who contend that the vagueness of the right to participate in
cultural life is the main obstacle in the attribution of States’ responsibility and account-
ability is untenable. Obviously States can exercise discretionary powers in the choice of
the most appropriate means to give efect to certain obligations of result. However, their
margin of appreciation is considerably reduced with regard to obligations of conduct and
the ESCR Committee retains the power to make the nal determination as to whether
all appropriate measures have been taken.
Ibid., paras 94-95. The massacre of 268 individuals, mostly members of the Maya community,
was perpetrated by members of the Guatemalan Army and civilian collaborators under the
guidance of the Army on 18 July 1982. The impact of the massacre on the cultural identity of
the Maya community was particularly burdensome; see the observations of the Court, ibid.,
para 77(e).
Ibid., paras 100-103.
Again, see, e.g., Plan de Sánchez Massacre case (ibid.), paras 104 (guarantee of non-repetition
by providing resources for the collective memory) and 106 (provision to the victims of medi-
cal and psychological treatment).
See General Comment No. 3 (above n. 58), para. 1.
Laura Pineschi
44
. General Comment No. : Shortcomings and Ambiguities
The clear-cut position taken by the ESCR Committee in General Comment No. 21 on cer-
tain controversial issues is commendable and deserves recognition. Nevertheless, on two
specic topics – the content of procedural rights and the limitations to the right “to take
part” in cultural life – the Committee’s analysis appears too vague or not exhaustive.
4.1.Procedural Rights: A Blurred Approach
Under General Comment No. 21, “the right of everyone to be involved in creating the spir-
itual, material, intellectual and emotional expressions of the community” is supported
by the right “[...] to take part in the denition, elaboration and implementation of poli-
cies and decisions that have an impact on the exercise of a person’s cultural rights”.
Unlike previous paragraphs, which focused on substantive rights, the paragraph under
discussion introduces a new issue, i.e. the procedural rights embodied in the right to take
part in cultural life. The importance of procedural rights is evident: substantive rights
cannot be fully enjoyed unless specic procedures and mechanisms are developed so
that the groups and individuals concerned can participate efectively in the decision-
making process that can have an impact on their way of life.
In the practice of the international monitoring bodies the importance of the right of
participation has been widely recognized as a basic condition for the efective enjoy-
ment by individuals and communities of their cultural rights or even for their survival.
For instance, the Inter-American Court of Human Rights – ruling on the case of the
Saramaka People v. Suriname on 28 November 2007 – set out in detail the content of the
duty of consultation:
[...] the State has a duty to actively consult with [Saramaka] community according to their
customs and traditions [...]. This duty requires the State to both accept and disseminate
information, and entails constant communication between the parties. These consultations
must be in good faith, through culturally appropriate procedures and with the objective of
reaching an agreement. Furthermore, the Saramakas must be consulted, in accordance with
their own traditions, at the early stages of a development or investment plan, not only when
General Comment No. 21 (above n. 2), para. 15 (c). Emphasis added.
Ibid. Obviously, the expression “everyone”, used in the rst part of the sentence, excludes
any restrictive interpretation. See also Report of the independent expert in the eld of cultural
rights, Ms. Farida Shaheed. Addendum. Preliminary note on the mission to Austria (4-15 April
2011), UN doc. A/HRC/17/38/Add.2, 16 May 2011, paras 7-20. On participation in the decision-
making processes by persons requiring special protection, see in particular: the Convention
on the Elimination of all Forms of Discrimination against Women (New York, 18 December
1979, 1249 UNTS 13), Article 7(b) and the recent Report of the United Nations Secretary-
General, Keeping the promise: a forward-looking review to promote an agreed action agenda
to achieve the Millennium Development Goals by 2015, UN doc. A/64/665, 12 February 2010,
para. 72 (d). See also the Convention on the Rights of Persons with Disabilities (New York, 13
December 2006), Article 4(3).
Cultural Diversity s Human Right? 45
the need arises to obtain approval from the community, if such is the case. Early notice provides
time for internal discussion within communities and for proper feedback to the State. The State
must also ensure that members of the Saramaka people are aware of possible risks, including
environmental and health risks, in order that the proposed development or investment plan is
accepted knowingly and voluntarily. Finally, consultation should take account of the Saramaka
people’s traditional methods of decision-making.
In its case law the Human Rights Committee has rarely directed its attention to the duty
of consultation and its specic content. However, in the recent case of Angela Poma
Poma v. Peru, the Human Rights Committee made it clear that if the right to participa-
tion is to be efective it is not limited to consultation, but includes the “free, prior and
informed consent of the members of the community”. States are also under the duty
to organize studies – to be undertaken by an independent body – in order to assess
the impact of certain projects on traditional economic activities and adopt measures to
minimize negative consequences and repair the harm done.
In General Comment No. 21, the Committee seems vaguer in its approach. In particu-
lar, it does not specify the minimum components of the rights embodied in the notion of
“active participation” in certain decision-making processes. Obviously, in principle, the
right to participation can be efectively implemented if at least the right to be informed
of decision-making processes having an impact upon groups’ cultures or particular ways
of life and the right to be consulted in the decision-making process are furthered. How-
ever, more information can only be inferred from Part III of General Comment No. 21,
where the Committee recalls the right of potentially afected groups and individuals to
be informed, stressing the duty of States to adopt:
[...] specic measures aimed at achieving respect for the right of everyone – individually or
in association with others or within a community group – to: [...] freely take part in an active
and informed way, and without discrimination, in any important decision-making process
that may have an impact on his or her way of life and on his or her rights under article 15,
paragraph 1 (a).
Unfortunately this assertion remains too vague because it leaves States Parties a broad
margin of appreciation. As a consequence, the involvement of groups and individuals in
the decision-making process can be transformed into a merely illusory right if States fail
to prescribe measures to give specic content to this general duty in their national legal
Case of the Saramaka People v. Suriname, IACtHR, Judgment of 28 November 2007, Series C
No. 172, para. 133.
See, for instance, Ilmari Länsman v. Finland (Comm. No. 511/1992), UN doc. CCPR/
C/52/D/511/1992 (8 November 1994), para. 9.6, and Apirana Mahuika et al. v. New Zealand
(Comm. No. 547/1993), UN doc. CCPR/C/70/D/547/1993 (27 October 2000), paras 9.6 and 9.8.
Comm. No. 1457/2006, UN doc. CCPR/C/95/D/1457/2006 (24 April 2009), paras 7.6.
Ibid., para. 77.
General Comment No. 21 (above n. 2), para. 49 (e).
Laura Pineschi
46
systems. For instance, from the general right to take part in the decision-making process
it can be inferred that every group or individual should be allowed an appropriate oppor-
tunity to comment on legal or administrative draft measures that can have an impact on
their way of life. Yet it remains unclear what the outcome of those consultations should
be. It would be reasonable to expect that the concerns expressed by afected parties will
be taken into account by States Parties in their nal decision, but this is not expressly
stated in General Comment No. 21.
Furthermore, the participation of the public is envisaged only for “important” deci-
sion-making processes. Obviously that qualication tries to reconcile the equitable pro-
tection of the rights of potential afected parties and the legitimate interest of States not
to be burdened or impeded by unreasonable constraints on their actions. However, who
decides whether a certain decision-making process is “important”? What are the appli-
cable criteria dening a particular project as “important”? Can a State full its procedural
duties by unilaterally asserting that a certain project is not important?
A remedy against arbitrary decision-making by States exists and it is to be found in the
supervisory powers that the ESCR Committee can exercise over States Parties’ behaviour
under the ICESCR and, as soon as it has entered into force, its Optional Protocol. Argu-
ably, however, the assessment of the diligence exercised by a State party as regards an
allegation of the infringement of these procedural duties would be an easier task for the
ESCR Committee if examined in the context of a complaint made under the Optional
Protocol rather than in the context of the periodic reports of States. In the rst case, the
Committee can assess the conduct of States in the light of concrete allegations and griev-
ances, while under the periodic reporting procedure it can only make an assessment in
the abstract. In both cases, however, the observations of the Committee may come too
late, i.e. when the arbitrary decision of a State has already caused serious or even irrevers-
ible damage to the way of life or the cultural heritage of certain groups or individuals.
A nal remark should be made. Under General Comment No. 21, States Parties to
the ICESCR are required to receive a prior informed consent by individuals and groups
concerned, but only for the preservation of “their cultural resources”. The ESCR Com-
On the indissociable link between consultation and the objective of reaching an agreement
with the concerned group see G. Pentassuglia, “Towards a Jurisprudential Articulation of
Indigenous Land Rights”, EJIL, vol. 22 (2010), p. 165.
Furthermore, in Part VI of General Comment No. 21 (above n. 2), specically devoted to
“Obligations of Actors Other than States”, no mention is made of the duty of private compa-
nies to organize consultations with cultural groups and communities which can be afected
by their projects. For a positive development in this direction, see the Report on the Situation
of Human Rights and Fundamental Freedoms of Indigenous Peoples, UN doc. A/HRC/15/37, 19
July 2010, submitted by the Special Rapporteur James Anaya to the 15th Session of the Human
Rights Council, para. 70.
See above n. 56.
General Comment No. 21 (above n. 2), para. 55.
Cultural Diversity s Human Right? 47
mittee qualies the obligation “to allow and encourage the participation of persons
belonging to minority groups, indigenous peoples or to other communities in the design
and implementation of laws and policies that afect them” as a core obligation. It can-
not be ignored, however, that since the wording of the General Comment in relation to
prior informed consent is simply hortatory (“States Parties should obtain”), States Parties
retain a certain margin of appreciation as regards implementation.
4.2.Inadmissibility of “Negative Practices”
As it was correctly stressed in 2008, during the Day of General Discussion:
Culture must [...] be interpreted in the light of the universal human rights provisions,
establishing the criterion of a human rights consistency of “culture” as a term of article 15.1 (a).
Consequently, culture as a social phenomenon must not be confused with culture as a term of
international human rights law.
General Comment No. 21 carefully avoids this confusion, explicitly saying that “[...] no
one may invoke cultural diversity to infringe upon human rights guaranteed by interna-
tional law, nor to limit their scope”.
This conclusion can be inferred, as the ESCR Committee recalls, from the indivisible
and interdependent character of all human rights; nevertheless, it has to be acknowl-
edged that the duty of all States to protect all human rights and fundamental freedoms
while implementing their obligations to respect cultural rights is expressed by the ESCR
Committee a more clear cut way than by the World Conference on Human Rights of
1993. Furthermore, the Committee employs the same language used by UNESCO under
the Universal Declaration on Cultural Diversity to condemn negative practices; how-
ever, it adds some specic examples of these practices and recalls that these traditions
actually frustrate the efective implementation of the right to take part in cultural life:
A violation also occurs when a State party fails to take steps to combat practices harmful to the
well-being of a person or group of persons. These harmful practices, including those attributed
to customs and traditions, such as female genital mutilation and allegations of the practice of
witchcraft, are barriers to the full exercise by the afected persons, of the right enshrined in
article 15, paragraph 1 (a).
Groni (above n. 35), p. 6.
General Comment No. 21 (above n. 2), para. 18.
See Vienna Declaration and Programme of Action (Vienna, 25 June 1993), UN doc. A/CONF.
157/23, 12 July 1993, para. 5.
See General Comment No. 21 (above n. 2), para. 18 and UNESCO Cultural Diversity Declara-
tion (above n. 2), Article 4.
General Comment No. 21 (above n. 2), para. 64.
Laura Pineschi
48
Some more examples of cultural practices inconsistent with universal human rights can
be drawn from the practice of the ESCR Committee, other human rights treaty bodies
and some United Nations primary or subsidiary bodies.
Obviously, the identication of intolerable practices must be performed on a case
by case basis; nevertheless, that does not exclude the possibility of setting out general
criteria to be followed in applying limitations to the right to take part in cultural life in
relation to “negative practices”. To this end, General Comment No. 21 indicates three
parameters, essentially based on the limits imposed by the ICESCR and the general stan-
dards of necessity and proportionality.
These are very broad limits, which in principle should avert the risk of arbitrary restric-
tions determined merely by cultural prejudices. It is surprising, however, that the ESCR
Committee failed to mention a fundamental restriction on States’ conduct, stemming
from a particular category of customary rules, i.e. peremptory rules of international law.
A very limited number of fundamental human rights, including the prohibition of tor-
ture, slavery, genocide and apartheid belong to this category and, in principle, it is highly
improbable that many traditional practices will enter into conict with a peremptory
rule of international law. However, the qualication of certain traditional practices as
torture or enslavement cannot be rejected a priori. Obviously, in these cases, the consent
of the subject concerned could never be invoked by a State to exclude the unlawfulness
of the conduct of its organs which tolerated such cultural practices.
One further point deserves consideration. In General Comment No. 21 the ESCR
Committee does not dwell on cultural traditions which can be considered “negative”
See, e.g., the Concluding Observations of the ESCR Committee on the second periodic reports
of Nepal (UN doc. E/C.12/NPL/CO/2, 16 January 2008, para. 15) and Benin (UN doc. E/C.12/
BEN/CO/2, 9 June 2008, paras 11 and 40).
For a general survey, see M. Addo, “Practice of United Nations Human Rights Treaty Bodies
in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights”, Human
Rights Quarterly, vol. 32 (2010), p. 601.
For instance, in 2005 the United Nations General Assembly condemned so-called honour
killings, stressing that “such crimes are incompatible with all religious and cultural values”,
UN doc. A/RES/59/165, 10 February 2005, Preamble, para. 10.
See, e.g., Report of the Special Rapporteur on Violence against Women, Its Causes and
Consequences, Yakin Ertürk. Intersection between Culture and Violence against Women,
UN doc. AHRC/4/34, 17 January 2007, para. 34 and Promotion and Protection of All Human
Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Develop-
ment, Report of the Special Rapporteur on Violence against Women, Its Causes and Conse-
quences, Yakin Ertürk, Addendum, Political Economy and Violence against Women, UN doc.
A/HRC/11/6/Add.6, 23 June 2009, para. 90.
See General Comment No. 21 (above n. 2), para. 19. See also Report of the independent expert
in the eld of cultural rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the
Human Rights Council, UN doc. A/HRC/14/36, 22 March 2010, para. 36.
For a further discussion on the intolerability of cultural practices that violate the core of
human rights values, see A. Xanthaki, “Multiculturalism and International Law: Discussing
Universal Standards”, Human Rights Quarterly, vol. 32 (2010), p. 43.
Cultural Diversity s Human Right? 49
or “harmful” because of their detrimental environmental impact. Neither the ICESCR
nor the ICCPR explicitly assert a human right to a sound environment. It is also true,
however, that other human rights treaties include in their list an explicit right to a
healthy environment, that the jurisprudence of certain regional monitoring bodies
has expanded the interpretation of certain fundamental rights to include the protection
of the environment and that the ESCR Committee has explicitly recognized in three
General Comments that certain fundamental rights are inseparable from appropriate
environmental policies. It should also be added that, in analyzing the content of indi-
vidual provisions of the ICESCR and focusing its attention on their correct interpretation,
the ESCR Committee is required to take into account “any relevant rules of international
law applicable in the relations between the parties”. In this respect, the proliferation of
general and particular rules of international environmental law during the last decades
is well-known and requires no further discussion. Nevertheless, in General Comment
No. 21 the Committee only makes very vague reference to other binding or not binding
It goes without saying that the consideration of negative environmental practices of certain
cultural groups or communities cannot overshadow the important contribution of certain
traditional environmentally friendly practices and the need for a constant struggle against
global environmental risks which can threaten not only the stability but even the survival
of certain groups or communities. For a specic list of cultural and other human rights of
the Inuit which can be impaired by climate change, see the Petition submitted to the Inter-
American Commission on Human Rights in 2007 by Sheila Watt-Cloutier, on behalf of all
Inuit of the Arctic Regions of the United States and Canada, seeking relief from violations
resulting from global warming caused by acts and omissions of the United States, available at
http://www.inuitcircumpolar.com/les/uploads/icc-les/FINALPetitionICC.pdf (visited on
2 August 2010).
See, e.g., the African Charter on Human and Peoples’ Rights (Banjul, 27 June 1981), Article 24
and the Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (San Salvador, 14 November 1988), Article 11. See also
the Charter of Fundamental Rights of the European Union of 7 December 2000, OJEC C 364
of 18 December 2000, p. 1 f., Article 37.
For a general survey it is sucient to mention: A. Boyle and M. Anderson (eds), Human
Rights Approaches to Environmental Protection (Oxford University Press, 1996); G. Handl,
“Human Rights and Protection of the Environment”, in A. Eide, C. Krause and A. Rosas
(eds), Economic, Social and Cultural Rights (Kluwer, 2001), p. 303; D. Shelton, “Human Rights
and the Environment: What Specic Environmental Rights Have Been Recognized?’, Denver
Journal of Int’l Law and Policy, vol. 35 (2006), p. 129; J.G. Merrils, “Environmental Rights”, in
D. Bodanski, J. Brunnée and E. Hey (eds), The Oxford Handbook of International Environmen-
tal Law (Oxford University Press, 2007), p. 663; F. Francioni, “International Human Rights in
an Environmental Horizon”, EJIL, vol. 32 (2010), p. 41.
See General Comment No. 12, The Right to Adequate Food (Article 11), UN doc. E/C.12/1999/5,
12 May 1999, para. 4; General Comment No. 14, The Right to the Highest Attainable Standard
of Health (Article 12), UN doc. E/C.12/2000/4, 11 August 2000, paras 4 and 11, and General
Comment No. 15, The Right to Water (Articles 11 and 12), UN doc. E/C.12/2002/11, 20 January
2003, passim.
Vienna Convention on the Law of Treaties (23 May 1969, 1155 UNTS 331), Article 31(3)(c).
Laura Pineschi
50
instruments when it refers to limitations that can be “legitimately imposed on rights that
are intrinsically linked to the right to take part in cultural life”.
Obviously, it is highly improbable that the traditions of small cultural communities
could have a severe detrimental impact on (or even produce irreversible consequences
for) the environment. The traditional hunting and shing rights of certain indigenous
groups are covered by explicit exceptions under certain international conventions for
the protection of endangered species, but the number of animals taken by these com-
munities is insignicant when compared with the numbers taken by certain States under
other exceptions. However, abuses have been recorded in the past. In addition, the
consistency of certain cultural traditions with the protection of the environment and,
more generally, with sustainable development, is to be assessed on a case-by-case basis.
For instance, certain practices of traditional Chinese medicine (entailing, inter alia, the
use of rhino horn and bear’s bile) might endanger certain species as a result of their dif-
fusion if the community following these practices were of a large size.
It is, therefore, regrettable that in General Comment No. 21 the ESCR Committee
missed the opportunity to mention, expressis verbis, the basic value of the protection of
the environment and endangered species for the international community as a whole,
taking into account, inter alia, that “[t]o kill of a species now in the name of cultural
tradition is to kill of the culture”. Under this perspective, the ICH Convention is more
progressive because it excludes from the denition of “intangible cultural heritage” –
and, as a consequence, from its protection – cultural practices which are not compatible,
inter alia, with sustainable development.
Finally, no contribution has been forthcoming on another and already extensively
debated complicated issue: animal sufering and the alleged inconsistency of certain
General Comment No. 21 (above n. 2), para. 19.
See, e.g., the measures adopted by the International Whaling Commission under the Inter-
national Convention for the Regulation of Whaling (Washington, 2 December 1946); 161
UNTS 74. For details, see http://www.iwcoce.org/conservation/aboriginal.htm and http://
iwcoce.org/_documents/commission/schedule.pdf (visited on 19 August 2010). Exceptions
to “accommodate the needs of traditional subsistence users” of certain species are also envis-
aged by Article III(5) of the Convention on the Conservation of Migratory Species of Wild
Animals (Bonn, 23 June 1979), available at http://www.cms.int/documents/index.htm (vis-
ited on 30 January 2012).
For further details, see, e.g., S.M. Hankins, “The United States” Abuse of the Aboriginal Whal-
ing Exception: A Contradiction in United States Policy and a Dangerous Precedent for the
Whale”, University of California Davis Law Review, vol. 24 (1990-91), p. 489.
A. Gillespie, International Environmental Law, Policy and Ethics (Clarendon Press, 1997),
p. 101.
See Article 2(1).
Cultural Diversity s Human Right? 51
cultural practices with the protection of all animals, irrespective of whether they are
threatened with extinction.
. Conclusions: The Contribution of General Comment No. to the Development
of an Autonomous Right to Cultural Identity
Much has been written on the necessity of translating the right to cultural identity into
an autonomous human right, but serious doubts have been expressed by distinguished
scholars. Some of the opponents of an autonomous right argue that the development
of a separate right to cultural identity is neither desirable nor necessary, because the
right to cultural identity is already protected by established international human rights.
Moreover, it has also been contended that an autonomous right to cultural identity might
entail a needless proliferation of human rights. Finally, the right to cultural identity
would not be justiciable and an autonomous right to cultural identity “[...] might be
abused to excuse questionable cultural practices within cultural communities”.
The most recent developments in the practice of the United Nations bodies show
that some of these assumptions are questionable. The adoption of the Optional Pro-
tocol to the ICESCR, recognizing the competence of the ESCR Committee to receive
and consider communications submitted by individuals or groups of individuals for the
alleged violation of any economic, social and cultural right set forth in the ICESCR, is
an important turning point in the debate on the justiciability of economic, social and
cultural rights. Furthermore, while giving an authoritative interpretation of Article 15(1)
(a) of the ICESCR, General Comment No. 21 outlines in a relatively clear manner the
practical content and the scope of the obligations of States Parties under the provision
in question, thereby allowing the conclusion that the right to take part in cultural life is
a justiciable right. Finally, General Comment No. 21 acknowledges in a clear-cut way that
cultural diversity can never be invoked to justify infringement of fundamental human
rights and freedoms.
Obviously, all States have their specicities and, in the implementation of their
international obligations, they are often faced with controversial issues at the political
and legal level, which can only be dealt with on a case-by-case basis. However, these
For an interesting survey on the religious killing of animals and US practice in accommodat-
ing traditional practices with wildlife protection, see T. Boradiansky, “Conicting Values: The
Religious Killing of Federally Protected Wildlife”, NRJ, vol. 30 (1990), p. 709.
See, in particular, J. Donnelly, Human Rights, Individual Rights and Collective Rights, in
J. Berting et al. (eds), Human Rights in a Pluralist World: Individuals and Collectivities (Meck-
ler, 1990), p. 57 f. and Donders (above n. 12), p. 327 f.
Cf. ibid., p. 337.
Ibid., p. 338.
ICESCR Optional Protocol (above n. 56), Article 2.
Laura Pineschi
52
problems arise in relation to the efective implementation of and compliance with any
human right; at any rate, an important role in the detection of possible abuses is played
by international supervisory bodies.
A pragmatic approach to the efective protection of cultural rights needs to take into
account that the problem of the protection of cultural groups is a very old issue. Only
a political reason, the strong resistance of States to the recognition of group rights, has
resulted in the overshadowing of the protection of minorities and their cultural identity
in international fora. In addition, the argument according to which the right to cultural
identity is already protected by established international human rights is not entirely
persuasive and it risks providing further excuses for the inaction of States. There are
other instances, such as the right not to be subjected to enforced disappearance, which is
an aggregation of well-established human rights, where a human right can be consid-
ered as indirectly protected by other human rights. This, however, has not prevented the
recognition of this right (albeit after decades of discussions and troubled negotiations)
as a new autonomous human right at the international level.
If one starts with the assumption that a General Comment can be considered as “[...]
a focal point for the conceptual and normative development of human rights norms
within the UN treaty system”, General Comment No. 21 has an important role to play.
For many decades the practice of States in the protection of cultural rights has in many
respects been contradictory. In principle, States have shown themselves to be very sen-
sitive to certain commercial implications of the protection of cultural diversity, as the
rapid negotiation and entry into force of the UNESCO Cultural Diversity Convention
shows. Similarly, States appear to be ready to support innocent folkloristic traditions.
By contrast, they seem very cautious when the promotion of substantial cultural rights
for the efective protection of the cultural identity of certain groups is under discussion.
While this reticence of States is understandable at the political level, it is hardly justi-
able when legitimate concerns for the protection of human dignity and fundamental
values of individuals or groups of individuals are at stake. Grave consequences can arise
from a systematic violation of basic cultural rights not only for individuals and groups
but also for States and the international community as a whole. It should be mentioned
that the efective enjoyment of cultural rights is an essential prerequisite for the efec-
tive enjoyment of civil and political rights, that under certain conditions the deliberate
destruction of the cultural heritage of certain communities can amount to a cultural
As far as the right not to be subject to enforced disappearance is concerned, see the long list
of rights in T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the
2007 United Nations Convention (Martinus Nijhof, 2007), p. 1; see also Velásquez-Rodríguez v.
Honduras (Merits), IACtHR, Judgment of 29 July 1988, Series C No. 4, para. 155.
C. Blake, “Normative Instruments in International Human Rights Law: Locating the General
Comment”, Center for Human Rights Working Paper Number 17 (NYU School of Law, 2008),
p. 4.
See the examples mentioned in UNESCO World Report (above n. 70), p. 28.
Cultural Diversity s Human Right? 53
genocide and that the respect of cultural diversity is indispensable for the maintenance
of international peace and security.
Against that background, despite its limitations, General Comment No. 21 contains
sucient elements to direct States to take the right course and, if supported by the
consistent jurisprudence of the ESCR Committee, there is reason to hope that it may
constitute a crucial stepping stone on the way towards the formal recognition of an
autonomous right to cultural identity.
See UNESCO Cultural Diversity Declaration (above n. 2), Preamble, para. 7, and UNESCO
Cultural Diversity Convention (above n. 1), Preamble, para. 4.
