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Copyright (c) 2010 Syracuse Journal of International Law and Commerce
Syracuse Journal of International Law and Commerce
Spring, 2010
37 Syracuse J. Int'l L. & Com. 207
LENGTH: 25456 words
ARTICLE: THE CONCEPT AND CATEGORIES OF CULTURAL RIGHTS IN INTERNATIONAL LAW THEIR BROAD SENSE AND THE RELEVANT CLAUSES OF THE INTERNATIONAL HUMAN RIGHTS
TREATIES
NAME: Athanasios Yupsanis*
BIO: * LL.M., Ph.D. in International Law (Aristotle University); Member of the Hellenic League for Human
Rights; Member of the Hellenic Society of International Law and International Relations.
LEXISNEXIS SUMMARY:
... More particularly, in addition to the cultural rights in the narrow sense, international law scholars also
consider a number of other rights as directly related to them (rights "of a cultural character') or even as
cultural per se, within the context not only of the interdependence of human rights, as emphasised in the
Vienna Declaration of the World Conference on Human Rights (I para. 5), but also in the broader conceptual
interpretation of culture, as adopted by UNESCO and analysed above. ... Another particularly significant
provision relating to the cultural rights of groups is included in the Convention on the Elimination of All
Forms of Racial Discrimination, which was adopted by the UN General Assembly on December 21, 1965 and
which provides in article 2 para. 2 that: States Parties shall, when the circumstances so warrant, take, in the
social, economic, cultural and other fields, special and concrete measures to ensure the adequate
development and protection of certain racial groups or individuals belonging to them, for the purpose of
guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. ... "Special'
positive measures, then, as is further stressed by a vast number of scholars and proclaimed in a series of
relevant provisions of international and regional minority instruments (e.g. art. 8 para. 2 of the UN
Declaration on the Rights of Persons Belonging to Minorities, art. 4 para. 3 of the Framework Convention for
the Protection of National Minorities, and art. 7 para. 2 of the European Charter of Regional or Minority
Languages) do not constitute discrimination against the members of the majority but are an indispensable
prerequisite for achieving full equality in fact between the members of vulnerable groups, i.e. of minorities
and indigenous peoples, and those of the larger and politically dominant ethnic community. ... However,
despite these broad interpretations of Article 27 and its positive - up to a point - role in the protection of
indigenous culture, this provision alone cannot constitute a fully effective means of protecting their cultural
rights, due in part to its inherent weaknesses (individualistic orientation, absence of reference to collective
rights to traditional lands and natural resources that comprise the core of indigenous culture ), and, in part, to
the fact that these interpretations have their limits, since the HRC attempts to achieve a balance between the
rights of the indigenous and the development activities and economic interests of the states with the scales
often weighted in favor of the latter. ... More specifically, the wording of Article 2 paragraph 1 of the
Covenant, which asks each state party "to take steps... to the maximum of its available resources with the
view to achieving progressively the full realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of legislative measures", led many scholars and
governments, including that of the USA, to assert, comparing this provision with that of Article 2 of the
ICCPR, which establishes a direct obligation for the states parties to adopt such laws or other measures as
may be necessary to give effect to the rights recognized in the Covenant, that the nature of the commitments
stated in the ICESCR more closely resembles social aims and "noble' expectations than "real' rights.
HIGHLIGHT: "Each culture has a dignity and value which must be respected and preserved." n1
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"All individuals and groups have the right to be different, to consider themselves as different and to be
regarded as such." n2
TEXT:
[*207]
1. Introduction.
According to the International Bill of Human Rights, which consists of the Universal Declaration of Human
Rights (hereinafter UDHR), the International Covenant on Civil and Political Rights (hereinafter ICCPR) and
the International Covenant on Economic, Social and Cultural Rights (hereinafter ICESCR), human rights
are divided into civil, political, economic, social, and cultural. n3 The first four categories have, for decades,
been the object of study and analysis from a variety of approaches and in different combinations. Discussion
of the concept, content, and scope of cultural rights, on the other hand, has only recently come to the fore,
since with the exception of UNESCO n4 and the ICCPR Human Rights Committee n5 (hereinafter [*208]
HRC), international organisations and human rights treaty bodies have paid scant attention to them.
The lesser importance attached to cultural rights is reflected in their place within the structure of the
body of international treaties for the protection of human rights. Article 27 of the UDHR and article 15 of the
ICESCR come at the end of the rights listed in those instruments, like - in Eide's words - a "remnant
category' n6, or as Symonides puts it, the "poor relatives' of the human rights family. n7 Although economic
and social rights have been generally ignored by many countries, n8 this is particularly true for cultural
rights, which have literally been forgotten for decades in both the theory and the practice of states and
international organisations alike. n9 Cultural rights escaped international notice for the whole Cold War
period, as the liberal democracies were focusing upon civil and political rights, and the countries of the
eastern bloc were concentrating upon economic and social rights. n10 Within this context, and to a degree
this is still the case, few countries referred to the state of the implementation of article 15 of the ICESCR on
cultural [*209] rights in their reports to the ICESCR Committee (hereinafter CESCR). n11 Nor have the
competent international human rights treaty bodies behaved any differently: the CESCR, for example,
despite the recent interest it showed in the measures taken for the implementation of article 15 and the
adoption of progressive interpretations of that article's provisions, has in the past discreetly abstained from
dwelling on the matter in its scrutiny of the state reports submitted to it. n12 This same attitude was
characterized by the former UN Commission on Human Rights, which in its discussions on the progress of
the implementation of the economic, social, and cultural rights proclaimed in the Universal Declaration and
the ICESCR focused its attention exclusively on the first two categories and ignored cultural rights. n13
By the early "90s, however, this situation was beginning to change, as the ideas that respect for and
effective protection of inter alia cultural rights in their broad sense are a constituent element of democratic
society, n14 an indispensable precondition for human dignity, and constitute a necessary precondition for
peace and stability at national, regional, and global level n15 began to gain ground. This realization, in [*210]
conjunction with awareness of the several weaknesses of the provisions relating to the cultural rights of
groups of the international treaties on the protection of human rights, led the international community to work
towards achieving more substantial institutional recognition of and safeguards for cultural otherness.
Although there is still much to be done in regards to the implementation of these new norms, it is beyond
dispute that there has been a significant change of route on this issue. It should, meanwhile, be noted that
the point of this endeavor is not to freeze cultural identity or to preserve cultures statically as if they were
museum exhibits, but to provide the members of cultural groups who differ from dominant ethnic majorities
(minorities, indigenous and tribal peoples, etc.) with real possibilities for bringing their own cultural viewpoint
to bear on the shaping of cultural and social developments, preserving in parallel those elements of their
culture that they desire to keep.
2. Conceptions - Interpretations of the Concept of Culture.
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One of the main reasons for the neglect of cultural rights is the difficulty of their definition. n16 Culture,
which is their "matrix', is an extremely fluid and variable concept, therefore one which constitutes, for many,
too vague a foundation for the establishment of specific rights. n17 Defining cultural rights is therefore one
of the first issues confronting scholars who study the question of cultural rights in international law, since
the relevant provisions do not clarify the concepts to which they refer (e.g. "cultural life' in ICESCR article 15
para. 1 (a) or "culture' in ICCPR article 27). n18 The matter was raised early, in one of the first international
meetings of experts on cultural rights held at UNESCO headquarters in 1968, when Boutros Boutros Ghali,
later Secretary General of the UN, pointed out that it is [*211] impossible to define cultural rights without
first understanding and analysing the concept of "culture'. n19 This observation, albeit valid, does nothing to
solve the problem, since precisely the same practical difficulties that impede any attempt to define the
concept of cultural rights are also present, because they stem from it, in any attempt to define the concept
of "culture'. n20 Like its derivatives, the concept of culture has proven to be particularly complex,
multidimensional, and open to a variety of approaches; n21 in 1952, in fact, an anthropological study
recorded a total of 164 definitions of culture proposed by anthropologists. n22
Similar distinctions relating to the interpretation / reading of the concept of culture appear in the
approaches of the few international law scholars who have dealt with cultural rights. Prott and Symonides
make a rough distinction between "Culture' and "culture', that is, between "Culture' (with a capital "C')
conceived in the narrow, conventional, traditional sense of "high arts and belles letters,' the supreme
achievements of the human mind, the musical, philological, literary, artistic, and architectural works that have
inspired humanity and are held to be the greatest of their kind, and (small-"c') "culture' as perceived in a
wider, (for some) traditional, anthropological view, understood as the sum of the material and mental
activities, knowledge, and practices of a specific group. n23 Both commentators, however, make it clear that
the dividing line between these two concepts of culture is hard to establish ("potentially problematical,'
according to Symonides), since, as Prott observes, what is seen as an ordinary, everyday object in [*212]
one period can be regarded as "art' at another, n24 while even within the same period, as Symonides points
out, the same object or activity can be considered as "high art' by some but not by others. n25
Stavenhagen and Eide adopt three ways of approaching the concept of culture, a viewpoint that is also
shared by Stamatopoulou. In the first case culture is perceived as the accumulated material heritage either of
humanity as a whole or of certain human groups. In this light, the right to culture means the right of
individuals to have equal access to this cultural capital. n26 In the second approach, the concept is not
interpreted as a form of capital but as a process of artistic and scientific creativity, wherein certain individuals
create "culture'. In this case the right to culture means on the one hand the right of individuals ("artists') to
create freely and without restriction and on the other the right of all to have access to these creations (e.g. to
museums, concerts, libraries, etc.). n27 According to Stavenhagen, it is within this understanding of culture as
a creative process that the distinction between "high' and "low' culture, between the culture of the elites and
that of the masses, takes place. The third, "anthropological', approach sees culture as the sum of the
material and intellectual activities and products of a certain group that distinguish it from similar groups. In
this light, culture is considered to be a cohesive and highly demarcated system of values and symbols which
is produced by a certain cultural group in time and which provides individuals with the necessary guidelines
and signposts for their behavior and social relations in everyday life. n28
This review of the ways in which the concept of culture is perceived by some eminent scholars on
cultural rights in international law would not be complete without reference to O'Keefe, who discerns [*213]
in the term "culture' three distinct, overlapping, and equally valid meanings: a) culture in the classic sense,
which refers to the traditional conception of art, literature, music, theatre and architecture ("high art'); b)
culture in a more pluralistic interpretation, denoting all the products and manifestations of the impulse for
creation and expression, a definition which is not limited to "high culture' but includes mass phenomena like
commercial television and radio, the popular press, contemporary and folk music, crafts, and organised
sport; and c) culture in an anthropological light, which does not simply imply the products or artifacts of
creativity and expression (as conceived in the previous two definitions) but rather the characteristic forms of
thinking of a society, its way of life, from which the above and all other social activities derive and through
which they flourish. n29
Of these interpretations, the one originally adopted by the drafters both of article 27 of the UDHR and of
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article 15 para. 1 (a) of the ICESCR on the right to take part in cultural life was the narrow perception of
culture as "high art and belles letters,' in the sense that they considered that the guarantee provided by those
provisions focused upon the obligation of the governments to "bring the masses' into contact with the
"masterpieces,' "the treasures of civilization'. n30 This perception is one of the many ways through which the
CESCR today interprets the concept of culture, when asking the states parties to the ICESCR to describe the
measures taken to establish institutional infrastructures aiming at promoting mass participation in culture,
e.g. cultural centres, museums, libraries, theatres, cinemas, and traditional arts. n31
[*214] UNESCO, for its part, distanced itself early from this narrow view of culture and adopted a
broader approach, as for example in the "Recommendation on Participation by the People at Large in
Cultural Life and Their Contribution to It' (1976), which stressed in its Preamble that
"culture is not merely an accumulation of works and knowledge which an elite produces, collects and
conserves in order to place it within the 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 and
the need to communicate." n32 (emphasis added)
The same line is followed in UNESCO's more recent Universal Declaration on Cultural Diversity, which
emphasizes in the fifth paragraph of its preamble 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, value systems, traditions and beliefs." n33
(emphasis added)
UNESCO, in other words, approaches the concept of culture from a rather broader perspective, adopting
an interpretation of it as a distinct way of life - essentially an interpretation that had (according to some)
prevailed until recently in the science of anthropology n34 and is still retained in the social field.This is the
popular perception that every human group is characterised by a unique culture and that cultures are distinct,
clearly bounded and internally homogenous, with a relatively clear set of meanings and values. n35 In this
light it is held as self-evident [*215] that individuals automatically belong to the specific culture of the
specific cultural group from which they spring, and that its given cultural characteristics are inherently
valuable and merit legal recognition and protection as vital goods that are closely connected with personal
self-respect. n36 This theory thus suggests that every individual fits neatly within, e.g., an ethnic n37
community and that each such community is defined by clear-cut and distinct cultural boundaries, which
need to be protected so that individuals can participate in it and enjoy their own culture, n38 or in the words of
article 4 of the Declaration on Cultural Diversity: "The defence of cultural diversity is an ethical imperative,
inseparable from respect for human dignity. It implies a commitment to human rights and fundamental
freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples." n39
(emphasis added) In this view, which UNESCO appears to adopt, culture is considered a unified nexus of
practices and meanings and the right to culture is a thing which an already moulded actor is entitled to have
and to enjoy. n40
Despite the critiques, n41 other UN organisations and human rights [*216] treaty bodies have adopted
UNESCO's conception of "culture'. The International Labour Organisation has stated that it supports a broad
understanding of the concept of "culture' as a way of life in line with the definition used by the UNESCO
Declaration on Cultural Diversity. n42 The HRC has also stated in its General Comment on article 27 of the
Covenant that:
With regard to the exercise of the cultural rights protected under Article 27, the Committee observes that
culture manifests itself in many forms, including a particular way of life 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. n43 (emphasis added)
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Similarly, in its General Recommendation No. 23, the Committee on the Elimination of Racial Discrimination
called upon states parties "to recognise and respect indigenous distinct culture, history, language and way of
life as an enrichment of the State's cultural identity and to promote its preservation." n44 Finally, the CESCR
adopts the same approach in its "Revised Guidelines on the Form and Contents of Reports to be Submitted
by the States Parties' and in its "Concluding Observations' which follow its examination of states reports,
asking governments to protect and promote minority and indigenous culture understood as a way of life
(language, traditions, customs, etc.). n45
[*217] In conclusion, it should be noted that UNESCO's broad interpretation of "culture' as a way of life
and the acceptance of that perception by other UN agencies is of special importance for the concept of
cultural rights. Symonides draws this distinction through the use of dual, narrow, and broad perspectives.
n46
3. The Narrow and Broad Views of Cultural Rights.
Article 22 of the UDHR states that "everyone, as a member of society, has the right ... to realisation, through
national effort and international co-operation and in accordance with the organisation and resources of each
state, of the economic, social and cultural rights indispensable for his dignity and the free development of
his personality." n47 (emphasis added) Within this context, and specifically as regards the issue of cultural
rights, the Universal Declaration further emphasises in article 27 that:
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits. (emphasis added)
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific,
literary or artistic production of which he is the author. n48
The ICESCR next provided a fuller form of the corresponding article in the Universal Declaration on cultural
rights, stating in article 15 that:
[*218]
1. The States Parties to the present Covenant recognise the right of everyone:
a) To take part in cultural life.
b) To enjoy the benefits of scientific progress and its applications.
c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or
artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this
right shall include those necessary for the preservation, the development and the diffusion of science and
culture.
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3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific
research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement
and development of international contacts and co-operation in the scientific and cultural fields. n49
Based upon the conjunction of these two articles and of other similar provisions at regional level, as for
example, article XIII of the American Declaration of the Rights and Duties of Man n50 and article 14 of the
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights, n51 cultural [*219] rights in their narrow sense are taken to include the following
elements: the right to take part in cultural life (which can, however, be seen from a broad perspective too, as
will be analyzed); the right to enjoy the benefits of scientific progress and its applications; the right of
everyone to the benefits emanating from the protection of the moral and material interests deriving from any
scientific, literary, or artistic production of which he/she is the author; and finally, the right to the freedom
indispensable for scientific research and creative activity. n52
Specifically regarding the right to take part in cultural life, it is worth mentioning that article 13(c) of the
Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) requires state parties
to take all appropriate measures to eliminate discrimination against women in the fields of economic and
social life to ensure, based on the equality of the sexes, the same rights, and in particular women's rights, to
participate in recreational activities, sports, and all aspects of cultural life. n53 A similar provision for the right
of children to participate in cultural and artistic life is enshrined in article 31 para. 2 of the Convention on the
Rights of the Child (CRC). n54
Another important dimension, and at the same time one offering a different perspective of cultural
rights, is that of the protection and preservation of the cultural identity of minority groups within nation states,
n55 as specified in article 27 of the ICCPR, which provides that:
In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities
shall not be denied the right, in community with the other members of their group, to enjoy their culture, to
profess and practice their religion, or to use their own language. n56
[*220] This provision on minority rights, which also applies to indigenous peoples, n57 focuses on the
protection of three fundamental elements of those groups identity: culture, religion, and language. n58 It is
precisely these core elements that are considered to constitute a fundamental part of the body of cultural
rights in the broad sense.
More particularly, in addition to the cultural rights in the narrow sense, international law scholars also
consider a number of other rights as directly related to them (rights "of a cultural character') or even as
cultural per se, within the context not only of the interdependence of human rights, as emphasised in the
Vienna Declaration of the World Conference on Human Rights (I para. 5), n59 but also in the broader
conceptual interpretation of culture, as adopted by UNESCO and analysed above. These are:
a) The right to education, which according to former UN Secretary-General Boutros Boutros Ghali constitutes
the central requirement for the existence of cultural rights. n60 This right is particularly vital for the
preservation of the identity of distinct cultural groups, which, if they do not wish to be assimilated, as a rule
demand (if they are free to do so) that their language be the language of instruction in their schools. n61
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[*221] It is noted here that UNESCO has been a pioneer in this area since the 1960s, when it introduced in
the Convention Against Discrimination in Education a provision (art. 5 para. 1 (c)) that recognises to the
members of national minorities the right to carry on their own educational activities. These include the right to
the maintenance of schools in which the use of or instruction in their mother tongue is possible, as long as
this complies with the policy of each state and is compatible with a series of other requirements set out by
this provision in its subparagraphs. n62 The CESCR has also focused upon the issue, stressing in its General
Comment on the right to education that its realisation, especially as regards minorities and indigenous
peoples, entails the obligation for states to take positive steps to secure a culturally appropriate education for
the aforementioned groups. n63
b) The right to the use, preservation, protection, and promotion of the language of every individual and each
group, which is inseparable from the right to education. n64 It is regarded as commonplace in the academic
community that language rights are those of a cultural character, since language is usually regarded as one
of the basic constituents of culture. n65 Language is viewed as the vehicle that embodies, codifies, transmits,
and spreads to succeeding generations the knowledge, values, beliefs, and practices of a group. n66
Language is the means by which its users formulate concepts for the construction [*222] and classification
of the world. n67 It is the instrument with which the community expresses ideas, beliefs, and emotions. It
reflects the development of a people, its common historic experience, its sense of community, of "belonging'.
n68 Such an important function in the preservation of the cultural identity of the culturally distinct groups
within nation states explains why the languages of minorities and indigenous peoples found themselves in
the past at the focus of all national assimilation policies. n69 The examples are countless. In Paraguay, for
example, at the beginning of the 19th century, in the context of the policy for the eradication of indigenous
languages and the imposition of Spanish upon the Guarani, a large linguistic community of indigenous
peoples in South America, users of which can still be found in Bolivia, Paraguay, Brazil and Argentina,
teachers would give a bronze ring to Guarani children who spoke their mother tongue in class. After the end
of the lesson or the week, children who had these rings in their possession were "corrected' by the infliction
of physical punishment so that they would not use their mother tongue again. In Bolivia, where until recently
the same policy was followed, Guarani speakers can still recall their first years at school as a period of
violence, intimidation, and silence, since speaking their mother tongue resulted in chastisement. n70 In
Australia, the clerical institutional guardians and (white) foster parents of forcibly abducted "Aboriginal'
children would wash out with soap the mouths of those who spoke their mother tongue, as part of a "civilized'
policy of punishment befitting the offence, on the grounds that the Aborigines' language was the devil's
device, and at the same time exhorting them to use "the language of the Bible' (i.e. English)[sic]. n71 Similar
policies were employed in the United States, where indigenous children were [*223] taken away from their
families and sent to boarding schools, where they were discouraged from speaking their mother tongue and
educated according to Western traditions. n72 Although as a rule such harsh assimilation policies are no
longer used (or in any case so the "civilized' western democracies view of themselves), it is still a fact, as
Stamatopoulou has observed, that states prefer to sustain cultural rights in the form of promoting "innocent'
folklore, while either keeping silent on or displaying hostility to the issue of promoting minority languages. n73
This is one of the (several) main factors shaping the estimate that 90% of the 4000 to 6000 currently spoken
languages in the world will either disappear or be in danger of disappearing in the 21th century. n74 It is
precisely this situation that prompts the members of minority groups and indigenous peoples to put
protection of their linguistic rights at the top of the agenda of their demands.
c) The right to freedom of thought, conscience, religion and belief, considered a right of cultural character in
much the same way as language, in the sense that there is a close connection between culture and religion.
n75 Moreover, it is for this reason that the religions of minorities and of indigenous peoples found themselves,
like in the case of the languages, at the focus of aggressive national assimilationist policies, an approach
that, in many cases, still obtains. In Guatemala, for example, the colonial government and the Catholic
church turned vehemently against the religious practices and traditions of the indigenous Mayans, adopting a
series of policies including the imprisonment and execution of Mayan priests, burning their holy books,
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plundering objects of religious importance, etc. A situation that continued to be pursued with the same
conscientiousness by the elites of European descent who took over from the colonists. The [*224] result
was the almost total extinction of local religious traditions, like the New Year's purification rite which was
splendidly celebrated with its own rituals. It was only in 1996, when a relevant agreement for the rights of the
indigenous peoples was signed, that this situation began to change. However, even after this development,
official authorizations relating to the practice of religious rites or access to sacred sites n76 depended upon
the willingness of the applicants to meet tourist expectations! n77
d) The right to freedom of expression and of information, which also includes the right to dissemination of
cultural expression. n78
e) The right to freedom of assembly and association, considered to be a cultural right in the sense that
many cultural manifestations unavoidably take place in association with others or essentially depend on
interaction with others. n79
Almost all of the above referenced rights are at the centre of the demands of the minorities and of the
indigenous peoples because they are important in preserving their collective identity. n80 Specifically in the
case of the latter, the particular holistic way in which, according to legal studies, they conceive of culture as a
way of life, as well as its importance for the preservation and well-being of their societies, makes the effective
protection of their cultural rights an indispensable condition of their existence. n81
4. The Neglect of Cultural Rights in their Broad Sense.
The emergence of the issue of cultural rights, in their broad sense, [*225] at an international, regional and
national level is due first and foremost to the pressure brought by the various distinct cultural groups living
within nation states. For the last thirty years, these groups have been demanding recognition of a series of
rights, n82 including cultural rights in the sense of protecting and preserving their way of life, bringing the
issue of their protection to the center of the social and political scientists' debate. n83
This development marked an instinctive reaction on the part of these groups to the long and systematic
neglect of their cultural rights, which is explained by a number of reasons. First, there is the fear and
mistrust of the states and the predominant ethnic majorities who believed (many still do) that recognition of
the cultural rights of the distinct cultural groups living within the national territory might lead to conflicts
relating to language, religion and ethnicity, fostering secessionist tendencies and therefore endangering
national unity and territorial integrity. n84 A characteristic contemporary example of this classic assumption is
the opposition of the experts of the Ad Hoc Committee for the Protection of National Minorities (CAHMIN),
which was set up by the Council of Europe Committee of Ministers in 1993, n85 following an instruction by the
Heads of States, n86 to the introduction of a right of everyone to his or her own cultural identity to the
then-planned additional protocol to ECHR, on the grounds that it might cause tensions within societies n87
and encourage cultural activism, ethno- [*226] nationalism and tribalism along with various centrifugal
forces. n88
The view that cultural diversity is a threat rather than a resource is to a considerable extent inherent in
the early 19th century principle of nationalities, which declared and sought the equation of the national and
political entity ("one nation - one state'). n89 The drawing of state boundaries in terms of absolute ethnic
homogeneity was dangerously unrealistic and unattainable, n90 since along their path through history
populations had merged to such a degree that even though each one of them had a recognized right to
declare its own independent state, the exclusion of some of its members from the national territory could not
be avoided. The inevitable result was the creation of ethnic, linguistic, religious or more generally cultural
enclaves within the boundaries of the newly formed states of the 19th and 20th century. n91 In this light, the
nationalist conception that only one culture and one language, usually that of the dominant ethnic group,
could represent the state in the public sphere had its consequences. It meant that the cultures and
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languages of the other groups who lived in the territory but did not meet the "national order of things' ought to
disappear or at best be restricted to the sphere of private life. n92 As Nitsiakos characteristically notes:
In any case, from the moment a state is formed it seeks social unity as a necessary prerequisite for the
smooth operation of the system as a whole. However, unity presupposes some degree of homogeneity. The
need for unity and homogeneity is not usually imposed by factors of internal function alone, but also by
external menaces. More than that, these often function as important motives for stepping up attempts to
either remove or suppress any mention of differences. Thus, [*227] multiculturalism often falls victim to the
cause of homogeneity. Identity becomes the national desideratum in contrast to otherness, which is treated
as dangerous. n93 (emphasis added)
This interpretation, in connection with a series of other post-war era parameters - including: a) the painful
experiences, still fresh in the immediate post-war period, of the pre-war exploitation of minorities by Nazi
Germany and in general by the revisionist powers of that era; n94 b) the unwillingness of the immigration
countries of the American continent to protect the minorities they wanted to assimilate; n95 and c) the
ethnocentric perception of the indigenous peoples as "primitive', "uncivilized' and "backward',
"underdeveloped' populations that had to be integrated by the dominant "civilized' and "developed' national
societies in order to survive; n96 - had a decisive impact on the character and content of the then emerging
universal regime for the protection of human rights in a manner somewhat less than favorable for the rights,
and especially the cultural rights, of the various ethnic groups.
More particularly, in accordance with the then newly adopted UN Charter (1945), promotion and
encouragement of respect for the human rights of all human beings without discrimination as to race, sex,
language or religion, criteria to which the Universal Declaration (1948) subsequently added color, as well as
political or other views, national or social descent, property, birth or any other status (article 2 of UDHR), n97
constituted one of the basic aims of the UN Organization (articles 1 para.3, 13 para. 1 (b), 55 (c), 56, 76 (c)
of the UN Charter). n98 The equality principle in the enjoyment of universal human rights afterwards
constituted a recurring theme in the international and regional conventions that followed (e.g. article 2 para. 1
of ICCPR, 2 para. 2 of ICESCR, 1 of ACHR, 14 of ECHR, 1 of African Charter etc.), attaining [*228] in this
way the status of a customary law norm n99 or, according to other scholars, a ius cogens status. n100
Barring some fragmentary, ambiguous and conditional provisions (e.g. art. 1 para. 4 and 2 para. 2 of the
Convention on the Elimination of All Forms of Racial Discrimination), this system was characterized by the
glaring absence, on the one hand, of any general norm requiring the states to take positive / affirmative
action to protect and promote the rights of the distinct cultural groups n101 (e.g. minorities or tribal and
indigenous peoples) living in their national territory, and, on the other, of any provision granting these groups
any collective rights n102 save for the right to collective physical existence (the right against genocide). n103
The latter, however, like the other collective right that was recognized gradually in the post-war era, namely
that of self-determination, proved to a large degree to be a rather futile gift for minorities and indigenous
peoples.
In the first case, the unwillingness of national courts, with few exceptions, to hear cases of genocide, n104
the lack (until recently) of an International Criminal Court, and the practical difficulty n105 of proving the
specific intention (dolus specialis) that article 2 of the Convention [*229] requires for the substantiation of
the crime of genocide, n106 made it possible for various alleged genocidal acts to take place without being
stigmatized as genocide by any formal juridical body. Examples include the massacre of thousands of Mayas
in Guatemala - estimated at 83% of the country's total of 200.000 murdered and missing citizens - by
government forces in 1966-1990 and especially in 1981-1982, n107 and the forcible removal from their
families of thousands of children of the so-called Aborigines of Australia and their transfer to state and / or
church-run institutions and white foster families during the period from the beginning of the century to the end
of the 1960's. n108
In the second case, restricting the right to exercise self-determination to peoples under colonial rule or
foreign occupation n109 excluded most indigenous peoples from the group of beneficiaries of this right, for in
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their vast majority they lived (and live) in independent states. This was a situation that in any case the states
made sure to secure, refusing even to recognize them as peoples. n110 Indigenous peoples, therefore, could
not benefit from the right of self-determination since under international law, as it stood until recently, they
were not entitled to it. n111 However, the persuasive arguments of a series of eminent scholars supporting
the position that indigenous nations are by [*230] any criteria peoples n112 and therefore that the right in
question should apply to them as well - a position that was carefully adopted, as far it concerns the internal
aspect of self-determination, by the HRC during the late 1990's n113 - in conjunction with the concerted
pressure exercised by indigenous peoples themselves, bring about the desired change, albeit in the form of
a compromise. The result is enshrined in the recent UN Declaration on the Rights of Indigenous Peoples,
which recognizes their right to self-determination (article 3), although hedged about with prerequisites and
formulations that restrict its scope to forms of internal self-government / autonomy (articles 4, 46). n114
Minority groups have been less fortunate, for they remain excluded from the category of beneficiaries of the
right of self-determination since, unlike the indigenous nations, they are still not regarded as peoples. n115 In
both [*231] cases the distinction has had - and still does have - more to do with political than with strictly
legal criteria, since in the absence of any formal, universally accepted definition in international law of the
concepts of either "minority' n116 or "people' n117 it is quite difficult to draw clear-cut lines between these
group categories and consequently to justify on absolute terms their subjection to different legal regimes.
n118
Essentially, it can be argued - with no exaggeration - that, in the post-war system of universal individual
human rights, minority groups and indigenous peoples were invisible. n119 This is immediately apparent from
a simple reading of the instruments comprising the International Bill of Human Rights, with their conspicuous
absence of any provision for them, save only for the general n120, vague n121 and weak n122 stipulation of
article 27 of the ICCPR. Neither the UN Charter nor the UDHR (or the ICESCR) include any mention
whatsoever of minorities n123 or indigenous peoples. n124 This approach was the result of a "perfect'
concurrence between the above mentioned post-war conditions and [*232] attitudes and the liberal view
prevailing at the time, which held - on the one hand - that protecting the individual rights of members of
groups was sufficient to ensure the automatic satisfaction of the needs and claims of those groups as such
n125 and - on the other - that recognizing collective rights entailed dangers for the respect and protection of
individual rights n126 and for the existence of the state, since it was seen in the West as a Trojan horse of
Marxist ideology. n127 In this light, the cultural rights of groups, which inherently have a strong collective
dimension n128 while demanding affirmative action of the state, n129 were utterly minimized or totally ignored.
Perhaps the most characteristic example of the cautiousness or unwillingness of the states to recognize
[*233] the cultural rights of the distinct groups living in their territory was their refusal to include in the
Anti-Genocide Convention a prohibition against committing "cultural genocide', n130 although the draft
version contained such a provision (article 3), couched in the following terms:
In this Convention genocide also means any deliberate act committed with the intent to destroy the
language, religion or culture of a national, racial or religious group on grounds of national or racial descent or
religious belief such as: (1) Prohibiting the use of the language of the group in daily intercourse or in schools,
or the printing and circulation of publications in the language of the group; (2) Destroying or preventing the
use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and
objects of the groups. n131
The conscious omission of cultural genocide from the final text of the Convention, with the exception of the
provision of article 2 (e) on the banning of the forcible transfer of children of one group to another, and the
deliberate restriction of its scope to the prohibition of "physical' and "biological' genocide n132 of national,
ethnological, racial and religious n133 - but not linguistic n134 - groups within states, left (and still leaves) the
field free for interpretations of the Convention as an instrument that may avert the total or partial destruction
of the body of a group while allowing its spirit, its soul, to be undermined. n135 How important it was for the
states to avoid this issue is evident in the [*234] present instance in the opposition of their representatives in the context of the sessions of the ad hoc working group set up by the former UNCHR with the mission to
elaborate a Draft Declaration on the Rights of Indigenous Peoples - to the introduction of a provision banning
the cultural genocide of indigenous peoples, on the grounds that the term cultural genocide is not so clear to
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be usefully applied in practice. n136 The result was that the initial version of Article 7 of the Draft Declaration,
which provided that "the indigenous peoples have the collective right not to be subjected to ethnic genocide
and to cultural genocide..." as framed in 1993 by the working group of the then Sub-Commission for the
Prevention of Discrimination and the Protection of Minorities n137 and adopted unchanged by the same
Sub-Commission in 1994, n138 was replaced in the Draft adopted by the UN Human Rights Council in 2006
n139 and finally by the UN General Assembly in September 2007 with the provisions of the modified Articles 7
and 8 of the present Declaration, which recognize the individual and collective right of indigenous peoples
not to be subjected to any act of genocide, forcible integration or destruction of their culture, but avoid using
the specific controversial term. n140
Another recent example of the cautiousness with which states addressed the question of recognizing
cultural rights to the distinct ethnic groups within their territory (despite multiple grandiloquent proclamations
to the contrary) was the unfortunate ending to the attempt to adopt an additional protocol to the ECHR that
would provide individual but justiciable n141 rights in the cultural sphere. Of the fourteen [*235] rights (and
their many more sub-components) n142 tabled for discussion by the CAHMIN, it was possible to reach a
consensus only on just four of them (right to a name; to use the language of one's choice; to learn the
language of one's choice, in particular the mother tongue; and the right to establish cultural institutions), n143
and even then only with considerable concessions and restrictions that reduced their content and scope.
Thus, it was stressed, for example, that the right to the use the language of choice would not cover contact
with public authorities, n144 the right to learn the language of choice would not include the right to the
establishment of public educational institutions or the right to teach it or teach in it, n145 and the right to set
up cultural institutions (which had initially included educational establishments) would not entail any
obligation upon the states to support them. n146 The result was disappointing, as was noted by the Finnish
expert, who appealed to his colleagues to encourage their governments to see whether they could go [*236]
further than the paltry consensus attained. n147 His exhortations came to nothing, however, as the
Committee of Ministers of the Council of Europe provided its own solution in the form of the January 1996
decision suspending the work of the CAHMIN on the drafting of an Additional Protocol, n148 thus putting an
end to the matter. The unsuccessful outcome of these noteworthy attempts to assure more effective
protection for the cultural rights of distinct sub-groups in nation states leaves unanswered, despite the
indubitable progress made in this area at the international and regional institutional (although not necessarily
practical) level in the last twenty years, the ultimate question: "shall we continue to approach cultural
otherness as a danger to national cohesion or should we see it as cultural wealth? Will it ever stop being a
curse and become a blessing?" n149
Concluding with the reasons for the avoidance, until recently, of any discussion of cultural rights,
particular mention must be made of the fear of the indirect or direct appearance of and / or emphasis on the
latent and sensitive issue of cultural relativism, which could undermine the consensus on the acceptance of
the universality of human rights so painstakingly woven over the last decades. n150 Other factors noted in the
legal literature as reasons for the neglect of cultural rights are their dispersion to a wide range of
instruments, a fact which obstructs their cohesion - codification, n151 their conception as a "luxury,' to be
considered only after a certain level of economic and social development has been achieved n152 and the
obstacles advanced by transnational corporations, particularly in relation to recognition of the [*237]
cultural rights of indigenous peoples. n153
5. Provisions for the Cultural Rights of Groups in International Human Rights Treaties. Analysis and
Evaluation of the Scope of the Protection They Afford.
5.1. Introduction.
One of the striking characteristics of post-war international treaties for the protection of human rights was, as
it was noted, the absence / omission of any specific set of provisions for the rights of distinct groups within
nation states. n154 Some international instruments did, however, contain some scattered and fragmentary
norms, like article 2 and in general the whole body of the text of the Anti-Genocide Convention, article 5
para. 1(c) of the UNESCO Convention Against Discrimination in Education, articles 1 para. 4 and 2 para. 2 of
the Convention on the Elimination of All Forms of Racial Discrimination and article 27 of the ICCPR, which
refer to the rights either of the members of the groups or of the groups per se and are of particular interest as
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regards their cultural rights. Also of interest is the provision of article 15 para. 1(a) of the ICESCR on the
right to take part in cultural life, which, although it does not specifically refer to the cultural rights of groups,
has been interpreted by the CESCR as including them. n155
5.2. The Anti-Genocide Convention and the Issue of Cultural Genocide.
The first post-war international convention that focused exclusively upon the protection of national,
ethnological, racial, and religious groups in the form of a guarantee of their collective right to physical
existence was the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the
UN General Assembly on December 9, 1948. n156 However, the practical difficulty of [*238] proving the
specific and definite intent regarding the partial or total destruction of a group stipulated by article 2 for the
substantiation of the crime of genocide, n157 combined with the absence of any provision against "cultural
genocide' except for the prohibition of the forcible transfer of children from one group to another, n158
rendered its practical contribution to the safeguarding of the cultures of the above groups minimal, to say the
least. n159
5.3. The Right to the Maintenance of Minority Schools (art. 5 para. 1 (c)) of the UNESCO Convention
Against Discrimination in Education.
Next came the Convention Against Discrimination in Education, a landmark instrument as regards the
educational and linguistic rights of groups. Adopted by the General Assembly of UNESCO on December 14,
1960, it provides, inter alia, in article 5 para. 1(c) that "it is essential to recognise the rights of members of
national minorities to carry on their own educational activities, including the maintenance of schools and,
depending on the educational policy of each State, the use or the teaching of their own language." n160
It should be noted, however, that this provision recognises the above-mentioned right to the members of
the minority groups and not to minorities per se, in line with the international community's historic approach
to minority rights as fundamentally individual. n161 Furthermore, it is subject to a series of restrictions that,
according to former UN Special Rapporteur on the Prevention of Discrimination and Protection of Minorities
Francesco Capotorti, undermine its dynamic, leaving the states parties a wide margin of discretion as
regards its application. n162 In particular, this provision stipulates: a) that the right [*239] must not be
exercised in a manner which i) prevents the members of the minorities from understanding the culture and
language of the community as a whole and from participating in its activities or which ii) prejudices national
sovereignty; b) that the standards of such education should not be lower than the general standards laid
down or approved by the competent authorities; and c) that attendance in such schools will be optional. n163
These requirements seem to limit the scope of the right considerably. n164
5.4. The Right to the Adoption of Special Measures in, inter alia, the Cultural Field, Under Article 2 para.
2 of the Convention on the Elimination of All Forms of Racial Discrimination.
Another particularly significant provision relating to the cultural rights of groups is included in the
Convention on the Elimination of All Forms of Racial Discrimination, which was adopted by the UN General
Assembly on December 21, 1965 and which provides in article 2 para. 2 that:
States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other
fields, special and concrete measures to ensure the adequate development and protection of certain racial
groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment
of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the
maintenance of unequal or separate rights for different racial groups after the objectives for which they were
taken have been achieved. n165 (emphasis added)
Of interest for the cultural rights of sub-national groups is also the provision of article 5 (e) (vi) of the
Convention regarding "the right to equal participation in cultural activities," which has recently been [*240]
interpreted by the competent Committee for the monitoring of the implementation of the Convention
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(hereinafter CERD) as establishing an obligation for the states parties to report inter alia
"...(b) on measures taken to encourage creative activities by persons belonging to groups protected
under the Convention, and to enable them to preserve and develop their culture;... (c) on measures taken to
encourage and facilitate their access to the media, including newspapers, television and radio programmes,
and the establishment of their own media;... and (e) on the status of minority, indigenous and other
languages in domestic law and in the media." n166 (emphasis added)
The idea that the adoption of affirmative action is sometimes indispensable for achieving real equality
(equality in fact) n167 among groups was first formulated in the mid-war period by the Permanent Court of
International Justice. The Court pointed out in its Advisory Opinion (6.4.1935) on Greek Minority Schools in
Albania n168 that the idea underlying the League of Nations system for the protection of minorities was that of
securing, for certain elements living within a State whose population differed from them in race, language, or
religion, the possibility of peaceful coexistence and friendly cooperation with that population, while at the
same time preserving the characteristics that distinguish them from the majority and meeting their ensuing
special needs. In order to achieve that object, two things were considered to be of particular importance: first,
to ensure that nationals belonging to racial, religious, or linguistic minorities are in every respect placed on a
footing of perfect equality with the other nationals [*241] of the state; and second, to ensure that the
minority elements have the appropriate means for the preservation of their racial particularities, traditions and
national characteristics. n169
The Court stressed that these two requirements were closely connected, because there can be no true
equality between the majority and a minority if the latter is deprived of its own institutions and is consequently
compelled to renounce those characteristics that constitute the very essence of its existence as such. More
specifically, the Court, having decided that equality in law precludes discrimination of any sort, while equality
in fact can entail the necessity of a different approach in order to achieve a balance between the different
situations, noted that abolishing minority institutions which meet the special demands of minority groups and
replacing them with analogous state-controlled ones would nullify equality of treatment, for its effect would be
to deprive the minority of institutions appropriate to its needs, while the majority would continue to have its
needs met through the institutions provided by the state. n170
In the same spirit, the CERD pointed out in a relevant General Recommendation on the definition of
discrimination (ICERD art. 1 para. 1) that "a differentiation of treatment will not constitute discrimination if the
criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate."
n171 Following the same line, the HRC noted in its more detailed General Comment on non-discrimination
(arts. 2 para.1 and 26 of ICCPR) that "the enjoyment of rights and freedoms on an equal footing, however,
does not mean identical treatment in every instance" pointing out "that the principle of equality sometimes
requires States Parties to take affirmative action in order to diminish or eliminate conditions which cause or
help to perpetuate discrimination prohibited by the Covenant." Similarly, the Committee emphasised that
"such action may involve granting for a time to the part of the population concerned certain preferential
[*242] treatment in specific matters as compared with the rest of the population. However, as long as such
action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant."
n172 Finally, the Committee observed "that not every differentiation of treatment will constitute discrimination,
if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose
which is legitimate under the Covenant." n173
"Special' positive measures, then, as is further stressed by a vast number of scholars and proclaimed in
a series of relevant provisions of international and regional minority instruments (e.g. art. 8 para. 2 of the UN
Declaration on the Rights of Persons Belonging to Minorities, art. 4 para. 3 of the Framework Convention for
the Protection of National Minorities, n174 and art. 7 para. 2 of the European Charter of Regional or Minority
Languages) do not constitute discrimination against the members of the majority but are an indispensable
prerequisite for achieving full equality in fact between the members of vulnerable groups, i.e. of minorities
and indigenous peoples, and those of the larger and politically dominant ethnic community. n175
Adopting this approach the CERD repeatedly asks the states' parties to report on the special measures
they take under article 2 para. 2 for indigenous peoples living within their territory in order to ensure their
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equal enjoyment of the rights of the Convention n176 and more particularly for the recognition of and respect
for their distinct culture, history, language, and way of life as an enrichment of the State's [*243] cultural
identity. n177
However, beyond this more than welcome norm, which provides a positive and a collective dimension to
the protection of sub-groups' cultures, it should be pointed out, on the one hand, that the phrase "when the
circumstances so warrant' seems to suggest that a considerable measure of discretion is left to the states in
deciding when such steps must be taken n178 and, on the other, that the vagueness as to who decides which
groups are entitled to special protection and upon what criteria reinforces this sense and undermines the
provision's dynamic. n179 It is true, nonetheless, that the CERD has, with its concluding observations
following its examination of state reports, made a decisive contribution to clarifying the ambivalent aspects of
the provision. Thus, in answer to the position adopted by some states that the provisions of the Convention
permit but do not require states parties to adopt affirmative action measures, the Committee emphasized
"that the adoption of special measures by States parties when the circumstances so warrant, such as in the
case of persistent disparities, is an obligation stemming from article 2 para. 2 of the Convention." n180
(emphasis added) Furthermore, the Committee has indicated that the identification of individuals (protected
under article 2 para. 2 as members of certain racial or ethnic groups and / or indigenous peoples n181) shall,
if no [*244] justification exists to the contrary n182 (a caveat which seems to leave a considerable margin of
discretion to the states) be based upon their self-identification. n183 It is pointed out, however, that the
concluding observations of the Committee are not legally binding, while its references to the need to take
measures are often too general and vague. n184 This has been used as a pretext indeed by some states
parties who claim that the general nature of the Committees' recommendations make their implementation
difficult. n185 It is also emphasised that the provisional nature of the special measures stipulations, which
cease to apply once the stated aim, namely, achieving parity with the rest of the population, has been
attained, could not, as Thornberry noted, be said to show any great respect for the uniqueness of each
culture. n186
Finally, it must be noted that the Convention entitles both individuals and groups of individuals living
within the jurisdiction of a state party and claiming to be victims of infringement of any rights set forth in its
text to appeal to the CERD, n187 on condition, however, that the state party to which the "communication'
(art. 14 para. 1) - "petition' (art. 14 para. 2) refers has previously recognised via a declaration the specific
competence of the Committee (art. 14). n188 This remedy has rarely been used, as only a few states have
accepted the [*245] relevant "jurisdiction' of the Committee n189 and only a few communications have been
submitted, n190 none of which concerns violations of the provision under consideration. n191 Consequently,
there is no "case law' that would make it possible to draw solid conclusions regarding the scope of the
protection the specific provision in fact provides.
5.5 The Right to Enjoy Culture, Language, and Religion (article 27 of the ICCPR).
Next, comes one of the most significant provisions found in any international legally binding instrument for
the protection of the rights of the members of groups and more particularly of minorities: article 27 of the
ICCPR, which was adopted on December 16, 1966. This particular provision's intentionally vague phrasing
has produced a number of critical comments from international law scholars. n192 To start with, the phrase "in
those states in which ... minorities exist ..." seems to imply that the existence of a minority depends upon its
legal recognition by the state. n193 This interpretation, however, has been rejected not only by the most
authoritative organ for the clarification of the provisions of the Covenant, the HRC, n194 but by the entire body
of [*246] international law academia, almost all of whom point out that the existence of a minority is a
question of fact and not of law and that consequently it does not depend upon whether or not it is recognized
by the state. n195 Unfortunately, the reality is that many states which deny the existence of the minorities and
indigenous peoples living within their territory n196 could seize the "invitation,' as Thornberry terms it, of this
phrasing to "justify' their stance. n197
Secondly, the phrase "persons belonging to such minorities" (emphasis added) indicates that it
conceives of minority rights as individual rights. n198 More specifically, the rights recognized by article 27 are
individual rights with a limited collective dimension, as the clause provides for their exercise in community
with other members of the group. n199 This is the approach followed by all relevant minority instruments and
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provisions, as, for example, in Chapter IV of the Document of the Copenhagen Meeting of the Conference on
the Human [*247] Dimension of (then) CSCE, which incorporated an innovative cluster of minority rights
that, although individual in nature, can also be exercised in community with the other members of one's
group (para. 32). n200 The view that the rights of article 27 are basically individual rights including some
collective dimension at a secondary level is confirmed by the HRC, which notes in the previously cited
General Comment on article 27 that "although the rights protected under article 27 are individual rights, they
depend in turn on the ability of the minority group to maintain its culture, language or religion." n201 The
tendency of the international community to perceive minority rights as basically individual and to frame
international and regional instruments in those terms is evident inter alia in the concern of the drafters of the
Framework Convention for the Protection of National Minorities to make it amply clear in the document's
Explanatory Memorandum that the rights enshrined in it are exclusively individual (paras. 13, 31); n202 this,
indeed, is one of its main characteristics. n203 The same approach is followed in the UN Declaration on the
Rights of Persons Belonging to National or Ethnic, Linguistic and Religious Minorities. As its title suggests,
the phrase persons belonging to minorities recurs as the constant refrain of its provisions regarding the
identity (i.e. individuals) of those entitled to the rights it recognises. n204 The individualistic orientation of
minority provisions, however, is considered by a number of scholars as partially inadequate and inherently
insufficient to afford the necessary protection to the cultural rights of groups. Specifically, it is argued that
cultural rights bear by their very nature a strong collective dimension, n205 since cultural traditions and
educational and religious [*248] institutions can be preserved only on a communal basis. n206 In this light,
the enjoyment of rights associated with culture is most meaningful, as Anaya notes, within a group context,
since "it would be impossible or meaningless, for example, for an indigenous individual to engage in a
traditional indigenous system of dispute resolution alone, or to speak an indigenous language alone or
participate in a communal religious ceremony alone." n207 Similarly, a person cannot belong to a religious
community, for example, if there is no recognition of the right of individuals to assemble with others of the
same denomination to form such a community. n208 Therefore, as Alfredsson also notes, the recognition of
group rights to distinct cultural groups within states parties, as is the case with minorities and indigenous
peoples, is necessary in order to guarantee them equal enjoyment of a number of a rights, such as those to
identity, culture, and education. n209
Continuing with the analysis of this provision, the negative formulation, "persons belonging to such
minorities shall not be denied the right ... to enjoy" (emphasis added), seems to imply that the only obligation
established by article 27 for states is that of tolerance or non-intervention in the enjoyment of rights, rather
than one of taking positive measures to protect the culture, religion, and language of the members of minority
groups, n210 an interpretation adopted by such eminent scholars as Nowak, Tomuschat, and Roben. n211
The first to [*249] reject this reading was Capotorti, who, preferring a more expansive, liberal interpretation,
argued that a narrow, literal approach to the provision renders it pointless, since it limits its content to the
provision of rights which in any case are covered by other clauses of the Covenant (e.g. art. 18 concerning
religious rights). n212 In his view, it was imperative that the states should take affirmative action to materialize
the rights of article 27, since a passive approach would render them meaningless and ineffective. n213
Capotorti's view, which is that of the majority of international law scholars, n214 was endorsed by the HRC in
its General Comment on article 27, which emphasizes that article 27 establishes and recognizes a right that
is distinct and additional to the rest of the rights in the Covenant and that despite its negative formulation, it
binds the states parties to ensure that the existence and exercise of that right will be protected against denial
or infringement. n215 "Positive measures of protection are, therefore, required not only against the acts of the
state party itself, whether through its legislative, judicial or administrative authorities, but also against the acts
of other persons within the State," n216 or, as expressed elsewhere in the same Comment, "the enjoyment of
those rights [of article 27] may require positive legal measures of protection and measures to ensure the
effective participation of members of minority communities in decisions [*250] which affect them." n217
Furthermore, the view that article 27 imposes upon the states parties positive obligations (its negative
phrasing notwithstanding) seems also to be implied by the wording of article 2 para. 1 of the UN Declaration
on the Rights of Persons Belonging to National or Ethnic, Linguistic and Religious Minorities. Although it is
inspired by ICCPR article 27, as stated in its Preamble, it reverses its phrasing, providing that "Persons
belonging to national or ethnic, religious and linguistic minorities have the right to enjoy their own culture, to
profess and practise their own religion, and to use their own language, in private and in public, freely and
without interference or any form of discrimination." n218 (emphasis added) Within the context of this
interpretation, and especially as regards the right to enjoy culture, it has been argued, originally by Capotorti
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and then by a number of other scholars, that the effective cultural development of a group presupposes the
provision of considerable human and financial resources. Consequently, the right of persons belonging to a
minority, and by analogy to an indigenous people, to enjoy their culture becomes meaningless if
governments do not engage to take positive supporting measures. n219 In this light it has been argued that if
the members of a minority, and by analogy of an indigenous people, do not have the necessary financial
resources to support their cultural institutions, a not uncommon situation due to their generally vulnerable
economic and social position, then the lack of a state obligation to take positive action in this domain could
impede the exercise of the rights set forth in article 27. n220
Despite its ambiguity and contradictions, however, the provision constituted one of the basic points of
reference for indigenous peoples - [*251] although strangely enough not for the minorities n221 - who,
overcoming some initial reservations, n222 invoked it in a series of cases before the HRC. More specifically,
Article 1 of the Optional Protocol to the ICCPR recognizes the HRC as competent to receive and consider
"communications' from persons who claim violations of the rights set forth in the Covenant, n223 as long as
the state which the communication concerns has previously adhered to the Optional Protocol. n224 Within
this [*252] context, the HRC has examined a series of communications submitted by indigenous persons
claiming inter alia violations of article 27. n225 In some of these cases the HRC interpreted Article 27 in truly
interesting ways, broadening, up to a point, its scope. In particular, the HRC has emphasized among other
things that:
The regulation of an economic activity is normally a matter for the State alone. However, where that activity
is an essential element in the culture of an ethnic community, its application to an individual may fall under
Article 27 of the Covenant... n226
...the right of members of a minority to enjoy their culture under Article 27 includes protection to a particular
way of life associated with the use of land resources through economic activities, such as hunting and
fishing, especially in the case of indigenous peoples. n227
...the acceptability of measures that affect or interfere with the culturally significant economic activities of a
minority depends on whether the members of the minority 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. n228
[*253] However, despite these broad interpretations of Article 27 and its positive - up to a point - role in the
protection of indigenous culture, this provision alone cannot constitute a fully effective means of protecting
their cultural rights, n229 due in part to its inherent weaknesses (individualistic orientation, n230 absence of
reference to collective rights to traditional lands and natural resources that comprise the core of indigenous
culture n231), and, in part, to the fact that these interpretations have their limits, since the HRC attempts to
achieve a balance between the rights of the indigenous and the development activities and economic
interests of the states with the scales often weighted in favor of the latter. n232 As Ketley comments, the
Committee's focus upon indigenous cultural activities as opposed to land ownership and control over natural
resources n233 perpetuates the Eurocentric approach to [*254] indigenous peoples as "cultural artefacts'
rather than dynamic communities with complex social, political and economic systems. In this context the
HRC's interpretations of the provision seem to ignore the importance of these people's long-standing ties to
their ancestral homelands and their vulnerability to the present. n234
Another significant dimension is that the Committee's "views' (i.e. decisions) on the communications
considered are not legally binding. n235 Thus, the issue of their implementation and consequently of their
practical contribution to the protection of indigenous cultural rights is questionable. n236 This applies even in
the (rare) cases when, in weighing the conflicting interests of the parties, it opts for the need to protect the
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37 Syracuse J. Int'l L. & Com. 207, *254
indigenous culture rather than the economic activities. A characteristic example is the case of Chief Bernard
Ominayak and the Lubicon Band v. Canada, in which the Committee decided that the Canadian
government's action in granting permission to the government of the Province of Alberta to expropriate land
belonging to the tribe and allot it to oil and gas companies threatened the way of life and culture of the
[*255] Lubicon Lake Band and constituted, in conjunction with the historical injustices the tribe had
experienced, a violation of Article 27. n237 This decision does not, however, seem to have affected the
decision making of the Canadian government, as almost twenty years after the Committee arrived on it, the
tribe continues to see its lands and resources being expropriated. n238
5.6. The Right to Take Part in Cultural Life (Article 27 paragraph 1 of the Universal Declaration and
Article 15 paragraph 1(a) of the ICESCR).
Another particularly important norm for the cultural rights of states' subgroups is the provision on the right
to take part in cultural life enshrined in Article 15 paragraph 1 (a) of the ICESCR, adopted on December 16,
1966. This provision, which has only recently attracted the attention of international law scholars n239 and the
CESCR, n240 does not refer explicitly to the cultural rights of groups, although one of the initial drafts
submitted by UNESCO as a working document included within the scope of the right to participate in cultural
life a guarantee for the free cultural development of racial and linguistic minorities. n241 However, both this
proposal and UNESCO's recommendation to adopt a wording that would safeguard the right of everyone "to
take part in the [*256] cultural life of the communities to which he belongs" (emphasis added) were
eventually defeated. n242 The focus of the international community in that era remained fixed, as Donders
and Vrdoljak note, on the national community. This is clear from the wording of the first paragraph of Article
27 of the Universal Declaration, which served as a matrix for ICESCR Article 15 paragraph 1(a), where the
guarantee of the right of everyone to freely participate in the cultural life of the community (in the singular), in
conjunction with the double use of the definite article the seemed to denote a particular community, implying
that cultural participation was intended exclusively within the understanding of "the one and only' culture of
the nation state, thus promoting the idea of a homogeneous, one-nation society instead of a multicultural
one. n243
Specifically in regard to Article 15 paragraph 1(a) of the ICESCR the wording that was finally adopted,
i.e. the right of everyone "to take part in cultural life", apart from the fact that its individualistic orientation n244
is not particularly consonant with the collective dimension of cultural rights and particularly those of
indigenous peoples, does not seem at a first reading to recognize a specific right to the members of the
nation states' subgroups to take part in their own cultural life. This becomes clearer if one compares Article
27 of ICCPR, which explicitly recognizes the right of members of minorities to enjoy their own culture, with
the more general wording of ICESCR Article 15 paragraph 1(a), where the use of the expression "cultural life'
with no qualifying elements, gives the impression that it refers to the culture of the nation in the broad sense
rather than to the culture of a specific minority or an indigenous people. n245 In another reading of the
provision, however, the deletion of the phrase "of the community' used in Article 27 paragraph 1 of the UDHR
from the text of ICESCR Article 15 paragraph 1(a) and the choice of a more general wording seems to leave
a wide margin of discretion for individuals to decide in which culture(s) they wish to [*257] participate. n246
This last approach has been adopted (since the early 90s) by the CESCR as well, which has interpreted the
provision (although without yet publishing a General Comment on it) n247 in such a way that, on the one
hand, it includes the right of everyone to take part in the cultural life which he or she considers pertinent and
to manifest his or her own culture, n248 and, on the other, to include the taking of measures for the protection
of cultural diversity and the promotion of awareness of the cultural heritage of ethnic, religious and linguistic
minorities and of indigenous peoples and for the preservation, development, expression and dissemination of
their identity, history, culture, language, traditions and customs. n249 It is noted that this interpretation also
accords with Article 5 of the UNESCO Declaration on Cultural Diversity which provides that "all persons have
the right to participate in the cultural life of their choice" n250 (emphasis added). In this context the CESCR
has given article 15 paragraph 1(a) a linguistic dimension, asking the states for example to report "in
particular with regard to measures taken to effectively implement the right of persons belonging to national
and [*258] ethnic minorities to use their languages before the courts and other public authorities, as well as
in schools, public television and radio broadcast, newspapers and magazines." n251 Furthermore, the
Committee seems to view the right (of the members of minorities) to the free exercise of (their) religion as an
aspect of the right to take part in cultural life, mirroring in that sense the above discussed anthropological
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concept of culture. n252
The Committee has also contributed considerably to the clarification of the nature of obligations under
the Covenant, an issue that had in the past provoked wide-ranging discussions and confrontations. More
specifically, the wording of Article 2 paragraph 1 of the Covenant, which asks each state party "to take
steps... to the maximum of its available resources with the view to achieving progressively the full realization
of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption
of legislative measures", n253 led many scholars and governments, including that of the USA, to assert,
comparing this provision with that of Article 2 of the ICCPR, which establishes a direct obligation for the
states parties to adopt such laws or other measures as may be necessary to give effect to the rights
recognized in the Covenant, n254 that the nature of the commitments stated in the ICESCR more closely
resembles social aims and "noble' expectations than "real' rights. n255 In view of these interpretations the
Committee in its General Comment on the nature of the obligations of states parties clarified that:
The concept of progressive realization constitutes recognition of the [*259] fact that full realization of all
economic, social and a cultural right will generally not be able to be achieved in a short period of time. In
this sense the obligation differs significantly from that contained in Article 2 of the International Covenant on
Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant
rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the
Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one
hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any
country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase
must be read in the light of the overall objective, indeed the raison d'etre, of the Covenant which is to
establish clear obligations for States Parties in respect of the full realization of the rights in question. It thus
imposes an obligation to move as expeditiously and effectively as possible towards that goal. n256
More specifically, the Committee pointed out that "while the Covenant provides for progressive realization
and acknowledges the constraints due to the limits of available resources, it also imposes on States Parties
various obligations which are of immediate effect". n257 Of these, two are of particular importance in
understanding the precise nature of the obligations of states parties. One of these concerns equality or
non-discrimination as to the enjoyment of the rights set out in the Covenant and the other the obligation to
"take steps'. In particular, regarding the second obligation, the Committee stressed that "while the full
realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within
a reasonably short time after the Covenant's entry into force for the States concerned. Such steps should be
deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the
Covenant". n258 It is also worth mentioning that the Committee has [*260] underlined that, even in times of
severe constraints on resources, whether caused by a process of adjustment, economic recession, or other
factors, the vulnerable members of society - and these include as a rule the members of minority groups and
indigenous peoples - can and indeed must be protected by the adoption of relatively low-cost targeted
programs. n259 Finally, the Committee has pointed out that the rights that are recognized in the Covenant
impose upon the states parties three levels of obligations: the obligation to respect, to protect and to fulfill.
n260 The obligation to respect requires States parties to refrain from interfering directly or indirectly with the
enjoyment of the rights set out in the Covenant, while the obligation to protect requires States parties to take
measures that prevent third parties from interfering with the enjoyment of the rights. Finally, the obligation to
fulfill implies that states parties should adopt appropriate legislative, administrative, budgetary, judicial and
other measures to ensure the full realization of the rights. n261
Application of the above typological distinction of the obligations of states parties, particularly concerning
the enjoyment of cultural rights under ICESCR Article 15 paragraph 1(a), would mean, as Stamatopoulou
notes, that the refusal, for example, of a state party to allow the publishing of books and generally of
publications or the production of radio programmes in a certain language used in its territory would constitute
a violation of the obligation to respect the specific cultural rights. Similarly, the failure of a state party to
ensure [*261] that a certain linguistic group is able to teach its own language in private schools without
being disturbed by hostile acts by third parties either as groups or as individuals may be in violation of its
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37 Syracuse J. Int'l L. & Com. 207, *261
obligation to protect these rights under the Covenant. n262
The recent progressive approaches, particularly concerning the interpretation of Article 15 paragraph
1(a) of the Covenant, on the part of the CESCR notwithstanding, the fact remains that until recently the
specific provision had been neglected. This, in conjunction with the absence of a General Comment further
clarifying all the aspects of this article n263 and the lack until very recently of a complaints procedure (the
General Assembly adopted, on December 10, 2008, an Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights that gives the Committee the competence to receive and consider
communications from individuals and groups of individuals), n264 made it extremely difficult for members of
minorities and indigenous peoples to use it in order to protect their cultural rights. n265
6. Concluding Remarks - Cultural Rights at the Focus of Attention.
The several inadequacies, flaws and weaknesses of the provisions of the international human rights treaties
relating to the cultural rights of groups and of the monitoring mechanisms of the human rights system,
combined with a series of systematically assimilationist state policies, or at best with the absolute
indifference displayed by state authorities to the protection of cultural otherness within their territory, have
stifled the development of a climate of respect for and preservation of cultural identities that differ from those
of the dominant ethnic group.
[*262] This situation began to change, partially and gradually, in the mid-1980s, when indigenous
peoples began to focus upon protection of their cultural rights as a matter of urgent priority. n266 At much
the same time several international law scholars were coming to the conclusion that safeguarding the equal
enjoyment of human rights on an exclusively individual basis does not constitute an adequate condition for
meeting the cultural needs of the sub-groups within nation states and of cultural diversity in general. n267 It
was even argued in this respect that the monolithically individualistic orientation of the human rights system
often constitutes a covert legitimization of state policies designed to assimilate the distinct cultural groups
within the national territory. n268 Meanwhile, the eruption of a number of ethnic / minority conflicts in Central
and Southeast Europe following the collapse of the eastern bloc lent new force to the view of the existing
individualistic human rights system as partially inadequate and flawed, and revealed the positive role that the
effective protection of minority rights, in particular those connected with cultural identity, could play in building
up and preserving international and regional peace, stability and security. n269 This idea is reflected, for
example, in the recent UNESCO Convention for the Protection and Promotion of the Diversity of Cultural
Expressions, which proclaims in the fourth paragraph of its Preamble that "...cultural diversity, flourishing
within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures,
is indispensable for peace and security at the local, [*263] national and international levels." n270 Within this
context there grew up an increasing awareness of the necessity of giving some positive and collective
dimension to the protection of distinct cultural groups within nation states. n271
Meanwhile, the solemn consensus expressed in the Vienna Declaration of the World Conference on
Human Rights that all human rights are "...universal, indivisible and interdependent and interrelated..." and
that their "universal nature is beyond question" assuaged to a point concerns that a reference to cultural
rights might, in the context of "cultural relativism', undermine the universality of human rights, and thus
removed one of the obstacles to their discussion. n272 Moreover, the plain and explicit language used in that
Declaration, that "the international community must treat human rights globally in a fair and equal manner, on
the same footing, and with the same emphasis" made it clear that no category of rights can be considered as
superior to any other n273 and that it is therefore necessary to redefine the importance of the role of
neglected rights, as cultural rights were until lately and still are, to a considerable degree n274 despite the
recent adoption of relative declarations and legally binding instruments.
Finally, the rapid globalization that followed the end of the Cold War has - ironically, as Winthrop notes heightened rather than lessened demands for the protection of cultural rights in their broad [*264] sense
and restored the debate to the centre of the international and national stage, as the associated drift towards
cultural homogenization and the concomitant disintegration of the social cohesion of smaller (and indeed
other) states and weaker groups generated a powerful reflex rally to the cause of the right to culture. n275
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37 Syracuse J. Int'l L. & Com. 207, *264
The view that culture constitutes the essence of human existence, n276 that cultural identity is closely
associated with human dignity, self-respect and self-confidence n277 and that, consequently, the recognition
of cultural rights is an indispensable prerequisite for the exercise of the other human rights n278 acquired a
new dynamic in the 1990s, at least on the theoretical level. Furthermore, in regard to minorities, and even
more indigenous peoples, it is argued that cultural rights can serve as a significant means of political
pressure for material ends n279 and as useful tools for ushering claims into the center of the national political
stage, n280 especially claims that do not ring the alarm bells set off by the dreaded word "self-determination'
and thus have a reasonable chance of succeeding. n281 In any case, beyond the strictly [*265] utilitarian
use of cultural rights, it is imperative to realise, as Tsosie and Stamatopoulou rightly note, that these rights
have an intrinsic value of their own which must be respected and protected. n282
In the context of these post-cold war developments and new ways of thinking, starting in the late 1980s a
number of international and regional organisations, led by the UN, UNESCO, the ILO, the OSCE and the
Council of Europe, adopted a series of instruments both of legally non binding nature, albeit of moral and
political value, like the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Language Minorities (1992) n283 and the UN Declaration on the Rights of Indigenous Peoples, n284 and
of binding too, like the Council of Europe's European Charter for Regional or Minority Languages (1992) n285
and Framework Convention for the Protection of National Minorities (1995) n286 and the ILO's Convention
(No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (1989), n287 which refer inter
alia to the recognition and protection of the - for the most part - individual n288 cultural rights of members of
minorities and of the related individual and collective rights of indigenous peoples. n289 Although these
instruments are not exempt from [*266] weaknesses and criticism, they undoubtedly constitute a first
essential step towards the recognition of cultural diversity, filling on the one hand the relevant gaps in the
international treaties on human rights and serving on the other as a starting point for the further substantial
protection of cultural rights in their broad sense. Particularly, positive development in this direction could be
the recent establishment by the Human Rights Council of the special procedure of an independent expert in
the field of cultural rights with mandate inter alia to work in cooperation with states, in order to foster the
adoption of measures aimed at the promotion and protection of cultural rights. n290
As a concluding observation, it is important to remember that the aim of cultural rights is not to "freeze'
cultures but to give the members of communities that are culturally distinct from the dominant ethnic group,
and the communities to which they belong, "the possibility of facing the world on their own terms,
appropriating its cultural riches through the prism of their own conceptions, thereby making their distinctive
contribution to the common heritage of mankind." n291
FOOTNOTES:
n1. See art.1, P 1 of the Declaration of the Principles of Int'l Cultural Cooperation (adopted on 4 November 1966 by the
General Conference of UNESCO), in Human Rights and Cultural Policies in a Changing Europe - The Right to Participate in
Cultural Life 150, 151 (Rod Fisher et al eds., 1994).
n2. See art. 1, P 2 of the Declaration on Race and Racial Prejudice (adopted on 27 November 1978 by the General
Conference of UNESCO), in The Struggle Against Discrimination: A Collection of International Instruments 296, 298 (Janusz
Symonides ed., 1996).
n3. Rodolfo Stavenhagen, Cultural Rights and Universal Human Rights, in Economic, Social and Cultural Rights: A
Textbook 63, 63 (Asbj<sl o>rn Eide et al. eds., 1995).
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37 Syracuse J. Int'l L. & Com. 207, *266
N4. See Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration and Beyond 1, 76
(2007).
n5. See Elissavet Stamatopoulou, The Right to Take Part in Cultural Life, Day of General Discussion - Right to Take Part in
Cultural Life (art. 15 (1) (a) of the Covenant), U.N. Doc. E / C.12 / 40 / 9, at 7 (May 9, 2008), available at
http://www2.ohchr.org/english/bodies/cescr/docs/discussion/Elis savetStamatopoulou.pdf (last visited Mar. 31, 2010).
n6. As he also adds: "The expression "economic, social and cultural rights' is widely used, but in most cases the concern
appears to be limited to the economic and social rights, both by the adherents and the opponents of these rights." Asbj<sl o>rn
Eide, Cultural Rights as Individual Human Rights, in Economic, Social and Cultural Rights: A Textbook 229, 229 (Asbj<sl
o>rn Eide et al. eds., 1995); see also Stamatopoulou, supra note 4, at 1, 55-56.
n7. Symonides observes that the characterization of cultural rights as an "underdeveloped' category of rights is widely
accepted, as these rights are the least developed as far as it concerns their scope, legal content and enforceability, Janusz
Symonides, Cultural Rights: A Neglected Category of Human Rights, 158 Int'l. Soc. Sci. J. 559, 559 (1998).
n8. Numerous countries, including some which claim to be proponents of human rights, do not treat economic, social and
cultural rights as real rights, but rather ignore them completely, see Committee on Economic, Social and Cultural Rights,
Summary Record of the 18th Meeting: Hungary, U.N. Doc. E / C.12 / 1992 / SR.18, P P 43, 67 (May 4, 1993), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/a08bd8524253128280256 5e8003fb90c?Opendocument (last visited Mar. 31, 2010).
n9. It has been noted that if it is true that the whole category of economic, social and cultural rights has been neglected in
comparison to civil and political rights, the same can be said about cultural rights within the category of economic, social and
cultural rights, 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 [hereinafter International
Commission of Jurists], U.N. Doc. E / C.12 / 40 / 7, P1 (May 9, 2008), available at
http://www2.ohchr.org/english/bodies/cescr/docs/discussion/Inte rnationalCommissionJurists.pdf (last visited Mar. 31, 2010).
n10. Denis Goulet, In Defense of Cultural Rights: Technology, Tradition and Conflicting Models of Rationality, 3 Hum. Rts. Q.
1, 1 (1981); see also Stamatopoulou, supra note 4, at 19.
n11. See Committee on Economic, Social and Cultural Rights, General Discussion on the Right to Take Part in Cultural Life
as Recognized in Article 15 of the Covenant, Summary Record of the 17th Meeting, UN Doc. E / C.12 / 1992 / SR.17, P 38
Page 22
37 Syracuse J. Int'l L. & Com. 207, *266
(Dec. 11, 1992), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6bb255744adda8fc
802565e8003f1165?Opendocument (last visited Mar. 30, 2010) [hereinafter UN Doc. E / C.12 / 1992 / SR.17]; see also
Symonides, supra note 7, at 559.
n12. See Report of the United Nations High Commissioner for Human Rights: Promotion of the Enjoyment of the Cultural
Rights of Everyone and Respect for Different Cultural Identities, UN Doc. E / CN.4 / 2006 / 40, P 12 (Dec. 15, 2005) available
at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/166/57/PDF/G0516657.pdf?OpenElement (last visited Mar. 30, 2010);
see also Symonides, supra note 7, at 560; Stamatopoulou, supra note 4, at 1-2, 48-52.
n13. Janusz Symonides, Cultural Rights: New Dimensions and Challenges, in Human Rights and Democracy for the 21st
Century, XXIX Thesaurus Acroasium 135, 144 (Kalliopi Koufa ed., 2000). It should be noted that the UN CHR did not adopt a
resolution on cultural rights until April 22, 2002, see Comm'n on Human Rights Resolution 2002 / 26, Promotion of the
Enjoyment of the Cultural Rights of Everyone and Respect for Different Cultural Identities, (Apr. 22, 2002), available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES .2002.26.En?Opendocument (last visited Mar. 30, 2010);
Stamatopoulou, supra note 4, at 57.
n14. See Gaetano Pentassuglia, Reforming the UN Human Rights Machinery: What Does the Future Hold for the Protection of
Minorities and Indigenous Peoples?, 14 Int'l J. on Minority and Group Rts. 127, 130 (2007).
n15. See Asbj<sl o>rn Eide & Rianne Letschert, Institutional Developments in the United Nations and at the Regional Level, 14
Int'l J. on Minority and Group Rts. 299, 299-300, 310-311 (2007).
n16. See Working Paper Prepared by the Secretariat, in Cultural Rights as Human Rights (Studies and Documents on
Cultural Policies no 3) 9, 10 (UNESCO ed., 1970), available at http://unesdoc.unesco.org/images/0000/000011/001194eo.pdf
(last visited Mar. 30, 2010) [hereinafter Working Paper].
n17. See Bruce Robbins & Elsa Stamatopoulou, Reflections on Culture and Cultural Rights, 103 S. Atl. Q. 419, 426 (2004);
see also Stamatopoulou, supra note 4, at 5.
n18. Fleur E. Johns, Portrait of the Artist as a White Man: The International Law of Human Rights and Aboriginal Culture, 16
Australian. Y.B. of Int'l L 175, 183 (1995); The lack of a commonly accepted definition / a common understanding of cultural
rights is pointed out in a series of sources and studies, see UN Doc. E / C.12 / 1992 / SR.17, supra note 11, at P 6; see also
Working Paper, supra note 16, at 10; Symonides, supra note 7, at 569; Symonides, supra note13, at 185.
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37 Syracuse J. Int'l L. & Com. 207, *266
n19. See Towards a Definition of Culture: Discussion, in Cultural Rights as Human Rights (Studies and Documents on
Cultural Policies no 3) 15, 16 (UNESCO ed., 1970), available at http://unesdoc.unesco.org/images/0000/000011/001194eo.pdf
(last visited Feb. 11, 2010). See also Symonides, supra note 13, at 141; Stamatopoulou, supra note 4, at 107; Stamatopoulou,
supra note 5, at 4.
n20. See Janet Blake, On Defining the Cultural Heritage, 49 Int'l & Comp. L.Q. 61, 76 (2000).
n21. See Stephen J. Toope, Cultural Diversity and Human Rights, 42 McGill L.J 169, 180 (1997). In the first discussion that
took place within the CESCR on the right to take part in cultural life proclaimed in article 15 para. 1 (a) of the Covenant it was
emphasized inter alia that, because the concept of culture covers many different areas and acquires many different meanings, it
is impossible to define it otherwise than in absolutely conventional terms. In this light it was argued that it would be wrong for
the Committee to attempt its own definition, see UN Doc. E / C.12 / 1992 / SR.17, supra note 11, at P 21. See also Working
Paper, supra note 16, at 10; Symonides, supra note 13, at 141.
n22. See Suzan Wright, The Politicization of "Culture', 14 Anthropology Today 7, 7 (1998).
n23. Lyndell V. Prott, Cultural Rights as Peoples' Rights in International Law, in The Rights of Peoples 93, 94 (James
Crawford ed., 1988); Symonides, supra note 13, at 141.
n24. Lyndel V. Prott, Cultural Rights as Peoples' Rights in International Law, 10 Bull. of the Austl. Soc. Leg. Phil. 4, 5 (1986);
Prott, supra note 23, at 94. The team of experts made the same observation in 1968 in the cultural rights meeting hosted by
UNESCO, see Working Paper, supra note 16, at 10.
n25. Symonides, supra note 13, at 141.
n26. Rodolfo Stavenhagen, Cultural Rights: A Social Science Perspective, in Cultural Rights and Wrongs 1, 4 (Halina Niec
ed., 1998); Stavenhagen, supra note 3, at 65; Eide, supra note 6, at 230; Stamatopoulou, supra note 4, at 109; Stamatopoulou,
supra note 5, at 4.
n27. Rodolfo Stavenhagen, Cultural Rights: A Social Science Perspective, in Economic, Social and Cultural Rights: A
Textbook 85, 88 (Asbj<sl o>rn Eide et al. eds., 2nd ed., 2001); Stavenhagen, supra note 3, at 65-66; Eide, supra note 6, at
230-231; Stamatopoulou, supra note 4, at 109; Stamatopoulou, supra note 5, at 5.
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37 Syracuse J. Int'l L. & Com. 207, *266
n28. Asbj<sl o>rn Eide, Cultural Rights and Minorities: Essay in Honour of Erica-Irene Daes, in Justice Pending: Indigenous
Peoples and Other Good Causes - Essays in Honour of Erica - Irene A. Daes 83, 85 (Gudmundur Alfredsson & Maria
Stavropoulou eds., 2002); Stavenhagen, supra note 3, at 66.
n29. Roger O'Keefe, The "Right to Take Part in Cultural Life" Under Article 15 of the ICESCR, 47 Int'l & Comp. L.Q 904, 905
(1998).
n30. See Donders, who notes additionally that at the time of the adoption of article 27 of the UDHR and of article 15 para. 1 (a)
of the ICESCR culture did not refer to a specific lifestyle or to the tradition of a community, or to aspects such as language or
religion, Yvonne Donders, Cultural Life in the Context of Human Rights, Day of General Discussion - Right to Take Part in
Cultural Life (art. 15 (1) (a) of the Covenant), UN Doc. E / C.12 / 40 / 13, at 3-4, 6 (May 9, 2008), available at
http://www2.ohchr.org/english/bodies/cescr/docs/discussion/Yvon neDonders.pdf (last visited Mar. 26, 2010); O' Keefe, supra
note 29, at 906 n.14, 912.
n31. See Compilation of Guidelines on the Form and Content of Reports to be Submitted by State Parties to the International
Human Rights Treaties: Report of the Secretary General, UN Doc. HRI / GEN / 2 / Rev. 2, at 23, P 66 (b) (May 7, 2004),
available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G04/413/80/PDF/G0441380.pdf?OpenElement (last visited Feb. 11,
2010); See also Committee on Economic, Social and Cultural Rights, General Comment No 6: The Economic, Social and
Cultural Rights of Older Persons, UN Doc. E / 1996 / 22, P40 (Aug. 12, 1995), available at
http://www.unhchr.ch/tbs/doc.nsf/0/482a0aced8049067c12563e d005acf9e?Opendocument (last visited Feb. 11, 2010);
O'Keefe, supra note 29, at 906.
n32. See Preamble, P5 (c) of the UNESCO Recommendation on Participation by the People at Large in Cultural Life and Their
Contribution to It (adopted on 26 November 1976 by the General Conference of UNESCO), in Unesco and Human Rights Standard Setting Instruments, Major Meetings, Publications 252, 254 (Janusz Symonides and Vladimir Volodin eds., 1996); see
also Symonides, supra note 7, at 561; Symonides, supra note 13, at 141-142; O'Keefe, supra note 29, at 913.
n33. See UNESCO Universal Declaration on Cultural Diversity, 41 Int'l Legal Materials 57 (2002); Stamatopoulou, supra note
4, at 77, 109.
n34. See Kiyotaka Aoyaki, Community or Group Rights, in Cultural Rights as Human Rights (Studies and Documents on
Cultural Policies no. 3) 25, 25 (UNESCO ed., 1970), available at http://unesdoc.unesco.org/images/0000/000011/001194eo.pdf
(last visited Mar. 26, 2010); see also UN Doc. E / C.12 / 1992 / SR.17, supra note 11, at P17; O'Keefe, supra note 29, at 916;
Stamatopoulou, supra note 4, at 77, 113.
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37 Syracuse J. Int'l L. & Com. 207, *266
n35. See Jane K. Cowan, Marie - Benedicte Dembour and Richard A. Wilson, Introduction, in Culture and Rights:
Anthropological Perspectives 1, 3 (Jane Cowan et al. eds., 2001), who comment that such an approach reflects not only the
romantic nationalism which sees cultural diversity as a problem that ought to be solved but also the "difference
multiculturalism", "which conceives of diversity as a richness to be celebrated (although only as a mosaic of separate and
distinct cultural units)."
n36. Cowan, Dembour and Wilson, supra note 35, at 8; Stamatopoulou, supra note 4, at 164.
n37. " Ethnic' is understood, according to Anthony Smith's now classic definition, as that group which on the one hand is
characterized by a collective name, a common myth of origin, a common history and a distinct culture and on the other hand is
connected with a certain geographical region, while one more component of the concept consists of the development of feelings
of solidarity among its members. See Stamatis Beis, Language and Ethnic Identity: The Case of the Vlach Language, in
Language, Society, History: The Balkans 411, 412 (A. F. Christides, ed., 2007) (in Greek); Basilis K. Gounaris, Ethnic Groups
and Parties in Macedonia During the Balkan Wars, in Greece During the Balkan Wars 189, 190-191 (Lydia Triha ed., 1993) (in
Greek).
n38. Stamatopoulou, supra note 4, at 164.
n39. See Marina Xadjioannou, The International Human Right to Culture: Reclamation of the Cultural Identities of Indigenous
Peoples Under International Law, 8 Chap. L. Rev. 201, 201 (2005); UNESCO Universal Declaration on Cultural Diversity, supra
note 33.
n40. Cowan, Dembour and Wilson, supra note 35, at 8.
n41. See Thomas Hylland Erriksen, Between Universalism and Relativism: A Critique of the UNESCO Concept of Culture in
Culture and Rights: An Anthropological Perspective 127 ff. (Jane Cowan et al. eds., 2001); see also Wright, supra note 22, at
12-14. Stavenhagen comments that latent within the perception of culture "as a system of cohesive and fixed values and
symbols and a set of distinct material and intellectual activities and products of each specific group which distinguishes it from
other similar groups" is the danger of approaching the concept as an object, a thing existing apart from the social sphere where
the social actors are interrelated, a hypothesis rejected in the 1970s by Barth, who argued that the cultural identity of any group
depends less upon the content of its culture than upon the social boundaries that determine the spheres of social relations
through which participation is allocated to this or that ethnic group, Stavenhagen supra note 3, at 66-67.
n42. See Comments Submitted by the International Labour Organization, Day of General Discussion - Right to Take Part in
Cultural Life (art. 15 (1) (a) of the Covenant), U.N. Doc. E / C.12 / 40 / 12, P 1 (May 9, 2008), available at
http://www2.ohchr.org/english/bodies/cescr/docs/discussion/ILO. pdf (last visited Apr. 4, 2010).
Page 26
37 Syracuse J. Int'l L. & Com. 207, *266
n43. Hum. Rts. Comm., Gen. Comment No. 23, The Rights of Minorities, U.N. Doc. CCPR / C / 21 / Rev. 1 / Add.5, P 7 (April 8,
1994), available at http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563e d004df111?Opendocument (last visited Apr.
4, 2010); see also, Stamatopoulou, supra note 4, at 141-142, 179-180.
n44. Comm. on the Elimination of Racial Discrimination, Gen. Recommendation No. 23, Indigenous Peoples, P 4 (a) (Aug. 18,
1997), available at http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b8025651 60056fe1c?Opendocument (last visited Apr.
4, 2010) (emphasis added); see also Indigenous Peoples and the United Nations Human Rights Treaty Bodies: A Compilation
of Treaty Body Jurisprudence, 1993-2004, at 68 (Forest Peoples Programme ed., 2005).
n45. See Christian Groni, The Right to Take Part in Cultural Life, Day of General Discussion - Right to Take Part in Cultural Life
(art. 15 (1) (a) of the Covenant), U.N. Doc. E / C.12 / 40 / 3, at 4-5 (May 9, 2008), available at
http://www2.ohchr.org/english/bodies/cescr/docs/discussion /ChristianGroni.pdf (last visited Apr. 4, 2010); U.N. Doc E / C.12 /
40 / 12, supra note 42, at P 1; O'Keefe, supra note 29, at 918; Donders, supra note 30, at 7. See for example, Concluding
Observations of the Committee on Economic, Social and Cultural Rights: Finland, U.N. Doc. E / C.12 / FIN / CO / 5, PP 11, 20
(Jan. 16, 2008); Concluding Observations of the Committee on Economic, Social and Cultural Rights: Libyan Arab Jamahiriya,
U.N. Doc. E / C.12 / LYB / CO / 2, P 43 (Jan. 25, 2006).
n46. See Jasunz Symonides, The Implementation of Cultural Rights by the International Community, 60 Gazette 7, 7 (1998);
Symonides, supra note 7, at 560-561; Symonides, supra note 13, at 142.
n47. See V. Mshvenieradze, Cultural Interaction as a Factor Influencing Cultural Rights as Human Rights, in Cultural Rights
as Human Rights (Studies and Documents on Cultural Policies no 3) 42, 42-43 (UNESCO ed., 1970), available at
http://unesdoc.unesco.org/images/0000/000011/001194eo.pdf (last visited Apr. 5, 2010); Symonides, supra note 13, at 147;
Stamatopoulou, supra note 4, at 147.
n48. See Universal Declaration of Human Rights (adopted on 10 December 1948 by the U.N. General Assembly), in The
Struggle Against Discrimination: A Collection of International Instruments 81, 86 (Janusz Symonides ed., 1996); see also
Symonides, supra note 7, at 561; Symonides, supra note 13, at 146-147; Stamatopoulou, supra note 4, at 11, 37.
n49. See International Covenant on Economic, Social and Cultural Rights, 6 Int'l Legal Materials 360 (1967); Symonides,
supra note 7, at 561; Symonides, supra note 13, at 146-147; Stamatopoulou, supra note 4, at 11, 37.
n50. " Every person has the right to take part in the cultural life of the community, to enjoy the arts and to participate in the
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37 Syracuse J. Int'l L. & Com. 207, *266
benefits that result from intellectual progress, especially scientific discoveries. He likewise has the right to the protection of his
moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author." See
American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX (1948), in Basic Documents Pertaining to Human
Rights in the Inter-American System 19, 22 (Secretariat of the Inter - American Court ed., 2003), available at
http://www.corteidh.or.cr/docs/libros/Basingl01.pdf (last visited Mar. 29, 2010); Symonides, supra note 7, at 562.
n51. " 1. The States Parties to this Protocol recognize the right of everyone: a) to take part in the cultural and artistic life of the
community, b) to enjoy the benefits of the scientific and technological progress, c) to benefit from the protection of the moral and
material interests deriving from any scientific, literary or artistic production of which he is the creator...3. The States Parties to
this Protocol undertake to respect the freedom indispensable for scientific research and creative activity." See Additional
Protocol on Human Rights in the Area of Economic, Social and Cultural Rights "Protocol of San Salvador," O.A.S. Treaty
Series No. 69 (1988), signed Nov. 17, 1988, in Basic Documents Pertaining to Human Rights in the Inter-American System 79,
86 (Secretariat of the Inter - American Court ed., 2003), available at http://www.corteidh.or.cr/docs/libros/Basingl01.pdf (last
visited Mar. 29, 2010).
n52. See Asbj<sl o>rn Eide, Economic, Social and Cultural Rights as Human Rights, in Economic, Social and Cultural
Rights: A Textbook 21, 32 (Asbj<sl o>rn Eide et al. eds., 1995).
n53. See Convention on the Elimination of All Forms of Discrimination Against Women, in The Struggle Against Discrimination:
A Collection of International Instruments 170, 176 (Janusz Symonides ed., 1996); Symonides, supra note 7, at 562; Symonides
supra note 13, at 148; Eide, supra note 6, at 231; Eide supra note 28, at 86; Stamatopoulou, supra note 4, at 40.
n54. See Convention on the Rights of the Child, 28 Int'l Legal Materials 1457 (1989); Symonides, supra note 7, at 562;
Symonides, supra note 13, at 148; Eide, supra note 6, at 231; Eide, supra note 28, at 86; Stamatopoulou, supra note 4, at 41.
n55. Ole Henrik Magga, Cultural Rights and Indigenous Peoples: The Sami Experience, in World Culture Report: Culture,
Creativity and Markets 76, 79 (UNESCO, 1998); Eide, supra note 6, at 229; Eide, supra note 52, at 32; International
Commission of Jurists, supra note 9, at 3, P 3.
n56. See International Covenant on Civil and Political Rights, 6 Int'l Legal Materials 363 (1967); Symonides, supra note 7, at
564 ; Stamatopoulou, supra note 4, at 179. Almost identical to that in article 27 of the ICCPR is the provision of article 30 of the
Convention on the Rights of the Child regarding the right of children belonging to minorities or indigenous peoples to enjoy their
culture, religion and language, see Convention on the Rights of the Child, supra note 54.
n57. The HRC has adopted on a permanent basis a general policy of including indigenous peoples within the scope of the
protection enshrined in article 27 of the Covenant, requiring on the one hand that the states describe in their reports the
measures taken for the application of this provision regarding the indigenous peoples and on the other making relevant
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37 Syracuse J. Int'l L. & Com. 207, *266
recommendations, see Alexandra Xanthaki, Indigenous Cultural Rights in International Law, 2 Eur. J. of L. Reform 343, 345
(2000).
n58. Kalliopi Koufa, The Organisation of the United Nations and the Protection of Minorities, in Modern Problems and the
Responsibility of the Scientist 163, 169 (Dimitra Papadopoulou ed., 1994) (in Greek).
n59. See United Nations World Conference on Human Rights: Vienna Declaration and Programme of Action, 32 Int'l Legal
Materials 1661 (1993).
n60. Boutros Boutros Ghali, The Right to Culture and the Universal Declaration of Human Rights, in Cultural Rights as Human
Rights (Studies and Documents on Cultural Policies no 3) 73, 73 (UNESCO ed., 1970), available at
http://unesdoc.unesco.org/images/0000/000011/001194eo.pdf (last visited Mar. 30, 2010); see also Eide, supra note 6, at 232,
who comments that the right to education may be considered as a cultural right per se; Symonides, supra note 13, at 142,
152-153, who observes that the right to education is so closely connected with cultural rights, that, in some cases, it is almost
impossible to dissociate the one from the other; see also Stavenhagen, supra note 3, at 63; Prott, supra note 23, at 96;
Stamatopoulou, supra note 4, at 2 n.6, 148.
n61. Vernon Van Dyke, The Cultural Rights of Peoples, 2 Universal Human Rights 1, 13 (1980).
n62. See UNESCO Convention Against Discrimination in Education, in The Struggle Against Discrimination: A Collection of
International Instruments 281, 284 (Janusz Symonides ed., 1996); Koufa, supra note 58, at 168.
n63. See Committee on Economic, Social and Cultural Rights, General Comment No. 13, The Right to Education, UN Doc. E
/ C.12 / 1999 / 10, P 50 (Dec. 8, 1999), available at http://www.unhchr.ch/tbs/doc.nsf/0/ae1a0b126d068e868025683
c003c8b3b?Opendocument (last visited Mar. 30, 2010) [hereinafter UN Doc. E / C.12 / 1999 / 10]; Stamatopoulou, supra note
4, at 153, 189-190.
n64. As Eide observes, the two issues that are of special importance for the preservation and development of cultural identity
are education and language. "The right to preservation of identity can be fully realized only when the members of the group
acquire a competent knowledge in their mother tongue during the education process." Eide, supra note 28, at 91. As noted also
within the CESCR, during the first discussion on the right to take part in cultural life of article 15 of the Covenant, the protection
of culture must include the protection of languages, many of which disappear due to lack of support from the state authorities,
see UN Doc. E / C.12 / 1992 / SR.17, supra note 11, at P 47.
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37 Syracuse J. Int'l L. & Com. 207, *266
n65. See Miroslav Kusy, Innate Dignity, Cultural Identity and Minority Language Rights, 6 Int'l J. on Minority and Group Rights
299, 303 (1999); Van Dyke, supra note 61, at 2, 8; Magga, supra note 55, at 81.
n66. See Luisa Maffi, Endangered Languages, Endangered Knowledge, 54 Int'l Soc. Sci. J. 385, 385, 390 (2002), who points
out that some early linguistic studies indicate that the loss of a language often involves in parallel the loss of the knowledge, the
values, the beliefs and the practices it carries.
n67. See Fernand de Varennes, The Linguistic Rights of Minorities in Europe, in Minority Rights in Europe: European Minorities
and Languages 3, 3 (Snezana Trifunovska ed., 2000). As Winthrop also notes, language determines the way its users perceive
the world. "Different languages provide different prisms of human experience not only because every grammar constructs
categories, such as time, person and causality in a different way, but also because only few words in one language have exact
semantic equivalents in another." Robert Winthrop, Defining a Right to Culture and Some Alternatives, 14 Cultural Dynamics
161, 169 (2002).
n68. Donall O Riagain, All Languages - Great and Small: A Look at the Linguistic Future of Europe with Particular Reference to
Lesser Used Languages, in Minority Rights in Europe: European Minorities and Languages 31, 31 (Snezana Trifunovska ed.,
2000).
n69. Fernard De Varennes, Minority Aspirations and the Revival of Indigenous Peoples, 42 Int'l Rev. of Educ. 309, 313 (1996);
Stamatopoulou, supra note 4, at 189.
n70. See Bret Gustafson, Language Rights and Guarani Renaissance in Bolivia, 12 Hum. Rts. Dialogue (Series 2) 11, 11
(2005).
n71. See Danielle Celermajer, The Stolen Generation: Aboriginal Children in Australia, 12 Hum. Rts. Dialogue 13, 13 (2005).
n72. Duane Champagne, Beyond Assimilation as a Strategy for National Integration: The Persistence of American Indian
Political Identities, 3 Transnat'l Law and Contemp. Probs. 109, 123 (1993); Winthrop, supra note 67, at 169.
n73. Elsa Stamatopoulou, Cultural Rights and Modern Realities: The Right to Participate in Cultural Life, 9 Armenopoulos
1391, 1399 (2006) (in Greek); Stamatopolou, supra note 4, at 5-6. As Maffi observes, the states avoid in general to provide the
members of minorities and of indigenous peoples opportunities in education in their mother tongues. At best, they ignore them
and at worst, they repress them, see Maffi, supra note 66, at 390.
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37 Syracuse J. Int'l L. & Com. 207, *266
n74. Robert Dunbar, Minority Language Rights in International Law, 50 Int'l & Comp. L. Q. 90, 90 (2001); Stamatopoulou,
supra note 4, at 163; Stamatoupoulou, supra note 73, at 1391; Maffi, supra note 66, at 386.
n75. See Francesco Francioni, Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of
Humanity, 25 Mich. J. of Int'l L. 1209, 1212 (2004); Eide, supra note 6, at 232; Eide, supra note 28, at 87; Stavenhagen, supra
note 3, at 63; Van Dyke, supra note 61, at 2, 11; Prott, supra note 23, at 96; Stamatopoulou, supra note 4, at 109-110, 145-146,
199-200.
n76. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Guatemala, UN Doc. CERD /
C / GTM / CO / 11, P 18 (May 15, 2006), where the Committee expresses its concern over the repeated reports it receives
regarding the obstacles placed in the way of indigenous peoples' access to traditionally sacred sites.
n77. See Victor D. Montejo, The Year Bearer's People: Repatriation of Ethnographic and Sacred Knowledge to the Jakaltek
Maya of Guatemala, 8 Int'l J. of Cultural Prop. 151, 152-154, 160-161 (1999).
n78. See Jackbeth K. Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights, 6 Int'l J. of
Hum. Rts. 29, 36 (2002); Eide, supra note 6, at 232; Eide, supra note 28, at 87; Symonides, supra note 7, at 562; Prott, supra
note 23, at 96.
n79. See Eleni Kalampakou, The Right to Freedom of Association Under the Principle of Cultural Pluralism: Comments on the
ECHR's Decision "Tourkiki Enosi Xanthis v. Greece", 43 Revue Hellenique Des Droits De L' Homme 849 ff. (2009) (in Greek);
Eide, supra note 6, at 232; Eide, supra note 28, at 87; Stamatopoulou, supra note 4, at 146-147; Prott, supra note 23, at 96;
Mapulanga-Hulston, supra note 78, at 36.
n80. Stamatopoulou, supra note 4, at 144.
n81. Fergus MacKay, Cultural Rights, in Economic, Social and Cultural Rights: A Guide for Minorities and Indigenous
Peoples 83, 83 (M. E. Salomon ed., Minority Rights Group International, 2005).
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37 Syracuse J. Int'l L. & Com. 207, *266
n82. Anthony Ellis, Minority Rights and the Preservation of Languages, 80 Philosophy 199, 199 (2005).
n83. Marie - Claire Foblets, Cultural Rights or the Right to Preserve Cultural Identity: The Multicultural Society Facing New
Dilemmas, in Culture: Roots and Wings 16, 16 (The Ministry of Flanders ed., 1998).
n84. See Robert Albro & Joanne Bauer, Introduction, 12 Hum. Rts. Dialogue (Series 2) 2, 3 (2005); Symonides, supra note 7,
at 560; Symonides, supra note 13, at 145; Stamatopoulou, supra note 4, at 5.
n85. CAHMIN was assigned with the mission inter alia to draft a protocol complementing the European Convention on Human
Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.
See Terms of Reference of the CAHMIN on the Drawing up of a Framework Convention and a Protocol Complementing the
European Convention of Human Rights (ECHR) as Adopted by the Committee of Ministers on Nov. 4 1993, Decision No. CM /
575 / 041193, Ad Hoc Committee For The Protection Of National Minorities, CAHMIN (94) 1, at 2 (Dec. 10, 1993) [hereinafter
CAHMIN (94) 1].
n86. See Dimitris Christopoulos, Minority Protection: Towards a New European Approach, 1 Balkan Forum 155, 162 (1994).
n87. See Ad Hoc Committee For The Protection Of National Minorities, CAHMIN 94 (35), at 11, P 7 (Dec. 9, 1994) [hereinafter
CAHMIN (94) (35)].
n88. See Ad Hoc Committee For The Protection Of National Minorities, CAHMIN 95 (16), at 6-7, PP 24, 27 (May 23, 1995)
[hereinafter CAHMIN (95) (16)].
n89. See John Packer, On the Definition of Minorities, in The Protection of Ethnic and Linguistic Minorities in Europe 23, 35
(John Packer & Kristian Myntti eds., 1993); see also Ioannis Stefandis, The Last European Age: Diplomacy and the Policy of
the Superpowers 24-27 (1997) (in Greek).
n90. James Mayall, Sovereignty and Self-Determination in the New Europe, in Minority Rights in Europe: The Scope for a
Transnational Regime 7, 8 (Hugh Miall ed., 1994).
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37 Syracuse J. Int'l L. & Com. 207, *266
n91. Christos Rozakis, The Overstepping and Preservation of the National State in Modern Europe, in Minority Questions in
Europe (EKEM, Working Paper No. 17) 20, 20 (Panayiotis Grigoriou et al. eds., 1994) (in Greek).
n92. Stephen May, Language and Education Rights for Indigenous Peoples, 11 Language, Culture & Curriculum 272, 273
(1998). As Stavenhagen notes, quoting Walker Connor, the development of modern states was a process of "destruction of
nations' rather than of their construction. As in the name of the modern nation state, many peoples which had not formed a
state were destroyed or eliminated, Stavenhagen, supra note 3, at 71.
n93. Basilis Nitsiakos, The Cultural Side of the Vlach Question, 23 Prevezanika Chronika 84, 85 (1990) (in Greek).
n94. Henry Minde, Sami Land Rights in Norway: A Test Case for Indigenous Peoples, 8 Int'l J. Minority and Group Rts. 107,
110 (2001).
n95. Athanasios Yupsanis, The Evolution of Minority Protection in International Law, 20 Armenopoulos - Sci. Yb. 61, 72 (1999)
(in Greek); Symonides, supra note 13, at 160.
n96. See Stephan Marquardt, International Law and Indigenous Peoples, 3 Int'l J. on Group Rts. 47, 55 (1995).
n97. Rudiger Wolfrum, The Implementation of International Standards on Prevention and Elimination of Racial Discrimination:
Achievements and Challenges, in The Struggle Against Discrimination: A Collection of International Instruments Adopted by the
United Nations System 45, 45 (Janusz Symonides ed., 1996).
n98. See Budislav Vukas, General International Law and the Protection of Minorities, 8 Revue des Droits de l'Homme 41, 44
(1975).
n99. See Hurst Hannum, Contemporary Developments in the International Protection of the Rights of Minorities, 66 Notre
Dame L. Rev. 1431, 1444 (1991).
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37 Syracuse J. Int'l L. & Com. 207, *266
n100. Natan Lerner, Group Rights and Discrimination in International Law 24 (1991).
n101. Giorgio Sacerdoti, New Developments in Group Consciousness and the International Protection of the Rights of
Minorities, 13 Isr. Yb. on Hum. Rts. 116, 121-122 (1983).
n102. " Collective' in that the rights, in contrast to the individual rights provided for members of groups, are recognized to the
groups as such, perceived, that is, as whole entities, aiming at the protection of their common interests and their communal
existence and identity. See Geoff Gilbert, The Council of Europe and Minority Rights, 18 Hum. Rts. Q. 160, 171 (1996).
n103. See Paul J. Magnarella, The Evolving Right of Self-Determination of Indigenous Peoples, 14 St. Thomas L. Rev. 425,
430 (2001).
n104. See Remarks of Payam Akhavan, in The Genocide Convention After Fifty Years: Contemporary Strategies for
Combating a Crime Against Humanity, 92 Am. Soc'y of Int'l Law Proceedings 7, 8 (1998).
n105. See Steven Ratner, in The Genocide Convention After Fifty Years: Contemporary Strategies for Combating a Crime
Against Humanity, 92 Am. Soc'y of Int'l Law Proceedings 1, 2 (1998). As the representatives of indigenous peoples noted in the
seventh session of the ad hoc working group of the former UN Commission on Human Rights, the requirement of proving the
specific intention of bringing about the partial or total destruction of a group demanded by the Convention in order to
substantiate the crime of genocide contributed to the ineffectiveness of its protection, see Comm'n on Human Rights, Report of
the Working Group Established in Accordance with Commission on Human Rights Resolution 1995 / 32, UN Doc. E / CN.4 /
2002 / 98, P 63 (Mar. 6, 2002).
n106. " Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a
crime is the specific intention, required as a constitutive element of the crime, which requires that the perpetrator clearly seek to
produce the act charged. The special intent in the crime of genocide lies in the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group as such." See Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgment, 37 Int'l Legal
Materials 1309, 1406, P 42 (1998).
n107. See Motion for a Resolution - European Parliament Resolution on Guatemala, Eur. Parl. Doc. B6-0107/2007 (2007),
available at
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+MOTION+B6-2007-0107+0+DOC+PDF+V0//EN
(last visited Mar. 30, 2010).
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37 Syracuse J. Int'l L. & Com. 207, *266
n108. See Michael Legg, Indigenous Australians and International Law: Racial Discrimination, Genocide and Reparations, 20
Berkeley J. Int'l L. 387, 411, 414 (2002); May, supra note 92, at 277.
n109. See Linos-Alexandros Sicilianos, The Protection of Minorities in Europe: Collective Aspects of Individual Rights, in The
Protection of Minorities: the Framework - Convention of the Council of Europe 93, 97 (Antonis Bredimas & Linos Alexandros
Sicilianos eds., 1997) (in Greek).
n110. See James S. Anaya, Indigenous Rights Norms in Contemporary International Law, 8 Ariz. J. Int'l & Comp. L. 1, 34
(1991).
n111. See Eric Kolodner, Population Transfer: The Effects of Settler Infusion Policies on a Host Population's Right to
Self-determination, 27 N.Y.U. J. Int'l L. & Pol. 159, 179 (1994).
n112. See Erica-Irene A. Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, 3 Transnat'l L.
& Contemp. Probs. 1, 6 (1993); James S. Anaya, The Contours of Self-Determination and its Implementation: Implications of
Developments Concerning Indigenous Peoples, in Justice Pending: Indigenous Peoples and Other Good Causes - Essays in
Honour of Erica - Irene A. Daes 5, 10 (Gudmundur Alfredsson & Maria Stavropoulou eds., 2002); Marquadt, supra note 96, at
68.
n113. " As the Government and Parliament of Norway have addressed the situation of Sami in the framework of the right to
self-determination, the Committee expects Norway to report on the Sami people's right to self-determination under article 1 of
the Covenant, including paragraph 2 of that article." Concluding Observations of the Human Rights Committee: Norway, U.N.
Doc. CCPR / C / 79 / Add.112, P 17 (Nov. 1, 1999). "The Committee, while taking note of the concept of self-determination as
applied by Canada to the aboriginal peoples, regrets that no explanation was given by the delegation concerning the elements
that make up that concept, and urges the State party to report adequately on implementation of article 1 of the Covenant in its
next periodic report." Concluding Observations of the Human Rights Committee: Canada, U.N. Doc. CCPR / C / 79 / Add.105, P
7 (Apr. 7, 1999). "The State party should take all necessary measures to safeguard for the indigenous communities, ...
appropriate measures should also be taken to increase their participation in the country's institutions and the exercise of the
right to self-determination." Concluding Observations of the Human Rights Committee: Mexico, U.N. Doc. CCPR / C / 79 /
Add.109, P 19 (July 27, 1999). "What is the policy of Australia in relation to the applicability to the indigenous peoples in
Australia of the right of self-determination of all peoples?" Human Rights Comm., List of Issues to be Taken up in Connection
with the Consideration of the Third and Fourth Reports of Australia, U.N. Doc. CCPR / C / 69 / L / AUS, P 4 (Apr. 25, 2000). See
also Benedict Kingsbury, Reconciling Five Competing Conceptual Structures of Indigenous Peoples' Claims in International and
Comparative Law, 34 N.Y.U. J. Int'l L. & Pol. 189, 228 (2001); S. James Anaya, Superpower Attitudes Toward Indigenous
Peoples and Group Rights, 93 Am. Soc'y Int'l L. Proc. 251, 260 (1999).
n114. See Timo Koivurova, From High Hopes to Disillusionment: Indigenous Peoples' Struggle to (Re)Gain Their Right to
Self-Determination, 15 Int'l J. on Minority & Group Rts. 1, 10-12 (2008).
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37 Syracuse J. Int'l L. & Com. 207, *266
n115. Budislav Vukas, International Protection of Minorities: Limits of Growth, in Human Rights and Democracy for the 21st
Century, XXIX Thesaurus Acroasium 21, 35 (Kalliopi Koufa ed., 2000).
n116. See Kostas Hatzikonstantinou, The Concept of Minority - Difficulties and Problems of Definition, 3 Armenopoulos - Sci.
Yb. 261 ff. (1982) (in Greek); Stamatopoulou, supra note 4, at 169; Hannum, supra note 99, at 1431.
n117. See Stelios E. Perrakis, The Rights of Peoples. Arguments for Legal Polyphony and Delimitations, in The Rights of
Peoples and Minorities: An Issue in Mutation, 33, 35 (Stelios Perrakis ed., 1993) (in Greek); Marquadt, supra note 96, at 67
n118. See 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 The Protection of Minorities - The
Framework Convention of the Council of Europe 57, 62-65 (Antonis Bredimas & Linos Alexandros Sicilianos eds., 1997) (in
Greek). The author notes that "...reality shows that a people and a minority both as a term and as a condition, might concur
(e.g. Kurds in Iraq, Turkey, Iran). That is, the Kurdish minority - recognized or not - undoubtedly also presents the characteristic
features of a people, although without formal foundation."
n119. See Nikos Alivizatos, Does Multiculturalism Need a New Theory of Human Rights? 28 Revue Hellenique Des Droits De
L' Homme 1201, 1207 (2005) (in Greek).
n120. Sebastian M. Poulter, The Rights of Ethnic, Religious and Linguistic Minorities, 3 E.H.R.L.R. 254, 256 (1997).
n121. Maria Telalian, International Instruments for the Protection of Minorities - Recent Developments, in Minority Questions in
Europe (EKEM, Working Paper No. 17) 32, 41 (Panayiotis Grigoriou et al. eds., 1994) (in Greek).
n122. Will Kumlicka, Theorizing Indigenous Rights, 49 U. Toronto L.J. 281, 284 (1999).
n123. Natan Lerner, The Evolution of Minority Rights in International Law, in Peoples and Minorities in International Law 77, 87
(Catherine Brolmann et al. eds., 1993); Symonides, supra note 13, at 160; Stavenhagen, supra note 3, at 73; Hannum, supra
note 99, at 1434-1435.
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37 Syracuse J. Int'l L. & Com. 207, *266
n124. Rudiger Wolfrum, The Protection of Indigenous Peoples in International Law, 59 Zeitschrift Fur Ausladisches Und
Offentliches Recht Und Volkerrecht [Heidelberg J. Int'l L.] 369, 370 (1999).
n125. See Ian Brownlie, The Rights of Peoples in Modern International Law, in The Rights of Peoples 1, 2 (James Crawford
ed., 1988); Hannum, supra note 99, at 1434-1435.
n126. Douglas Sanders, Collective Rights, 13 Hum. Rts. Q. 368, 368 (1991); Anaya, supra note 113, at 257.
n127. Maxwell Yalden, Collective Claims on the Human Rights Landscape: A Canadian View, 1 Int'l J. on Group Rts 17, 20
(1993); Anaya, supra note 113, at 257.
n128. As Winthrop observes, it is hard from an anthropological perspective to approach the concept of culture dissociated from
that of groups, because at least within an anthropological framework the cultures and groups (communities, races or nations)
are reciprocally defined and interdependent concepts, Winthrop supra note 67, at 163. From a legal perspective, Symonides
comments that although provision is made for individual cultural rights, these can in fact often be implemented mainly, if not
exclusively, in association with others. Moreover, as regards the members of vulnerable groups, like indigenous peoples,
cultural rights can be fully guaranteed and observed only if the identity and very existence of such groups is protected,
Symonides, supra note 7, at 563-564. Stavenhagen points out that there is a need for a collective approach to cultural rights,
as some of these can only be enjoyed in community with others and therefore the community must have the possibility to
preserve, protect and develop what it has in common. Those entitled to the rights may be individuals, but their content
evaporates without the preservation and the collective rights of the groups. As he characteristically concludes, "The rights
pertain to persons belonging to specific cultures and shaped by these cultures, who engage in collective action, who share
common values, and who can only be the bearers of these common values by joining with others members of their own group",
Stavenhagen, supra note 3, at 68. Following the same line, Stamatopoulou notes that, although cultural rights are not always
referred to as collective rights in international instruments, it is logically and morally impossible not to recognize their collective
dimension in relation to minorities and indigenous peoples, Stamatopoulou, supra note 4, at 172-173. The above mentioned
CAHMIN had observed that it is not possible to examine the concept of culture without associating it with the groups, adding,
however, (for political probably reasons) that such an acceptance does not imply recognition of collective rights; see CAHMIN
(94) 35, supra note 87, at 12, P 61; see also International Commission of Jurists, supra note 9, at 4-6, PP 8-11.
n129. As Eide and Rosas note, the principal emphasis regarding the enjoyment of civil and political rights is on freedom from
state interference, on the passive obligations of the state to abstain, while a major element of economic, social and cultural
rights is the claim on the state for positive protection and assistance, see Asbj<sl o>rn Eide & Allan Rosas, Economic, Social
and Cultural Rights: A Universal Challenge, in Economic, Social and Cultural Rights: A Textbook 15, 17 (Asbj<sl o>rn Eide
et al. eds., 1995).
n130. In the initial draft of the Convention the proposed Article 3 prohibiting cultural genocide met with such opposition not only
from the American countries, which at that time were pursuing harsh integration policies, but by western states as well, which
had initially relegated the matter to the framework of the Universal Declaration and later, for reasons that had to do with Cold
War considerations, to the Greek calends. See Johannes Morsink, Cultural Genocide, the Universal Declaration and Minority
Rights, 21 Hum. Rts. Q. 1009, 1009-1010, 1021, 1023 (1999).
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37 Syracuse J. Int'l L. & Com. 207, *266
n131. See Johanne W. Bruegel, A Neglected Field: The Protection of Minorities, IV Revue des Droits de l'Homme 413, 426-427
(1971); Stamatopoulou, supra note 4, at 14.
n132. Josef Kunz, The Present Status of the International Law for the Protection of Minorities, 48 Am. J. Int'l L. 282, 285
(1954).
n133. Tore Modeen, The International Protection of National Minorities in Europe 110 (1969).
n134. Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 Int'l & Comp. L.Q. 102, 118 (1976).
n135. See David L. Nersessian, Rethinking Cultural Genocide Under International Law, 12 Hum. Rts. Dialogue (Series 2) 7, 8
(2005); As Schinas aptly remarks, cultural genocide constitutes a "..bloodless retroactive mass annihilation of the cultural past
of a people or of a place...", Ioannis G. Schinas, The Right to the Historical and Cultural Identity, in The Rights of Peoples and
Minorities: An Issue in Mutation 69, 70 (Stelios Perrakis ed., 1993).
n136. See Comm'n on Hum. Rts, Report of the Working Group Established in Accordance with Commission on Human Rights
Resolution 1995 / 32 of 3 Mar. 1995, UN Doc. E / CN.4 / 1996 / 84, P 64 (Jan. 4, 1996).
n137. See U.N. Econ. & Soc. Council [ECOSOC], Working Group on Indigenous Populations, Report on its Eleventh Session,
UN Doc. E / CN.4 / Sub.2 / 1993 / 29, Annex I (Aug. 23, 1993). (emphasis added)
n138. See U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm'n on the Prevention of Discrimination and Prot. of Minorities,
Report on its Forty-Sixth Session, UN Doc. E / CN.4 / 1995 / 2 - E / CN.4 / Sub.2 / 1994 / 56, at 103 - 115 (Oct. 28, 1994).
n139. See United Nations Declaration on the Rights of Indigenous Peoples, 14 Int'l J. Cultural Prop. 399 (2007).
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37 Syracuse J. Int'l L. & Com. 207, *266
n140. See G.A. Res. 61 / 295 (Oct. 2, 2007), available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement (last visited Apr. 1, 2010).
n141. In contrast not only to the "loose' protection provided in the Framework Convention for the Protection of National
Minorities, whose provisions are mainly programmatic and do not include a mechanism for individual petition, but also to the
European Charter of Regional or Minority Languages, which focuses exclusively upon the protection of languages and not upon
the recognition of individual or collective rights to their users, the adoption of an additional Protocol to the ECHR enshrining
rights of a cultural character, even of individual nature, would considerably upgrade the quality of the protection assured to the
members of the minorities in the cultural sphere, enabling them to use the ECHR's advanced system of judicial control via the
individual petition mechanism set up in the Convention's Article 25.
n142. The draft Protocol covered, in a number of alternative versions, the following rights: the right of everyone to respect for
his / her cultural identity (article 1); the right of everyone to exercise a cultural activity both in public and in private (article 2); the
right to identify with a cultural community and to be treated as a member of a cultural community (article 3); the right of
everyone to have and to use his / her name, surname or patronym (article 4); the right to express oneself, orally and in writing,
in the language of one's choice, both in public and in private (article 5); the right of everyone not to be prevented from receiving
instruction in the language of his / her choice (article 6); the right of everyone to receive instruction of and instruction in his / her
language where that language is traditionally used in his / her state (article 7); the right of everyone not to be prohibited from
setting up cultural and educational institutions in accordance with the national legislation (article 10); the right of everyone not to
be denied access to and use of cultural property, according to the national laws (article 11); see Draft Articles and Alternative
Versions for Possible Inclusion in a Protocol Complementing the ECHR in the Cultural Field by Provisions Guaranteeing
Individual Rights, in Particular for Persons Belonging to National Minorities Prepared by a Working Party of the CAHMIN and
Other Proposals by Members of the CAHMIN, Ad Hoc Committee for the Protection of National Minorities, CAHMIN (95) 1 (Feb.
1, 1995) [hereinafter CAHMIN (95) 1] .
n143. See Ad Hoc Committee for the Protection of National Minorities, CAHMIN (95) 21, at 11, P 65 (Sept. 19, 1995)
[hereinafter CAHMIN (95) 21].
n144. CAHMIN (95) 1, supra note 142, at 7.
n145. Ad Hoc Committee for the Protection of National Minorities, CAHMIN (95) 22, at 5-6, PP 26-27 (Jan. 24, 1996)
[hereinafter CAHMIN (95) 22].
n146. Ad Hoc Committee for the Protection of National Minorities, CAHMIN (95) 9, at 10, P 52 (Mar. 8, 1995) [hereinafter
CAHMIN (95) 9] ; CAHMIN (95) 22, supra note 145, at 6-7, PP 35-36.
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37 Syracuse J. Int'l L. & Com. 207, *266
n147. CAHMIN (95) 21, supra note 143, at 11, P 67.
n148. See CAHMIN (95) 22, supra note 145, at 1.
n149. Basilis Nitsiakos, The Vlachs of Greece: National Integration and Cultural Assimilation, in The Greek World From the
Age of Enlightenment to the Twentieth Century, Proceedings of the Third European Congress Of the European Society of
Modern Greek Studies VOL I 485, 494 (Konstantinos A. Dimadis ed., 2007) (in Greek).
n150. Patrick Macklem, The Law and Politics of International Cultural Rights: E. Stamatopoulou, Cultural Rights in
International Law; F. Francioni and M. Scheinin (eds.), Cultural Human Rights, 16 Int'l J. on Minority and Group Rts. 481,
484-485 (2009); Stamatopoulou, supra note 4, at 4; Albro & Bauer supra note 84, at 3.
n151. See Janusz Symonides, Cultural Rights, in Human Rights: Concept and standards 175, 176, 218 (J. Symonides ed.,
2000); Symonides, supra note 7, at 560; Symonides, supra note 13, at 144-145.
n152. See Stamatopoulou, supra note 73, at 1398-1399, observing that "Culture represents the soul, the moral edifice, the
self-definition and self-esteem of a person or a community, without which life loses context and meaning. In that sense,
therefore, cultural development is not a luxury but a tool for obtaining "bread and water.'" See also Stamatopoulou, supra note
4, at 5.
n153. See Albro & Bauer, supra note 84, at 3.
n154. See Ronald Rich, The Right to Development: A Right of Peoples?, in the Rights of Peoples 39, 44 (James Crawford ed.,
1988).
n155. See Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International
Human Rights Treaties: Report of the Secretary General, U.N. Doc. HRI / GEN / 2 / Rev. 3, at 23, P 66 c-d (May 8, 2006),
available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/418/57/PDF/G0641857.pdf?OpenElement (last visited Feb. 3,
2010).
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37 Syracuse J. Int'l L. & Com. 207, *266
n156. See United Nations Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S.
277 available at http://www.un.org/millennium/law/iv-1.htm (last visited Feb. 3, 2010).
n157. See Bradley Reed Howard, Human Rights of Indigenous People: On the Relevance of International Law for Indigenous
Liberation, 35 Ger. Y.B. of Int'l L. 105, 130 (1992); see generally Legg, supra note 108, at 414-417.
n158. Rhona K. M. Smith, The International Impact of Creative Problem Solving: Resolving the Plight of Indigenous Peoples,
34 Cal. W. L. Rev. 411, 414 (1998).
n159. See William A. Schabas, Preventing the "Odious Scourge': The United Nations and the Prevention of Genocide, 14 Int'l
J. on Minority & Group Rts. 379, 384 (2007), who comments that generally the Genocide Convention lay largely dormant for
many decades after its adoption.
n160. See Yoram Dinstein, Cultural Rights, 9 Isr. Y.B. on Hum. Rts 58, 69-70 (1979); May, supra note 92, at 279; Symonides,
supra note 13, at 160.
n161. See Patrick Thornberry, Minorities and Europe: The Architecture of Rights, XLII Eur. Y.B. 1, 10 (1996).
n162. Francesco Capotorti, The Protection of Minorities Under Multicultural Agreements on Human Rights, II The Ital. Y.B. of
Int'l L. 3, 8-9 (1976).
n163. See Janusz Symonides, The Legal Nature of Commitments Related to the Question of Minorities, in Nouvelles Formes
De Discrimination 197, 201 (Linos Alexandre Sicilianos ed., 1995).
n164. Natan Lerner, From Protection of Minorities to Group Rights, 18 Isr. Y.B. on Hum. Rts. 101, 117 (1988); For a view
holding that the qualifications of article 5 P 1 (c) are reasonable see Dinstein, supra note 160, at 70.
n165. See International Convention on the Elimination of All Forms of Racial Discrimination, in The Struggle Against
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37 Syracuse J. Int'l L. & Com. 207, *266
Discrimination: A Collection of International Instruments 130, 132 (Janusz Symonides ed., 1996); Sacerdoti, supra note 101, at
126; Stamatopoulou, supra note 4, at 225-226.
n166. See Committee on the Elimination of Racial Discrimination, Guidelines for the CERD-Specific Document To Be
Submitted By States Parties Under Article 9, Paragraph 1, Of the Convention, U.N. Doc. CERD / C / 2007 / 1, at 11-12 (Jun. 13,
2008).
n167. Janusz Symonides, The United Nations System Standard Setting Instruments and Programmes Against Discrimination:
Introductory Remarks, in The Struggle Against Discrimination: A Collection of International Instruments 3, 5 (Janusz Symonides
ed., 1996).
n168. Albania in 1933 made certain constitutional changes, among other things abolishing private schools of all categories,
including those that had been established by the administration of the Greek community there, an act in breach of the
commitments undertaken by the Albanian State for the protection of minorities by declaration made before the League of
Nations. The Albanian government argued that the measure was not incompatible with its obligations since it was of general
application and did not just affect the minorities. See Permanent Court of International Justice, Minority Schools in Albania
Greece vs Albania. Advisory Opinion 26. PCIJ, Ser. A./B., No.64, 1935, available at
http://www.worldcourts.com/pcij/eng/decisions/1935.04.06&u score;albania/ (last visited Mar. 31, 2010).
n169. See Konstantinos Tsitselikis, The International and European Status for the Protection of the Linguistic Minority Rights
and the Greek Legal Order 217 (1996) (in Greek); see also Stamatopoulou, supra note 4, at 177-178.
n170. See Warwick McKean, Equality and Discrimination Under International Law 28 - 29 (1983); Stamatopoulou, supra note
4, at 176-178; Bruegel, supra note 131, at 436-437.
n171. See Report of the Committee on the Elimination of Racial Discrimination, General Recommendation XIV, Definition of
Discrimination, U.N. Doc. A / 48 / 18, at 115, P 2 (Sept. 15, 1993) available at
http://www.unhchr.ch/tbs/doc.nsf/8e9c603f486cdf83802566f80 03870e7/9d43bba5cf6507718025655d003f980e/$
FILE/N9350216.pdf (last visited Mar. 30, 2010).
n172. See Hum. Rts. Comm., Gen. Comment No 18, Non - Discrimination, PP 8, 10, 13 (November 10, 1989), available at
http://www.unhchr.ch/tbs/doc.nsf/0/3888b0541f8501c9c12563e d004b8d0e?Opendocument (last visited Mar. 30, 2010)
Page 42
37 Syracuse J. Int'l L. & Com. 207, *266
n173. See Ann-Christine Bloch, Minorities and Indigenous Peoples, in Economic, Social and Cultural Rights: A Textbook 309,
313 (Asbj<sl o>rn Eide et al. eds., 1995).
n174. In the Explanatory Memorandum of the Framework Convention, it is noted that special measures for members of
minorities do not constitute discrimination, as long as their adoption is in conformity with the principle of proportionality, that is
inter alia that do not exceed in time or scope what is necessary in order to achieve the aim of full and effective equality. See
Framework Convention for the Protection of National Minorities, Explanatory Memorandum, 16 Hum. Rts. L.J. 101, 103, P 39
(Nov. 10, 1994).
n175. See Gudmundur Alfredsson, The Rights of Indigenous Peoples With a Focus on the National Performance and Foreign
Policies of the Nordic Countries, 59 Zeitschrift Fur Ausladisches Und Offentliches Recht Und Volkerrecht [Heidelberg J. Int'l L.]
529, 533-534 (1999); Kusy, supra note 65, at 304; Dunbar, supra note 74, at 93; Bloch, supra note 173, at 313.
n176. See Committee on the Elimination of Racial Discrimination, Concluding Observations: South Africa, U.N. Doc. CERD / C
/ ZAF / CO / 3, P 19 (Oct. 19, 2006).
n177. See Committee on the Elimination of Racial Discrimination, Concluding Observations: Norway, U.N. Doc. CERD / C /
NOR / CO / 18, P 17 (Oct. 19, 2006).
n178. See Theodor Meron, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial
Discrimination, 79 Am. J. Int'l L. 283, 289, 305-306 (1985).
n179. See Malcolm Shaw, The Definition of Minorities in International Law, 20 Isr. Y.B. on Hum. Rts. 13, 30 (1990). See
however, the view of O'Flaherty that the practice of the CERD, in combination with its guidelines for the preparation of state
reports, has played a decisive role in ensuring that positive measures taken under article two, paragraph two are based upon
objective criteria rather than upon the subjective will of each government, Michael O'Flaherty, Substantive Provisions of the
International Convention on the Elimination of All Forms of Racial Discrimination, in Indigenous Peoples, the United Nations and
Human Rights 162, 171 (Sarah Pritchard ed., 1998). On the other hand Stamatopoulou states that a review of CERD reports
since 1990 indicates that the attention paid to cultural rights is inconsistent. The Committee refers to these mere formally or
under the standard phrase "economic, social and cultural rights,' although it is generally acknowledged that it does significant
work in the field of linguistic rights of minorities and indigenous peoples, Stamatopoulou, supra note 4, at 55.
n180. See Committee on the Elimination of Racial Discrimination, Concluding Observations: United States of America, U.N.
Doc. A / 56 / 18, P 399 (Aug. 14, 2001), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.56.18,paras.38
0-407.En?Opendocument (last visited Mar. 30, 2010).
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37 Syracuse J. Int'l L. & Com. 207, *266
n181. See Committee on the Elimination of Racial Discrimination, Concluding Observations: Denmark, UN Doc. CERD / C /
DEN / CO / 17, P 20 (Oct. 19, 2006).
n182. See Committee on the Elimination of Racial Discrimination, General Recommendation No. 08 (VIII), Identification With a
Particular Racial or Ethnic Group, art. 1, P 1 & 4, UN Doc. A / 45 / 18, at 79 (Aug. 22, 1990), available at
http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450 044f331/79ff44a38c0e3727c125703c0027eb21/$
FILE/N9102975.pdf (last visited Apr. 1, 2010).
n183. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Finland, UN Doc. CERD / C /
63 / CO / 5, P 11 (Dec. 10, 2003); Concluding Observations of the Committee on the Elimination of Racial Discrimination:
Sweden, UN Doc. CERD / C / 64 / CO /8, P 7 (May 10, 2004); Concluding Observations of the Committee on the Elimination of
Racial Discrimination: Greece, UN Doc. CERD / C / 304 / Add.119, P 12 (Apr. 27, 2001).
n184. See William F. Felice, The UN Committee on the Elimination of All Forms of Racial Discrimination: Race, and Economic
and Social Human Rights, 24 Hum. Rts. Q. 205, 223-224 (2002).
n185. See Nathalie Prouvez, Minorities and Indigenous Peoples' Protection: The Practice of UN Treaty Bodies in 2004, 4 Eur.
Y.B. Minority Issues 637, 665 (2004 / 2005).
n186. See Patrick Thornberry, Is There a Phoenix in the Ashes? International Law and Minority Rights, 15 Tex. Int'l L.J. 421,
454 (1980).
n187. See Egon Schwelb, The International Convention on the Elimination of All Forms of Racial Discrimination, 15 Int'l &
Comp. L.Q. 996, 1042-1043 (1966).
n188. See Michael O' Flaherty, Individual Communications: The Convention Against Torture and the Convention on the
Elimination of All Forms of Racial Discrimination, in Indigenous Peoples, the United Nations and Human Rights 116, 126 (Sarah
Prichard ed., 1998).
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37 Syracuse J. Int'l L. & Com. 207, *266
n189. See Gudmundur Alfredsson, Minority Rights: A Summary of Existing Practice, in Universal Minority Rights 77, 84 (Alan
Philips & Allan Rosas eds., 1995).
n190. See Karl J. Partsch, The Committee on the Elimination of Racial Discrimination, in The United Nations and Human
Rights: A Critical Appraisal 339, 347 (Philip Alston ed., 1995).
n191. See Alfred-Maurice de Zayas, The International Judicial Protection of Peoples and Minorities, in Peoples and Minorities
in International Law 253, 271 (Catherine Brolmann et al. eds., 1993).
n192. See Dominic McGoldrick, Canadian Indians, Cultural Rights and the Human Rights Committee, 40 Int'l & Comp. L.Q.
658, 659 (1991), who observes that article 27 is clearly limited in its scope since it accords rights to individuals rather than to
groups, it applies only to certain kinds of minorities, concerns limited rights and is expressed in negative rather than positive
terms; see also Stavenhagen, supra note 3, at 74; see also Richard Cholewinski, State Duty Towards Ethnic Minorities: Positive
or Negative? 10 Hum. Rts. Q. 344, 362-363 (1988).
n193. See Konstantinos Antonopoulos, Issues of Protection of the Rights of Minorities in the Light of the Break-up of the
Former Yugoslavia, 21 Hellenic Rev. Eur. L. -Special Issue 75, 79 (2001) (in Greek); see also Philip V. Ramaga, Relativity of
the Minority Concept, 14 Hum. Rts. Q. 104, 106 n. 10 (1992). Specific phrasing was Chile's proposal and aimed, among other
things, to provide states with some flexibility in deciding to which, if any, groups the rights would apply, see Russel L. Barsh,
The United Nations and Protection of Minorities, 58 Nordic J. Int'l L. 188, 189 (1989).
n194. "... 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 CCPR / C / 21 / Rev. 1 /Add.5, supra note 43, at P 5.2;
see also Stamatopoulou, supra note 4, at 180.
n195. See Patrick Thornberry, International and European Standards on Minority Rights, in Minority Rights in Europe: The
Scope for a Transnational Regime 14, 15 (Hugh Miall ed., 1994); see also Geoff Gilbert, Religious Minorities and Their Rights:
A Problem of Approach, 5 Int'l J. Minority & Group Rts. 97, 101 (1997); Francesco Capotorti, Minorities, 8 Encyclopedia Pub.
Int'l L. 385, 389 (Rudolf Bernhardt ed., 1985).
n196. See e.g. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Botswana, U.N. Doc.
CERD / C / BWA / CO / 1, P 9 (Apr. 4, 2006); Concluding Observations of the Committee on the Elimination of Racial
Discrimination: El Salvador, U.N. Doc. CERD / C / SLV / CO / 13, , P 7 (Apr. 4, 2006). The Committee censures the policies of
Botswana and El Salvador, which do not recognize the existence of indigenous peoples in their territory.
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37 Syracuse J. Int'l L. & Com. 207, *266
n197. Patrick Thornberry, Self-Determination, Minorities, Human Rights: A Review of International Instruments, 38 Int'l &
Comp. L.Q. 867, 881 (1989).
n198. See Patrick Thornberry, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities: Background, Analysis, Observations and an Update, in Universal Minority Rights, 12, 23 (Alan Phillips &
Allan Rosas eds., 1995); see also James Crawford, The Rights of Peoples: "Peoples' or "Governments'? in The Rights of
Peoples 55, 60 (James Crawford ed., 1992); see also Koufa, supra note 58, at 169; Blake, supra note 20, at 81 n. 92; Shaw,
supra note 179, at 34; Stavenhagen, supra note 3, at 74; Antonopoulos, supra note 193, at 79 ; Hannum, supra note 99, at
1436. For a view holding that the rights provided by article 27 are concerning the enjoyment of religion at least, purely collective,
see Yoram Dinstein, Freedom of Religion and the Protection of Religious Minorities, 20 Isr. Y.B. on Hum. Rts. 155, 167 (1990);
Yoram Dinstein, State Sovereignty and the Rights of Minorities, in Nouvelles Formes De Discrimination 217, 221 (Linos A.
Sicilianos ed., 1995).
n199. Francesco Capotorti, Are Minorities Entitled to Collective International Rights? 20 Isr. Y.B. Hum. Rts. 351, 353 (1990);
James Crawford, The Rights of Peoples: Some Conclusions, in The Rights of Peoples 159, 162, 171 (James Crawford ed.,
1988); Shaw, supra note 179, at 35.
n200. Victor Segesvary, Group Rights: The Definition of Group Rights in the Contemporary Legal Debate Based on
Socio-Cultural Analysis, 3 Int'l J. Group Rts. 89, 103 (1995).
n201. See Bertram G. Ramcharan, The Protection of Minorities in Africa, in Justice Pending: Indigenous Peoples and Other
Good Causes - Essays in Honour of Erica - Irene A. Daes 100, 105 (Gudmundur Alfredsson & Maria Stavropoulou eds., 2002);
CCPR / C / 21 / Rev. 1 /Add.5, supra note 43, at P 6.2; Antonopoulos, supra note 193, at 82.
n202. Heinrich Klebes, The Council of Europe's Framework Convention for the Protection of National Minorities: Introduction,
16 Hum. Rts. L.J. 92, 94-95 (1995); Explanatory Memorandum, supra note 174, at 102-103, PP l3, 31.
n203. Konstantinos Tsitselikis, The Framework Convention for the Protection of National Minorities of the Council of Europe, 21
To Syntagma [To S] 563, 568 (1995) (in Greek); Foblets, supra note 83, at 21-22.
n204. Nigel S. Rodley, Conceptual Problems in the Protection of Minorities: International Legal Developments, 17 Hum. Rts. Q.
48, 64, 66-67 (1995); Marquadt, supra note 96, at 70.
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37 Syracuse J. Int'l L. & Com. 207, *266
n205. See Josef Gromacki, The Protection of Language Rights in International Human Rights Law: A Proposed Draft
Declaration of Linguistic Rights, 32 Va. J. Int'l L. 515, 548 (1992); Sanders, supra note 126, at 383; Symonides, supra note 7, at
564; Stavenhagen, supra note 3, at 68.
n206. Jelena Pejic, Minority Rights in International Law, 19 Hum. Rts. Q. 666, 674 (1997).
n207. James S. Anaya, International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State, 21 Ariz.
J. Int'l & Comp. L. 13, 22 (2004); Stamatopoulou, supra note 4, at 173.
n208. See Natan Lerner, The 1992 UN Declaration on Minorities, 23 Isr. Y.B. on Hum. Rts. 111, 117 (1993), who notes that a
community has its own personality, independent of that of its members and is entitled to some rights of its own, besides the
collective rights of its members.
n209. Gudmundur Alfredsson, A Frame With an Incomplete Painting: Comparison of the Framework Convention for the
Protection of National Minorities with International Standards and Monitoring Procedures, 7 Int'l J. on Minority & Group Rts. 291,
295 (2000).
n210. See Panagiotis G. Mantzoufas, National and Religious Identity as Elements of the Free Development of the Personality:
The Case of Minorities, 8 Armenopoulos 1037, 1046 (2000) (in Greek); May, supra note 92, at 279; Stavenhagen, supra note 3,
at 74.
n211. See Manfred Nowak, The Evolution of Minority Rights in International Law - Comments, in Peoples and Minorities in
International Law 103, 109 (Catherine Brolmann et al. eds., 1993); Christian Tomuschat, Protection of Minorities under Article
27 of the International Covenant on Civil and Political Rights, in Volkerrecht Als Rechtsordnung Internationale Gerichtsbarkeit,
Menschenrechte, Festschrift Fur Hermann Mosler 949, 969-70 (Rudolf L Bernhardt et al. eds., 1983); Volker Roben, A Report
on Effective Protection of Minorities, 31 German Y.B. Int'l L. 621, 628 (1988). The last two authors accept that only indirectly
can it be concluded that there is a state obligation to take positive measures. When that is, the state provides for and finances
the members of the majority group for the activities falling within the scope of article 27, then it has the obligation to take similar
actions in favor of the member of the minorities.
n212. Francesco Capotorti, Minorities, in United Nations: Law, Policies and Practice VOL II 892, 899 (Rudiger Wolfrum ed.,
1995).
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37 Syracuse J. Int'l L. & Com. 207, *266
n213. Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities 99, P 588
(1991).
n214. See Kay Hailbronner, The Legal Status of Population Groups in a Multinational State Under Public International Law, 20
Isr. Y.B. Hum. Rts. 127, 144 (1990), where it is argued that the rights of article 27 are meaningless if the states under certain
circumstances do not proceed with taking positive measures. See also Foblets, supra note 83, at 20, who observes that if one
wishes to give article 27 a real and not a theoretical content, one can certainly read into it a positive obligation. See also Bloch,
supra note 173, at 314; Cholewinski, supra note 192, at 364-368; McGoldrick, supra note 192, at 668.
n215. See Markku Suksi, Personal Autonomy as Institutional Form - Focus on Europe Against the Background of Article 27 of
the ICCPR, 15 Int'l J. Minority & Group Rts. 157, 158 n. 2 & 4 (2008).
n216. See Georgie Stevens, The Ainu and Human Rights: Domestic and International Legal Protections, 21 Japanese Stud.
181, 190 (2001); UN Doc. CCPR / C / 21 / Rev.1 / Add.5, supra note 43, at P 6.1.
n217. S. James Anaya, Moira Gracey and Leonardo Alvarado, The Rights of the Pygmy People in the Republic of Congo:
International Legal Context 10 (2006), available at http://www.law.arizona.edu/Depts/iplp/advocacy/baka/docume
nts/Congo-Pygmy-Int%27l-Legal-Context-IPLP-AZ.pdf (last visited Nov. 30, 2009); UN Doc. CCPR / C / 21 / Rev.1 / Add.5,
supra note 43, at P 7; International Commission of Jurists, supra note 9, at 6 n. 10.
n218. See Rosalyn Higgins, Minority Rights: Discrepancies and Divergencies Between the International Covenant and the
Council of Europe System, in The Dynamics of the Protection of Human Rights in Europe - Essays in Honour of Henry G.
Schermers, VOL III 195, 201 (Rick Lawson & Matthijs de Blois eds., 1994); Bloch, supra note 173, at 315.
n219. See Ivan Tosevski, United Nations Declaration on the Rights of Minorities, 1 Balkan Forum 23, 29 (1993); Geoff Gilbert,
The Legal Protection Accorded to Minority Groups in Europe, 23 Neth. Y.B. Int'l L. 67, 76 (1992); Capotorti, supra note 213, at
36, P 213; Cholewinski, supra note 192, at 364.
n220. See Jean - Paul Schreuder, Minority Protection Within the Concept of Self-Determination, 8 Leiden J. Int'l L. 53, 70-71
(1995).
n221. Surprisingly enough, the provision of article 27 of the ICCPR has not been as widely used by the members of minorities,
for whom it was drafted, as by the indigenous peoples who invoke it by analogy, although they initially avoided referring to
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37 Syracuse J. Int'l L. & Com. 207, *266
article 27 for fear of being identified with the minorities and thus undermining their claimed status as peoples. The unwillingness
of minorities to use the provision may be due to the disappointment generated among European minority groups at the end of
the 80's by the HRC's rejection of a series of pilot complaints by Bretons claiming infringement of the provision regarding the
right to instruction in their mother tongue. The Committee accepted as a reservation to ICCPR article 27, France's declaration
(that, under Article 2 of its Constitution the French Republic is unitary and indivisible and consequently does not recognize the
existence of minorities, not, therefore, the application of the specific provision within its territory) and ruled that it does not have
the authority to consider communications against France regarding violations of article 27, see T. K. v. France, Commc'n No.
220 / 1987, U.N. Doc. CCPR / C / 37 / D / 220 / 1987, PP. 6.6, 8.5, 8.6 (Dec. 8, 1989); R. L. M. v. France, Commc'n No. 363
/1989, U.N. Doc. CCPR / C / 44 / D / 363 / 1989, PP 4.8, 5.3 (Apr. 7, 1992); C. L. D. v. France, Commc'n No. 439 /1990, U.N.
Doc. CCPR / C / 43 / D / 439 / 1990, P 4.3 (Nov. 25, 1991); S. G. v. France, Commc'n No. 347/1988, U.N. Doc. CCPR / C / 43 /
D / 347 / 1988, PP 4.6, 5.3 (Nov. 15, 1991); G. B v. France, Commc'n No. 348/1989, U.N. Doc. CCPR / C / 43 / D / 348 / 1989,
PP 4.5, 5.3 (Nov.15, 1991).
n222. In the beginning of the 80's, there were cases in which some indigenous peoples unequivocally rejected any attempt to
examine their complaint within the framework of article 27, arguing that because they constitute peoples they are subject
exclusively to the sphere of protection of article 1 of the Covenant on self-determination, clearly implying that the applicability of
another field of protection could undermine their status. See Human Rights Committee, Decision on the Human Rights
Committee Under the Optional Protocol to the International Covenant on Civil and Political Rights, A.D. v. Canada, Com. No 78
/ 1980, U.N. Doc CCPR / C / 22 / D / 78 / 1980, PP 3, 7.3 (July 29, 1984), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/c5f07474c41b69fec1256 aca004f33f2?Opendocument (last visited Mar. 30, 2010).
Many indigenous peoples later, taking advantage of the widely accepted view that the use of minority provisions does not imply
the equation of their status to that of the minorities (see Working Paper: The Relationship and Distinction Between the Rights of
Persons Belonging to Minorities and Those of Indigenous Peoples, I. Paper by Absjorn Eide, U.N. Doc. E / CN.4 / Sub.2 / 2000
/ 10, PP18-19 (Jul. 19, 2000), available at http://www.unhchr.ch/huridocda/huridoca.nsf/0/e2bb9e4b569a
e37fc12569290050ae93?OpenDocument (last visited Mar. 30, 2010)), repeatedly invoked article 27 claiming violations of their
right to enjoy their culture, in a strategic move to establish some minimum standards of protection, given the lack of an explicit
provision for them in the international instruments for the protection of human rights. .
n223. Moses Moskowitz, Implementing Human Rights: Present State and Future Prospects, in Human Rights: Thirty Years
After the Universal Declaration 109, 110 (Bertrand G. Ramcharan ed., 1979).
n224. Louis Henkin, The International Bill of Rights: The Universal Declaration and the Covenants, in International Enforcement
of Human Rights 1, 9 (Rudolf Bernhardt & John-Anthony Jolowicz eds., 1987).
n225. For practical reasons, due to the lack on the one hand of an explicit provision for indigenous peoples in the ICCPR and
on the other of a political will to examine their communications within the framework of article 1 of the Covenant on
self-determination, the HRC adopted the tactic of examining their issues within the framework of article 27 simply noting in a
series of communications that the indigenous claimants, e.g. the Sami of the Scandinavian countries or the Maori of New
Zealand, undoubtedly constitute members of minorities, with no further clarification of its reasoning in the matter, see
Athanasios Yupsanis, Participatory Rights in International Law: The Case of the Indigenous Peoples, 27 Hellenic Rev. Eur. L.
237, 244-245, 247, 249 (2007) (in Greek).
n226. Human Rights Committee, View of Human Rights Committee Under Article 5 P 4 of the Optional Protocol to the
International Covenant on Civil and Political Rights, Ivan Kitok v. Sweden, Com. No 197 / 1985, U.N. Doc. CCPR / C / 33 / D /
197 / 1985, P 9.2 (May 9, 2008), available at http://www.unhchr.ch/tbs/doc.nsf/%20385c2add1632f4a8c12565
a9004dc311/d9332db8dfce2f63c1256ab50052d2ff?OpenDocument&Hi ghlight=0,Kitok (last visited Mar. 30, 2010); International
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37 Syracuse J. Int'l L. & Com. 207, *266
Commission of Jurists, supra note 9, at 10.
n227. Human Rights Committee, Views of the Human Rights Committee Under Article 5 P 4 of the Optional Protocol to the
International Covenant on Civil and Political Rights, J. G. A. (late Captain of the Rehoboth Baster Community) et al. v. Namibia,
Com. No. 760 / 1997, U.N. Doc. CCPR / C / 69 / D / 760 / 1997, P 10.6 (Sept. 6, 2000), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/b8e8735da046c62b c125696c00301a0a?Opendocument (last visited Mar. 30,
2010).
n228. Human Rights Committee, Views of the Human Rights Committee Under Article 5, P 4, of the Optional Protocol to the
International Covenant of Civil and Political Rights, Mahuika et al. v. New Zealand, Com. No 547 / 1993, U.N. Doc. CCPR / C /
70 / D / 547 / 1993, P 9.5 (Nov. 15, 2000), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ae41739262a9ca2dc1256
9ad00329e41?Opendocument (last visited Feb. 2, 2010).
n229. See Catherine M. Brolmann & Marjoleine Y.A. Zieck, Indigenous Peoples, in Peoples and Minorities in International Law
187, 190 (Catherine Brolmann et al. eds., 1993). Having first identified some practical problems, in that many countries in which
indigenous peoples live are not parties to the ICCPR, while others that are, have not yet ratified the Optional Protocol so that
indigenous peoples in those states could appeal to the HRC regarding alleged violations of the rights, seem to question the
degree to which granting of individual rights under article 27 would suffice to achieve the objective of protecting indigenous
peoples as peoples. Finally, they note that there are cases, such as those of Bolivia and Guatemala, where the indigenous
constitute a majority and not a minority of the total population, a situation which precludes the application of article 27; see also
Stavenhagen, supra note 3, at 75.
n230. It is a locus classicus to many international law scholars that individual rights and consequently minority rights, which are
of an individual nature, do not provide the protection necessary for the preservation of the indigenous peoples' collective cultural
identity. See Catherine M. Brolmann & Marjoleine Y.A. Zieck, Some Remarks on the Draft Declaration on the Rights of
Indigenous Peoples, 8 Leiden J. Int'l L. 103, 112 n. 39 (1995); Jennifer E. Brady, The Huaorani Tribe of Ecuador: A Study in
Self-Determination for Indigenous Peoples, 10 Harv. Hum. Rts. J. 291, 312 (1997); Robert B. Porter, Pursuing the Path of
Indigenization in the Era of Emergent International Law Governing the Rights of the Indigenous Peoples, 5 Yale Hum. Rts. &
Dev. L.J. 123, 154 (2002); Chidi Oguamanam, Indigenous Peoples and International Law: The Making of a Regime, 30 Queen's
L.J. 348, 387 (2004).
n231. See Rhona K. Smith, Traditional Lands and Cultural Rights: The Australian Experience, 5 Int'l J. Hum. Rts. 1, 2-3
(2001).
n232. Shelton points out, among other things, with some exaggeration, that there was almost no case in which the HRC
decided in favor of the interests of the indigenous, see Dinah Shelton, The U.N. Human Rights Committee's Decisions, 12 Hum.
Rts. Dialogue (Series 2) 31, 31-33 (2005).
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37 Syracuse J. Int'l L. & Com. 207, *266
n233. For a similar observation of Anaya on the same issue, see James S. Anaya, Indigenous Peoples' Participatory Rights in
Relation to Decisions About Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples
Have in Lands and Resources, 22 Ariz. J. Int'l & Comp. L. 7, 12 (2005).
n234. Harriet Ketley, Exclusion by Definition: Access to International Tribunals for the Enforcement of the Collective Rights of
Indigenous Peoples, 8 Int'l J. Minority & Group Rts. 331, 361-362 (2001). For a different view, holding that HRC's interpretations
of article 27 include "strong indigenous land rights" see Alexandra Xanthaki, Indigenous Rights in International Law Over the
Last 10 Years and Future Developments, 10 Melbourne J. Int'l L. 27, 27 (2009).
n235. See Gudmundur Alfredsson & Alfred de Zayas, Minority Rights: Protection by the United Nations, 14 Hum. Rts. L.J. 1, 5
(1993); McGoldrick, supra note 192, at 667; Pejic comments that in essence it depends upon the political will and the legal
culture of the states whether they will adopt the decisions of the HRC, Pejic, supra note 206, at 682. Browlie notes that the
"views' of the Committee in substance involve decisions of law and fact and the respondent states have a duty to produce
explanations and to report the remedial steps which may have taken, Ian Browlie, Treaties and Indigenous Peoples 93 (F. M.
Brookfield ed., 1992). Zayas notes that the views of the HRC are of a semi-juridical nature and are read as court decisions,
even though they are not legally binding, Zayas, supra note 191, at 261. The recent General Comment of the Committee stated
that "While the function of the Human Rights Committee in considering individual communications is not, as such, that of a
judicial body, the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial
decision. They are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the
considered interpretation of the language of the Covenant, and the determinative character of the decisions" (emphasis added),
Human Rights Committee, General Comment No. 33: The Obligations of States Parties Under the Optional Protocol to the
International Covenant on Civil and Political Rights, Advanced Unedited Version, UN Doc. CCPR / C / GC / 33, P 11 (Nov. 5,
2008), available at http://www2.ohchr.org/english/bodies/hrc/docs/CCPR.C.GC.33.pdf (last visited Mar. 28, 2010) [hereinafter
UN Doc. CCPR / C / GC / 33].
n236. See UN Doc. CCPR / C / GC / 33, supra note 235, P 20, where it is observed that "most States do not have specific
enabling legislation to receive the views of the Committee into their domestic legal order."
n237. Human Rights Committee, View of Human Rights Committee Under Article 5 P 4 of the Optional Protocol to the
International Covenant on Civil and Political Rights, Chief Bernard Ominayak and the Lubicon Band v. Canada, Com. No.
167/1984, UN Doc. CCPR / C / 38 / D / 167 / 1984, P 33 (May 10, 1990), available at
http://www.unhchr.ch/tbs/doc.nsf/0/c316bb134879a76fc125696f0053 d379?Opendocument (last visited Mar. 29, 2010);
McGoldrick, supra note 192, at 666.
n238. See Andrew Huff, Indigenous Land Rights and the New Self-Determination, 16 Colo. J. Int'l Env'l L. & Pol. 295, 306
(2005); see also Concluding Observations of the Human Rights Committee: Canada, U.N. Doc. CCPR / C / CAN / CO / 5, P 9
(Apr. 20, 2006).
n239. See Stephen Marks, UNESCO and Human Rights: The Implementation of Rights Relating to Education, Science Culture
and Communication, 13 Tex. Int'l L. J. 35, 50 (1977); O'Keefe notes that the international law scholars have paid little attention
to ICESCR article 15, para. 1 (a), O'Keefe, supra note 29, at 904-905.
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37 Syracuse J. Int'l L. & Com. 207, *266
n240. Stamatopoulou notes that the first attempts of the CESCR to elaborate upon the issue of cultural rights can be traced
only to the beginning of the 1990's. Moreover, she adds that the Committee's reports show that it does not pay particular or
systematic attention to cultural rights, Stamatopoulou, supra note 4, at 49, 51; see also Symonides, supra note 13, at 144.
n241. See Maria Green, Drafting History of the Article 15 (1) (a) of the International Covenant on Economic, Social and
Cultural Rights, U.N. Doc. E / C.12 / 2000 / 15, P 15 (Oct. 9, 2000), available at
http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450 044f331/872a8f7775c9823cc1256999005c3088/$
FILE/G0044899.pdf (last visited Mar. 29, 2010).
n242. See Ana Filipa Vrdoljak, Minorities, Cultural Rights and the Protection of Intangible Heritage, at 6, available at
http://www.esil-sedi.eu/english/pdf/Vrdoljak09-05.pdf (last visited Mar. 31, 2010); see also Donders, supra note 30, at 3-4, who
notices that UNESCO's specific proposal was based on the fact that the individuals normally participate in the cultural life of
various communities.
n243. See Johannes Morsink, The Universal Declaration of Human Rights 269 (1999); see also Stamatopoulou, supra note 4,
at 12, 15; Stamatopoulou, supra note 5, at 11; Symonides, supra note 13, at 147.
n244. See O'Keefe, supra note 29, at 917.
n245. See Hans Morten Haugen, Traditional Knowledge and Human Rights, 8 The J. World Intell. Prop. 663, 672-673 (2005).
n246. Stamatopoulou, supra note 4, at 130 ; see also Symonides, supra note 13, at 147.
n247. The CESCR organized a Day of General Discussion on "The Right to Take Part in Cultural Life (art. 15 P1 (a) of the
Covenant)' on May 9 2008, but as of the date of this writing (Aug. 2009) has not published a General Comment on it.
n248. See Comm. on Econ., Soc. & Cultural Rights, 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
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37 Syracuse J. Int'l L. & Com. 207, *266
Cultural Rights, Art.15 of the Covenant, U.N. Doc. E / C.12/ 1991/ 1, ANNEX, at 15 (June 17, 1991), available at
http://www.ecmi.de/doc/Implementing_Human_Ri ghts/English/Reporting/UN%20Conventions/Guidelines/ICESCR.pdf (last
visited Mar. 31, 2010); see also Vrdoljak, supra note 242, at 6 ; see also Groni, supra note 45, at 8.
n249. See Comm. on Econ., Soc. & Cultural Rights, 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, U.N. Doc. E / C.12 /
2008 / 2, ANNEX, at 15, P 68 (Mar. 24, 2009), available at http://www.bayefsky.com/general/e_c12_2008_2.pdf (last visited
Mar. 31, 2010).
n250. UNESCO Universal Declaration on Cultural Diversity, supra note 33; see also Stamatopoulou, supra note 4, at 130; see
also Stavenhagen, supra note 3, at 65, who notes that the right to culture must be interpreted as the right of everyone to his /
her own culture rather than to only a "general' culture. "General' (national) culture and one's own culture do not necessarily
amount to the same thing. See also Eide supra note 6, at 231, who points out that the basic source of human identity is often
found in the cultural traditions in which each person is born and raised. The preservation of this identity can be of a fundamental
importance for the well-being and the self-respect of the individual. From this viewpoint, "cultural rights' "should give priority to
access to, and education of, one's own culture, as well as the right to participate in the reproduction and further development of
that culture."
n251. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Tajikistan, U.N. Doc. E / C.12 /
TJK / CO / 1, P 73 (Nov. 24, 2006); see also Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Slovenia, U.N. Doc. E / C.12 / SVN / CO / 1, P 11 (Jan. 25, 2006), where the Committee is concerned that Roma do not
enjoy protection of their cultural rights, such as the right to education in their mother tongue. See also Concluding
Observations of the Committee on Economic, Social and Cultural Rights: Morocco, U.N. Doc. E / C.12 / MAR / CO / 3, PP
31-32, 58-59 (Sept. 4, 2006); Donders, supra note 30, at 6; Groni, supra note 45, at 13.
n252. See Concluding Observations of the Committee on Economic, Social and Cultural Rights: People's Republic of China,
U.N. Doc. E / C.12 /1 / Add.107, P 38 (May 13, 2005). See also Groni, supra note 45, at 14.
n253. See Philip Alston, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely
New Strategy, 84 Am. J. Int'l L. 365, 369-370 (1990); Symonides, supra note 7, at 565.
n254. Audrey B. Chapman, A New Approach to Monitoring the International Covenant on Economic, Social and Cultural
Rights, 55 The Rev. (Special Issue) 23, 24 (1995).
n255. See Philip Alston, The Committee on Economic, Social and Cultural Rights, in The United Nations and Human Rights:
A Critical Appraisal 473, 495 (Philip Alston ed., 1992); Stamatopoulou, supra note 4, at 52.
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37 Syracuse J. Int'l L. & Com. 207, *266
n256. Comm. on Econ., Soc. & Cultural Rights, General Comment 3: The Nature of State Parties Obligations (Art. 2 P 1), P 9
(Dec. 14, 1990), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c1256
3ed0052b664?Opendocument (last visited Apr. 3. 2010); Symonides supra, note 7, at 566; Symonides, supra note 13, at 166;
Eide, supra note 52, at 36.
n257. Comm. on Econ., Soc. & Cultural Rights, General Comment No. 15: The Right to Water (Arts. 11 and 12), U.N. Doc. E /
C.12 / 2002 / 11, P 17 (Jan. 20, 2003), available at http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc40038
9e94/$ FILE/G0340229.pdf (last visited Apr. 3, 2010). See also, UN Doc. E / C.12 / 1999 / 10, supra note 63, at P 43; CESCR
General Comment 3: The Nature of State Parties Obligations (Art. 2 P 1), supra note 256, at P 1.
n258. CESCR General Comment 3: The Nature of State Parties Obligations (Art. 2 P 1), supra note 256, at P 2. See also UN
Doc. E / C.12 / 1999 / 10, supra note 63, at P 43; Stamatopoulou, supra note 4, at 134.
n259. Comm. on Econ., Soc. & Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of
Health (Art.12), U.N. Doc. E / C.12 / 2000 / 4, P 18 (Aug. 11, 2000), available at
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.200 0.4.En (last visited Apr. 3, 2010); CESCR General Comment 3: The
Nature of State Parties Obligations (Art. 2 para. 1), supra note 256, at P 12.
n260. Comm. on Econ., Soc. & Cultural Rights, General Comment No. 12: The Right to Adequate Food (Art.12), U.N. Doc. E /
C.12 / 1999 / 5, P 15 (May 12, 1999), available at http://www.unhchr.ch/tbs/doc.nsf/0/3d02758c707031d58025677f003b 73b9
(last visited Apr. 3, 2010); UN Doc. E / C.12 / 1999 / 10, supra note 63, at P 46 ; U.N. Doc. E / C.12 / 2000 / 4, supra note 259,
at P 33; E / C.12 / 2002 / 11, supra note 257, at P 20; International Commission of Jurists, supra note 9, at 7, PP 15-17; Eide,
supra note 6, at 233; Eide, supra note 52, at 37-38; Stamatopoulou, supra note 4, at 122-123; Groni, supra note 45, at 20-21.
n261. Comm. on Econ., Soc. & Cultural Rights, General Comment No. 18: The Right to Work, U.N. Doc. E / C.12 / GC / 18, P
22 (Feb. 6, 2006), available at http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f3
31/493bee38093458c0c12571140029367c/$ FILE/G0640313.pdf (last visited Mar. 25, 2010); U.N. Doc. E / C.12 / 2002 / 11,
supra note 257, PP 21, 23, 25; Eide, supra note 52, at 37-38; Stamatopoulou, supra note 4, at 122-123.
n262. Stamatopoulou, supra note 4, at 151; Eide, supra note 6, at 234.
n263. See Stamatopoulou, supra note 4, at 70, who points out the need for the elaboration by the CESCR of a General
Comment analyzing article 15, para. 1(a) of the Covenant in depth, as a significant step in an attempt to take cultural rights out
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37 Syracuse J. Int'l L. & Com. 207, *266
of the oblivion into which they have fallen. See also International Commission of Jurists, supra note 9, at 2, P 1, 3,P 4, where it
is noted that the adoption of a General Comment on article 15 para. 1(a) will help to clarify the normative content of the right
and the legal obligations that stem from it, including the minimum core obligations.
n264. See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, G.A. Res. 63/117, Annex,
U.N. Doc. A / RES / 63 / 117, Annex (Dec. 10, 2008), available at http://www2.ohchr.org/english/law/docs/A.RES.63.117_en.p
df (last visited Mar. 25, 2010).
n265. See Philip Alston, Individual Complaints: Historical Perspectives and the International Covenant on Economic, Social
and Cultural Rights, in Indigenous Peoples, the United Nations and Human Rights 81, 84-85 (Sarah Pritchard ed., 1998).
n266. See Suzan Shown Harjo, "Native Peoples' Cultural and Human Rights: An Unfinished Agenda, 24 Ariz. St. L.J. 321, 325
(1992).
n267. Fotini Pazartzi, The Identity of Minorities and Cultural Rights, in The Protection of Minorities - The Framework
Convention of the Council of Europe 81, 82 (Antonis Bredimas & Linos Alexandros Sicilianos eds., 1997) (in Greek).
Stavenhagen comments that even if the principle of non-discrimination (on an individual basis) was a reality for everybody (a
hypothesis which, according to him, does not hold), this would not have secured the enjoyment of specific cultural rights,
Stavenhagen, supra note 3, at 68.
n268. See J. Gruber, The Protection of Minorities in the Age of Human Rights, XVI Thesaurus Acroasium 847, 850 (1990);
May, supra note 92, at 275-276.
n269. See Fernando Albanese, Ethnic and Linguistic Minorities in Europe, 11 Yb. Euro. L. 313, 318 (1991). As Symonides also
notes, the experience of the 1990's shows that the recognition of cultural rights of persons belonging to minorities not only
averts conflicts but indeed constitutes an important factor of peace and stability, see Symonides, supra note 7, at 561;
Symonides supra note 13, at 146. Similarly, Stamatopoulou observes that "While a serious public policy response may not be
the full response to all the issues raised by groups in conflict, it will go a long way towards solving long-standing disputes that
have led to numerous conflicts around the world.", Stamatopoulou, supra note 4, at 8-9, 85, 97; see also Stamatopoulou, supra
note 73, at 1392.
n270. See Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 13 Int'l J. Cultural Prop. 377
(2006).
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37 Syracuse J. Int'l L. & Com. 207, *266
n271. Katerina Tsoutroudi, Ethnic Minorities and Collective Rights in the New Europe: Some Observations, 46 Revue
Hellenique de Droit International 225, 248 (1993).
n272. Iovane observes that "...the threat to the universality of human rights represented by the negative effect of relativism is
not to be overestimated..." and gives strong arguments for that, see generally Massimo Iovane, The Universality of Human
Rights and the International Protection of Cultural Diversity: Some Theoretical and Practical Considerations, 14 Int'l J. on
Minority & Group Rts. 231, 242-245 (2007).
n273. Christina M. Cerna, Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different
Socio-Cultural Contexts, 16 Hum. Rts. Q. 740, 744 (1994).
n274. The history of the creation of the CAHMIN, the difficulties and controversies that marked its discussions of the various
cultural rights proposed for inclusion in the preliminary draft protocol to the ECHR and the eventual suspension of the whole
endeavor shows that even during a favorable period (1993-1995) for the rights of groups, and more particularly of minorities, it
proved impossible to achieve the smallest consensus on the safeguarding of some basic cultural rights. This clearly
demonstrates how governments approach cultural rights when the discussion goes beyond the level of non-legally binding
declarations, like those of UN, or even of legally binding instruments though of programmatic character (e.g. Framework
Convention for the Protection of National Minorities, European Charter of Regional or Minority Languages) and enters into the
field of recognizing justiciable rights.
n275. Winthrop, commenting upon this development observes that in essence the demands for a right to culture reflect an
attempt to assert a pluralistic future in a world that is strongly organized towards cultural and structural homogeneity, Robert
Winthrop, Exploring Cultural Rights: An Introduction, 14 Cultural Dynamics 115, 115-116 (2002). Stamatopoulou, supra note
73, at 1400.
n276. See Statement on Cultural Rights as Human Rights, in Cultural Rights as Human Rights (Studies and Documents on
Cultural Policies no 3) 105, 105 (UNESCO ed., 1970) available at
http://unesdoc.unesco.org/images/0000/000011/001194eo.pdf (last visited Apr. 1, 2010). The view that culture is at the core of
human rights because it directly concerns human dignity and life itself was repeatedly emphasized in the discussions of the
CESCR regarding the right to take part in cultural life enshrined in article 15 para. 1(a) of the Covenant, see UN Doc. E / C.12 /
1992 / SR.17, supra note 11, at PP 6, 16.
n277. Eugene Kamenka, Human Rights: Peoples' Rights, in The Rights of Peoples 127, 135 (James Crawford ed., 1988);
Stamatopoulou, supra note 4, at 37; see also the Preamble of the Preliminary Draft Protocol to the European Convention for the
Protection of Human Rights and Fundamental Freedoms on the Recognition of Cultural Rights, prepared by the working party
following the 8th Fribourg Colloquy, Ad Hoc Committee for the Protection of National Minorities CAHMIN (94) 4, at 3 (Dec. 21,
1993).
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37 Syracuse J. Int'l L. & Com. 207, *266
n278. Robert Albro & Joanne Bauer, The Case of Cultural Rights, 12 Hum. Rts. Dialogue (Series 2) 6, 6 (2005); Albro &
Bauer, supra note 84, at 2; Symonides, supra note 7, at 561; Symonides, supra note 13, at 146.
n279. Robert Albro & Jennifer Bauer, Claims, Claimants and Conflicts, 12 Hum. Rts Dialogue (Series 2) 15, 15 (2005).
n280. Sepez argues that cultural rights can constitute for the indigenous peoples a way of raising issues which might
otherwise be ignored in policy-making processes, Jennifer Sepez, Treaty Rights and the Right to Culture: Native Americans
Subsistence Issues in US Law, 14 Cultural Dynamics 143, 144 (2002).
n281. Robins and Stamatopoulou point out that cultural rights offer an alternative way for the protection of group rights, a
ground for the possible resolution of conflicts over indigenous rights that cannot be resolved in terms of self-determination since
many states are reluctant to recognize it, see Robbins and Stamatopoulou, supra note 17, at 426, 431.
n282. Rebecca Tsosie, Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights, 34 Ariz. St. L.J.
299, 332 (2002); Stamatopoulou, supra note 73, at 1401.
n283. See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, G.A. Res.
47 /135, Annex (Dec. 18, 1992), in The Struggle Against Discrimination: A Collection of International Instruments 190 (Janusz
Symonides ed., 1996).
n284. See Declaration on the Rights of Indigenous Peoples, supra note 139.
n285. See European Charter for Regional or Minority Languages, 14 Human Rts L. J. 148 (1995).
n286. See Framework Convention for the Protection of National Minorities, 16 Human Rts. L. J. 98 (1995).
n287. See Convention Concerning Indigenous and Tribal Peoples in Independent Countries (Convention 169), 28 Int'l Legal
Materials 1384 (1989).
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37 Syracuse J. Int'l L. & Com. 207, *266
n288. Minority rights are, as discussed, individual rights; they are provided for, that is, to persons - members of minorities, as
the relevant minority provisions carefully provide, and not to the minorities per se. See John Boucaouris, Minority Issues and the
Organization for Security and Cooperation in Europe, in Justice Pending: Indigenous Peoples and Other Good Causes - Essays
in Honour of Erica - Irene A. Daes 79, 80 (Gudmundur Alfredsson & Maria Stavropoulou eds., 2002).
n289. A comparative analysis of the relevant texts on the protection of the rights of minorities and of indigenous peoples
indicates that the latter have achieved to a much greater extent the recognition and establishment of a number of collective
rights, see Russel L. Barsh, Indigenous Peoples in the 1990s: From Object to Subject of International Law?, 7 Harvard Human
Rts. J. 33, 35, 79, 82 (1994); see also Patrick Thornberry, Minority and Indigenous Rights at "The End of History', 2 Ethnicities
515, 524 (2002).
n290. See Promotion and Protection of All Human Rights, Civil, Political, Economic, Economic, Social and Cultural Rights,
Including the Right to Development, Human Rights, Counsel, 10th Sess., U.N. Doc A / HRC / 10 / L.26 (Mar. 20, 2009),
available at http://daccess-dds-ny.un.org/doc/UNDOC/LTD/G09/124/29/PDF/G0912429.pdf?OpenElement (last visited Mar. 31,
2010).
n291. 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), U.N. Doc. E / C.12 / 40/ 15, at 21 (May 9, 2008), available at
http://www2.ohchr.org/english/bodies/cescr/docs/discussion /PatrickThornberry.pdf (last visited Mar. 31, 2010).