Statement by Ms. Farida Shaheed, the Independent Expert in the field of
cultural rights, to the Human Rights Council at its 17th session
31 May 2011
Mr. President, Excellencies, distinguished delegates, ladies and gentlemen; I am
pleased to be here today to present the activities undertaken with respect to my
mandate, including the reports submitted to this Council.
In the past year, I continued to explore the meaning and scope of cultural rights. This
year, I have focused on issues related to the right of access to and enjoyment of
cultural heritage, which I believe is closely related to the right to take part in cultural
life. To collect the views of all interested stakeholders, I disseminated a questionnaire
on the subject and received many responses. In addition, I held an experts’ meeting on
the right to access and enjoy cultural heritage on 8 and 9 February, and convened a
public consultation in Geneva on 10 February. I am grateful for the insights provided
by all those who participated, which were of great help in preparing the thematic
report before you today.
I am also pleased to report on my first country mission conducted in Brazil in October
2010. I conducted an official mission to Austria this year from 5 to 15 April and
submitted a preliminary note. I will present a full mission report the next time I am
before this Council. I wish to thank both Governments for their full cooperation and to
express my appreciation of the fruitful dialogue which has been established with
them.
Addressing cultural heritage matters from a human rights perspective
Excellencies,
Allow me to elaborate on the research I have conducted on the need for a human
rights-based approach to cultural heritage matters, and current developments in this
regard.
Cultural heritage is usually referred to as being tangible, intangible and natural. 1 The
concept of heritage reflects the dynamic character of something that has been
developed, built or created, interpreted and re-interpreted in history, and transmitted
from generation to generation.
From a human rights perspective, cultural heritage is also to be understood as
resources that enable the cultural identification and development processes of
individuals and communities. In the context of human rights, cultural heritage entails
taking into consideration the multiple heritages through which individuals and
communities express their humanity, give meaning to their existence, and build their
worldviews.
“...tangible heritage (e.g. sites, structures and remains of archaeological, historical, religious, cultural or aesthetic
value), intangible heritage (e.g. traditions, customs and practices, aesthetic and spiritual beliefs; vernacular or other
languages; artistic expressions, folklore) and natural heritage (e.g protected natural reserves; other protected
biologically diverse areas; historic parks and gardens and cultural landscapes).”
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My report refers to a number of fairly recent international instruments, including at
UNESCO, which reflect this approach and stress the importance of the participation
of individuals and communities, including indigenous peoples, in defining and
stewarding cultural heritage. In these instruments, the definition of cultural heritage is
not limited to what is considered to be of outstanding value to humanity as a whole.
Rather, definitions encompass what is of significance for particular individuals and
communities, thereby emphasizing the human dimension of cultural heritage.
Human rights issues related to cultural heritage are numerous. They include questions
regarding who defines what cultural heritage is and its significance; which cultural
heritage deserves protection; the extent to which individuals and communities
participate in the interpretation, preservation/safeguarding of cultural heritage, and
have access to and enjoy it; how to resolve conflicts and competing interests over
cultural heritage; and what the possible limitations to a right to cultural heritage are.
It is especially important to bear in mind that cultural heritage encompasses things
that are assigned significance. Therefore, its identification requires a selection process.
Commonly, selection processes in which the State plays the main role, are reflective
of power differentials; likewise, selection by communities may also indicate internal
differences.
The participation of individuals and communities in cultural heritage matters is thus
crucial. One challenge is how to ensure that the people themselves, in particular
source communities, are empowered, and that cultural heritage issues are not confined
to preservation/safeguarding. Hence, cultural heritage programmes should not be
implemented at the expense of individuals and communities who, sometimes, for the
sake of preservation purposes, are displaced or given limited access to their own
cultural heritage.
The right of access to and enjoyment of cultural heritage
Excellencies,
In my report, I investigate the extent to which the right of access to and enjoyment of
cultural heritage forms part of international human rights law.
International and regional instruments concerning the preservation/safeguard of
cultural heritage do not necessarily have a human rights approach. However, a
striking shift has taken place in recent years from the preservation/safeguarding of
cultural heritage as such, based on its outstanding value for humanity, to the
protection of cultural heritage as being of crucial value for individuals and
communities in relation to their own cultural identity. Generally speaking, the more
recent the instrument, the stronger the link is with rights of individuals and
communities.
This is notable especially, but not only, in instruments relating to the safeguard of
intangible heritage. I refer here to several UNESCO instruments and the interesting
practices developed in implementing these, to the Convention on Biological Diversity,
as well as regional instruments and initiatives in Africa, Asia, Europe and in the
Pacific. It has been instructive to learn about efforts undertaken by a number of States
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to ensure the involvement of individuals and communities in cultural heritage matters,
and in ensuring their access to remedies in that respect.
In international human rights treaties, I found that a number of provisions constitute a
legal basis of a right of access to and enjoyment of cultural heritage. The right of
access to and enjoyment of cultural heritage forms part of international human rights
law, finding its legal basis, in particular, in the right to take part in cultural life, the
right of members of minorities to enjoy their own culture, and the right of indigenous
peoples to self-determination and to maintain, control, protect and develop cultural
heritage. Other human rights must also be taken into consideration, especially the
rights to freedom of expression, freedom of religion and belief, the right to
information and the right to education.
The right of access to and enjoyment of cultural heritage can be defined as including
the right of individuals and communities to, inter alia, know, understand, enter, visit,
make use of, maintain, exchange and develop cultural heritage, as well as to benefit
from the cultural heritage and the creation of others. It includes the right to participate
in the identification, interpretation and development of cultural heritage, as well as in
the design and implementation of preservation/safeguard policies and programmes.
I wish to stress that individuals and groups, the majority and minorities, citizens and
migrants, all have the right to access and enjoy cultural heritage. However, varying
degrees of access and enjoyment may be recognized, taking into consideration the
diverse interests of individuals and groups according to their relationship with specific
cultural heritages. I propose in this respect to particularly distinguish between:
(a) originators or “source communities”, communities which consider
themselves as the custodians/owners of a specific cultural heritage, people who
are keeping cultural heritage alive and/or have taken responsibility for it;
(b) individuals and communities, including local communities, who consider
the cultural heritage in question an integral part of their community life, but
may not be actively involved in its maintenance;
(c) scientists,researchers and artists; and
(d) the general public accessing the cultural heritage of others.
This distinction has important implications for States, notably when establishing
procedures for consultation and participation, which should ensure the active
involvement of source and local communities, in particular. Taking into consideration
the varied situations of individuals and groups is also of importance when States, or
courts, are required to arbitrate conflicts of interests over cultural heritage. Indeed, the
general public may not enjoy the same rights as local communities. Access to a
monument or archives by tourists and researchers should not be to the detriment of
either the object in question or its source community. Specific indigenous or religious
sites may be fully accessible to the concerned peoples and communities, but not to the
general public.
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I conclude my report with some 14 recommendations addressed to States, to
professionals working in the field of cultural heritage and cultural institutions, to
researchers, as well as to the tourism and entertainment industries. These are difficult
to summarize here. However, I wish to stress two key points.
First, it is extremely important that States recognize and value the diversity of cultural
heritages on their territories, and acknowledge, respect and protect the possible
diverging interpretations that may arise over cultural heritage.
Second, concerned communities and relevant individuals should always be consulted
and invited to actively participate in the whole process of identification, selection,
classification, interpretation, preservation/safeguard, stewardship and development of
cultural heritage. In this, care must be taken to ensure the inclusion of the diverse
views of individuals and sub-groups within concerned communities.
Mission to Brazil
Excellencies,
From 8 to 19 November 2010, I undertook an official country mission to Brazil. I am
please to report that culture, its governance, protection and promotion, occupies a
central place in Brazil. A strong legislative and policy framework has enabled
important efforts related to the protection and promotion of cultural rights.
I wish to commend Brazil on its initiatives for retrieving, documenting, and
revitalising cultural expressions and cultural diversity, encouraging mass participation
in cultural activities and expressions, and facilitating access to libraries, theatres,
cultural centres and museums. However, a number of measures require more effective
implementation and many individuals and communities still do not feel fully
appreciated as equal participants in national life. In particular initiatives should be
strengthened that ensure communities are respected for their values and practices,
build their self-esteem, and enable them to preserve the elements of their culture that
they desire to keep, while participating in contemporary Brazilian society.
Despite progress, a number of challenges remain and I recommend that Brazil
continue to adopt all necessary steps to ensure the wider availability of cultural
resources and assets, especially in smaller cities and regions, strengthen existing
initiatives promoting the access and contribution of persons with disability, and
bolster special provisions through subsidies and other forms of assistance for those
lacking the means to participate in cultural activities of their choice.
While in Brazil, I was informed of cases of religious intolerance, including acts of
violence, against followers of Afro-descendant religions. Discrimination in the
education system was also reported. It appears necessary for the Government to take a
stronger stand and to redouble its measures to protect the believers, sites and
expressions of Afro-descendant religions from imminent attacks, including by
addressing the persistence of racism in Brazilian society and the negative image of
African religions that is sometimes diffused by followers of other religions and/or the
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media. I encourage Brazil to undertake participatory processes with communities and
persons of African descent to address religious intolerance in the education system.
Visiting the Guaraní indigenous peoples in Mato Grosso do Sul State, I observed two
contrasting trends. On the one hand, Guaraní communities involved in ongoing land
rights disputes reportedly suffer from a lack of self-esteem and the loss of cultural
identity. On the other hand, some Guaraní communities, together with the academia
and local government have undertaken activities enabling them to provide education
in their own language, teach their belief systems, and promote their cultural
manifestations. I encourage Brazil to address the concerns expressed by the Special
Rapporteur on the rights of indigenous peoples, particularly regarding land
demarcation and indigenous peoples' right to self-determination. I also encourage
indigenous peoples to endeavour to strengthen their capacities to control and manage
their own affairs, and to participate effectively in all decisions affecting them.
Mr President and Excellencies, I wish to thank you for your attention.
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