|Title:||Cultural rights: A neglected category of human rights.|
|Source:||International Social Science Journal, Dec 1998 Issue 158, p559, 14p, 2bw|
|Abstract:||Comments on the neglect of cultural rights as an integral part of human rights policies. Suggestion of creating new cultural rights; Importance of analyzing challenges confronting cultural rights, cultural relativism, new information and globalization; Recommendations to strengthen and consolidate cultural rights from inventory, codification and international protection.|
CULTURAL RIGHTS: A NEGLECTED CATEGORY OF HUMAN RIGHTS
Cultural rights are often qualified as an 'underdeveloped category' of human rights. This term was chosen as the title of the seminar organized in 1991 at Fribourg University and was then broadly accepted. It suggests that, in comparison with other categories of human rights: civil, political, economic and social, cultural rights are the least developed as far as their scope, legal content and enforceability are concerned. Indeed, they need further elucidation, classification and strengthening. However, the term 'development' suggests the process of the creation of new rights. This point of view may be challenged as the existing list of cultural rights is relatively exhaustive. Therefore the problem is linked rather to the fact that these rights are neglected or underestimated and that they are treated as 'poor relatives' of other human rights.
This neglect can be seen in the fact that though, in accordance with the International Covenant on Economic, Social and Cultural Rights, cultural rights are usually enumerated together with economic and social rights, they receive much less attention and quite often are completely forgotten. As observed by A. Eide, although the expression 'economic, social and cultural' is widely used, in most cases concern appears to be limited to economic and social rights.
This can be observed not only in the doctrine but in State practice. Thus one can hardly find a State constitution which, when enumerating economic and social rights, has a chapter dealing comprehensively with cultural rights. In the majority of cases, constitutions limit themselves to the mentioning of the right to education.
Every year the Commission on Human Rights discusses the question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights. An analysis of statements during the debate on this item once again shows that, though cultural rights are mentioned together with economic and social rights, in fact attention is limited to economic and social rights, whereas cultural rights are not debated.
This neglect can also be found in reports presented by the States Parties to the International Covenant on Economic, Social and Cultural Rights on its implementation. The attention paid to cultural rights formulated in Article 15 is also far from satisfactory.
To rectify this situation, detailed guidelines have been adopted concerning the right of everyone to take part in cultural life, to enjoy the benefits of scientific progress, to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production. The States Parties, in the context of the implementation of the right to participate in cultural life, are requested to provide information on availability of funds for the promotion of cultural development and popular participation; the institutional infrastructure established for the implementation of policies to provide popular participation in cultural promotion of cultural identity as a factor of mutual appreciation among individuals, groups, national or regions; promotion of awareness and enjoyment of the cultural heritage of national ethnic groups and minorities and of indigenous peoples; role of the mass media and communications media in promoting participation in cultural life; preservation and presentation of mankind's cultural heritage; legislation protecting the freedom of artistic creation and performance; professional education in the field of culture and art; any other measures taken for the conservation, development and diffusion of culture.
These guidelines prove that, for the Committee on Economic, Social and Cultural Rights which monitors the implementation of cultural rights, they have concrete legal content allowing them to evaluate States' performances. Nevertheless, even in the case of this Committee, one may observe certain signs of neglect of cultural rights. Thus, for example, the programme of the eighteenth session of the Committee foresaw a general discussion on globalization and its impact on the enjoyment of economic and social rights. No doubt, globalization has also profound effects on the enjoyment of cultural rights but this aspect has been overlooked.
What are the reasons for the reserve demonstrated by the doctrine and State practice in relation to cultural rights. They are manifold. Cultural rights are scattered throughout a great number of instruments, both universal and regional, adopted by the United Nations and by the Specialized Agencies. This, in the absence of any codifying treaty or declaration, opens the way for various articulations and groupings. In some cases cultural rights are presented as an aggregate -- as one right -- the right to culture or the right to participate in cultural life. They may also be listed in a more elaborated way.
The scope of cultural rights also depends on the understanding of the very term 'culture'. In the absence of any binding definition, 'culture' may be understood in different ways: narrowly as creative, artistic or scientific activities or, in a broader sense, as a sum of human activities, the totality of values, knowledge and practice. The adoption of the broader definition of 'culture' means that cultural rights also embrace the right to education and the right to information.
Among important sources of reservation concerning cultural rights, last but not least, one should mention fears and suspicions of States that the recognition of the right to different cultural identities, the right of identification with vulnerable groups, in particular minorities and indigenous peoples, may encourage the tendency towards secession and may endanger national unity. For this very reason, the introduction of cultural rights in the Charter of the United Nations was blocked during the San Francisco Conference. By the same token, the cultural rights of persons belonging to minorities are not mentioned by the Universal Declaration of Human Rights. They were only recognized by Article 27 of the International Covenant on Civil and Political Rights in 1996.9
During the World Conference on Cultural Policies (Mexico City, 1982), delegates emphasized people's growing awareness of their cultural identity, of the pluralism stemming from it, of their right to be different and of the mutual respect of one culture for another, including that of minorities. It was observed that the affirmation of cultural identity had become a permanent requirement, both for individuals and for groups and nations.
The Mexico City Declaration on Cultural Policies states, inter alia, that the assertion of cultural identity contributes to the liberation of peoples. Conversely, any form of discrimination constitutes denial or impairment. Cultural identity is a treasure which vitalizes mankind's possibilities for self-fulfilment by encouraging every people and every group to seek nurture in the past, to welcome contributions from outside compatible with their own characteristics, and so to continue the process of their own creation.
The experience of the 1990s shows that the recognition of cultural rights of persons belonging to minorities is not a danger and a source of conflict but rather an important factor of peace and stability. Many internal conflicts, in particular in Europe, are linked to the crisis of existing identities and the creation of new ones with the denial or rejection of the right to a different cultural identity, and with the refusal to protect cultural rights of minorities.
By the end of the XXth century, cultural rights formulated by the Universal Declaration of Human Rights, developed by the International Covenants and other human rights instruments, are obtaining new importance. They are today 'empowering rights'. Without their recognition and observance, without implementation of the right to cultural identity, to education or to information, neither may human dignity be guaranteed nor other human rights fully implemented. Without the recognition of cultural rights, cultural plurality and diversity, fully democratic societies cannot function properly.
2. List of cultural rights
2.1. The universal human rights instruments
The first instrument adopted by the United Nations which enumerates cultural rights was the Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948. In Article 27, it provides:
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
The Declaration adds in Article 22 that everyone is entitled to the realization, through national effort and international co-operation, of the cultural rights, indispensable for his or her dignity and the free development of his or her personality.
The next step in the development of the concept of cultural rights was made in the International Covenant on Economic, Social and Cultural Rights which, in Article 15, provides:
1. The States Parties to the present Covenant recognize the right of everyone: (a) to take part in cultural life; (b) to enjoy the benefits of scientific progress and its applications; (c) to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which [he is] the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the fuller realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
To obtain a full list of cultural rights formulated by the International Bill of Rights, one should also add Article 27 of the International Covenant on Civil and Political Rights which gives persons belonging to ethnic, religious or linguistic minorities the right to enjoy their own culture and to profess and practise their own religion and to use their own language. As stated by the Human Rights Committee in its General Comment N 23 concerning Article 27, this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights to which individuals are already entitled under the Covenant.
The scope of cultural rights, as has already been mentioned, depends on the definition and understanding of 'culture'. It has been proposed by UNESCO that: '... culture is not merely an accumulation of works and knowledge which an elite produces ... is not limited to access to works of art and the humanities, but is at one and the same time the acquisition of knowledge, the demand for a way of life and the need to communicate'. The Council of Europe has also suggested that: 'Culture, as experienced by the majority of the population today, means much more than traditional arts and the humanities. Nowadays, culture embraces the education system, the mass media, the cultural industries (...)'.
On this basis, one may agree with the propositions that the list of cultural rights given by Article 27 of the Universal Declaration of Human Rights, of Article 15 of the International Covenant on Economic, Social and Cultural Rights and Article 27 of the International Covenant on Civil and Political Rights should be enlarged. It should also include the right of everyone to education (Article 26 (Universal Declaration of Human Rights) and Article 13 (International Covenant on Economic, Social and Cultural Rights) and the right to information formulated by Article 10 (Universal Declaration of Human Rights) and Article 19 (International Covenant on Civil and Political Rights) in the context of the right to freedom of opinion and expression: 'Everyone shall have the right to freedom of expression; this right includes freedom to seek, receive and impart information and ideas of all kinds [...] in writing or in print, in the form of art, or through any other media of his choice'.
Among the United Nations human rights instruments which, apart from the International Bill of Rights, contain provisions concerning cultural rights, two deserve special attention. The Convention on the Elimination of All Forms of Discrimination against Women (1979) which, in Article 13, para. c, formulates States' obligation to ensure for women, on the basis of equality of men and women, 'the right to participate in recreational activities, sports and all aspects of cultural rights'. The same right is mutatis mutandis guaranteed for the child by Article 31 of the Convention on the Rights of the Child.
2.2 Regional instruments
The American Declaration of the Rights and Duties of Man of 1948 is the first regional instrument presenting a catalogue of cultural rights. Its Article XIII provides:
Every person has the right to take part in the cultural life of the community, to enjoy the arts and to participate in the benefits that result from intellectual progress, especially scientific discoveries.
He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.
Article 14 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic. Social and Cultural Rights --'Protocol of San Salvador' -- adds to this list formulated by Article 15. para. 3, of the International Covenant on Economic. Social and Cultural Rights the obligation of States to 'respect the freedom indispensable for scientific research and creative activity'.
The African Charter on Human and Peoples' Rights of 1981 formulates both the right of every individual to freely take part in the cultural life of his community (Article 17) and the duty of individuals to preserve and strengthen positive African cultural values in their relations with other members of society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion, of the moral well-being of society. The Charter speaks also about the rights of all peoples to their cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
Among instruments adopted by the Council of Europe which examine or refer to cultural rights, one can mention the European Social Charter (1961); the Convention on the Protection of the Cultural Heritage (1985); the Convention on the Protection of the Archaeological Heritage (1992); the European Sports Charter (1992); the European Charter for Regional or Minority Languages (1992) and the Framework Convention for the Protection of National Minorities (1994).
2.3 UNESCO's instruments
An impressive number of standard-setting instruments concerning cultural rights have been adopted by UNESCO, which, by its Constitution, is obliged to give fresh impetus to the spread of culture; maintain, increase and diffuse knowledge and recommend to the nations concerned the necessary international conventions. Furthering this mission, UNESCO has elaborated more than thirty standard-setting instruments: conventions, declarations and recommendations dealing with various aspects of cultural rights.
The first convention for the protection of cultural rights was prepared by UNESCO under the influence of the Universal Declaration of Human Rights. To guarantee the right of authors to the protection of their moral and material interests, in 1952 UNESCO convened the Intergovernmental Copyright Conference which adopted the Universal Copyright Convention, revised in 1971.
Among other important conventions are: the Convention against Discrimination in Education (1960); the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970); and the Convention concerning the Protection of the World Cultural and Natural Heritage (1972).
Among more than twenty declarations and recommendations dealing with various cultural rights, the three best known are: the Declaration on the Principles of International Cultural Cooperation (1966); the Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It (1976); and the Recommendation concerning the Status of the Artist (1980). Conventions, declarations and recommendations adopted by UNESCO protect and develop the following rights: to education; to cultural identity; to information; to participate in cultural life; to creativity; to benefit from scientific progress; to the protection of material and moral interests of authors; and to international cultural co-operation.
An original contribution of UNESCO to the development of the concept of cultural rights is the proclamation and elaboration in a series of normative instruments on the right to the protection of and access to the cultural heritage.
3. Collective dimensions of cultural rights
Cultural rights are individual rights to which every human being is entitled. However, they can often be implemented mainly, if not exclusively, in association with others. This is particularly true with regard to persons belonging to minorities and indigenous people. This fact has been observed by Article 27 of the International Covenant on Civil and Political Rights which provides:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities should not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Another important collective dimension of cultural rights of persons belonging to vulnerable groups is linked with the fact that these rights can be fully guaranteed and observed only if the identity and very existence of such groups are protected. Although the Charter of the United Nations and the Universal Declaration of Human Rights do not mention the protection of minorities, nevertheless the question has not been completely taken off the agenda of the United Nations as the Economic and Social Council authorized the Commission on Human Rights to make a recommendation on this subject and approved the establishment in 1947 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
On 18 December 1992, the General Assembly by its resolution 47/135 adopted the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The Declaration formulates the obligation of States to protect the existence and identity of minorities within their respective territories. Among rights of persons belonging to minorities it lists: the right to enjoy their own culture; to profess and practise their own religion; to use their own language; to participate effectively in cultural, religious, social, economic and public life, as well as in the decision-making process concerning the minority to which they belong; to establish and monitor their own associations; to establish and maintain without any discrimination, free and peaceful contacts with other members of their group or other citizens or other States to whom they are related by national ethnic, religious or linguistic ties.
The protection of the cultural identity of minorities together with the rights of persons belonging to them has been formulated in a number of human rights instruments adopted by the Organization of Security and Co-operation in Europe (OSCE) and the Council of Europe.
Thus the Vienna Concluding Document, adopted in 1989 by the OSCE, imposed on Participating States the duty of creating conditions for the promotion of the ethnic, cultural, linguistic and religious identity of national minorities on their territory.
The Concluding Document of the OSCE 1990 Copenhagen meeting of the conference on the Human Dimension confirming the principle of non-discrimination and equality, listed specific cultural rights of persons belonging to national minorities: to preserve and develop their ethnic, cultural, linguistic or religious identity; use freely their national language; to create and maintain their own educational, cultural or religious institutions, organizations and associations; to profess and practise their religion; to establish and maintain contacts with persons of common ethnic, national, cultural or religious origin within and outside their countries; to take part in public affairs and the activities of international non-governmental organizations. Participating States also agreed not only to protect the ethnic, cultural, linguistic and religious identity of national minorities but also to create conditions for their protection. Among means to promote identity, the organization of local administration or autonomy corresponding to the historical and territorial specificity of minorities were mentioned.
The Charter of Paris adopted by the OSCE Summit Meeting on 21 November 1990 declared once again that the ethnic, cultural, linguistic and religious identity of national minorities should be protected and conditions for the promotion of that identity should be created. These principles have also been repeated in a number of bilateral treaties concluded by central and eastern European States.
In 1992, the Council of Europe adopted the European Charter for Regional or Minority Languages. The Charter is based on the assumption that the protection and promotion of regional or minority languages in the different countries and regions of Europe represent an important contribution to the building of a Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity.
The Council of Europe's Framework Convention for the Protection of National Minorities of 1992 provides the State with the duty to respect a number of cultural rights of persons belonging to minorities. They include, inter alia, the right to preserve essential elements of their national cultural identity; the right to use freely in private and in public their language; the right to establish their own private educational instructions; the right to learn their language; the right to establish and keep contacts with others having the same ethnic, cultural, linguistic or religious identity. In Article l, it states that:
The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.
The level of the protection of the cultural identity of minorities and the cultural rights of persons belonging to minorities in Europe is much more advanced than the universal level. In fact, one may speak about the emergence of a new specific regional law in this field.
4. Obligations of States to implement cultural rights
The concept of human rights assumes the existence of parallel duties of States to implement them; without these obligations human rights are meaningless. What is the character of States' obligations in the case of cultural rights? Are they different from those concerning other categories of human rights?
Doubts and contradictory opinions on this subject are due to the fact that the International Covenant on Economic, Social and Cultural Rights, in Article 2, provides:
1. Each State Party to the present Covenant undertakes to take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
Does the phrase about the progressive achievement of the full realization of cultural rights conditioned by the availability of resources mean that States have only the obligation of conduct not the obligation of result? What is the legal character of obligations formulated by Article 2?
These questions have been tackled and answered by the Committee on Economic, Social and Cultural Rights which, in the General Comment N 3 (1990), on the nature of States Parties obligations, stated that obligations formulated by Article 2 include both obligations of conduct and obligations of results. The concept of progressive realization acknowledges the fact that full realization of all economic, social and cultural rights cannot be achieved in a short period of time. In this sense, the obligation differs from that contained in the International Covenant on Civil and Political Rights which imposes an immediate obligation to respect and ensure all of the relevant rights. Nevertheless the formulation 'progressive realization' should not be misinterpreted as depriving the obligation formulated in Article 2 of all meaningful content.
Speaking about 'all appropriate means' to be undertaken by States, this Article also includes financial, educational, social and other measures apart from legislative and administrative ones. In these contexts, it is important to note that Article 15, para. 2, of the International Covenant on Economic, Social and Cultural Rights formulates the concrete obligation of the States Parties to take steps 'necessary for the conservation, the development and the diffusion of science and culture'.
Among measures which are crucial for the implementation of cultural rights, in addition to legislation, the existence of judicial remedies, their justiciability, should be mentioned. Though the justiciability of cultural rights is often challenged the Committee stressed that at least some of them such as the right to education as well as the right to benefit from the protection of the moral and material interest resulting from any scientific, literary or artistic production are justiciable and can be guaranteed by judicial remedy.
In the debate concerning the specificity of States' obligations to assure the realization of cultural rights, one element seems to be forgotten. Article 2 of the International Covenant on Economic, Social and Cultural Rights refers only to rights mentioned by this Covenant. It cannot be applied to cultural rights listed by the International Covenant on Civil and Political Rights, such as Article 27 (cultural rights of persons belonging to minorities) or Article 19 (right to information) or other relevant human rights instruments adopted by the United Nations, the Specialized Agencies or regional organizations. This means that in the majority of cases States are obliged to take immediate steps not conditioned by 'availability of resources' to assure their full realization.
Recognizing that States should first of all create conditions and provide guarantees for the implementation of cultural rights, UNESCO's normative instruments also stress that this responsibility should be shared with other social actors. Thus the Recommendation concerning the Status of the Artist (1980) provides:
1. Member States should strive to extend and supplement their own action by co-operating with all the national or international organizations whose activities are related to the objectives of this Recommendation, in particular with National Commissions for UNESCO, national and international artists' organizations, the International Labour Office and the World Intellectual Property Organization.
Similarly the Declaration of the Principles of International Cultural Co-operation (1966) lists among those to be guided by its principles: governments, authorities, organizations, associations and institutions responsible for cultural activity. The Recommendation on Participation by the People at Large in Cultural Life (1976) addresses: 'Member States or other appropriate authorities'.
The Convention concerning the Protection of the World Cultural Heritage (1972) declares in its Article 6: 'Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage (...) is situated (...) the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate'.
5. New Challenges
5.1. Universality of human rights and cultural relativism
The acceptance of the right of everyone to have different cultural identities, the recognition of cultural specificities and differences is viewed sometimes as 'justification' of cultural relativism. This approach is not only wrong but is also dangerous.
The acceptance of the very idea that persons belonging to one culture should not judge the policies and values of other cultures, that any system of common values cannot and does not exist, indeed undermines the very basis of the international community and the 'human family'. They cannot function without the existence of standards allowing them to determine what is right or wrong, what is good or bad.
The World Commission on Culture and Development in its report, Our Creative Diversity, pointed out that the logical and ethical difficulty about relativism is that it must also endorse absolutism and dogmatism. Cognitive relativism is nonsense, moral relativism is tragic. An assertion of absolute standards is a condition sine qua non of reasoned discourse concerning a code of conduct or behaviour.
The Vienna Declaration adopted by consensus by the World Conference (1993) confirmed the universality of human rights and rejected the notion of cultural relativism. The Declaration, in its paragraph 1, reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for and observance and protection of all human rights and fundamental freedoms for all. It stressed that 'The universal nature of these rights and freedoms is beyond question'.
The problem of national and regional peculiarities is referred to in paragraph 5 of the Declaration which provides: 'All human rights are universal, indivisible and interdependent and interrelated [...] While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms'.
The results of the Vienna Conference confirm that cultural relativism is in retreat on many fronts. At the end of the twentieth century, human rights cannot be seen as a 'Western product'; they were developed by and belong to the whole international community, they are now the common heritage of humankind. Rejecting cultural relativism and recognizing at the same time the significance of cultural specificities, the Vienna Conference intensified the discussion concerning relations between different cultural values and human rights.
The existence of cultural differences should not lead to the rejection of any part of universal human rights. They cannot justify the rejection or non-observance of such fundamental principles like the principle of equality between women and men. Traditional practices which contradict human rights of women and children have to be changed!
Cultural diversity, plurality of cultures have to be seen as positive factors leading to intercultural dialogue. In the contemporary world, cultures are not isolated. They interact peacefully and influence each other. The intercultural dynamics is set in motion by the contemporary processes of globalization which lead, not without tension, to the emergence, consolidation or reformulation of specific cultural and ethical values common to the various cultural areas.
5.2. New information and communication technologies
The new information technologies have a rather positive impact on cultural rights. Thus, interactive long-distance education and learning can strengthen the right to education and enables reaching out and delivering education services to people in isolated countries and localities, to provide quality education and create lifelong learning opportunities for all, which otherwise would not be possible.
The right to participate in cultural life acquires a new dimension with the possibility of easy access to the world cultural heritage, the possibility to visit, through Internet or CDROM, the most prestigious museums and exhibitions or to attend concerts of the best orchestras and conductors. The right to benefit from the scientific progress is reinforced by rapid access to the latest results of research, to libraries located in other countries and regions, to scientific publications and periodicals.
However, the information highways can bring positive results only when they are accessible. At present the gap and inequalities between industrialized and developing countries are widening. A new type of exclusion and poverty, information poverty and exclusion, can be noted. An access to Internet depends on the availability of electricity and the existence of a telecommunication network. The dividing line between information haves and have-nots may also be observed within States. It runs between those who can afford the cost of access and those who cannot. To ensure the participation of all States in the emerging information society, the democratization of access to new information technology is an enormous challenge for the United Nations system and for the whole international society in the next century.
Another problem is linked with electronic piracy and the violation of the rights and interests of copyright holders. The development of information networks and digital highways require, on the one hand, protection against unauthorized exploitation and the facilitation of legitimate exploitation, on the other. There is also a need to achieve a balance between the protection of the moral and material interests resulting from scientific, literary or artistic production, and those of the public. New intellectual property rights like those concerning databases also await regulation.
Should Internet fall under the law of the press and mass media or should it be governed by laws regulating private correspondence? Is cyberspace a private or a public area? Is state control and censorship justified? It seems that, in many countries, already existing legislation concerning the struggle against racism, the advocacy of hatred, xenophobia and violence or paedophilia permits reacting to and evaluating individual responsibilities as well as punishment for acts prohibited by law. There is no need for state censorship and preventive control. Freedom of expression and information should be a guiding principle for Internet. This is the most effective guarantee of cultural and linguistic pluralism and diversity. Therefore the free flow of information should be fully preserved and defended.
Although the economic dimension of globalization is the most evident and observed, globalization also has another dimension -- cultural. The international spread of cultures has been at least as important as the spread of economic processes. Through the mass media international ideas and values are being mixed and imposed on national cultures. A homogeneous worldwide culture is developing in the process and is sometimes qualified as the creation of a 'global village'. Advances of popular culture means that throughout the world peoples are dressing, eating, and singing similarly and that certain cultural attitudes have become global trends.
What is the impact of cultural globalization on human rights? The culturally homogenizing effect of globalization, the gradual process of adopting common values and behavioural patterns reinforces the universality of human rights, establishes ties and linkages between various parts of the world and helps to eliminate certain traditional practices which may be qualified as discriminatory. However, the mixed blessings of cultural globalization are linked with its negative consequences for the cultural rights of vulnerable groups like persons belonging to minorities, indigenous people or immigrant workers. It also undermines existing cultural identities, weakens various ethical norms, social cohesion, as well as the feeling of belonging and, by this, contributes to the proliferation of various internal conflicts. As stated by the Director-General of UNESCO during the 29th session of the General Conference in November 1997: 'Just as the protection of biological diversity is indispensable to the physical health of humanity, so the safeguarding of cultural diversity -- linguistic, ideological and artistic -- is indispensable to its spiritual health'.
The limitation by globalization of the State's ability to determine national policies to intervene in economic activities may also have negative impacts on the implementation of cultural rights. Weaker States may be more immune from authoritative or totalitarian deviations, but the limited governmental ability to run deficits as a result of the opening of financial markets forces them to slash cultural programmes, to slow down efforts aimed at the implementation of the right of everybody to participate in cultural life.
6. To overcome neglect. Towards further strengthening recognition and consolidation of cultural rights
Answering the question on how to assure the better protection of cultural rights, how to eliminate their violations, the World Commission on Culture and Development, in its report entitled Our Creative Diversity proposed a whole range of steps from the establishment of an inventory of cultural rights, the preparation of an International Code of Conduct, the setting up of an International Office of the Ombudsperson for Cultural Rights, to the establishment of an International Court to hear cases brought before it by culturally prosecuted individuals and groups.
Indeed, though a fair number of standard-setting instruments adopted by the United Nations, UNESCO and regional organizations formulate States' obligation to implement cultural rights, the necessity of their 'inventory' or in other words, 'codification' cannot be questioned. There is no need for the creation of new rights but for the elucidation, clarification and the elaboration of a full list of existing already proclaimed rights, because none of the existing human rights instruments give a full enumeration of cultural rights, and their precise content is still unclear. None of them give a definition of such fundamental notions as 'culture' or 'cultural identity'.
In this situation, a postulate that UNESCO should take the lead in the preparation of a comprehensive, codifying instrument on cultural rights was quite naturally formulated. It found its reflection in the successive projects adopted by the Organization. Thus the Programme and Budget for 1994-1995 mentioned the possibility of drafting a standard-setting instrument on cultural rights. The continuation of international reflection aimed at the better definition and understanding of cultural rights is also foreseen by the Programme and Budget for 1998-1999.
Work to prepare a draft declaration on cultural rights, which might be adopted by the UNESCO General Conference, is conducted by the so-called 'Fribourg Group'. Justifying its project, this group stressed that the existing instruments define cultural efts fragmentarily and that a comprehensive declaratory instrument is essential to demonstrate the fundamental logic specific to cultural rights and the cultural dimension of human rights as a whole. The draft defines culture as 'the values, beliefs, languages, arts and science, traditions, institutions and ways of life by which individuals or groups express themselves and develop'. It presents the following cultural rights: to cultural identity; to identification with the cultural community; to participation in cultural life; to education and training; to information; to cultural heritages; to freedom of research, creative activity and intellectual property and to participation in the formulation, implementation and assessment of cultural policies. While not prejudicing the possibility of the adoption of this declaration by the UNESCO General Conference, which may be difficult, the draft declaration has already contributed seriously to the international debate concerning cultural rights.
Apart from the efforts aimed at the elaboration of an inventory or codification of cultural rights, there is a need to reinforce international protection and monitoring. The international procedures for the implementation of cultural rights based on States' reports can hardly be recognized as very advanced. The only communication procedure established by UNESCO which gives the possibility to individuals to present complaints concerning alleged violations of cultural rights is not well-known and, in consequence, is used in a rather limited number of cases. This situation may be changed with the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and the establishment of a new procedure for communications.
In the implementation of cultural rights, an important role can be played by indicators. They could provide a means for measuring the progressive realization of these rights and a method for determining difficulties or problems encountered by States. Indicators could also assist in revealing the extent to which certain rights were or were not enjoyed in practice and in providing a means to measure and compare the performance of individual countries.
What are the other forms of action leading to further recognition and better understanding of cultural rights? To reach this goal, various ways and means may be applied. An important role can be played by the dissemination of existing instruments through formal and non-formal education to be followed by the mass media and non-governmental organizations. A step forward can also be made by the elucidation of various terms and concepts used by the standard-setting instruments, for example, regarding the still undefined term 'cultural identity'. An important role may be played by the United Nations and UNESCO by providing expertise and consultation for interested States. At the national level, many States can 'recognize' cultural rights by introducing relevant provisions in their legislation and constitutions.
The strengthening of cultural rights and their consolidation may also be seen as a part of an overall action, as a function of a general reinforcement of the whole category of economic, social and cultural rights. The Vienna Declaration and Programme of Action (1993) stressed the necessity of '... a concerted effort to ensure recognition of economic, social and cultural rights at the national, regional and international levels'. At the same time, it emphasized the unity and indivisibility of all human rights symbolically demonstrated by the change in the traditional enumeration of human rights by categories to an alphabetical order: civil, cultural, economic, political and social. This new approach means, in fact, a return to the position taken by the Universal Declaration which did not separate different categories of human rights but presented them together, underlining by this their unity. The commemoration of the fiftieth anniversary of the Universal Declaration of Human Rights provides an excellent occasion for a profound reflection on obstacles and challenges to cultural rights, and on ways and means to assure their greater implementation. UNESCO's Plan of Action for the commemoration pays special attention to cultural rights which naturally fall within the Organization's field of competence.
1. Acres du VIIIeme Colloque interdisciplinaire sur les droits de l'homme, Les Droits culturels. Acres du Ville Colloque interdisciplinaire sur les droits de l'homme. P. Meyer-Bisch (ed.) Editions Universitaire Fribourg Suisse, Fribourg, 1993.
2. United Nations Educational, Scientific and Cultural Organization. CLT-98/CONF.210/CLD.6; H. Niec, 'Cultural rights: At the end of the World Decade for Cultural Development', Intergovernmental Conference on Cultural Policies for Development, Stockholm, Sweden, 30 March -- 2 April 1998). See also Background Document -Preliminary Draft. 1.2. Cultural rights, pp. 9-11.
3. See Part 2 of this article: List of cultural rights.
4. See A. Eide, 'Cultural rights as individual rights', Economic and Cultural Rights, A Textbook. A. Eide, C. Krause and A. Rosas (eds.) Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1995. Page 229 of this chapter presents a list of textbooks which analyse the International Covenant on Economic, Social and Cultural Rights, but either does not mention cultural rights at all or presents them in a fragmentary manner.
5. Committee on Economic, Social and Cultural Rights, Eighteenth session, Geneva, 27 April-15 May 1998. E/C.12/1998/L.1. 23 January 1998.
6. See our remarks in Part 5 of this article: New challenges, 5.3 Globalization.
7. See Circle Rights and Humanity European Round Table, Human Rights and Cultural Policies in a Changing Europe: The Right to Participate in Cultural Life, Marina Congress Centre, Helsinki, Finland, 30 April-2 May 1993.
8. The draft list of cultural rights prepared by the Council of Europe, Strasbourg, 24 August 1994, CDDC Misc. 9413. Nine groups of cultural rights concern heritage, education, schooling, higher education, identity, language, culture, the media and sport.
9. In fact, the first convention which referred to cultural rights of persons belonging to minorities is the UNESCO Convention against Discrimination in Education (1960). In Article 5, para. 1(c), it states: 'It is essential to recognize the rights of members of national minorities to carry on their own educational activities [...]'. This article also contains an important explanation providing that '... this right is not exercised in a manner which prevents the members of these minorities from understanding the culture and language of the community as a whole [...] or which prejudices national sovereignty'.
10. Text of the Universal Declaration of Human Rights as well as texts of other United Nations human rights instruments are quoted in accordance with Human Rights. A Compilation of International Instruments, Vol. I. Universal Instruments, United Nations, New York, 1993.
11. See Official Records of the General Assembly, 49th session, Supplement N" 40. Doc A/49/40, Annex V. This comment was adopted by the Human Rights Committee at its fiftieth session on 6 April 1994.
12. Definition given by the UNESCO Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It, adopted by the General Conference on 26 November 1976. The text of the Recommendation, as well as the other UNESCO instruments quoted in this article are given in accordance with UNESCO and Human Rights, Standard-Setting Instrument, Major Meetings, Publications. UNESCO Paris, 1996.
13. Definition of culture given by the Arc-et-Senans Declaration (1972) on the Future of Cultural Development. Council of Europe, Reflections on Cultural Rights. Synthesis Report. CDCC (95) 11 rev. Strasbourg, 1995, p. 13.
14. The text of the American Declaration of the Rights and Duties of Man of 1948 and other texts of regional instruments are quoted in accordance with Human Rights. A Compilation of International Instruments. Volume II. Regional Instruments, United Nations, New York/Geneva, 1997.
15. These are analysed by Janusz Symonides. See 'The history of the paradox of cultural rights and the state of the discussions within UNESCO', in Les Droits culturels. Acres du Ville Colloque interdisciplinaire sur les droits de l'homme. Op. cit. Note 1, pp. 4772.
16. See Conventions and Recommendations of UNESCO concerning the Protection of the Cultural Heritage, UNESCO, Paris, 1983.
17. Article I declares: 'States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity'.
18. Documents on Autonomy and Minority Rights. Hurst Hannum (ed.) Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1993, pp. 62-65.
19. Ibid, pp. 86-101.
20. Human Rights. A Compilation of International Instruments. Vol. II, Regional Instruments. United Nations, New York/Geneva, 1997, p. 287.
21. J. Symonides, 'Collective rights of minorities in Europe', in The Changing Political Structure of Europe. R. Lefeber, H. Fitzmaurice and E.N. Vierdag (eds.) Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1991, pp. 107-125.
22. Official Records of the Economic and Social Council, 1991, Supplement No 3 (E/1991/23 and Corr. 1), Annex III.
23. 'The Limburg Principles on the implementation of the International Covenant on Economic, Social and Cultural Rights', Human Rights Quarterly, Vol. 9, N" 2, May 1987, pp. 122-135, formulated by the groups of experts expressed an opinion that all States must begin immediately to take steps for the implementation of the Covenant using all appropriate means necessary and regardless of the level of their economic development. Some obligations such as the prohibition of discrimination require immediate full implementation. They enumerated situations in which States could be held responsible for the failure to comply with the obligations foreseen by the International Covenant on Economic, Social and Cultural Rights.
24. The UNESCO Declaration on Race and Racial Prejudice (1978) provides in Article 1, para. 2, that: 'All individuals and groups have the right to be different, to consider themselves as different and to be regarded as such'.
25. Our Creative Diversity, Report of the World Commission on Culture and Development, UNESCO, 1995, p. 55.
26. A. Etzioni, 'The end of cross-cultural relativism', Alternatives, N 22, 1997, p. 177.
27. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) in Article 4, para. 2, provides: 'States shall take measure to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards'.
28. Human Development Report 1997, UNDP, New York/Oxford, UNDP/Oxford University Press, 1997, p. 83.
29. UNESCOPRESS, 29th session of the General Conference, N 97219. In his closing speech the President of the General Conference formulated an opinion that cultural cleansing is maybe more dangerous than a biological one. Wherever it occurs, the thermometer of intellectual competition registers a drop in temperature.
30. Report of the World Commission on Culture and Development, Our Creative Diversity, UNESCO Publishing, Paris, 1996, pp. 281-284.
31. A group working in close cooperation with UNESCO and the Council of Europe comprises the following experts: Denise Bindschedler-Robert, Sylvie Boiton Pierre, Marco Borghi, Pascale Bouccaud, Jacqueline Costa-Lascoux, Emmanuel Decaux, Etienne Grosjean, Pierre Imbert, Denis Huber, Mate Kovacs, Jean-Bernard Marie, Patrice Meyer-Bisch, Janusz Symonides and Raymond Weber.
32. Preliminary draft declaration of cultural rights, Meeting of directors of human rights institutes, UNESCO, Paris, 18-19 January 1996.
33. See Janusz Symonides, 'International implementation of cultural rights', Gazette, vol. 60, N 1, March 1998, pp. 8-24.
PHOTO (BLACK & WHITE): Tibetan singer.
PHOTO (BLACK & WHITE): Demonstration of Kabyles in Tizi-Ouzou, Algeria, demanding freedom of expression in the Tamazight (Berber) language.
By Janusz Symonides
Janusz Symonides, Professor of International Law and International Relations,
was formerly Vice-Chancellor of Nicolaus Copernicus University, Torun, Poland
(1969-1974) and former Director of the Polish Institute of International
Relations (1980-1987). Since 1989, he has been Director of the Division of Human Rights, Democracy and Peace,
UNESCO 1 rue Miollis, 75732 PARIS Cedex 15. He has published a wide range of
articles and books on questions of human