Culture and Human Rights: Concepts, Instruments and Institutions

Andrzej Jakubowski, Warsaw

Culture and Legal Regulation

Culture and cultural rights have always been uneasy subjects for the law and its practice. Legal instruments usually refer to culture in the singular, restricting its working notion to determined areas of people’s life. In fact, most of the existing legal frameworks in matters of culture, both on national and international levels, though relating to the variety of cultural manifestations and distinct societal contexts, are generally the product of the West, and Western traditions in managing and administrating the spheres of art and culture. Unsurprisingly, legal instruments and institutions in the cultural domain are predominantly characterised by a top-down approach, within a given operating mandate. Even though legal scholarship has gradually tended towards the concept of cultural law, encompassing ‘(t)he core themes of linguistic and other cultural rights, cultural identity and differentiation, cultural heritage, traditional knowledge, sports, and religion’ being ‘of fundamental importance to people around the world’ (Nafziger, Kirkwood Paterson, Dundes Runteln: 2010; intro), culture is still operated by the law within methodologically differentiated areas of legal regulation. Indeed, cultural law is profoundly fragmented and comparted into specialised almost ‘self-contained’ regimes, often marked by the lack of harmony between various norm-systems and institutions.

At the national level, legal regulation in cultural matters has traditionally referred to freedom of conscience, belief and expression (including the protection of the moral and material interests resulting from any scientific, literary or artistic production). In this guise, cultural rights have essentially been associated with freedom of art and creativity seen as rights and entitlements enjoyed by individual persons. On the other hand, national legislation has set out for the rules for the protection and management of spiritual, artistic and historical heritage. Thus, the latter area has related to state or more generally broader community interests, whereas the former has referred to the protection and enforcement of rights and interests of individuals. With time, cultural law and policy have greatly expanded, covering various areas of social life, including minority rights. Moreover, a number of references to culture, cultural heritage and cultural guarantees have also been introduced to national constitutional regulations. Yet the proliferation of legal instruments in cultural rights has been only partially developed within the realm of administrative and judicial institutions. Thus the recognition and enjoyment of cultural rights of entitlements of individuals and groups is usually subject to institutional systems and practices characterised by horizontal, unequal relations of power and cultural hegemony between rights holders and law-enforcement authorities.

At the international level, the legal regulation of cultural matters mirrors the traditional nature of international law made by states and for states. In other words, international law has long perceived cultural issues as an exclusive domain of states and their vital, pragmatic interests, including their joint action undertaken in the name of their collective cultural interests (particularly, the 1972 Convention concerning the Protection of World Natural and Cultural Heritage). Accordingly, international legislation in cultural matters mostly refers to the protection of human creativity and the protection and preservation of →cultural heritage. These conceptual and methodological limitations have resulted in detaching cultural legislation from the realm of international human rights, originally focused primarily on the advancement and implementation of civil and political guarantees.

Culture Rights as International Human Rights

International human rights law does not offer a formal definition of ‘culture’ or ‘cultural rights’. Only few binding international human rights instruments address the protection of cultural elements of human existence, thus making the catalogue of cultural rights and their conceptualisation as international human rights a contested issue (see Francioni and Scheinin, 2008; Jakubowski, 2016). Although certain human rights which are cultural in nature, such as the protection of literary and artistic works, or religious and linguistic rights of →national and ethnic minorities had been enshrined in international law instruments at least since the late nineteenth century, the link between culture and human rights became universally addressed for the first time within the United Nations system. The →Universal Declaration of Human Rights (UDHR) recognises several human rights guarantees as having a direct connection with culture (freedom of thought, speech, right to education). It also enshrines the rights explicitly referring to culture: the right to freely participate in the cultural life of the community, and to enjoy the arts and to share in scientific advancement and its benefits (Article 27(1)). Yet the fierce debate over the exclusion of group rights and minority rights in relation to culture from the text of the UDHR, and the simultaneous failure of broadening the legal notion of →genocide, beyond its biological dimension in the text of the Convention on the Prevention and Punishment of the Crime of Genocide, cast a shadow on the entire international cultural rights’ debate (Stamatopoulou, 2007: 11–35). In fact, the UN system tied minority rights, including their cultural rights within the broader human rights regime, for the sake of the protection of states’ internal stability and their internal cultural policies. Accordingly, the two fundamental, universal human rights treaties, the →International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were driven by the individualist approach to cultural rights (see →Rights and Protection of Social/ Socio-cultural Groups). Moreover, both of them are rather enigmatic in determining which protected human rights guarantees are to be considered cultural ones. Significantly, the ICESCR, though including cultural rights in the title, does not make clear which of its provisions belong to the category of cultural rights.

Indeed, this deficit of culture in the UN human rights treaties essentially arises from the inherent nature of cultural rights which may belong to individuals and collectivity, e.g. specific communities, thus transcending the individualistic framework of human rights regimes, as well as traditionally exclusive, state-oriented notions of culture and cultural heritage in international legal relations. This is also the case of regional human regimes established after WW II: the American Convention on Human Rights (San José, 1969 (ACHR)) and the →European Convention of Human Rights and Fundamental Freedoms (Rome, 1950 (ECHR)). Although the →Inter-American system of human rights does address certain cultural rights (in particular see the 1988 Protocol of San Salvador on Economic, Social and Cultural Rights), the ACHR hardly pays attention to such guarantees as substantive rights. Similarly, the ECHR and its protocols, enforcing basic rights set out in the UDHR, does not provide for any explicit cultural guarantees. Moreover, the individual nature and scope of the rights protected by the ECHR seems to preclude their interpretation in a collective dimension.

Important developments in this regard occurred at the time of decolonisation. In particular, the International Convention on the Elimination of All Forms of Racial Discrimination (New York, 1965) enshrines the principle of non-discrimination in relation to the access and participation in cultural life and activities, while the African Charter on Human and Peoples’ Rights (Banjul, 1988) contains several cultural rights and provides for collective (→Peoples’ Rights), including the right to cultural development and →cultural identity (Article 22). A separate regime has emerged in respect of indigenous peoples, treated as distinctive groups due to their differing historical circumstances, linked to colonialism and foreign domination. Moreover, the representatives of indigenous communities have claimed that their suppression did not cease with the emancipation of former colonies. The first efforts to accommodate the rights of these groups were undertaken by the International Labour Organization (ILO) and led to the adoption of the Indigenous and Tribal Populations Convention (No. 107, 1957) applicable to members of tribal or semi-tribal populations in independent countries. The Convention inter alia required states parties to respect the cultural differences of such communities and to promote their cultural development. In 1989, the ILO revised the 1957 treaty. The new adopted instrument (No. 169) acknowledged the collective rights of →Indigenous Peoples to preserve and develop their own cultural identity. Yet the most extensive explicit catalogue of cultural rights is enshrined in a recent UN instrument: the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which states inter alia that indigenous peoples have ‘the right to practice and revitalize their cultural traditions and customs’, including ‘the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature’ (Article 11(1)). The UNDRIP also places upon states positive commitments to ‘take effective measures to recognize and protect the exercise of these rights’ (Article 31(2)), and to ‘provide redress through effective mechanisms’ of their cultural claims arising from the past injustices (Article 11(2)). Notwithstanding the non-binding nature of this instrument, it is claimed that many of its provisions correspond to rules of customary international law (ILA Resolution No. 5/12).

The end of the Cold War,followed by territorial and political transformations in East-Central Europe reopened the question of minority protection. The fulfilment of minority standards formed one of the requirements of the conditional recognition of new states. After 1989, this question became part of the broader human and cultural criteria established by the →European Union (at that time still ‘European Communities’). Importantly, the 1989 Vienna Concluding Document issued by the Conference on Security and Co-operation in Europe (cf.→OSCE – Organization for Security and Co-operation in Europe). According to this document, the participating states ‘will ensure that persons belonging to national minorities or regional cultures on their territories can maintain and develop their own culture in all its aspects, including language, literature and religion; and that they can preserve their cultural and historical monuments and objects’. Moreover, the ethnic conflicts in the territory of the former Yugoslavia also accelerated work on the universal and European instruments for the protection of minorities: the UN 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and the 1995 →Framework Convention for the Protection of National Minorities, adopted by the CoE member states. Both instruments often mention ‘culture’ as one of the fundamental spheres of minority protection. Importantly, the latter instrument obliges its state parties to undertake ‘to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’ (Article 5(1)). Yet, it does not treat such cultural minority rights as ‘truly’ enforceable rights. Moreover, the adoption of this treaty stopped the initial works on an additional →cultural protocol to the ECHR, undertaken within the mandate of the CoE Ad Hoc →Committee for the Protection of National Minorities (CAHMIN). The decision not to extend the competences of the →European Court of Human Rights (ECtHR) in the field of individual cultural rights was driven by both the legal difficulties in defining such rights as substantive rights, whose protection would impose specific positive obligations on states (Thornberry, Martín Estébanez, 2004; 204–206).

Indeed, international human rights treaties focusing on substantive rights may seem impertinent for the protection of cultural rights in their complexity. Arguably, with very few exceptions, they do not devote the necessary attention to cultural rights, which in turn do not enjoy the same level of protection enjoyed by civil and political rights. Even if some of them directly refer to rights to culture, they do not entail concrete positive obligations on state parties and their organs, but rather certain political commitments in respect of the legitimate cultural expectations of the right holders. Moreover, the controversies surrounding the recognition of collectiveness and international collective standing in relation to cultural rights, beyond states, may undermine their fitting within international human rights instruments. The existence of collective rights is also often challenged by the traditional liberal approach to human rights, which perceives them as individual rights. Accordingly, it is often claimed that collective cultural rights cannot be ‘truly’ accepted as human rights since they are group-differentiated rather than universal to all people just by virtue of being human (Nimni, 2008), involving potential clashes between them and fundamental human rights.

International Cultural Law and Human Rights

Fragmentation, Compartmentalisation and Expertisation of International Cultural Law As already addressed, international cultural legislation has long been detached from the realm of human rights, leaving ‘culture’ and ‘cultural heritage’ as the exclusive domain of states. In particular, the international cultural heritage law originally consisted in recognition of the right of every state to identify, physically control, and protect its tangible cultural heritage against irreparable loss in the event of armed conflict (1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict) and its unlawful removal from a state’s territory during both war and peacetime (1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property). This state-oriented perspective of international cultural heritage legislation, aimed at preserving national heritage against ‘external’ threats to its integrity, has been gradually broadened, and today encompasses a vast range of cultural manifestations and interests attached to them.

The expansion of multiple regimes relating to cultural matters has also led to their compartmentalisation according to the different types of cultural human activities, within their tangible and intangible dimensions. Moreover, various aspects of cultural domain are regulated under distinct instruments and fall under the competences of numerous authorities and monitoring bodies, undermining the global cultural governance. This often makes ‘meaningful communication’ between them (and other actors and stakeholders involved) as well as ‘solution-oriented thinking’ very difficult (Burri, 2012: 579). Another feature of international cultural law is its alleged ‘expertisation’. In fact, cultural issues are handled on the international level by institutions of different (universal and regional) origin and composition. Most importantly, cultural matters are managed by →UNESCO and its associated bodies and agencies dealing with specific topics and areas of governance. All of them use ‘impartial’ expert knowledge aimed at translating cultural concepts into law and policy constructions. The recourse to ‘external’ expertise is also designed to smooth out conflicts and social differences (Lixinski, 2013: 432). On the other hand, cultural experts and professionals strive to expand their self-created professional legitimacy and importance. This may lead to a lack of communication and harmony amongst cultural regimes under UNESCO. It may also contribute to unequal power/ knowledge relations between the interests of experts and those of individual and collective rights holders, thus undermining the effective enforcement of international cultural instruments and their objectives (Smith, 2006).

Arguably, these shortcomings of international cultural law also characterise regional legal and institutional systems. In particular, numerous initiatives of the →Council of Europe (CoE) provide a very broad legal framework for cultural and heritage policies. Culture entered on the agenda of the CoE with the European Cultural Convention (Paris, 1954), which created a legal platform for cultural cooperation between the CoE member states with the objective to safeguard and develop European culture and promote national contributions to Europe’s common cultural heritage. However, CoE’s cultural treaties essentially aim at standard-setting in matters of culture and cultural heritage within distinct specific areas of national policies. In fact, only one CoE treaty, the 2005 Framework Convention on the Value of Cultural Heritage for Society (Faro Convention), currently with a rather low rate of ratifications (17 of 47 of member states of this organisation have ratified it), fosters the broader concept of culture, addressing the questions as to why and for whom the heritage is transmitted, and employing an expanded and interdisciplinary concept of cultural heritage, the core of which are rooted in peoples and human values. Furthermore, none of CoE cultural instruments provides for a proper monitoring system, leaving the implementation of their standards to states’ discretion. This is also the case with the →European Union (EU), the most integrated regional regime, based on an autonomous legal system, characterised by supranational and intergovernmental decision-making. Culture and cultural rights belong to the EU common action, though harmonisation of the laws and regulations of the member states in cultural matters is excluded. Accordingly, in the cultural dimension of European integration, the EU institutions adopt non-binding legal acts with the objective to co-ordinate, support and supplement the action of the member states, respecting national, regional and linguistic diversity. Thus, the level of the EU’s involvement in cultural issues is limited by the nature of competences in this area, and in practice, by the defence of states’ national cultural autonomies and identities.

Human Dimension of International Cultural Law

The methodological boundaries between cultural international law and human rights are gradually being broken. In fact, the link between various cultural lawregimes and the international protection of human rights has recently been strengthened. It is observed that the emergence of a new international conscience, stemming from the awareness that culture, cultural heritage and →cultural diversity represent holistic concepts inherently connected with the identity of peoples as well as with all human rights in their individual and collective dimensions (Borelli, Lenzerini, 2012; also Vrdoljak, 2013; Blake, 2011). This process has occurred within various layers of international law, leading to a gradual re-interpretation of existing human rights guarantees in view of cultural rights and entailments. Importantly, the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions recognises cultural diversity as the common concern of humanity, and reaffirms its importance for the full realisation of human rights and fundamental freedoms. Similarly, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage links its protective regime with the ‘existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development’ (Article 2). Perhaps the most ambitious conceptualisation of culture, cultural heritage and human rights is offered by the CoE Faro Convention. It is founded on the idea that knowledge and use of cultural heritage form part of rights vested in everyone, alone or collectively, to participate in cultural life as defined by the UDHR and guaranteed by the ICESCR. Culture and cultural heritage are presented as resources for human development, for the enhancement of cultural diversity, and for the promotion of intercultural dialogue. Within this framework, the Faro Convention sets out positive obligations upon the parties which are inter alia required: to protect cultural heritage situated under their respective jurisdictions, regardless of its origin; to promote cultural diversity; and to establish processes for conciliation to deal equitably with situations where contradictory values are placed on the same cultural heritage by different communities.

Considering these developments within various culture-oriented treaties, it appears that nowadays international cultural human rights legislation has expanded beyond the realm of human rights instruments. This makes the legal basis for cultural rights legislation one of the most diverse and complex area of international law with all the uncertainties that it may entail.

International Human Rights Institutions and the Enforcement of Cultural Rights

In the light of the above-addressed observations, the question arises as to how and to what extent the observation and promotion of cultural human rights are approached and enforced in the practice of international institutions.

Monitoring and Adjudicating International Human Rights Bodies

Within the system of the UN human rights institutions, the Committee on Economic, Social and Cultural Rights (CESCR) may appear to be the most important one as it supervises the operation of the ICESCR – the fundamental, universal human rights treaty directly referring to cultural rights. It considers the five-yearly reports submitted by state parties on their compliance of the ICESCR obligations. Moreover, since 2013, pursuant the provisions of 2008 Optional Protocol, the CESCR can hear complaints brought by individuals, groups and representative organisations. However, to date the most significant activity of the CESCR in respect of cultural rights relates to its general comments. Its memorable General Comment No. 21 (2009) on the right of everyone to take part in cultural life, the CESCR stated that ‘(c)ultural 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.’ In this, it gave effect to the evolving conceptualisation of cultural rights addressed by epistemological communities and most significantly elaborated in the 2007 Fribourg Declaration on Cultural Rights. Moreover, the CESR concretised a set of positive international and national obligations arising from Article 15(1)(a) of the treaty and defined the parameters of assessing the compliance with their requirements.

Some important developments as to the recognition and enforcement of cultural rights have also been observed in the practice of the Human Rights Committee (HRCee) relating to the rights of persons belonging to ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their own religion, or to use their own language, in community with the other members of their group (Article 27). In its General Comment No. 23 (1994), the HRCee fostered a very broad concept of culture which may manifest itself in various 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.’ Importantly, the HRCee underlined that ‘(t)he enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them’. Although, the HRCee does not have competence to hear collective complaints, it has already pronounced several times on the role of culture, perceiving it as essential for the functioning of a minority [e.g. LÄNSMAN ET AL, 2005; KITOK, 1988; LUBICON LAKE BAND, 1990]. Moreover, it addressed its anthropological evolving notion and understanding within a given factual and societal context [LÄNSMAN ET AL, 1994].

Certain trends towards a broader recognition of cultural rights are also to be found in the practice of other UN human rights treaty bodies (see Lenzerini, 2014), yet perhaps the most significant role in international standard-setting in the area of cultural rights within the UN system has been played by the Human Rights Council (HRC). In a series of resolutions, the HRC has recognised cultural rights as crucial for human well-being, both individually and collectively. Moreover, in 2009 it set up a special procedure on cultural rights, establishing a mandate of an independent expert and since 2012 of a special rapporteur in the field of cultural rights. Farida Shaheed, the first mandate holder (2009–2015), published ten thematic reports dealing with various aspects of the operationalisation of cultural rights in their individual and collective dimensions, and offering recommendations on further implementation of such rights. Among others, the 2013 report dealt with the right to artistic freedom and creativity (UN HRC, 2013), enhancing its role for individual experience and development and joint (collective) social practices. The tasks of the HRC in this regard are continued by Karima Bennoune, the current special rapporteur, with particular focus on a human rights approach to the intentional destruction of cultural heritage. In their reports, the special rapporteurs have adopted a holistic approach to cultural rights, referring to culture in the plural, perceiving the enjoyment of culture as part of basic human rights.

The practice of regional human rights institutions has also shown some important developments in relation to the implementation of cultural rights, though their founding treaties do not, or only marginally refer to such rights. In fact, only the African Commission on Human and Peoples’ Rights (AfComHPR) and African Court of Human and Peoples’ Rights operate within a treaty system which explicitly guaranties cultural rights, in their complex individual and collective aspects. Yet the practice of these African human rights bodies in relation to culture is still rather limited, most importantly [CENTRE FOR MINORITY RIGHTS..., 2010] concerning the pastoral way of life). It has even been claimed that the AfComHPR has concentrated its efforts mainly on civil and political rights to the detriment of economic, social and cultural rights (Agbakwa, 2002: 194). As regard the Inter-American and European human rights regimes, the deficiency of their founding treaties in relation to cultural rights has progressively been addressed by the evolutionary approach followed by regional human rights monitoring bodies. Significantly, the Inter-American Court of Human Rights (IACtHR) has interpreted the right to property, under Article 21 ACHR, recognising certain cultural rights of indigenous peoples and local traditional communities, especially in relation to land [see MAYAGNA (SUMO) AWAS TINGI, 2001; MOIWANA COMMUNITY, 2005; YAKYE AXA INDIGENOUS COMMUNITY, 2005; and SAWHOYAMAXA INDIGENOUS COMMUNITY, 2006], and to their cultural identity [KICHWA INDIGENOUS PEOPLE OF SARAYAKU, 2012].

In turn, the ECtHR through a dynamic interpretation of various provisions of the ECHR has recognised a catalogue of substantive rights in relation to culture. The provisions most often invoked in relation to cultural rights are Article 8 (the right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the Convention, as well as Article 2 of Protocol No. 1 to the ECHR (Paris, 1952), concerning the right to education. Accordingly, the ECtHR has identified several substantive rights that can be labelled as cultural rights or rights with a cultural content. Importantly, it has made implicit references to the right to cultural identity of persons, and their associations, belonging to national, cultural, linguistic or ethnic minorities, recognising their right to maintain their minority identity and to lead one’s private and family life in accordance with their traditions and culture [e.g. CHA’ARE SHALOM VE TSEDEK, 2000; CHAPMAN, 2001; CYPRUS v. TURKEY, 2001; MUÑOZ DÍAZ, 2009; CIUBOTURU, 2010; AHMET ARSLAN AND OTHERS, 2010]. As pointed out in a research report of the ECtHR (2011), the Court has also recognised: the right of access to culture; linguistic rights; the right to education; the right to seek historical truth, using culture as a positive argument in order to strengthen the implementation of specific rights recognised in the ECHR and additional Protocols. Moreover, the ECtHR has adopted a certain relativist notion of culture balancing its distinct, though parallel, conceptualisations within the CoE system: the value a common heritage of Europe, diversity and autonomy of national cultural and individual cultural rights, in particular the freedom of expression [AKDAŞ, 2010]. Thus, in some cases the ECtHR has used the cultural argument to limit the enforcement of individual rights in favour of the legitimate interest of the wider society. In fact, it has usually accepted a priori the existence of a general community interest in protection of, and access to, cultural heritage as a legitimate aim of state interference into property rights, albeit without exploring the very nature of interest [e.g. SCEA FERME DE FRESNOY, 2005; RUSPOLI MORENES, 2011]. In some other cases, the ECtHR has recalled wider, universal cultural interests [BEYELER, 2000] and values enshrined in the CoE culturallaw instruments [DEBELIANOVI, 2007]. On the other hand, the vast practice of the ECtHR relates to freedom of speech, including →artists’ freedom of expression, seen as fundamental for both the individual and collective human development in a democratic, pluralist society. In fact, the complexity and extensiveness of the ECtHR case-law in this regard evidences the significance of the freedom of expression for Europe and European civil society (also manifested in the work of various NGOs struggling for the protection and enhancement for individual freedom of expression in the arts and media).

This dynamic practice of the regional human rights monitoring bodies in relation to culture is sometimes labelled as ‘culturalisation of human rights’ (Lenzerini, 2014). This is understood as the attempt to advance the effectiveness of human rights standards by interpreting them within a given cultural and societal context. In such a guise, culture is addressed in a pluralistic manner, enabling and smoothing conflicts between various rights within their individualistic and collective cultural dimensions.

Non-human Rights International Institutions and the Right to Be Protected from Cultural Destruction

Alongside the developments which occurred at the level of human rights bodies, the recognition and implementation of cultural rights have been strengthened by the practices of other international institutions. Undoubtedly, the renewed attention paid to →cultural genocide is the most significant area in which the issue of culture has been addressed. The right of a community to be protected from cultural destruction has been subject to judicial examination at national and international levels. The fundamental role is played by the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY). In particular, in [PROSECUTOR, 2004], the ICTY, while analysing the prerequisites of the crime of genocide, found that the deliberate destruction of a group does not have to be caused only by physical destruction, but also ‘through purposeful eradication of its culture and identity resulting in the eventual extinction of the group as an entity distinct from the remainder of the community’. In further cases, the ICTY equated the destruction of cultural heritage to a crime against humanity (persecution), due to the existence of a discriminatory intent (i.e. the intention to destroy the group to which the relevant heritage belongs). Therefore, the deliberate destruction of religious and cultural heritage belonging to members of a group can be treated as the evidence of intent to destroy the group. The reasoning of the ICTY has been followed by other criminal tribunals, including the Extraordinary Chambers in the Courts of Cambodia (ECCC) [Case 002, 2010], and more recently by the International Criminal Court (ICC). In fact, on 24 March 2016 the ICC Pre-Trial Chamber I confirmed the charges against Ahmad Al Faqi Al Mahdi, accused of war crimes allegedly committed in 2012, in Timbuktu (Mali), through intentionally directing attacks against buildings dedicated to religion and/or historical monuments. Significantly, the Prosecutor’s argumentation in relation to the gravity of charges greatly invokes the human rights dimension of the crime: violation of cultural rights of the local community, including religious rights, aimed at the annihilation of this group. Finally, the cultural dimension of cultural genocide was approached by the International Court of Justice (ICJ). In [BOSNIA AND HERZEGOVINA, 2007] and [CROATIA, 2015], the ICJ transposed the aquis of the ICTY relating to the cultural dimension of genocide to the realm of state responsibility. Accordingly, the ICJ held that attacks on cultural and religious property during an armed conflict constitute a violation of international law. Furthermore, such acts may be considered as evidence of a genocidal intent aimed at the extinction of a group.

(Im)Pertinence of International Human Rights Instruments and Institutions in the Realm of Culture and Cultural Rights

The core of the criticism relating to the operationalisation of cultural rights within the international human rights systems refers to the virtual absence of cultural guarantees within the texts of the most important human rights treaties, undermining their implementation and enforcement as substantive laws. Moreover, it has been rightfully pointed out that most of the existing international human rights complaining mechanisms do not offer unhindered access to justice in cultural matters, leaving cultural rights standards and their interpretation in the realm of exclusive competence of national jurisdictions. It is also true that the very nature of the international legal system (inter-state foundations of law-making, limited competences of monitoring and adjudicating bodies, low degree of participation of rights holders in decision-making and their absence or scarce representation in international institutions) favours or even promotes the interests of states, including their cultural policies, at the expense of individuals, NGOs and societal collectivities. Thus, due to the little presence of culture and cultural rights in the texts of international human rights treaties, the vagueness of international obligations provided by them, and the conceptual problems with the notion of cultural rights, such rights have often been defined as most neglected human rights in respect of their scope, legal content, and enforceability (Symonides, 1998; Meyer-Bisch, 1993).

This critical, pessimistic vision cannot, however, be fully sustained. The cultural determinations of human existence are increasingly recognised as crucial for the promotion and full implementation of all human rights and safeguarding of human dignity. As already highlighted, these developments have occurred on the level of international treaty law within originally distinct or separate areas of legal regulations. Indeed, a number of cultural law instruments have linked their implementation with the observance of human rights and freedoms, enhancing the role of the human dimension in implementing cultural and cultural heritage policies. On the other hand, the recent instruments designed to protect collective rights extensively linked their observance with explicit cultural guarantees. As regards the practice of international human rights institutions, it has been evidenced that many of them perceive the existing human rights regulations as living, constantly evolving organisms. This has led to a systematic re-interpretation of existing human rights guarantees which would encompass certain cultural rights, including those relating to cultural heritage. Moreover, cultural dimensions of human rights existence have also been addressed in the practice of other, non-human rights international institutions, such as the ICJ (see Polymenopoulou, 2014).

The above summarised developments at the level of international instruments and institutions give rise to a number of questions as to the future of practical operationalisation of culture and cultural rights within the system of international law. Arguably, the major concern refers to the access to international justice and a wider participation of cultural rights’ holders in international decision-making. To date, these two fundamental aspects are still underdeveloped, calling for more concrete solutions which would facilitate a better governance of cultural matters, reconciliation of cultural and social conflicts, and the continuous development of all humankind.

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