The Meaning of ‘Culture’ in Article 15 (1)(a)
of the ICESCR – Positive Aspects of CESCR’s
General Comment No. 21 for the Safeguarding
of Minority Cultures
ATHANASIOS YUPSANIS(
ABSTRACT: On 21 December 2009 the Committee on Economic, Social and Cultural
Rights (CESCR) adopted General Comment No. 21 on the right of everyone to take part in
cultural life of Article 15 (1)(a) of the International Covenant on Economic, Social, and
Cultural Rights (ICESCR),1 admittedly one of the most vaguely framed and neglected rights
of the Covenant. With this Comment the CESCR finally gives solid substance to the norm by
clearly defining its content and scope, the beneficiaries and the nature of the right, and the
range of obligations it imposes on States for its implementation. Especially with regards to
elements of the provision that touch on minority issues, the CESCR embraces a multicultural
approach, officially establishing the right of minorities as collectivities to participate in their
own cultural life. Thus, via the CESCR’s progressive interpretation together with the right to
individual and group communication for alleged violations of the rights of the ICESCR
recognised by the Optional Protocol to the Covenant, the provision acquires a new dynamic
role, analogous to that of Article 27 of the International Covenant on Civil and Political
Rights (ICCPR),2 serving potentially as a significant pillar for the protection, preservation and
promotion of minority cultures.
KEYWORDS: ICESCR, Article 15 (1)(a) of the ICESCR, General Comment No. 21,
Culture, Cultural Life, Cultural Rights, Minority Rights, Collective Rights, Free Prior and
Informed Consent
(
LL.M., Ph.D. in International Law (Aristotle University of Thessaloniki); Adjunct Lecturer at the
Law Faculty of Democritus University of Thrace. Email: thayup@yahoo.gr.
1
International Covenant on Economic, Social and Cultural Rights, 16 December 1966, International Legal Materials (ILM) 6 (1967), 360.
2
International Covenant on Civil and Political Rights, 16 December 1966, ILM 6 (1967), 368.
346 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
I. Introduction
Cultural rights are commonly characterised by international legal scholars specialising in the field as a category, which, until relatively recently, was neglected3 and
underdeveloped4 as regards their normative content, scope of application and legal
enforceability.5 Typically, they have been described as ‘the Cinderella of the human
rights family’,6 as ‘forgotten’,7 a ‘ragbag’,8 ‘hazy’,9 and almost a ‘remnant’,10 category.
This description is also apt in the right enshrined in Article 15 (1)(a) of the ICESCR,
“the right of everyone to take part in cultural life,”11 a right which, until fairly recently, neither the United Nations and the CESCR charged with overseeing the
application of the ICESCR12 nor the international legal academia13 taken more than
a minor and occasional interest.14 This absence of interest was inter alia due to a series
3
See Paul Hunt, Reflections on International Human Rights Law and Cultural Rights, in: Margaret
Wilson/Paul Hunt (eds.), Culture, Rights, and Cultural Rights – Perspectives from the South Pacific
(2000), 25, 25.
4
See Janusz Symonides, Cultural Rights, in: Janusz Symonides (ed.), Human Rights, Concept and
Standards (2000), 175, 175.
5
Janusz Symonides, Cultural Rights: A Neglected Category of Human Rights, International Social
Science Journal 158 (1998), 559, 559.
6
Halina Nieć, Casting the Foundation for the Implementation of Cultural Rights, in: Halina Nieć
(ed.), Cultural Rights and Wrongs (1998), 176, 176.
7
Peter Leuprecht, The Difficult Acceptance of Diversity, Vermont Law Review 30 (2006), 551, 564.
8
Fons Coomans, Economic, Social and Cultural Rights, Report commissioned by the Advisory
Committee on Human Rights and Foreign Policy of the Netherlands, SIM-Special 16 (1995), 3, 4.
9
Lyndell V. Prott, Cultural Rights as Peoples’ Rights in International Law, Bulletin of the Australian Society of Legal Philosophy 10 (1986), 4, 7.
10
Asbjørn Eide, Cultural Rights as Individual Human Rights, in: Asbjørn Eide/Catarina Krause/
Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (1st ed. 1995), 229, 229.
11
See “In relation to International Covenant on Economic, Social and Cultural Rights (ICESCR),
the single most neglected right is the right to take part in cultural life.” Philip Alston, Individual Complaints: Historical Perspectives and the International Covenant on Economic, Social and Cultural Rights,
in: Sarah Pritchard (ed.), Indigenous Peoples, the United Nations and Human Rights (1998), 81, 84.
12
See Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (2007), 1, 49, 51.
13
See Laura Pineschi, Cultural Diversity as a Human Right? General Comment No. 21 of the Committee on Economic, Social and Cultural Rights, in: Silvia Borelli/Federico Lenzerini (eds.), Cultural
Heritage, Cultural Rights, Cultural Diversity (2012), 29, 31, footnote 14.
14
See Vladimir Volodin/Yvonne Donders, Conclusion, in: Yvonne Donders/Vladimir Volodin (eds.),
Human Rights in Education, Science and Culture – Legal Developments and Challenges (2007), 309, 310.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
347
of practical difficulties in addressing the subject; namely the obscure conceptual
content of the notion of ‘participation in cultural life’,15 the vagueness about the
content and extent of the obligations it imposes on States for its implementation,16
and the conflicting views regarding the individual and or collective nature of the
related right, and the correlative identity of its beneficiaries.17
In this context, the right of minorities and their members to participate in their own
cultural life was negatively affected. Indeed, there was an additional factor in their case
that led to the neglect of their relative right(s). Specifically, as has been stated in the
CESCR’s first general discussion on the right to take part in cultural life, the absence
of any explicit reference to minorities in Article 15 (1)(a) of the ICESCR had resulted
in their being ignored or, at best, being paid insufficient attention.18 This omission of
any specific provision for minorities in the norm provided a foothold for positions
viewing Article 15 (1)(a) of the ICESCR as of only general relevance for the members
of minority groups within the frame of broader human rights theory and practice, with
no more concrete correlation with the complexities of minority issues.19 Thus, interest
in matters concerning the protection of minorities in the framework of international
human rights treaties focused almost exclusively on Article 27 of the ICCPR, which
refers explicitly, though in a negative construction, to the right of members of minorities
not to be denied the right to enjoy their own culture, religion and language “in community with other members of their group.”20 In this framework, it was and is commonly
the position that the specific provision constitutes the most important international
15
Audrey R. Chapman, Development of Indicators for Economic, Social and Cultural Rights: The
Right to Education, Participation in Cultural Life and Access to the Benefits of Science, in: Yvonne
Donders/Vladimir Volodin (eds.), Human Rights in Education, Science and Culture – Legal Developments and Challenges (2007), 111, 132.
16
See Julia Häusermann, The Right to Participate in Cultural Life, in: Rod Fisher/Brian Groombridge/
Julia Häusermann/Ritva Mitchell (eds.), Human Rights and Cultural Policies in a Changing Europe: The
Right to Participate in Cultural Life (1994), 109, 125.
17
See Enikő Horváth, Cultural Identity and Legal Status: Or, the Return of the Right to Have Particular Rights, in: Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 169, 169.
18
CESCR, General Discussion on the Right to Take Part in Cultural Life as recognized in Article 15 of the Covenant, 11 December 1992, UN Doc. E/C.12/1992/SR.17 (1992), paras. 9, 11, 43.
19
20
See Gaetano Pentassuglia, Minorities in International Law: An Introductory Study (2002), 51.
See Fergus MacKay, Cultural Rights, in: Margot E. Salomon (ed.), Economic, Social and Cultural
Rights: A Guide for Minorities and Indigenous Peoples, Minority Rights Group International (2005),
83, 83–84.
348 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
legally binding norm for the rights of members of minorities.21 This view may be
enriched now, with the CESCR’s General Comment No. 21 on the right to participate
in cultural life, published on 21 December 2009 (General Comment No. 21).22 It clarifies the ‘grey areas’ of Article 15 (1)(a) of the ICESCR and gives solid substance to the
right, and especially to the right of minorities and of their members to enjoy a range
of cultural rights connected with or deriving from it, establishing it as a potential pillar
for the protection, preservation and promotion of minority cultures.
II. Defining ‘Cultural Life’: From ‘High Art’ to a ‘Way of Life’
A. The Problem of the Definition of Culture
One of the basic issues that, until recently, prevented a thorough examination and
analysis of the normative content and potential role of Article 15 (1)(a) of the
ICESCR is the vagueness of the concept of ‘cultural life’, itself due to the fluid,
dynamic and changing content of the term culture from which it derives.23 As it has
characteristically been stated by Thornberry, paraphrasing Raymond Williams’ adage,
culture “is one of the two or three complicated words in the English language […] and
in other languages too.”24 This is why “any attempt to talk about cultural issues in
21
Gaetano Pentassuglia, Reforming the UN Human Rights Machinery: What Does the Future Hold
for the Protection of Minorities and Indigenous Peoples?, International Journal on Minority and Group
Rights (IJMGR) 14 (2007), 127, 128; Volker Röben, A Report on Effective Protection of Minorities,
German Yearbook of International Law (GYIL) 31 (1988), 621, 640 observing that “[w]ithin the legislative framework of the UN, the minority issue, in the strict sense, is to be found only in Article 27
[ICCPR].” See also Christian Groni, The Right to Take Part in Cultural Life, Day of General Discussion – Right to Take Part in Cultural Life (Article 15 (1)(a) of the Covenant), 9 May 2008, UN Doc. E/
C.12/40/3 (2008), 10, noting that “[a]s a consequence of the very existence of Article 27 [ICCPR], one
could draw the conclusion that minorities or their members do not fall within the scope of application
of Article 15 1(a)”.
22
See CESCR, General Comment No. 21, Right of Everyone to Take Part in Cultural Life (Art. 15,
para. 1(a) of the International Covenant on Economic, Social and Cultural Rights), 21 December 2009,
UN Doc. E/C.12/GC/21 (2009).
23
See Yoram Dinstein, Cultural Rights, Israel Yearbook on Human Rights 9 (1979), 58, 74. See also
Dominic McGoldrick, Culture, Cultures, and Cultural Rights, in: Mashood A. Baderin/Robert McCorquodale
(eds.), Economic, Social and Cultural Rights in Action (2007), 447, 449–452.
24
Patrick Thornberry, Cultural Rights and Universality of Human Rights, Day of General Discussion – Right to Take Part in Cultural Life (Article 15 (1)(a) of the Covenant), UN Doc. E/C.12/40/15
(2008), 3.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
349
terms of rights may be slippery and difficult.”25 The difficulty is reflected in the fact
that a 1952 study could record 164 definitions of the concept as employed by anthropologists.26 According to a widely accepted27 conceptual approach proposed by
Stavenhagen, ‘culture’ appears to have three main different meanings:
a) as capital, identifying with the accumulated material heritage of humankind in
its entirety, or of particular human groups: in this frame the right to culture refers
to the equal rights of all individuals to this accumulated cultural capital;28
b) as creativity referring to the process of artistic and scientific creation: within this
context the right to culture means the right of individuals to freely create their
cultural ‘oeuvres’, with no restrictions, and the right of all persons to enjoy free
access to these creations (i.e. to museums, concerts and libraries etc.);29 and
c) as way of life, meaning the sum total of the material and spiritual activities and
products of a given social group which distinguishes it from other similar groups:
under this perception, Stavenhagen observes that culture is also seen as “a coherent
self-contained system of values and systems that a specific cultural group reproduces
over time and which provides individuals with the required signposts and meanings for behaviour and social relationships in everyday life.”30
25
Lyndell V. Prott, Cultural Rights as Peoples’ Rights in International Law, in: James Crawford
(ed.), The Rights of Peoples (1st ed. 1988), 93, 95.
26
See B. N. Pandey, Culture and Cultural Rights, Central India Law Quarterly XI (1998), 232, 232.
27
See for example Sean Goggin, Human Rights, Anthropology and Securitization: Reclaiming
Culture, Journal of Ethnopolitics and Minority Issues in Europe 8 (2) (2009), 1, footnote 1, available at:
http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?ots591=0c54e3b3-1e9c-be1e-2c24a6a8c7060233&lng=en&id=115507 (accessed on 17 October 2012); Evangelia Psychogiopoulou,
Accessing Culture at the EU Level: An Indirect Contribution to Cultural Rights Protection?, in:
Francesco Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 223, 223; V. T. Thamilmaran, Cultural Rights in International Law, Sri Lanka Journal of International Law 13 (2001), 63,
78–79.
28
Rodolfo Stavenhagen, Cultural Rights and Universal Human Rights, in: Asbjørn Eide/Catarina
Krause/Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (1st ed. 1995), 63,
65–66.
29
Id., Cultural Rights: A Social Science Perspective, in: Asbjørn Eide/Catarina Krause/Allan Rosas
(eds.), Economic, Social and Cultural Rights: A Textbook (2nd rev. ed. 2001), 85, 88.
30
Id., Cultural Rights: A Social Science Perspective, in: Halina Nieć (ed.), Cultural Rights and
Wrongs (1998), 1, 4–5.
350 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
The last meaning seems to be highly relevant, as will be further discussed, to the
right of the members of minorities, and the minorities as such, to participate in their
own cultural life.
B. The ‘Traditional’31 Perception: Culture as ‘High Art’
The right “freely to participate in the cultural life of the community” was declared
for the first time in an international instrument in Article 27 (1) of the Universal
Declaration of Human Rights (UDHR).32 Several authors indicate that the language
of ‘participation in cultural life’ was intended at the time of drafting to refer only to
cultural life in a narrow elitist viewpoint of ‘high art and belles lettres’ (i.e. the highest
artistic and intellectual achievements, the performance and literary arts, painting and
sculpture, historical monuments and the contents of museums);33 in the sense that
the safeguard established by the norm in question focused on the States’ obligation to
bring the ‘masterpieces’, the ‘treasures of culture’, ‘within reach of the masses’.34 Thus,
the concept of cultural life did not encompass such dimensions as a specific way of life
or the traditions of a community, or matters such as language and religion35 – elements, that is, of crucial importance for minority identity. The same can be said about
the right “to take part in cultural life” in Article 15 (1)(a) of the ICESCR, since at the
time of its adoption the notion of cultural life was still mainly felt as synonymous
31
As Hansen notes, “[t]raditionally, universal human rights concerning culture have focused almost
exclusively on rights relating to culture or rights concerning creativity, including the visual arts, literature,
music, dance, and theater and representing the highest intellectual and artistic achievements of a group.”
See Stephen A. Hansen, The Right to Take Part in Cultural Life, in: Richard Pierre Claude/Burns H.
Weston (eds.), Human Rights in the World Community: Issues and Action (3rd ed. 2006), 223,
225–226.
32
See Universal Declaration of Human Rights, 10 December 1948, American Journal of International Law 43 (1949), 127.
33
See International Women’s Rights Action Watch, Equality and the Right to Participate in
Cultural Life, Day of General Discussion – Right to Take Part in Cultural Life (Article 15 (1)(a) of the
Covenant), 9 May 2008, UN Doc. E/C.12/40/10 (2008), para. 3.
34
See Roger O’Keefe, The ‘Right to Take Part in Cultural Life’ under Article 15 of the ICESCR,
International and Comparative Law Quarterly (ICLQ) 47 (1998), 904, 906, footnote 14.
35
See Yvonne Donders, Cultural Life in the Context of Human Rights, Day of General Discussion –
Right to Take Part in Cultural Life (Article 15 (1)(a) of the Covenant), 9 May 2008, UN Doc. E/C.12/
40/13 (2008), 3.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
351
with ‘high art’ and meant to make the ‘high’ aspects of culture more broadly
available.36
C. UNESCO’s Approach: The Anthropological Definition
of Culture as a ‘Way of Life’
A different approach to the notion of culture in the legal field was first made by
UNESCO, whose purpose according to Article 1 (1) of its constitution is inter alia to
“contribute to peace and security by promoting collaboration among the nations
through education, science and culture.”37 Within this mandate, UNESCO played
and continues to play a key role in the elaboration and clarification of cultural rights,
having adopted dozens of texts on this subject in the form of non-legally binding
recommendations and legally binding conventions.38 In these instruments UNESCO
distanced itself from the narrow and elitist concept of culture as ‘high art’, introducing a wider approach ‘borrowed’ from the discipline of anthropology. The first
instrument to mark this differentiation was the Recommendation on Participation by
the People at Large in Cultural Life and Their Contribution to It (26 November 1976), which states in the fifth preambular paragraph, that:
culture is not merely an accumulation of works and knowledge which an elite produces,
collects and conserves in order to place it within reach of all […] culture 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 [emphasis added] and the need to communicate.39
36
Yvonne Donders, The Legal Framework of the Right to Take Part in Cultural Life, in: Yvonne
Donders/Vladimir Volodin (eds.), Human Rights in Education, Science and Culture – Legal Developments and Challenges (2007), 231, 249.
37
See Lea Sheaver/Caterina Sganga, Access to Knowledge and the Right to Take Part in Cultural
Life, Submission by the Information Society Project at Yale Law School to the Committee on Economic, Social and Cultural Rights, (2008), 1, available at: http://www.law.yale.edu/documents/pdf/
ISP/article15.pdf (accessed on 17 October 2012).
38
See Janusz Symonides, UNESCO’s Contribution to the Progressive Development of Human
Rights, Max Planck Yearbook of United Nations Law 5 (2001), 307, 336.
39
See Stephen Marks, Defining Cultural Rights, in: Morten Bergsmo (ed.), Human Rights and
Criminal Justice for the Downtrodden – Essays in Honour of Asbjørn Eide (2003), 293, 295, 305.
352 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
Thus, since the mid 1970s, UNESCO adopted a broader meaning of ‘culture’ that
encompasses not only cultural products and arts but also the way of life of communities and individuals, and includes matters like education and communication.40
Similarly, in the Mexico City Declaration on Cultural Policies, which was adopted
in the World Conference on Cultural Policies (26 July–6 August 1982), it was
declared that:
in its widest sense, culture may now be said to be the whole complex of distinctive spiritual,
material, intellectual and emotional features that characterize a society or social group. It
includes not only the arts and letters, but also modes of life [emphasis added], the fundamental rights of the human being, value systems, traditions and beliefs.41
In the same line, UNESCO in the Preamble of the UNESCO Universal Declaration on Cultural Diversity (2 November 2001) stated that:
culture should be regarded as the set of distinctive spiritual, material, intellectual and
emotional features of society or a social group, and that it encompasses, in addition to art
and literature, lifestyles, ways of living together [emphasis added], value systems, traditions
and beliefs.42
UNESCO’s perception of culture as inter alia ‘a way of life’, ‘modes of life’ and
‘ways of living together’ has, in conjunction with its principal policy declared in
Article 1 (1) of the Declaration of Principles of International Cultural Co-operation
(4 November 1966) that “each culture has a dignity and value which must be respected and preserved,”43 a vital importance for minority cultures as it implies a State
obligation to create the necessary conditions for their protection and preservation.44
40
Yvonne Donders, A Right to Cultural Identity in UNESCO, in: Francesco Francioni/Martin
Scheinin (eds.), Cultural Human Rights (2008), 317, 326.
41
See Chandima Dilhani Daskon, Cultural Resilience – The Roles of Cultural Traditions in Sustaining Rural Livelihoods: A Case Study from Rural Kandyan Villages in Central Sri Lanka, Sustainability
2 (2010), 1080, 1085.
42
See William S. Logan, Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage
Protection, in: Helaine Silverman/D. Fairchild Ruggles (eds.), Cultural Heritage and Human Rights
(2007), 33, 35.
43
See Stephen Marks, UNESCO and Human Rights: The Implementation of Rights Relating to
Education, Science, Culture and Communication, Texas International Law Journal 13 (1977), 35, 50.
44
Tina Kempin Reuter, Dealing with Claims of Ethnic Minorities in International Law, Connecticut Journal of International Law 24 (2009), 201, 216.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
353
D. The Adoption of UNESCO’s Anthropological Approach by the CESCR
Heavily influenced by the aforementioned UNESCO approaches, as is clearly
evidenced by an explicit citation of them in a footnote to the present Comment,45 the
CESCR officially embraces a broader perception of ‘culture’ that presents a particular
interest for the protection of minority cultures. Essentially the Committee adopts the
definition proposed in 1992 at its first general discussion on the right of participation
in cultural life, declaring that, for the purpose of implementing Article 15 (1)(a) of
the ICESCR, it considers the term culture to encompass, 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 affecting their lives.46
Thus, one of the positive contributions of General Comment No. 21 is the endorsement of ‘cultural life’ in its anthropological dimension.47 Although the Committee makes no explicit reference to any notion of ‘anthropological approach’, the
adoption of ‘culture’ in its widest meaning is evident both in the aforementioned
definition and in several parts of its Comment; such as those which state that “culture
is a broad, inclusive concept encompassing all manifestations of human existence”48
and that the right to access cultural life includes inter alia the right to “[…] follow a
way of life [emphasis added] associated with the use of cultural goods and resources
such as land, water, biodiversity, language or specific institutions.”49 This broad,
anthropological approach to culture is crucial for the protection of minority cultures,
for it is taken to enrich the meaning of Article 15 (1)(a) of the ICESCR in the sense
that “the right to take part in cultural life cannot be interpreted as the right to have
45
See UN Doc. E/C.12/GC/21 (note 22), 3, footnote 12.
46
Ibid., para. 13; Pineschi (note 13), 34. See also Matthew Craven, The Right to Culture in the
International Covenant on Economic, Social and Cultural Rights, in: Rod Fisher/Brian Groombridge/
Julia Häusermann/Ritva Mitchell (eds.), Human Rights and Cultural Policies in a Changing Europe:
The Right to Participate in Cultural Life (1994), 161, 166.
47
Pineschi (note 13), 34.
48
UN Doc. E/C.12/GC/21 (note 22), para. 11.
49
Ibid., para. 15 (b).
354 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
access and to take part in the cultural life of the dominant group only, as it is also the
right of any group to maintain and develop its specific culture (or, in other words, its
cultural identity).”50 Within this context, the CESCR formally adopts an approach to
the concept of culture approximating that of the Human Rights Committee (HRC)
of the ICCPR, which in its General Comment No. 23 on Article 27 of the ICCPR
noted that:
[w]ith regard to the exercise of the cultural rights protected under [A]rticle 27, the Committee observes that culture manifests itself in many forms, including a particular way of life
[emphasis added] associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and
the right to live in reserves protected by law.51
The difference lies in the fact that the interpretive approach of the CESCR is far
more detailed and comprehensive, and more generally applicable than the particular
case of indigenous peoples. In the framework of this anthropological definition, the
Committee asks States Parties, in applying the right enshrined in Article 15 (1)(a) of
the ICESCR, to move beyond the material dimensions of culture (e.g. museums,
libraries, theatres, cinemas and monuments) and to adopt policies, programmes and
support measures promoting effective access for all to intangible cultural goods (e.g.
language, knowledge and traditions).52 This conceptual approach to culture as, among
other things, a way of life that encompasses essential elements of minority identity,
such as language, religion, customs and traditions, etc., is of major significance for the
defence of minority diversity, for it is precisely those elements that are threatened
with disappearance or decrement and stand in need of immediate protection.53
However, this is not necessarily the case for the majority, which is rarely barred from,
for example, using or receiving instruction in its own language, or observing its
50
Pineschi (note 13), 36.
51
HRC, General Comment No. 23: The Rights of Minorities (Art. 27), 8 April 1994, UN Doc.
CCPR/C/21/Rev.1/Add.5. (1994), para. 7. See also Alexandra Xanthaki, Indigenous Cultural Rights
in International Law, European Journal of Law Reform 2 (2000), 343, 357.
52
53
UN Doc. E/C.12/GC/21 (note 22), para 70.
Michael Kirby, Protecting Cultural Rights: Some Developments, in: Margaret Wilson/Paul Hunt
(eds.), Culture, Rights, and Cultural Rights – Perspectives from the South Pacific (2000), 145, 148. As
has been successfully pointed out “‘[c]ultural diversity’ emerges as an argument of the weak.” See also
Armin von Bogdandy, The European Union as Situation, Executive, and Promoter of the International
Law of Cultural Diversity – Elements of a Beautiful Friendship, European Journal of International Law
(EJIL) 19 (2008), 241, 245.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
355
traditions and so forth.54 As has been argued emphatically: “[t]he majority culture is
what is reflective in the native country symbols, national holidays, public institutions
and methods of communication. The rest of the cultures are obscured.”55 This,
indeed, is why in international law the right to enjoy one’s culture is recognised
chiefly in the texts and provisions concerning the rights of minorities and indigenous
peoples (e.g. Article 27 of the ICCPR).56 In this context some authors even use the
terms cultural and minority rights interchangeably.57
E. Concluding Remarks: The Evolution of the Perception(s) of ‘Culture’
In sum, culture has developed from a narrow elitist concept, mainly including arts
and literature, to a broader concept embodying crucial elements for minority identities, such as language, religion and education.58 This wider perception of culture as a
way of life that encompasses a series of intangible goods, as officially endorsed by the
CESCR in its General Comment No. 21, is vital for the protection of minority
diversity since, in conjunction with UNESCO’s view that “each culture has a dignity
and value which must be respected and preserved,” it implies a State obligation to
safeguard distinct minority cultural identities giving them, in Stavros’ words, an equal
chance of surviving.59 Through this interpretation, together with the Committee’s
clarification of the beneficiaries of the right (including both minorities as such and
54
See Lyndel Prott, Understanding One Another on Cultural Rights, in: Halina Nieć (ed.), Cultural
Rights and Wrongs (1998), 161, 168.
55
Oswaldo Ruiz Chiriboga, The Right to Cultural Identity of Indigenous Peoples and National Minorities: A Look from the Inter-American System, SUR – International Journal on Human Rights 5
(2006), 43, 63.
56
See Alexandra Xanthaki, Multiculturalism and International Law: Discussing Universal Standards, Human Rights Quarterly (HRQ) 32 (2010), 21, 26; Annamari Laaksonen, Measuring Cultural
Exclusion Through Participation in Cultural Life, Third Global Forum on Human Development:
Defining and Measuring Cultural Exclusion, 2005, 2, 4, available at: http://www.culturalrights.net/
descargas/drets_culturals135.pdf (accessed on 17 October 2012).
57
See William K. Barth, Cultural Rights: A Necessary Corrective to the Nation State, in: Francesco
Francioni/Martin Scheinin (eds.), Cultural Human Rights (2008), 79, 79.
58
Yvonne Donders, The Protection of Cultural Rights in Europe: None of the EU’s Business, Maastricht Journal of International Law 10 (2003), 117, 121.
59
Stephanos Stavros, Cultural Rights for National Minorities: Covering the Deficit in the Protection
Provided by the European Convention on Human Rights, IALS Bulletin 25 (1997), 7, 7.
356 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
their individual members), the provision acquires a strong potential significance for
the protection of minority cultures.
It should be noted, however, that the Committee does not adopt a static perception
of culture as “a distinct, demarcating, small-scale ‘entity’ with given features that
remain unchanging and are reproduced in space and time by setting a system of
common values-meanings and producing identical and homogeneous members.”60 On
the contrary, having been heavily influenced by the modern anthropological perceptions of culture, which reject the idea of culture as a timeless ‘entity’, the CESCR
stresses on the one hand that “[t]he 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,”61 and on the other hand, that cultures do not have fixed borders, since “[t]he
phenomena of migration, integration, assimilation and globalisation have brought
cultures, groups and individuals into closer contact than ever before, at a time when
each of them is striving to keep their own identity [emphasis added].”62 The Committee
thus, although perceiving culture as a way of life rejects the essentialist approaches
attached to the term as a set of hermetically closed compartments and isolated manifestations, viewing it rather as “an interactive process whereby individuals and communities, while preserving their specificities and purposes, give expression to the culture
of humanity.”63 This evolutionary and dynamic understanding of culture seems to be
the most important contribution of the discipline of social anthropology to international law’s conceptions of cultural life, inherently rejecting essentialist views of
cultural purity and clearly supporting the idea “that multiculturalism is an element of
integration and strengthening of a society as a whole, and not a ground for its fragmentation and disruption.”64
60
See Suzan Wright, The Politicization of ‘Culture’, Anthropology Today 14 (1998), 7, 8.
61
UN Doc. E/C.12/GC/21 (note 22), para. 11; Pineschi (note 13), 35.
62
UN Doc. E/C.12/GC/21 (note 22), para. 41.
63
Ibid., para. 12. See also Farida Shaheed, Report of the Independent Expert in the Field of Cultural
Rights, 21 March 2011, UN Doc. A/HRC/17/38 (2011), para. 6; Pineschi (note 13), 35.
64
Pineschi (note 13), 36.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
357
III. The Beneficiaries and the Nature of the Rights in Question –
The Collective Right of Minorities to Their Own Cultural Life
A. The First Phase: Ignoring Minority Cultures
One of the most important aspects of General Comment No. 21 is its clarification
of the bearers, and consequently the nature, of the right(s) recognised, since the
neglect of Article 15 (1)(a) of the ICESCR was in part at least due to its relative
vagueness. The matter is of major importance for minorities and their members, who
seem initially to be excluded from the possibility of participation in their own cultural
life. This is definitely clear as regards Article 27 of the UDHR, for at the time of its
adoption the right to participate in cultural life was understood both by the drafters
of the UDHR and by the international community generally, as exclusively within
the context of a ‘sole and unique’ culture, the culture of the national community.65 As
Morsink puts it:
The double use of the definite article the in the first paragraph is ground for suspicions:
“Everyone has the right to freely participate in the cultural life of the community, to enjoy
the arts and to share in scientific advancement and its benefits.” The article does not say, as
it might have, that everyone has a right “to participate in the cultural life of his or her
community.” This pluralistic wording would have allowed for the possibility and the
likelihood that being a citizen of a certain State and participating in the cultural life of
one’s community are for some people not one and the same thing. Instead Article 27 [of
the UDHR] seems to assume that the ‘community’ one participates in and with one
identifies culturally is the dominant one of the nation [S]tate. There is no hint here of
multiculturalism or pluralism.66
The wording of the norm thus makes it reasonably clear that it was not the intention of the drafters of Article 27 of the UDHR to provide protection for minorities
in particular.67 The text of Article 15 (1)(a) of the ICESCR is slightly changed in
65
Elsa Stamatopoulou, Taking Cultural Rights Seriously: The Vision of the UN Declaration on the
Rights of Indigenous Peoples, in: Alexandra Xanthaki/Stephen Allen (eds.), Reflections of the UN Declaration on the Rights of Indigenous Peoples (2011), 387, 390.
66
Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent
(1999), 269.
67
Ragnar Adalsteinsson/Páll Thórhallson, Article 27, in: Gudmundur Alfredsson/Asbjørn Eide
(eds.), The Universal Declaration of Human Rights – A Common Standard of Achievement (1999),
575, 580.
358 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
comparison to Article 27 of the UDHR, as it does not include the phrase that identified the cultural life as that ‘of the community’. This was done, Symonides notes,
because in some cases the ‘cultural life of the community’, in the singular, may be
interpreted restrictively as excluding the right of minorities to participate in their own
cultural life.68 But still Article 15 (1)(a) of the ICESCR does not explicitly refer to
minority culture(s).69 Indeed, UNESCO’s attempts to introduce elements of cultural
pluralism during the drafting discussions on the norm before the UN Commission on
Human Rights (CHR), first with a proposal that Article 15 of the ICESCR include
a provision guaranteeing “the free cultural development of racial and linguistic
minorities,”70 and secondly by suggesting that an additional formulation be introduced
recognising everyone’s right “to take part in the cultural life of the communities to
which he belongs,”71 did not meet with success. The focus clearly remained on the
national community.72 Thus, “Article 15 of the International Covenant on Economic,
Social, and Cultural Rights appeared to continue in the tradition of the Universal
Declaration of favouring cultural homogeneity over cultural diversity.”73
B. The Second Phase: Adopting a New Multiculturalist Perception
in the Revised Guidelines for Reports by States Parties
The first signs of a different approach to the right to participate in cultural life, and
indeed a reading of Article 15 (1)(a) of the ICESCR, by the CESCR with specific
68
Janusz Symonides, Cultural Rights: New Dimensions and Challenges, Thesaurus Acroasium
XXIX (2000), 141, 147.
69
Hans Morten Haugen, Traditional Knowledge and Human Rights, The Journal of World Intellectual Property 8 (2005), 663, 673.
70
See Draft International Covenant on Human Rights and Measures of Implementation – Draft
Articles on Educational and Cultural Rights submitted by the Director-General of the United Nations
Educational, Scientific and Cultural Organization, 18 April 1951, UN Doc. E/CN.4/54 (1951), 3.
71
See Ana Filipa Vrdoljak, Self-Determination and Cultural Rights, in: Francesco Francioni/Martin
Scheinin (eds.), Cultural Human Rights (2008), 41, 57.
72
Ana Filipa Vrdoljak, Minorities, Cultural Rights and the Protection of Intangible Heritage, 2005,
6, available at: http://www.esil-sedi.eu/english/pdf/Vrdoljak09-05.pdf?referer=http%3A%2F%2Fworks.
bepress.com%2Fana_filipa_vrdoljak%2F11%2F (accessed on 17 October 2012).
73
Patrick Macklem, The Law and Politics of International Cultural Rights: E. Stamatopoulou,
Cultural Rights in International Law; Francesco Francioni/Martin Scheinin (eds.), Cultural Human
Rights, IJMGR 16 (2009), 481, 493.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
359
interest to members of minorities, could be seen first of all in the revised guidelines
regarding the form and contents of the reports to be submitted by the States Parties
to the Covenant under Articles 16 and 17 of the ICESCR, adopted late in 1990
(26 November–14 December 1990) by the Committee during its 5th session.74 In
these guidelines the Committee asked the States Parties to provide, in the light of
Article 15 of the ICESCR, information on, among other things, the “promotion of
cultural identity as a factor of mutual appreciation among individuals, groups, nations
and regions,”75 and “the promotion of awareness and enjoyment of the cultural
heritage of national ethnic groups and minorities and of indigenous peoples.”76 More
specifically, the States Parties were also asked to describe the legislative and other
measures they had adopted “to realize the right of everyone to take part in the cultural
life which he or she considers pertinent [emphasis added], and to manifest his or her
own [emphasis added] culture.”77 The Committee thus made it clear for the first time,
with these guidelines, that everyone has a right to choose which cultural life they wish
to take part in, intimating that this need not necessarily be the mainstream (national)
culture of the State.78
The Committee proceeded one step further in its 2008 revised guidelines, asking
the States Parties in the context of their compliance with their obligations under
Article 15 (1)(a) of the ICESCR 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 communities, and create favourable conditions for them to preserve, develop, express and disseminate their identity, history, culture, language, traditions and customs.79
74
See CESCR, Revised General Guidelines Regarding the Form and Contents of Reports to be
Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic,
Social and Cultural Rights, 17 June 1991, UN Doc. E/C.12/1991/1 (1991), ANNEX, 19–20.
75
Ibid., 20.
76
Ibid.
77
Ibid., 19.
78
Athanasia Spiliopoulou Akermark, Justifications of Protection of Minorities in International Law,
(1997), 192.
79
CESCR, Guidelines on Treaty – Specific Documents to be Submitted by States Parties under
Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, 24 March
2009, UN Doc. E/C.12/2008/2 (2009), para. 68; Pineschi (note 13), 32.
360 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
This final phrase has since been repeated word for word in a series of questions
from the Committee to national governments.80
C. Cultural Rights Viewed by the CESCR as Collective Rights too
Specifically as regards minorities, then, the Committee adopts in the most official
form in General Comment No. 21, the view that Article 15 (1)(a) of the ICESCR
includes “the right of minorities [as collectivities] and of persons belonging to minorities to take part in the cultural life of society, and also to conserve, promote and
develop their own culture.”81 Inherent in this right, the Committee continues, is the
obligation of the States-Parties to recognise, respect and protect their minority
cultures as a basic element of the identity of the States themselves. Consequently, the
Committee concludes that:
minorities have the right to their cultural diversity, traditions, customs, religion, forms of
education, languages, communication media (press, radio, television, Internet) and other
manifestations of their cultural identity and membership.82
The Committee, clearly, has emphatically embraced the approach that minorities
as such, and their individual members have the right to take part in their own cultural
life and not only exclusively in that of the dominant national society, as is held to have
been the initial meaning of the provision, according to the intent imputed to the
drafters of Article 15 (1)(a) of the ICESCR. Specifically, the Committee incorporates
into the right of minorities to take part in their own cultural life all the elements that
constitute the core of the minority identity (language, religion, traditions, customs)
and gives their protection a strongly collective dimension, since it recognises the
minorities per se, and not only their members, as beneficiaries of this right. The
Committee then seems to align itself with the position that cultural rights are inher-
80
See List of Issues to be Taken up in Connection with the Consideration of the Initial Report of
Cambodia, Concerning the Rights Covered by Articles 1 to 15 of the ICESCR (E/C.12/KHM/1), 8 January 2009, UN Doc. E/C.12/KHM/Q/1 (2009), para. 50; List of Issues to be Taken up in Connection
with the Consideration of the Fifth Periodic Report of Colombia, Concerning Articles 1 to 15 of the
ICESCR (E/C.12/COL.5), 10 June 2009, UN Doc. E/C.12/COL/Q/5 (2009), para. 42.
81
UN Doc. E/C.12/GC/21 (note 22), para. 32.
82
Ibid.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
361
ently collective rights83 and that collective rights not only do not undermine individual rights but are on the contrary mutually enriching and enhancing.84 In this line, the
Committee explicitly recognises as actively legitimated in the exercise of these rights
not only separate individuals, or individuals in association with other members of the
group, but also the groups or communities themselves as such. It makes it perfectly
clear in its General Comment No. 21 that “the term ‘everyone’ in the first line of
Article 15 (1) of the ICESCR may denote the individual or the collective [emphasis
added].”85 In other words, the Committee explains, “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 [emphasis added].”86
This is an innovative and breakthrough approach which, as regards the minority
dimensions of the right, goes far beyond the classical approach of the international and
regional minority texts, which grant in principle rights to the members of minorities
and not to the minorities per se.87These instruments do, of course, recognise a certain
collective dimension to minority protection, first of all through the possibility of the
joint exercise of individual rights.88 Article 27 of the ICCPR for example recognises
rights to persons belonging to minorities and not to the minorities per se.89 It provides
83
Josef Gromacki, The Protection of Language Rights in International Human Rights Law: A Proposed
Draft Declaration of Linguistic Rights, Virginia Journal of International Law 32 (1992), 515, 548.
84
Fleur Johns, Portrait of the Artist as a White Man: The International Law of Human Rights and
Aboriginal Culture, Australian Yearbook of International Law 16 (1995), 173, 173.
85
UN Doc. E/C.12/GC/21 (note 22), para. 9.
86
Ibid.; Pineschi (note 13), 38. See also the position of the UN’s independent expert in the field of
cultural rights, approving the Committee’s approach, Report of the Independent Expert in the Field of
Cultural Rights, Ms. Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights
Council, 22 March 2010, UN Doc. A/HRC/14/36 (2010), para. 10.
87
See Bruno de Witte, Law and Cultural Diversity: A Troublesome Relationship – Introduction, in:
Yvonne Donders/Kristin Henrard/Anna Meijknecht/Sasja Tempelman (eds.), Law and Cultural
Diversity, Proceedings of a Workshop, organized by the Working Group ‘Law and Cultural Diversity’
in Co-operation with the School of Human Rights Research, SIM-Special 25 (1999), 1, 4.
88
See Patrick Thornberry, Minorities and Europe: The Architecture of Rights, European Yearbook
XLII (1994), 1, 10.
89
“Concerning the holders of the rights under Art. 27, no doubts can exist. Protection is not
afforded to minority groups as such, but rather to ‘persons’ belonging to minorities.” See Christian
Tomuschat, Protection of Minorities under Article 27 of the International Covenant on Civil and
Political Rights, in: Rudolf Bernhardt/Wilhelm Karl Geck/Günther Jaenicke/Helmut Steinberger
(eds.), Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte – Festschrift für
Hermann Mosler (1983), 949, 954.
362 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
however for a limited ‘group orientation’ giving the individual members of a minority
the choice to exercise these rights “in community with other members of their group.”90
In the same vein the HRC has pointed out in its General Comment No. 23 on
Article 27 that “[a]lthough the rights protected under [A]rticle 27 are individual rights,
they depend in turn on the ability of the minority group [as such] to maintain its
culture, language or religion.”91 The HRC has, moreover, decided, in cases alleging
infringement of the provision, that “[t]here is, however, no objection to a group of
individuals, who claim to be similarly affected, collectively to submit a communication
about alleged breaches of their rights.”92 This ‘collective aspect’, as it has been termed,93
of the protection of individual minority rights, which stems from the possibility of their
exercise “in community with other members of the group,” does not, however, lead to
the recognition of collective rights,94 as is pointed out, for example, in the Explanatory
Memorandum of the Framework Convention for the Protection of National Minorities
(FCNM).95 But the “intermediate solution of the exercise ‘in community with others’
of certain rights cannot be satisfactory in cases of purely collective rights, where the
group and only the group can – by the nature of the right – be the subject of a right.”96
Such rights are, for example, the cultural rights that “[…] acquire their full meaning
when expressed in a collective environment […],”97 since cultural traditions and religious
90
See Rüdiger Wolfrum, The Protection of Indigenous Peoples in International Law, Heidelberg
Journal of International Law (HJIL) 59 (1999), 369, 371.
91
UN Doc. CCPR/C/21/Rev.1/Add.5 (note 51), para. 6.2. See Federico Lenzerini, Intangible
Cultural Heritage: The Living Culture of Peoples, EJIL 22 (2011), 101, 115.
92
HRC, Chief Bernard Ominayak and Lubicon Lake Band v. Canada, Communication No. 167/
1984, UN Doc. CCPR/C/38/D/167/1984 (1990), para. 32.1. See Dominic McGoldrick, Canadian
Indians, Cultural Rights and the Human Rights Committee, ICLQ 40 (1991), 658, 664.
93
See Linos-Alexandros Sicilianos, The Protection of Minorities in Europe: Collective Aspects of
Individual Rights, in: Antonis Bredimas/Linos-Αlexandros Sicilianos (eds.), The Protection of Minorities: The Framework Convention of the Council of Europe (1997), 93 (in Greek).
94
See Rainer Hofmanm, Minority Rights: Individual or Group Rights? A Comparative View on
European Legal Systems, GYIL 40 (1997), 356, 359, 379.
95
See Explanatory Memorandum on the Framework Convention for the Protection of National
Minorities, Human Rights Law Journal (HRLJ) 16 (1995), 101, 102, para. 13, 103, para. 31.
96
Konstantinos Tsitselikis, The International and European Status for the Protection of the Linguistic Minority Rights and the Greek Legal Order (1996), 212 (in Greek).
97
Fotini Pazartzi, Minority Identity and Cultural Rights, in: Αntonis Bredimas/Linos-Αlexandros
Sicilianos (eds.), The Protection of Minorities: The Framework Convention of the Council of Europe
(1997), 81, 90 (in Greek). See also Philip Vuciri Ramaga, The Group Concept in Minority Protection,
HRQ 15 (1993), 579, 583.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
363
and educational institutions can be preserved only on a community basis,98 which is
why it is essential that cultural minority rights be recognised and protected as collective
or group rights, too.99 So also is the right to take part in cultural life, with its inherent
collective elements.100 It is true that the issue of collective rights is neither unambiguous
in its terminology nor uncontentious in its substance. Firstly, it should be observed that
there is some terminological confusion in the literature.101 Some authors, for example,
use the terms collective or group rights interchangeably,102 while others distinguish
between group rights as the sum of the rights of individual members and collective rights
intended for the benefit of the group as a whole.103 It could be argued, however, that
this terminological distinction may from a certain point of view be seen as less substantial since “group rights and collective rights both have, in fact, a collective dimension,
i.e. they both exist for the benefit of a certain organized group or a collective entity, be
it minorities, groups or governments.”104 Secondly, there is a view that human rights
are by definition exclusively individual, since they stem from the inherent dignity of
each human being. In this context only individuals can hold human rights.105 Thus,
“[t]he idea of collective human rights represents a major, and at best confusing,
conceptual deviation.”106 This reducing of positive human rights to solely individual
98
Jelena Pejic, Minority Rights in International Law, HRQ 19 (1997), 666, 674.
99
See Bruce Robbins/Elsa Stamatopoulou, Reflections on Culture and Cultural Rights, The South
Atlantic Quarterly 103 (2004), 419, 426 noting that “[s]ome of what since come to be called cultural
rights – for example, the right to speak one’s language or to practice land-based religions or to protect
traditional knowledge – literally make no sense for indigenous peoples or minorities unless they are
understood also as group rights”.
100
See James Crawford, The Rights of Peoples: ‘Peoples’ or ‘Governments’?, in: James Crawford
(ed.), The Rights of Peoples (1st ed. 1988), 55, 57.
101
Anna Meijknecht, Are Minorities Subjects of International Law?, in: Yvonne Donders/Kristin
Henrard/Anna Meijknecht/Sasja Tempelman (eds.), Law and Cultural Diversity, Proceedings of a
Workshop, organized by the Working Group ‘Law and Cultural Diversity’ in Co-operation with the
School of Human Rights Research, SIM-Special 25 (1999), 95, 98, footnote 13.
102
See Jean-Paul Schreuder, Minority Protection within the Concept of Self-Determination, Leiden
Journal of International Law 8 (1995), 53, 63.
103
See Douglas Sanders, Collective Rights, HRQ 13 (1991), 368, 369.
104
Malgosia Fitzmaurice, The New Developments Regarding the Saami Peoples of the North,
IJMGR 16 (2009), 67, 137.
105
John Morijn, The Place of Cultural Rights in the WTO System, in: Francesco Francioni/Martin
Scheinin (eds.), Cultural Human Rights (2008), 285, 294.
106
Jack Donelly, Human Rights and Group Rights, Bulletin of Australian Society of Legal Philosophy 13 (1989), 6, 8–9.
364 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
freedoms and entitlements is, however, argued to be antithetical to human nature
empirically assessed. As Wiessner unequivocally notes “[i]ndividuals feel part of a
community; their birth into certain ethnic, gender and societal categories, their upbringing in certain social settings, as well as their conscious choices make them members of
certain groups. Membership of a group is of fundamental importance to individuals, to
their pursuit of self-realization, a key human need,”107 arguing further that
[i]n order to respond holistically to human needs and aspirations, law thus needs to strive
to protect both the individuals and the groups they form or are born into – communities
of destiny or communities of choice. The vulnerability of individuals created the need for
individual human rights; the vulnerability of groups, particularly cultures, created the need
for their protection.108
In this light it has been argued that not only are individual and collective rights not
always antithetical but there are several cases indeed, where they are complementary
and interdependent, as “its type is necessary to preserve minority cultures, for the
protection of collective rights will depend, in the first instance, upon the existence of
individual rights.”109 Thirdly, an argument is made that the proclamation of collective
rights may be (ab)used in order to justify violations of individual rights.110 This
criticism seems to imply that individual rights are both immutable and absolute,
overlooking the fact that the major contemporary human rights instruments contain
provisions which limit those rights “for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society”111 (the latter a
collective interest). Cultural collective rights, on the other hand are not absolute
either. Thus, there is always a need to strike a balance between the interests of a
minority as a collective and those of the single members of the group according to the
ad hoc circumstances of each case. In the Kitok Case, for example, “the HRC took
107
Siegfried Wiessner, The Cultural Rights of Indigenous Peoples: Achievements and Continuing
Challenges, EJIL 22 (2011), 121, 124.
108
Ibid., 125.
109
Gillian Triggs, The Rights of ‘Peoples’ and Individual Rights: Conflict of Harmony?, in: James
Crawford (ed.), The Rights of Peoples (1988), 141, 146.
110
See Marlies Galenkamp, Collective Rights, Report commissioned by the Advisory Committee on
Human Rights and Foreign Policy of the Netherlands, SIM-Special 16 (1995), 53, 66.
111
John Claydon, Internationally Uprooted People and the Transnational Protection of Minority
Culture, New York Law School Law Review 24 (1978), 125, 139.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
365
position in favour of the former in view of the need to maintain the economic and
ecological sustainability of the particular way of life of the Sami population.”112
Furthermore, serious violations of individual human rights could be avoided by
incorporating some kind of democratic constraints into the process of group
decision-making, for instance by providing individuals with an effective exitoption.113 Finally, States are unwilling to recognise collective or group minority rights,
lest this entail risks for their national sovereignty and territorial integrity.114 However,
“[…] the protection of collective minority rights does not necessarily lead to that
outcome […],” since “a minority which enjoys collective rights is unlikely to turn
against the State within which it resides,” although this is not, of course, absolute.115
D. Concluding Observations on Collective Minority Cultural Rights
In conclusion, it seems that from the moment that most modern societies consist
of a dominant ethnic group in control of the State which exercises cultural hegemony
over an array of minority groups and this hegemony constitutes a threat to the cultural integrity of minority diversity, there is a need to recognise collective rights to
minorities as a suitable mean of protecting and preserving their cultures.116 The
recognition of the need to safeguard minority identity as such, through State measures
for the protection of its existence and the creation of favourable conditions for its
preservation and promotion,117 beginning with principle 19 of the 1989 Vienna
Concluding Document of the Conference on Security and Cooperation in Europe
112
Peter Hilpold, UN Standard – Setting in the Field of Minority Rights, IJMGR 14 (2007), 181, 193.
113
Barbara Oomen/Sasja Tempelman, The Power of Definition, in: Yvonne Donders/Kristin
Henrard/Anna Meijknecht/Sasja Tempelman (eds.), Law and Cultural Diversity, Proceedings of a
Workshop, organized by the Working Group ‘Law and Cultural Diversity’ in Co-operation with the
School of Human Rights Research, SIM-Special 25 (1999), 7, 26.
114
See Dominic McGoldrick, Multiculturalism and its Discontents, Human Rights Law Review 5
(2005), 27, 31.
115
Konstantinos Antonopoulos, Issues of Minority Rights’ Protection under the Light of Former
Yugoslavia’s Dissolution, Hellenic Review of European Law (Special Issue) 21 (2001), 75, 86, 88 (in
Greek).
116
Richard H. Thompson, Ethnic Minorities and the Case for Collective Rights, American Anthropology 99 (1997), 786, 789.
117
See Matthias Koenig, Institutional Change in World Polity – International Human Rights and
the Construction of Collective Identities, International Sociology 23 (2008), 95, 106.
366 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
(OSCE),118 and later with paragraph 33 of the 1990 Copenhagen Concluding Document (Copenhagen Document),119 and Article 1 (1) of the relevant UN Declaration
on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities (1992),120 is not unknown in international law. The Committee, then, has
built upon this precedent, replying to the question of “[w]ho possesses cultural rights:
individual or groups?”,121 in a fruitful, comprehensive and pluralistic manner that is
realistically capable of making the provision a firm pillar for the substantive protection of minority cultures.
IV. Other Explicit References to Minority Cultural Rights
in General Comment No. 21
In the aforementioned context, which recognises the right of minorities and their
members to participate in their own cultural life, the General Comment also contains
several other explicit references to minority cultural rights. Thus, in the frame of
118
“They [the Participating States] will protect and create conditions for the promotion of the
ethnic, cultural, linguistic and religious identity of national minorities on their territory.” See Human
Rights in the Concluding Document of the Vienna CSCE Follow-up Meeting on 15 January 1989,
HRLJ 10 (1989), 270, 277. See Dimitris Christopoulos, Minority Protection: Towards a New European
Approach, Balkan Forum – An International Journal of Politics, Economics and Culture 2 (1994), 155,
164 observing that “[t]he Vienna Concluding Document is the first one on a European level to mention
explicitly the necessity of the recognition of collective rights”.
119
“The participating States will protect the ethnic, cultural, linguistic and religious identity of
national minorities on their territory and create conditions for the promotion of that identity.” See
Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE
(29 June 1990), HRLJ 11 (1990), 232; Thomas Buergenthal, The Copenhagen CSCE Meeting: A New
Public Order for Europe, HRLJ 11 (1990), 217, 228.
120
“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.” See Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, 18 December 1992, UN Doc. A/RES/47/135 (1992). See also
Bokatola Isse Omanga, The Draft Declaration on the United Nations on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, International Commission of Jurists (The
Review) 46 (1991), 33, 35 arguing that “[i]t is the group as such which holds rights and no longer only
the individual who make it”; Natan Lerner, The 1992 UN Declaration on Minorities, Israel Yearbook
on Human Rights 23 (1993), 111, 117 noting that “[a]rticle 1 does not refer to rights of persons, but to
the identity of minorities, namely a group right”.
121
Robert Winthrop, Defining a Right to Culture, and Some Alternatives, Cultural Dynamics 14
(2002), 161, 163.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
367
clarifying States’ obligations to fulfil122 their commitments, the Committee asks the
States to take a wide range of positive measures, including financial measures, that
would contribute to the realisation of the right of Article 15 (1)(a) of the ICESCR,
such as:
[a]dopting policies for the protection and promotion of cultural diversity […]; and measures aimed at enhancing diversity through public broadcasting in regional and minority
languages;123
[p]romoting the exercise of the right of association for cultural and linguistic minorities for
the development of their cultural and linguistic rights;124
[t]aking appropriate measures or programmes to support minorities or other communities
[…] in their efforts to preserve their culture.125
A. Policies and Measures Promoting and Protecting Minority Languages
One of the most interesting elements of this set of obligations is the taking of
measures to support broadcasting in regional and minority languages, an issue that is
related to respect for and safeguarding of the linguistic diversity to which the Committee ascribes particular importance and upon which it insists with pertinent questions.126 Indeed, the Committee refers many times in its Comment to linguistic rights
122
The Committee signifies that the right to take part in cultural life imposes, like all the other
rights enshrined in the Covenant, upon States’ Parties three general levels of legal obligations, namely a)
the obligation to respect, b) the obligation to protect, and c) the obligation to fulfil. The first of these
obligations as discerned by the Committee requires states to refrain from interfering, directly or
indirectly, with enjoyment of the right to take part in cultural life, the second requires them to take steps
to prevent third parties from interfering in the exercise of that right, and the third requires them to take
appropriate legislative, administrative, judicial, financial, promotional and other measures aimed at full
realisation of that right. See Tawhida Ahmed, A Critical Appraisal of EU Governance for the Protection
of Minority Rights, IJMGR 17 (2010), 265, 267.
123
UN Doc. E/C.12/GC/21 (note 22), para. 52 (a).
124
Ibid., para. 52 (c).
125
Ibid., para. 52 (f).
126
See List of Issues to be Taken up in Connection with the Consideration of the Fifth Periodic
Report of Poland (E/C.12/POL/5) Concerning the Rights Covered by Articles 1 to 15 of the ICESCR,
8 January 2009, UN Doc. E/C.12/POL/Q/5 (2009), para. 32; List of Issues to be Taken up in Connection with the Consideration of the Fifth Periodic Report of the United Kingdom of Great Britain and
Northern Ireland Concerning the Rights Covered by Articles 1 to 15 of the ICESCR, 10 June 2008,
UN Doc. E/C.12/GBR/Q/5 (2008), para. 34.
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in general127 in the form of freedom of expression in the language of one’s choice,
since, as has been noted, “[…] language is not merely a conveyor belt for transmitting
knowledge, but constitutes, particularly for minorities, the very content of their
culture and their cultural identity.”128 Therefore, in the context of Article 15 (1)(a) of
the ICESCR, the Committee frequently asks States Parties about the use of minority
languages in daily life and especially in education,129 about the steps taken to preserve
minority languages, the periodicals published and the radio and television shows
broadcast in those languages,130 the possibility of the languages of different language
groups being used in the courts and in dealings with other public authorities,131 etc.
B. Freedom of Association for Cultural and Linguistic Minorities
Another key aspect is the emphasis that the Committee lays on the significance
which freedom of association has for minority protection.132 Indeed, as the European
Court of Human Rights (ECtHR) has also stressed, “forming an association in order
to express and promote its identity may be instrumental in helping a minority to
preserve and uphold its rights.”133 It is observed, however, that the Committee refers,
127
Thus, paragraphs 15 (a) and 49 (b) refer to the right to express oneself in the language of one’s
choice, paragraph 16 (b) provides for the right to seek, receive and share information on all manifestations of culture in the language of one’s choice, paragraph 49 (d) requires respect for the right of access
to one’s linguistic heritage and paragraph 55 (c) entails the right to use the language of one’s choice. See
UN Doc. E/C.12/GC/21 (note 22), paras. 15 (a), 49 (b), 16 (b), 49 (d) and 55 (c).
128
Antonis Bredimas, The Greek Minority in Albania and the Framework Convention of the
Council of Europe, in: id., Αntonis Bredimas/Linos-Αlexandros Sicilianos (eds.), The Protection of
Minorities: The Framework Convention of the Council of Europe (1997), 185, 194 (in Greek).
129
See List of Issues to be Taken up in Connection with the Consideration of the Initial Report of
Slovenia Concerning Articles 1–15 of the ICESCR, 7 June 2004, UN Doc. E/C.12/Q/SVN/1 (2004),
para. 30.
130
See List of Issues to be Taken up in Connection with the Consideration of the Third Periodic
Report of Austria Concerning the Rights Referred to in Articles 1–15 of the ICESCR, 14 December
2004, UN Doc. E/C.12/Q/AUT/1 (2004), paras. 33–34.
131
See List of Issues to be Taken up in Connection with the Consideration of the Second to Third
Periodic Report of Belgium Concerning the Rights Covered by Articles 1–15 of the ICESCR, 10 April
2007, UN Doc. E/C.12/BEL/Q/3 (2007), para. 23.
132
See Giorgio Sacerdoti, New Developments in Group Consciousness and the International
Protection of the Rights of Minorities, Israel Yearbook of International Law 13 (1983), 116, 140.
133
ECtHR, Case of Gorzelik and Others v. Poland, Judgment of 17 February 2004, RJD 2004-I, 39,
para. 93.
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369
expressly at least, to the freedom of association only of cultural and linguistic, and not
of national and religious, minorities. In any case, the incorporation into the normative field of Article 15 (1)(a) of the ICESCR of a States’ obligation to promote the
right of association of minorities, is an element of major importance for “the proper
functioning of democracy,”134 since “[t]he way in which national legislation enshrines
this freedom and its practical application by the authorities reveal the state of democracy in the country concerned.”135
C. Measures Encouraging Culturally Appropriate Education
Education is another important aspect of protection for minorities upon which the
Committee lays particular weight. The right to education, particularly in one’s
mother tongue, is considered a crucial right for minorities since it constitutes the
foundation for the preservation of their identity.136 As in a previous Comment on the
matter, the Committee stresses that education must be culturally appropriate,137 so as
to enable children to develop their personality and their cultural identity and to learn
and understand cultural values and practices of the communities to which they
belong, as well as those of other communities and societies.138
Additionally, the Committee notes in General Comment No. 21 that the educational programmes of States Parties should respect the cultural specificities of national
or ethnic, linguistic and religious minorities and incorporate in those programmes
their history, knowledge and technologies, as well as their social, economic and
cultural values and aspirations. They must also adopt measures and spare no effort to
ensure that educational programmes for minorities are conducted on or in their own
134
See Gaetano Pentassuglia, Evolving Protection of Minority Groups: Global Challenges and the
Role of International Jurisprudence, International Community Law Review 11 (2009), 185, 201.
135
ECtHR, Case of Sidiropoulos and Others v. Greece, Judgment of 10 July 1998, RJD 1998-IV, 19,
para. 40. See Eleni Kalampakou, The Right to Freedom of Association under the Principle of Cultural
Pluralism – Comment on the ECHR’s Decision Tourkiki Enosi Xanthis v. Greece, Revue Hellénique des
Droits de l’ Homme 43 (2009), 849 (in Greek).
136
Hurst Hannum, Contemporary Developments in the International Protection of the Rights of
Minorities, Notre Dame Law Review 66 (1991), 1431, 1441.
137
See CESCR, General Comment No 13: The Right to Education (Art. 13), 8 December 1999,
UN Doc. E/C.12/1999/10 (1999), para. 50.
138
UN Doc. E/C.12/GC/21 (note 22), para. 26.
370 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
language, taking into consideration the wishes expressed by communities and in the
international human rights standards in this area. Educational programmes should also
transmit the necessary knowledge to enable everyone to participate fully and on an
equal footing in their own and in the national community.139
D. Free, Prior, and Informed Consent (FPIC) and Minorities
Another innovative element in the CESCR’s approach is the advancement of
minority participatory rights in the context of the core State obligations to fulfil
Article 15 (1)(a) of the ICESCR. According to the CECSR, the core obligations of the
States Parties aim to ensure the satisfaction of, at the very least, the minimum essential levels of the rights recognized in the ICESCR.140 Specifically then as regards the
realisation of the core obligations of Article 15 (1)(a) of the ICESCR, the Committee
inter alia asks governments:
[t]o 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 affect them. In particular, States [P]arties should obtain their free and informed
prior consent when the preservation of their cultural resources, especially those associated with
their way of life and cultural expression, are at risk [emphasis added].141
A new element then, in the Committee’s approach is the introduction of a fundamental obligation for States to gain inter alia the free, prior, informed consent of the
members of a minority (and not of the minority per se) when the preservation of their
cultural resources, particularly those associated with their way of life and cultural
expression, is threatened.142 This is an advancement of the right of effective participation – although in the form of a State obligation – of minority members as enshrined
139
Ibid., para. 27. See also Irene J. Taafaki, Cultural Rights: A Curriculum and Pedagogy for Praxis,
in: Margaret Wilson/Paul Hunt (eds.), Culture, Rights, and Cultural Rights – Perspectives from the
South Pacific (2000), 103, 108.
140
See CESCR, General Comment No. 3: The Nature of States Parties Obligations (Art. 2, para. 1),
UN Doc. E/1991/23 (1990), para. 10.
141
142
UN Doc. E/C.12/GC/21 (note 22), para. 55 (e).
See Amanda Barratt/Ashimizo Afadameh-Adeyemi, Indigenous Peoples and the Right to Culture:
The Potential Significance for African Indigenous Communities of the Committee on Economic, Social
and Cultural Rights’ General Comment 21, African Human Rights Law Journal 11 (2011), 560, 585.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
371
in the relevant international and regional minority norms.143 The CESCR’s approach
is also in line with the most recent jurisprudence of the HRC, which in Ángela Poma
Poma v. Peru adopted the view that
the admissibility of measures which substantially [emphasis added] compromise or interfere with the culturally significant [emphasis added] economic activities of a minority or
indigenous community depends on whether the members of the community in question
have had the opportunity to participate in the decision-making process in relation to these
measures and whether they will continue to benefit from their traditional economy. The
Committee considers that participation in the decision-making process must be effective,
which requires not mere consultation but the free, prior and informed consent [emphasis
added] of the members of the community.144
The CESCR’s approach seems also to have a rather limited field of application
(only when cultural resources are seriously endangered).145 Furthermore, it is not clear
who is competent to decide when such a threat to minority cultures exists.146
Notwithstanding these observations, this is a major evolution of minority participatory rights since a right to FPIC has been accorded so far to indigenous peoples
alone. The UN Declaration on the Rights of Indigenous Peoples147 for example calls
for the FPIC of indigenous peoples in: Article 10 in the case of relocation of indigenous communities, Article 19 when a State is adopting legislative or administrative
measures that affect indigenous peoples, Article 29 (2) regarding the disposal of
hazardous waste within their territories, and Article 32 (2) regarding the approval of
143
Para. 35 of the Copenhagen Document (note119); Article 2 (3) of the UN Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (note128); and
Article 15 of the Framework Convention for the Protection of National Minorities, 1 February 1995,
ILM 34 (1995), 351.
144
HRC, Ángela Poma Poma v. Peru, Communication 1457/2006, 27 March 2009, UN Doc.
CCPR/C/95/D/1457/2006 (2009), para. 7.6. For a critical assessment of the decision, see Katja Göcke,
The Case of Ángela Poma Poma v. Peru before the Human Rights Committee – The Concept of Free,
Prior and Informed Consent and the Application of the Covenant on Civil and Political Rights to the
Protection and Promotion of Indigenous Peoples’ Rights, Max Planck Yearbook of United Nations Law
14 (2010), 337.
145
This interpretation at least has been given to the analogous HRC’s view in Angela Poma Poma v.
Peru Case by eminent scholars. See Gaetano Pentassuglia, Towards a Jurisprudential Articulation of
Indigenous Land Rights, EJIL 22 (2011), 165, 183–184.
146
Elsa Stamatopoulou, Monitoring Cultural Rights: The Claims of Culture on Human Rights and
the Response of Cultural Rights, HRQ 34 (2012), 1170, 1185.
147
United Nations Declaration on the Rights of Indigenous Peoples, (2007), UN Doc. A/RES/61/
295, 13 September 2007.
372 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
any project affecting their lands or territories.148 In an analogous line the Inter-American Court of Human Rights has judged that in the case of large-scale developments or
investment projects that could have a major impact within indigenous peoples’
territories, the State has the duty not only to consult with them, but also to obtain
their free, prior, and informed consent.149
1. ‘Minorities’ and ‘Indigenous Peoples’
Since a right to FPIC has been accorded so far to indigenous peoples alone it would
be useful to examine the similarities and differences between them and the minority
groups in order to get a clear picture of the new ground that General Comment
No. 21 breaks on the issue for the latter. It should be noted that while there is no generally agreed definition of the notions of ‘minority’150 and ‘indigenous peoples’151 in
international law, and that while the two concepts do not coincide, they may
overlap.152 This is reflected in Daes’ observation that “no definition or list of characteristics can eliminate overlaps between the concept of minority and indigenous peoples.
Cases will continue to arise that defy any simple, clear-cut attempt at classification.”153
Specifically, it seems that a number of connections and commonalities exist between
these two group categories, such as their numerical inferiority (in fact, most indige-
148
Tara Ward, The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation
Rights within International Law, Northwestern Journal of International Human Rights 10 (2011), 54,
58.
149
Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Judgement of
28 November 2007, Series C, No. 172, para. 134.
150
See Human Rights and Indigenous People, Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations, Final Report by Miguel Alfonso Martinez,
Special Rapporteur, 22 June 1999, UN Doc. E/CN.4/Sub.2/1999/20 (1999), para. 70.
151
See Department of Economic and Social Affairs, Workshop on Data Collection and Disaggregation for Indigenous Peoples, UN Doc. PFII/2004/WS.1/3 (2004), para. 1.
152
Alessandro Fodella, International Law and the Diversity of Indigenous Peoples, Vermont Law
Review 30 (2006) 570, 572.
153
See Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, Paper by Erica-Irene A. Daes, 19 July 2000, UN
Doc. E/CN.4/Sub.2/2000/10 (2000), para. 41.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
373
nous peoples may qualify as minorities but not all minorities are indigenous),154 their
non dominant position in the societies in which they live, and their cultural distinctiveness from the majority or the dominant groups.155 At the same time it is possible
to identify at least two factors, as Eide and Daes note, which have never been associated
with the concept of ‘minorities’ and which are normally held to distinguish indigenous
peoples from them: (i) indigenous prior settlement in a specific territory,156 and (ii)
their special spiritual and material attachment to their ancestral lands and its natural
resources,157 the maintenance of which is a necessary precondition for their cultural
and physical integrity.158 Indeed this unique, special relationship of indigenous peoples
with their traditional lands, in conjunction with their collective social structures, has
led to the adoption of a distinct legal regime for the protection of their rights. Thus,
while the minority instruments contain no land rights, these are core elements in the
International Labour Organization (ILO) Convention No. 169 (Articles 13 to 19),159
and in the UN Declaration on the Rights of Indigenous Peoples (Articles 25 to 30).160
Furthermore, the types of rights ascribed to indigenous peoples and minorities in
international law differ considerably, since indigenous rights are mostly, but not
exclusively, collective rights, whereas minority rights are formulated, as has been
154
Borhan Uddin Khan/Muhammad Mahbubur Rahman, Protection of Minorities: Regimes,
Norms and Issues in South Asia (2012), 16.
155
Ibid.; see also Minority Rights: International Standards and Guidance for Implementation, HR/
PUB/10/3 (2010), 4, available at: http://www.ohchr.org/Documents/Publications/MinorityRights_
en.pdf (accessed on 17 October 2012).
156
See Working Paper by the Chairperson – Rapporteur, Mrs. Erica-Irene A. Daes, on the Concept
of ‘Indigenous Peoples’, 10 June 1996, UN Doc. E/CN.4/Sub.2/AC.4/1996/2 (1996), para. 60.
157
See Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples, Paper by Asbjørn Eide, 19 July 2000, UN Doc. E/
CN.4/Sub.2/2000/10 (2000), para. 24.
158
See Amelia Cook/Jeremy Sarkin, Who is Indigenous? Indigenous Rights Globally, in Africa, and
Among the San in Botswana, Tulane Journal of International and Comparative Law 18 (2009), 93, 107.
159
Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO
Convention169)’, ILM 28 (1989), 1382. See Athanasios Yupsanis, ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989–2009: An Overview, Nordic
Journal of International Law 79 (2010), 433, 441–443.
160
Indigenous Peoples in Africa: The Forgotten Peoples? The African Commission’s Work on
Indigenous Peoples in Africa, ACHPR & IWGIA (2006), 13, available at: http://www.achpr.org/files/
special-mechanisms/indigenous-populations/achpr_wgip_report_summary_version_eng.pdf (accessed
on 17 October 2012).
374 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
analysed, as rights of persons and are therefore individual rights, even if in most cases
they can only be enjoyed in community with others.161
2. Concluding Thoughts on the Issue of the FPIC
Minority participatory rights enshrined in the relevant instruments (para. 35 of
the Copenhagen Document, Article 2 (3) of the UN Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and
Article 15 of the FCNM) do not explicitly refer to a right to FPIC, whereas such a
right is solidly affirmed in the case of indigenous peoples where their cultural survival
is at risk. As the International Law Association (ILA) has stressed,
although States are not obliged to obtain the consent of indigenous peoples before engaging in whatever kind of activities which may affect them – this obligation exists any time
that the lack of such a consent would translate into a violation of the rights of indigenous
peoples that States are bound to guarantee and respect […]. When the essence of their
cultural integrity is at significant risk, obtaining the free, prior and informed consent of the
indigenous peoples concerned becomes mandatory.162
In this context General Comment No. 21 breaks new ground, not only because it
recognises the minorities per se as bearers of a collective right to preserve their own
cultural life but also because it introduces inter alia into the normative scope of
Article 15 (1)(a) of the ICESCR a core State obligation to obtain the FPIC of minority members when the preservation of their cultural resources is at risk, thus taking
minority protection beyond the lines that the existing minority instruments explicitly
entail.
161
Report of the African Commission’s Working Group of Experts on Indigenous Populations/
Communities, ACHPR & IWGIA (2005), 97, available at: http://pro169.org/res/materials/en/
identification/ACHPR%20Report%20on%20indigenous%20populations-communities.pdf (accessed
on 17 October 2012).
162
International Law Association, Rights of Indigenous Peoples, Sofia Conference (2012), 7, available
at: http://www.ila-hq.org/en/committees/draft-committee-reports-sofia-2012.cfm (accessed on 17 October 2012).
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
375
V. General Statements of Particular Importance
to Minority Cultural Identities in General Comment No. 21
Besides the explicit references to minorities and their members, the General
Comment also encompasses many statements of a more general nature which are of
crucial importance to minority interests. Thus, in interpreting the notion of ‘participation’ or ‘to take part’ in cultural life the Committee stresses that it:
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.163
A. The Right to Self-Identification
The Committee lays emphasis, which is also evident in the repeated references to
it in its Comment,164 on the right to freely choose the identity that constitutes the
essential component of self-identification, which has been described as the ‘quintessence’ of minority protection.165 The right of self-identification as a right of belonging
was explicitly recognised for the first time in the Copenhagen Document of the
CSCE. Concretely, paragraph 32 of that document states that “[t]o belong to a
national minority is a matter of a person’s individual choice and no disadvantage may
arise from the exercise of such choice.”166 On the level of legally binding instruments,
Article 3 (1) of the FCNM provides that “[e]very person belonging to a national
minority shall have the right freely to choose to be treated or not to be treated as such
and no disadvantage shall result from this choice or from the exercise of the rights
which are connected to that choice.”167 Indeed, according to one liberal approach this
163
UN Doc. E/C.12/GC/21 (note 22), para. 15 (a); Pineschi (note 13), 36.
164
UN Doc. E/C.12/GC/21 (note 22), paras. 22, 49 (a), 55 (b).
165
Maria Vondikaki Telalian, The Human Dimension of CSCE, in: Stelios E. Perrakis (ed.), Les
Droits des Peoples et des Minorités : Une Problématique en Mutation (1993), 243, 252 (in Greek).
166
See Alexis Heraclides, The CSCE and Minorities: The Negotiations Between the Commitments,
1972–1992, Helsinki Monitor 3 (1992), 5, 10.
167
See Heinrich Klebes, The Council of Europe’s Framework Convention for the Protection of
National Minorities: Introduction, HRLJ 16 (1995), 92, 95.
376 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
personal individual choice should not only not entail negative consequences but it
also “[…] cannot be challenged by the [S]tate.”168
B. Recognition of Diverse Cultural Identities
The Committee, in close connection with the right to choose identity, calls on States
“to recognize the existence of diverse cultural identities of individuals and communities
on their territories”169 as a first and important step towards the elimination of discrimination, whether direct or indirect. This call to the States Parties to recognise the diverse
cultural identities of individuals and communities within their territories can be
interpreted as an indirect or even direct, depending on one’s point of view and reading
of the text – instigation to recognise the minorities living within their borders.
Heretofore, the view had been put forward, both within the framework of the Geneva
Report of the CSCE Meeting of Experts on National Minorities170 and in the explanatory memorandum of the FCNM,171 that the existence of ethnic, cultural, linguistic
or religious differences within a State does not necessarily indicate the existence of
national minorities and by extension, it could be argued, of linguistic, religious, cultural
or ethnic minorities. This opinion, which is supported by States like France and
Greece,172 is well-founded from the legal point, to the extent that the potential
beneficiaries of minority status do not want to make a claim for the official recognition
of their cultural differences and indeed for their protection via ‘special’ minority rights
168
See Maria Telalian, International Instruments for the Protection of Minorities – Current Developments, in: P. Grigoriou/A. Heraclides/P. Kazakos/C. Rozakis/M. Telalian, (eds.), Minority Issues in
Europe, Working Paper Νo. 17, ΕΚΕΜ (1992), 32, 43 (in Greek).
169
UN Doc. E/C.12/GC/21 (note 22), para. 23.
170
See Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991, ILM
30 (1991), 1693, 1696, noting that “[…] not all ethnic, cultural, linguistic or religious differences lead to
the creation of national minorities”.
171
“This provision [Art. 5] does not imply that all ethnic, cultural, linguistic or religious differences
necessarily lead to the creation of minorities […].” See Explanatory Memorandum (note 95), 104,
para. 43. See also Silvo Devetak, The Development of the Protection of Minorities in Europe with
Special Reference to Slovenia, Journal of International Relations 3 (1996), 102, 106–107.
172
See for example the official position of Greece arguing that “[e]thnic, cultural, linguistic or
religious differences alone did not necessarily make a group a national or ethnic minority.” See Committee on the Elimination of Racial Discrimination, Consideration of Reports, Comments, and Information
Submitted by States Parties under Article 9 of the Convention: Sixteenth to Nineteenth Reports of
Greece, UN Doc. CERD/C/SR.1944 (2009), para. 11.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
377
(“the minority is the claim”).173 However, to the degree that there is a claim for official
recognition of and protection for the group identity, the validity of the view that the
existence of cultural differences does not imply the existence of minorities can be
challenged. On the one hand by the argument that “insofar as persons sharing mutual
solidarity and ties of national, cultural, linguistic and religious identity are not allowed
to consider themselves as belonging to a minority, this would appear to be opposed to
the Copenhagen Document and Article 3 (1) of the FCNM,”174 and on the other by
the fact that it is susceptible of abusive invocation, as a pretext for States to refuse
recognition of minority status to individuals possessing the aforementioned ties.175 The
question is particularly important, since a number of States refuse to recognise minorities within their borders,176 at best delimiting themselves (for example Turkey, Greece
and Bulgaria), with a formalistic-legalistic approach: therefore only accepting the
existence exclusively of the minorities that they have recognised in bi or multilateral
agreements.177 In theory, almost all international law scholars agree that the existence
of a minority is a matter of fact, not of law, and consequently does not depend on its
recognition or otherwise by the State within which the minority group lives,178 an
opinion based on the ruling of the Permanent Court of International Justice in the case
173
See Dimitris Christopoulos, Human Rights and Minority Discourse in Greece, Contemporary
Issues 63 (1997), 39, 40–42 (in Greek).
174
Stelios Perrakis, Considerations of the Modern Legal Regime for Minorities in the Light of the
Framework Convention for the Protection of National Minorities: The Evolution of the Legal Framework, in: Αntonis Bredimas/Linos-Αlexandros Sicilianos (eds.), The Protection of Minorities: The
Framework Convention of the Council of Europe (1997), 57, 64 (in Greek).
175
See Geoff Gilbert, The Council of Europe and Minority Rights, HRQ 18 (1996), 160, 177;
Stephen J. Roth, Comments on the CSCE Meeting of Experts on National Minorities and its Concluding Document, HRLJ 12 (1991), 330, 331.
176
See Dieter Kugelmann, The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity, Max Planck Yearbook of United Nations Law 11 (2007), 233, 246, referring to the
‘textbook’ examples of France and Turkey.
177
See for the official Turkish position, Note Verbale Dated 19 March 2008 from the Permanent
Mission of Turkey Addressed to the Secretariat of the Human Rights Council, Annex, Turkey’s Statement on the Mandate of the Independent Expert on Minority Issues, 18 March 2008, UN Doc. A/
HRC/7/G/14 (2008). For the similar positions of Bulgaria and Greece, see Marilena Koppa, Minorities
in the Post-Communist Balkans: Governmental Policies and Minorities’ Responses (1997), 32 (in
Greek).
178
See for example Patrick Thornberry, International European Standards on Minority Rights, in:
Hugh Miall (ed.), Minority Rights in Europe: The Scope for a Transnational Regime (1994), 14, 15;
Geoff Gilbert, Religious Minorities and their Rights: A Problem of Approach, IJMGR 5 (1997), 97,
101–102; Francesco Capotorti, Minorities, EPIL 8 (1985), 385, 389.
378 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
of the Greco-Bulgarian communities,179 and on the more recent analogous position of
the HRC.180 However, as Anghie observes, “unrecognized as an entity, a minority has
neither the protection nor the doctrinal foundation from which to negotiate political
settlements with the [S]tate(s) to which it belongs.”181 In any case, from the moment
that there exists neither an official, universally accepted definition of minority in
international law182 nor a requisite minimum number of members for a minority to be
established and recognised as such,183 States are free in practice to recognise or not the
existence of a minority.184 Nonetheless, States “under international law have the
obligation to act in ‘good faith’, which means that it cannot behave arbitrarily in this
matter when there concur objective elements demonstrating the existence of a national
minority on their territory.”185 It is noted that the Committee, for its part, addresses
the policy of States such as France and Greece, which do not recognise the existence
of minorities within their territory (except for the one officially labelled as Muslim in
179
“The existence of communities is a question of fact; it is not a question of law.” See Permanent
Court of International Justice, Greco-Bulgarian Communities, Advisory Opinion of 31 July 1930, Series
B No. 17, 22. See Anna Meijknecht, Towards International Personality: The Position of Minorities and
Indigenous Peoples in International Law (2001), 66.
180
“The existence of an ethnic, religious or linguistic minority in a given State party does not depend
upon a decision by that State party but requires to be established by objective criteria.” See UN Doc.
CCPR/C/21/Rev.1/Add.5 (note 51), para. 5.2. See Bertram G. Ramcharan, The Protection of Minorities in Africa, in: Gudmundur Alfredsson/Maria Stavropoulou (eds.), Justice Pending: Indigenous
Peoples and Other Good Causes – Essays in Honour of Erica – Irene A. Daes (2002), 99, 105.
181
Antony Anghie, Human Rights and Cultural Identity: New Hope for Ethnic Peace?, Harvard
International Law Journal 33 (1992), 341, 346.
182
On the question of the definition of the concept, see Vassilios Grammaticas, The Definition of
Minorities in International Law: A Problem Still Looking for a Solution, Revue Hellénique de Droit
International 52 (1999), 321.
183
Illustrative in this context are the spectacularly divergent state views, that the UN Special
Rapporteur F. Capotorti recorded in his Study on the Rights of Persons Belonging to Ethnic, Religious
and Linguistic Minorities, regarding the minimum numerical size necessary for a group to constitute a
minority population, which range from Sweden’s view that at least 100 persons are needed to Greece’s
opinion that a sizable group is required. See Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, UN Publications Sales No. E.78.XIV.1 (1979), 9, para. 38 (Sweden), para. 41 (Greece).
184
See Marianne van den Bosch/Willem van Genugten, International Legal Protection of Migrant
Workers, National Minorities and Indigenous Peoples – Comparing Underlying Concepts, IJMGR 9
(2002) 195, 198 noting that “[t]he approach taken by the Council of Europe leads to the situation that
each Party to the [Framework] Convention can decide to what minorities the Convention is applicable”.
185
Antonis Bredimas, The Problems in the Relations between Greece and FYROM under International Law: The Name, the National Identity and the Minority in Greece, in: Stelios Perrakis (ed.),
Glances to the Contemporary Landscape of the Western Balkans (2009), 23, 42 (in Greek).
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379
conformity with the Treaty of Lausanne in the case of Greece) in the diplomatic
language of the United Nations, asking governments to reconsider their position.186
VI. Locating the General Comment(s) in the
Over-all Scheme of International Normativity
In order to estimate the real impact that General Comment No. 21 may have in
State practice, it is necessary to clarify its legal status. This is not an easy task since the
location of the General Comments within the international normative scheme is far
from clear. Indeed, as the ILA stresses:
None of the human rights treaties explicitly confers on the relevant treaty bodies the power
to adopt binding interpretations of the treaties, and the practice of at least some States
suggest that this power has not been conferred implicitly, as part of the implied power that
a body established by treaty is considered to possess in order to carry out the functions
conferred on it by the States [P]arties.187
The view, however, that seems to have gained much currency in the international
legal academia is that the General Comments “have authoritative status under international law,” as the High Court of South Africa for example has held.188 This is also
186
“The Committee urges the State Party to reconsider its position with regard to the recognition
of other ethnic, religious or linguistic minorities which may exist within its territory in accordance with
recognized international standards […],” see CESCR, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Greece, 7 June 2004, UN Doc. E/C.12/1/Add.97 (2004), para. 31.
“Although the State party, in its third periodic report to the Human Right Committee (CCPR/C/76/
Add.7, para. 94), has declared that “France is a country in which there are no [ethnic, religious or
linguistic] minorities,” it is obvious that France is characterized by great ethnic and cultural richness,”see
List of Issues to be Taken up in Connection with the Consideration of the Second Periodic Report of
France Concerning the Rights Covered by Articles 1 to 15 of the International Covenant on Economic,
Social and Cultural Rights, 18 May 2001, UN Doc. E/C.12/Q/FRA/1 (2001), para. 28. “The Committee
therefore recommends that the State party considers reviewing its position with regard to the recognition
of minorities under the Constitution and recognize officially the need to protect the cultural diversity
of all minority groups under the jurisdiction of the State Party, in accordance with the provisions of Article 15.” See CESCR, Concluding Observations of the Committee on Economic, Social and Cultural
Rights: France, 9 June 2008, UN Doc. E/C.12/FRA/CO/3 (2008), para. 50.
187
International Law Association, International Human Rights Law and Practice, Berlin Conference (2004), 5, para. 18, available at: http://www.ila-hq.org/en/committees/index.cfm/cid/20 (accessed
on 17 October 2012).
188
The High Court of South Africa (Witwatersrand Local Division), Residents of Bon Mansions v.
Southern Metropolitan Local Council, Case No. 01/12312, 2001, para. 17, available at: http://graduate
institute.ch/faculty/clapham/hrdoc/docs/SA-Bon_Vista_Mansions_Judgment.doc (accessed on
17 October 2012).
380 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
implied by the jurisdiction of regional juridical and semi-juridical organs, like that of
the ECtHR, which has treated General Comments as authoritative statements of law,
giving them equal weight to its own precedent,189 and of the African Commission of
Human and Peoples’ Rights, which is also enjoined by General Comments.190 The
problem of this approach is that the precise meaning of ‘authoritative interpretation’
remains unclear. Furthermore, “there is no central legislative body, nor central judicial organ properly authorized to make definitive interpretations or arbitrate [S]tates’
obligations.”191 These observations notwithstanding, it could be argued that the UN
human rights treaty bodies are ‘interpretive communities’192 possessing ‘interpretive
authority’. This authority cannot be understood within a strictly rules-based construct but must be viewed as part of a wider ‘transnational legal process’:
[t]his idea describes the practice of how public and private actors, nation [S]tates, international organizations, multinational enterprises, non-governmental organizations, multinational enterprises, non-governmental organizations, and individuals in domestic and
international fora make, interpret, enforce and ultimately internalise rules of international
law. It is essentially a process of interaction, whereby new rules of law emerge, which are
interpreted, internalised and enforced. Viewed in this way, interpretation and meaning in
international law is constructed collectively over-time, through a process of discourse and
persuasion.193
189
See ECtHR, Makaratzis v. Greece, Application No. 50385/99, 20 December 2004, paras. 29, 58,
available at: http://www.unhcr.org/refworld/country,,ECHR,,GRC,,4ca45e60c693,0.html (accessed
on 17 October 2012); ECtHR, Öcalan v. Turkey, Application No. 46221/99, 12 March 2003, para. 61,
available at: http://www.unhcr.org/refworld/country,,ECHR,,TUR,,3e71a9d84,0.html (accessed on
17 October 2012).
190
See African Commission on Human and Peoples’ Rights, Civil Liberties Organisation, Legal
Defense Centre, Legal Defense and Assistance Project v. Nigeria, Communication No. 218/98, (2001),
para. 24, available at: http://www.worldcourts.com/achpr/eng/decisions/2001.05_Civil_Liberties_
Organization_v_Nigeria.htm (accessed on 17 October 2012).
191
Conway Blake, Normative Instruments in International Human Rights Law: Locating the General Comment, Center for Human Rights and Global Justice, Working Paper Number 17, 2008, 31,
available at: http://www.chrgj.org/publications/docs/wp/blake.pdf (accessed on 17 October 2012).
192
The notion of a ‘community of interpreters’, is one that has been borrowed from literary studies,
and applied by lawyers to make sense of the problems of authority and interpretation in the legal sphere.
In this sense, it has been used to describe the operation of a professional legal community in the process
of interpreting the law.” See ibid., 34–35.
193
Ibid., 37.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
381
In this context, while it is commonly acknowledged that the General Comments
are not legally binding,194 it is argued that
the ICESCR Committee’s General Comments are not without legal significance. Some of
them, at least, may be considered to be interpretations of the ICESCR. Such interpretations would seem to carry considerable weight,195 given the role of the ICESCR Committee
as the supervisory organ of the ICESCR, although they are probably less authoritative than
an interpretation by an international court. Some General Comments seem to go beyond
interpretation and appear to be quasi-legislative in nature.196
For example, General Comment No. 15 (2002)197 spells out a right to water, a
right which is not explicitly referred to in the ICESCR. In this line, the role of the
General Comments in the articulation and implementation of human rights norms
is undeniable, albeit not wholly uncontested.198
VII. General Conclusions
Responding to urgings that it adopt a General Comment that would clarify the
normative field of Article 15 (1)(a) of the ICESCR,199 the Committee has with this
Comment given solid substance to the right of participation in cultural life, dragging
it out of the peculiar obscurity in which it was languishing and making it of equal value
and importance with the other rights enshrined in the Covenant. The interpretation
given to the provision is unquestionably of major importance for the protection of
194
See Helen Keller/Leena Grover, General Comments of the Human Rights Committee and Their
Legitimacy, in: Helen Keller/Geir Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (2012), 116, 129.
195
See Matthew C. R. Craven, The International Covenant on Economic, Social and Cultural
Rights – A Perspective on its Development (1995), 91.
196
Urfan Khaliq/Robin Churchill, The Protection of Economic and Social Rights: A Particular
Challenge?, in: Helen Keller/Geir Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (2012), 199, 205–206.
197
See CESCR, General Comment No. 15 (2002), The Right to Water (Arts. 11 and 12 of the
International Covenant on Economic, Social and Cultural Rights), 20 January 2003, UN Doc. E/C.12/
2002/11 (2003).
198
199
Blake (note 191), 23.
See Submission of the International Commission of Jurists for the Day of Discussion on the
Right to Participate in Cultural Rights Convened by the Committee on Economic, Social and Cultural
Rights – Background Paper Submitted by the International Commission of Jurists, 9 May 2008, UN
Doc. E/C.12/40/7 (2008), 3, para. 4.
382 GERMAN YEARBOOK OF INTERNATIONAL LAW 55 @ 2012
minorities, since it formally recognises the right both of minorities as collectivities and
of their individual members to their own cultural life, dissenting totally from the
conjectured initial intentions of the drafters of the provision and also from later
readings that, given the absence of any explicit reference to minorities, interpreted this
norm as entrenching a right of participation exclusively in the national cultural life of
the States and not in separate minority cultures, thus promoting the idea of monoethnic societies.200 In this framework, and in conjunction with the broad conception
of the meaning of culture adopted by the Committee, which diverges from the original
narrow, materialistic conception of the term in the form of ‘the high arts’, the inclusion in the provision’s field of protection of a series of broadly conceived cultural rights
that are crucial for the protection of minorities’ identity is particularly important.
Essentially, the Committee incorporates into its Comment important elements of
existing minority law and also builds on it, extending it radically at certain points, such
as those concerning the recognition of collective rights. In this context its Comment
is more advanced than even the corresponding General Comment No. 23 of the HRC
on Article 27 of the ICCPR. Of course, one cannot overlook that the distance between the positions adopted by international treaty bodies monitoring the implementation of international human rights conventions on the interpretation of their
provisions and the reality of State practice is often substantial.201 However, as regards
the distance separating the practice of most States from positions such as the recognition of collective rights in General Comment No. 21, one must remember that the
HRC’s reference, in its General Comment No. 23 on Article 27, to the need to take
positive measures for the implementation of the rights therein enshrined was considered far ahead of its time and in the best case acceptable with reservations by certain
States, while today, in legal theory at least, one rarely encounters positions that call
into question the need for positive measures aimed at achieving real equality between
majority and minority.202
200
See Athanasios Yupsanis, The Concept and Categories of Cultural Rights in International Law –
Their Broad Sense and the Relevant Clauses of the International Human Rights Treaties, Syracuse
Journal of International Law and Commerce 37 (2010), 207, 255–256.
201
See Timo Koivurova, From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to
(re)Gain Their Right to Self-Determination, IJMGR 15 (2008), 1, 26.
202
See Sicilianos (note 93), 116, 119, 128.
THE MEANING OF ‘CULTURE’ IN ARTICLE 15 (1)(A) OF THE ICESCR
383
Furthermore, the probable significant contribution that General Comment
No. 21 may make in the area of effective protection of minorities is in correlation
with two other recent key developments in the framework of the ICESCR, namely:
(i) the adoption of the Optional Protocol to the Covenant;203 which allows individuals and groups of individuals to submit a communication to the Committee
alleging infringements of its provisions, and consequently of the provision under
consideration, which – be it noted – was unsuccessfully proposed, during the
preparatory works of the Protocol, to be excluded from the range of rights that the
communication procedure would cover,204 and
(ii) the establishment of the ‘Independent Expert in the field of Cultural Rights’;
whose mission includes inter alia collaboration with governments with a view to
promoting the adoption of measures at local, national, regional and international
level for the protection of cultural rights.205
These developments can substantially improve the protection provided, fostering
a more positive attitude towards the cultural rights of minorities within the territories
of States Parties.206 Therefore, it would not perhaps be foolhardy to hazard a prediction that in a not too distant future the provision enshrined in Article 15 (1)(a) of the
ICESCR could, in relation to protection of minorities, be equivalent in symbolic and
practical value to that of Article 27 of the ICCPR, serving “as an important antidote
to the tendency to homogenize and iron out differences and diversity.”207
203
See Art. 2 of the Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights, 5 March, 2009, UN Doc. A/RES/63/117 (2009), Annex.
204
See CESCR, Report on the Fourteenth and Fifteenth Sessions (30 April–17 May 1996,
18 November–6 December 1996), Economic and Social Council, Official Records, Supplement No. 2,
UN Doc. E/1997/22 E/C.12/1996/6 (1997), 99–101, paras. 24–28.
205
See Independent Expert in the Field of Cultural Rights, 26 March 2009, UN Doc. A/HRC/
RES/10/23 (2009), para. 9 (c).
206
See Marina Hadjioannou, The International Human Right to Culture: Reclamation of the
Cultural Identities of Indigenous Peoples under International Law, Chapman Law Review 8 (2005),
201, 212.
207
See CESCR, Report of the Eighteenth and Nineteenth Sessions, (27 April–15 May 1998,
16 November–4 December 1998), Economic and Social Council, Official Records, Supplement No. 2,
UN Doc. E/1999/22-E/C.12/1998/26 (1999), para. 483.