3 February 2016
Human Rights Council
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur in the field of cultural rights
Note by the Secretariat
The Special Rapporteur in the field of cultural rights, Karima Bennoune, submits the present report in accordance with Human Rights Council resolution 19/6. Since the Special Rapporteur commenced her mandate on 1 November 2015, the report is preliminary in nature, reflecting on the valuable work undertaken by the previous mandate holder and highlighting priority areas in which she believes further advances should be made.
In the report, the Special Rapporteur also introduces the issue that will constitute the focus of her first report to the General Assembly: the intentional destruction of cultural heritage as a violation of human rights.
Report of the Special Rapporteur in the field of cultural rights
I. Introduction 3
II. Cultural rights: revisiting and reconfirming the conceptual and legal framework 3
A. Definition of cultural rights: meaning and terminology 4
B. The legal basis of cultural rights 7
C. Universality of human rights, cultural rights and cultural diversity 7
D. Methodological commitments and challenges 9
E. Priorities for the mandate holder: 2015-2018 9
III. Intentional destruction of cultural heritage 11
A. Importance of cultural heritage from a human rights perspective 11
B. International legal standards on protection of cultural heritage 12
C. Intentional destruction of cultural heritage: cultural warfare and “cultural cleansing” 15
D. Towards a human rights approach to the intentional destruction of cultural heritage 16
IV. Conclusion and recommendations 19
A. Conclusions 19
B. Preliminary recommendations 20
1. In 2009, the Human Rights Council, in its resolution 10/23, established the mandate of the independent expert in the field of cultural rights. The mandate was extended in 2012 through resolution 19/6 in which the Council conferred on the mandate holder the status of Special Rapporteur in the field of cultural rights. The mandate was again extended in 2015 for a period of three years through resolution 28/9. On 2 October 2015, Karima Bennoune was appointed to fill this post following the completion of the second term of Farida Shaheed.
2. The present report, which is introductory, reflects on the valuable work undertaken from 2009 to 2015 by the previous mandate holder and begins the process of building on that foundation. It highlights priority areas in which the Special Rapporteur believes further advances should be made.
II. Cultural rights: revisiting and reconfirming the conceptual and legal framework
3. In her first report to the Human Rights Council (A/HRC/14/36), Ms. Shaheed thoroughly mapped the conceptual and legal framework that grounds cultural rights. As the mandate has evolved considerably since then, the new Special Rapporteur would like to revisit this framework, reiterating key commitments and assessing emerging developments.
4. In 2010, the first Special Rapporteur noted that cultural rights have frequently been seen as underdeveloped relative to other human rights. Since then, she undertook many activities designed to improve the status of cultural rights, in keeping with the Council’s repeated reaffirmations that “cultural rights are an integral part of human rights, which are universal, indivisible, interrelated and interdependent.”
5. Today, it is fair to say that cultural rights have gained in legitimacy, although there remains much to be done to fulfil the Council’s vision. Many people still think of cultural rights as a luxury. The Special Rapporteur hopes to continue demonstrating that cultural rights are key to the overall implementation of universal human rights and a crucial part of the responses to many current challenges, from conflict and post-conflict situations to discrimination and poverty. Cultural rights are transformative and empowering, providing important opportunities for the realization of other human rights. The lack of equal cultural rights, combined with economic and social inequalities, makes it difficult for people to enjoy personal autonomy, to exercise their civil and political rights and to enjoy their right to development.
6. The present section highlights the important advances made by the previous Special Rapporteur through a series of 10 thematic reports that explored the content of article 15 of the International Covenant on Economic, Social and Cultural Rights. The Special Rapporteur stresses the importance and richness of these reports, many findings of which she intends to rely on and explore further where relevant. Each report indicates further areas of study and many more issues remain to be addressed. In the sections below, the Special Rapporteur wishes to emphasize the definition of cultural rights proposed by her predecessor, to outline the legal basis for these rights and to describe their relationship with cultural diversity and the universality of human rights. She also addresses key methodological questions and identifies, on a preliminary basis, areas requiring further attention.
A. Definition of cultural rights: meaning and terminology
7. The Special Rapporteur recalls the definition of cultural rights used by the first mandate holder, based on academic research and general comment No. 21 (2009) of the Committee on Economic, Social and Cultural Rights on the right of everyone to take part in cultural life:1
Cultural rights protect the rights for each person, individually and in community with others, as well as groups of people, to develop and express their humanity, their world view and the meanings they give to their existence and their development through, inter alia, values, beliefs, convictions, languages, knowledge and the arts, institutions and ways of life. They may also be considered as protecting access to cultural heritage and resources that allow such identification and development processes to take place.2
8. The Special Rapporteur believes her predecessor made the correct decision when she declined to define culture, but took a holistic, inclusive approach to its meanings. Significantly, she stated that culture is created, contested and recreated within social praxis (see A/67/287, para. 2), in other words through human agency. The current Special Rapporteur further notes that: (a) all people and all peoples have culture, not merely certain categories or geographies of people; (b) cultures are human constructs constantly subject to reinterpretation; and (c) while it is customary to do so, referring to culture in the singular has problematic methodological and epistemological consequences. It must be understood that culture is always plural. “Culture” means cultures.
9. On many occasions, the first Special Rapporteur stressed that the purpose of the mandate is not to protect culture or cultural heritage per se, but rather the conditions allowing all people, without discrimination, to access, participate in and contribute to cultural life in a continuously developing manner. Based on the work undertaken by her predecessor, the Special Rapporteur understands cultural rights as protecting, in particular: (a) human creativity in all its diversity and the conditions for it to be exercised, developed and made accessible; (b) the free choice, expression and development of identities, which includes the right to choose not to be a part of particular collectives, as well as the right to change one’s mind or exit a collective, and indeed to take part on an equal basis in the process of defining it; (c) the rights of individuals and groups to participate – or not to participate – in the cultural life of their choice and to conduct their own cultural practices; (d) their right to interact and exchange, regardless of group affiliation and of frontiers; (e) their rights to enjoy and have access to the arts, to knowledge, including scientific knowledge, and to their own cultural heritage, as well as that of others; and (e) their rights to participate in the interpretation, elaboration and development of cultural heritage and in the reformulation of their cultural identities. Article 27 of the Universal Declaration of Human Rights holds that “everyone has the right freely to participate in the cultural life of the community,” which today must be understood to refer to the plural form “communities” (see A/HRC/14/36, para. 10).
10. The Special Rapporteur is of the view that the relationship between individuals and groups needs further exploration, as does the terminology used to refer to the latter. She recognizes that some groups are indeed deemed rights holders under human rights law. Notably, the importance of the collective exercise of cultural rights is stressed throughout the United Nations Declaration on the Rights of Indigenous Peoples. However, one difficulty of accurately describing human groups is their diverse typology, including inter alia indigenous peoples, minorities within a population and new migrants, whose legal status, histories and relationship to States may differ.
11. It is important to query the precise meaning of terms such as “communities” and “identities” in the realm of cultural rights, which are frequently employed without definition. In international human rights instruments, “community” seems to refer to various interlocking groups, including: (a) the international community; (b) a national community; and (c) indigenous, tribal, minority, migrant, local or other communities formed in accordance with criteria such as language or ethnicity. Guidance as to which kind of category is under discussion is often implicit and contextual. Although some insight may be gained from commentaries on diverse standards, the Special Rapporteur has been unable to find a specific definition or authoritative explanation of the term “community” in international human rights law and proposes exploring further its meanings and implications.
12. Human rights law sometimes uses the term “community” in the relational sense, as well when stressing the importance for people of enjoying their rights either individually or “in community with others”, such as their right to manifest religion or belief (art. 18 of the Universal Declaration of Human Rights and of the International Covenant on Civil and Political Rights) or their rights as members of minorities, particularly in the fields of culture, religion and language (art. 27 of the Covenant and art. 3 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities).
13. The centrality and meaning of group identities — and how to characterize them — are contested notions. What may be considered as “central” in terms of identity from the point of view of “community” leaders or outsiders may not coincide with individuals’ choices and realities. Individuals identify themselves in numerous ways and may select one identity over others in particular interactions and engagements.
14. A key challenge that the Special Rapporteur sees in the field of cultural rights, beyond international norms, is the routine presumption of the primordial nature of community identities. The term “community” is too often assumed to suggest homogeneity, exclusivity, structure and formality. Such a construction is embraced not only by some outside observers not willing to recognize plurality and dynamism within groups, but also by often self-proclaimed “representatives” of the concerned groups — or presumed groups — themselves. This contributes to creating, continuing and legitimizing situations of oppression. Cultural rights should never be used to those ends.
15. Moreover, Hazem Sagieh and Saleh Bechir have argued that some especially large and heterogeneous groups labelled as “communities” in contemporary parlance are in their view “to a certain extent, a ‘virtual reality’ that exists above all in the minds of … politicians, ‘experts’ and journalists — and, of course, in the minds of their supposed and self-appointed ‘spokesmen’”.3 In their view, this threatens the idea of citizenship. The vocabulary that they criticize and the associated world view has become the basis for “community-based” policy in many contexts and spheres, the impact of which the Special Rapporteur plans to investigate during her mandate.4
16. Theorists such as the historian Lotte Hughes caution us not to “use the term ‘community’ uncritically”.5 The Special Rapporteur intends to heed such cautions, while fully respecting those group rights that are guaranteed in international law. As her predecessor did, she recognizes that “communities are run through with divergent interests … [and] thick seams of power that structure any given collection of people”.6 She hopes to problematize the term “community” along the lines of the critical conceptualization suggested by some cultural heritage experts: “one that engages with social relationships in all their messiness, taking account of action, process, power and change”.7 Hence, she will aim to use alternate terms like “group” and “collectivity” when possible and, where she refers to “community”, to do so carefully.
17. The problem is, however, not only one of vocabulary but also of concept. The Special Rapporteur regards the assumption of “community” as one that can have positive consequences for securing the rights of individuals to enjoy and practise their culture with others and also as one that can pose a threat to the rights of dissenting or disempowered individuals within any of these groups and to social cohesion if carelessly applied. It can lead to what Amartya Sen has deplored as “plural monoculturalism”8 rather than genuine pluralism, which is a key goal of cultural rights.
18. While the recognition of difference is important in the field of human rights, so is the recognition of commonality. We must not forget that one of the most important communities to which we all belong is “the human family”. As Souleymane Bachir Diagne warned, “democracy is threatened by the fragmentation that produces the retreat into micro-identities and the resurgence of ethnicism”.9 In a world of increasing sectarianism, we need a vocabulary that respects diversities and recognizes power differentials and historical injustices, while still promoting the idea of living together in harmony or vivre-ensemble. Diversity must be inscribed in equality and solidarity and vice versa. Indeed, cultural rights are vital in this regard. As Elsa Stamatopoulou has noted, “were we to convince policy makers at the national and international level to actively and visibly pursue the promotion and protection of cultural rights, we would have certainly gone a long way … towards creating a polis where one would focus less on identities that divide us and more on the many cultures we share and enjoy”.10
19. The Special Rapporteur has been particularly disturbed by recent political discourses of exclusion, sometimes directed at entire religious or other groups. One of her key commitments is to promote the enjoyment of cultural rights without any discrimination, including that based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, sexual orientation, gender identity, age, migrant status, disability or poverty. Committed to integrate both disability and gender perspectives into her work as emphasized by the terms of her mandate, she will also give particular focus to the equal cultural rights of women. Moreover, she plans to pay close attention generally to the cultural rights of those at heightened risk of human rights violations due to group or other status.
20. The Special Rapporteur regrets that rural cultures are often not recognized as cultures and risk being undervalued, despite the fact that nearly half of the world’s population is rural. She will bear in mind the importance of the cultural rights of persons living in rural areas and be sensitive to bias towards urban contexts, what has been labelled “urban normativity”.11
B. The legal basis of cultural rights
21. The legal basis for cultural rights can be found in numerous international human rights instruments. Explicit references include rights that expressly refer to culture. Implicit references include rights that, although not expressly referring to culture, may constitute an important legal grounding for the protection of cultural rights as defined above. The Special Rapporteur refers in this regard to the first report of her predecessor on this issue (see A/HRC/14/36, in particular paras. 11-20). Therefore, important legal bases for cultural rights are to be found not only in the International Covenant on Economic, Social and Cultural Rights, in particular articles 13-15, but also in the International Covenant on Civil and Political Rights, in particular in provisions protecting the right to privacy, freedom of thought, conscience and religion, freedom of opinion and expression, freedom of association and peaceful assembly. Those rights are also key to ensuring the full realization of cultural rights. Indeed, cultural rights transcend the juncture of civil and political rights and economic and social rights and thus are important markers of interdependence and indivisibility.
22. The Special Rapporteur is mindful that various instruments of the United Nations Educational, Scientific and Cultural Organization (UNESCO) are relevant to her mandate, in particular those devoted to the protection of cultural diversity, the protection and promotion of the diversity of cultural expressions and the protection and safeguard of tangible and intangible cultural heritage. She observes in particular that, in accordance with article 5 of the Universal Declaration on Cultural Diversity, all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms. She intends to further exchange and develop working relationships with UNESCO, a process she has already commenced.
C. Universality of human rights, cultural rights and cultural diversity
23. The Special Rapporteur is unequivocally committed to the principle of the universality of human rights and to cultural diversity and, just like her predecessor, to recognizing and reinforcing the organic relationship between these two commitments. As UNESCO’s 2009 World Report asserts, “recognition of cultural diversity grounds the universality of human rights in the realities of our societies”.12
24. The Special Rapporteur identifies as key the following principles, which were recalled by the Council in its resolution 19/6. As enshrined in the Vienna Declaration and Programme of Action, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. The Vienna Declaration and Programme of Action further reaffirms that “all human rights are universal, indivisible and interdependent and interrelated.”
25. Moreover, cultural practices — or what are claimed to be cultural practices — must evolve when they constitute or lead to discrimination against women, including gender-based violence. Under article 5 (a) of the Convention on the Elimination of All Forms of Discrimination against Women, States are required to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Similarly, the cultural explanations sometimes offered in the past for systematic racial discrimination or slavery are recognized as entirely incompatible with contemporary notions of human dignity. The Universal Declaration on Cultural Diversity (art. 4), further stresses that no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope. Therefore, not all cultural practices can be considered as protected in international human rights law and cultural rights may be subjected to limitations in certain circumstances.
26. The Special Rapporteur notes in this respect that, as stressed by the Committee on Economic, Social and Cultural Rights, limitations should be a last resort only and should be in accordance with certain conditions as established under international human rights law. Such limitations must pursue a legitimate aim, be compatible with the nature of this right and be strictly necessary for the promotion of general welfare in a democratic society, in accordance with article 4 of the International Covenant on Economic, Social and Cultural Rights. Any limitations must therefore be proportionate, meaning that the least restrictive measures must be taken when several types of limitations may be imposed. The Committee also stressed the need to take into consideration existing international human rights standards on limitations that can or cannot be legitimately imposed on rights that are intrinsically linked to the right to take part in cultural life, such as the rights to privacy, to freedom of thought, conscience and religion, to freedom of opinion and expression, to peaceful assembly and to freedom of association (see the Committee’s general comment No. 21, para. 16).
27. It is perhaps useful at this juncture to recall what cultural rights are not. They are not tantamount to cultural relativism. They are not an excuse for violations of other human rights. They do not justify discrimination or violence. They are not a licence to impose identities or practices on others or to exclude them from either in violation of international law. They are firmly embedded in the universal human rights framework. Hence, the implementation of human rights must take into consideration respect for cultural rights, even as cultural rights themselves must take into consideration respect for other universal human rights norms. This is the holistic vision of the Special Rapporteur, carrying on from that of her predecessor. She recalls article 5 (1) common to both of the covenants on human rights, which is all too often overlooked: “nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein”.
28. While observing that reference to culture, religion and tradition has often been wrongly used to justify discrimination, Ms. Shaheed proposed a paradigm shift: from viewing culture as an obstacle to women’s rights to emphasizing the need to ensure women’s equal enjoyment of cultural rights. It is important to ensure the right of all women to access, participate in and contribute to all aspects of cultural life, including in identifying and interpreting cultural heritage and deciding which cultural traditions, values or practices are to be kept intact, modified or discarded altogether, and to do so without fear of punitive action.
29. The Special Rapporteur believes that this innovative approach to the question of women’s rights is valid for many other groups that are the victims of human rights violations justified in the name of tradition, religion, or culture. It paves the way for future similar work to be done concerning other subordinated groups, be it persons with disabilities, migrants, indigenous peoples, lesbian, gay, bisexual, transgender and intersex persons or people living in extreme poverty, for example.