Cultural Heritage in the Human Rights System

Janet Blake, Tehran

The human rights value of cultural heritage

In international law, the related ideas of ‘cultural property’ and ‘cultural heritage’ have gathered an accumulated mass of meaning over the years, beginning with a focus on monuments, sites and movable cultural property (important on the national level, inter alia, for cultural, historic, archaeological, scientific, ethnographic and aesthetic reasons) situated on land or underwater. Later, in the early 1970s, the notion of ‘world heritage’ was developed, comprising cultural and natural sites (and →cultural landscapes) of a ‘universal significance’ to humankind and whose global importance merited international cooperation for their protection. At the same time, there was a strong push from countries newly-independent from colonial domination to assert claims to restitution of cultural property (some of which was of a monumental nature) as a national right. However, this focus on both the ‘heritage of humanity’ and ‘national patrimony’ contained within it some degree of contradiction with the specific significance that heritage holds for the cultural community that creates, maintains and transmits it and the local community that enjoys it. As a consequence, a greater focus has been placed on the →intangible cultural heritage since the late 1990s. In addition, particularly within the European context, cultural heritage is now being viewed as a cultural, social and economic resource of communities.

In Section 3 below, more detail is provided on some of the developments at the international policy level that have informed our understanding of cultural heritage and, in particular, the broadening out of the notion that occurred during the 1980s and 1990s to include, for example, not only material culture of a monumental or nationally valuable kind, but to include also vernacular and even quite mundane cultural elements as well as non-material aspects of heritage such as oral expressions, performance arts, rituals, social practices, belief and knowledge systems etc. From this author’s point of view, it is important to recognise that, as much as all cultural heritage represents a human rights value (as set out below), it is in its intangible dimension and manifestations that the importance of the human dimension is clearest: intangible cultural heritage is a living heritage whose very existence is dependent on the human context (individuals, groups, communities and the wider society). Hence, safeguarding this heritage cannot easily be divorced from human rights and, in particular, the economic, social and cultural rights of its bearers and practitioners.

→Cultural identity, whether operating at an individual or group/community level, is an essential component of →human dignity and cultural heritage, as a whole, plays a central role in the construction of both personal and group identities. Since the protection of human dignity is a fundamental basis for human rights, safeguarding cultural heritage should be regarded as an essential part of protecting human rights. The human right to cultural identity encompasses the right of individuals to choose, alone or in community with others, their cultural identities (most of us have more than one) and self-identification, the right to choose one’s own cultural identity or identities, is essential for protecting individuals’ rights. The right to a cultural identity includes the right not to have an alien culture imposed on one, the right to positive discrimination in favour of minorities to participate in the cultural life of the wider community and the right of each cultural group to preserve, develop and maintain its own specific culture. Innumerable attempts made to strip people of their human dignity during periods of colonial domination or →armed conflict frequently involve attacks on their cultural heritage, clearly demonstrating the importance of cultural heritage as a marker of individual (and often collective, group) identity.

Cultural identity issues are notoriously complex, and it is not uncommon for the right of a specific community or people to a special relationship with their cultural heritage to conflict with the right of others to access and enjoy it as a local or national cultural heritage or even a cultural heritage of mankind: The Aboriginal rock art at Kakadu National park in Australia (listed as a World heritage Site under the 1972 World Heritage Convention) is regarded as having a universal significance for humankind In view of its richness and traditional character (dating back thousands of years), while it also represents a heritage of immense and special significance for the Aboriginal communities of that area, whose unique identity it symbolises. Partly in response to such cases, the Convention on Safeguarding of Intangible Cultural Heritage (UNESCO, 2003) places the right of communities to identify, safeguard and manage their own cultural heritage at its centre, thus recognising both an important cultural right and the procedural human rights principle of participation. The idea of a national identity based on ethnic or cultural factors has also, in too many cases, led to territorial expansionism and armed conflict (both internal and external) and, in its most extreme form, ethnocide. Denial of the right of access to sacred sites and the damaging impact that such exclusion has on the excluded religious community and its individual members is also relevant here. As the ‘Hague’ Convention on the Protection of Cultural Property in the Event of Armed Conflict (UNESCO, 1954) notes in its Preamble, ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion...(and)...its intentional destruction may have adverse consequences on human dignity and human rights’.

Since cultural heritage is extremely diverse in all its forms and manifestations, its protection contributes significantly to the goal of preserving global cultural diversity. Indeed, two of UNESCO’s cultural heritage Conventions (the 2003 Convention and the 2005 Convention on the Protection and Promotion of Cultural Expressions) grew directly out of the Universal Declaration on Cultural Diversity (UNESCO, 2001). This instrument characterises cultural diversity as a heritage of humankind whose preservation for present and future generations is an ethical imperative. With regard to the relationship between cultural diversity and human rights, Article 4 of the 2001 Declaration is unequivocal, stating that ‘(t)he 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’. Moreover, cultural diversity is also now recognised as a key vector in ensuring sustainable development and this requires a holistic approach to the safeguarding of cultural heritage, tangible and intangible. The Preamble to the 2003 Convention makes this clear in its second recital, as follows: ‘Considering the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development, as underscored in... the UNESCO Universal Declaration on Cultural Diversity of 2001’.

Main approaches/answers currently found in this field

Cultural heritage received its first formal endorsement as a proper subject for human rights in the Report of the UN Independent Expert in the field of cultural rights adopted in 2011; this Report examined the right of access to and enjoyment of cultural heritage and considered both the scope and content of this right and the types of measure required for states to fulfil their obligations to support, protect and promote it. It stated unequivocally that, as reflected in international law and practice, ‘the need to preserve/safeguard cultural heritage is a human rights issue’, particularly because of its ‘significance for individuals and communities and their identity and development processes’ (at paragraph 1). The enjoyment of and access to cultural heritage is understood to be an element of the human right to participate in cultural life. This right was first formally expressed in Article 22 of the →Universal Declaration on Human Rights (UN, 1948) which sets out the right of everyone to ‘participate freely in the cultural life of the community’, to enjoy the benefits of scientific progress and to the moral and material benefits of their individual creativity. This article also makes explicit the linkage between the right of each individual to enjoy their cultural rights with their human dignity. It was then given binding status in Article 15 of the →International Covenant on Economic, Social and Cultural Rights (UN, 1966) in somewhat modified terms as the ‘right to take part in cultural life’ (‘take part’ being regarded as synonymous with ‘participate’ here) along with the right to benefit from science and its applications and to associated moral and economic (→intellectual property) rights. The right to participate in cultural life includes, then, a general duty on the states parties with regard to the various cultural heritages within the state and, as noted in paragraph 3 of Article 15, support for ‘the conservation, development and full diffusion of ... (the) culture’ of all citizens of the country.

General Comment no. 21 of the Committee on Economic, Social and Cultural Rights (CESCR), notes that this right includes the obligation on governments to adopt ‘...specific measures aimed at achieving respect for the right of everyone, individually or in association with others or within a community or group... to have access to their own cultural and linguistic heritage and to that of others’. In addition, this right is interpreted as one of individuals and communities to access and enjoy cultural heritages that are of significance to them, whether their own (with priority access), local, national or event universal/ global. The General Comment further notes that the rights of access to and enjoyment of cultural heritage are inter-dependent and include, inter alia, to know, understand, enter, visit, make use of, maintain, exchange and develop cultural heritage, as well as to benefit from the cultural heritage and creations of others, without political, religious, economic or physical obstacles. Access and enjoyment also implies community participation in the identification, interpretation and development of cultural heritage, as well as the design and implementation of preservation/ safeguarding policies and programmes, as is supported by the UNESCO’s 2003 Convention.

The model of access initially developed for the right to education with the five elements of availability, accessibility, acceptability, adaptability and appropriateness has been applied to cultural heritage in the General Comment. This notion of access involves: physical access to cultural heritage; access through digital technologies; economically affordable access; the right to seek, receive and impart information on cultural heritage; and access to decision making and monitoring procedures, including administrative and judicial procedures and remedies. At the same time, there are different levels of this right as accorded to individuals and communities with priority given to those with the closest connection to the heritage as follows, ranging from source communities who are the bearers of a specific cultural heritage, who keep it alive and safeguard it, to local individuals and communities who regard the cultural heritage as an integral part of the life of the wider community (but who are not necessarily directly involved in it), scientists, artists and the general public.

In addition to this right, of course, the principle of non-discrimination interacts with the right to enjoy and access cultural heritage, with special attention paid to minorities and other disadvantaged groups in society. The special status rights of members of ethnic, religious and linguistic minorities to practice their culture and traditions are supported by Article 27 of the ICCPR. This places an obligation on states not to interfere with the enjoyment by such minorities of ‘their own culture’. This includes ensuring access to their cultural heritage and not preventing them from creating, practising, enacting and transmitting their cultural heritage and traditions. Effectively, this places the obligation on all states to abstain from policies or actions that would result in the destruction, damage, alteration or desecration of cultural objects or spaces important for maintaining minority cultural heritage as well as preventing the risk of destruction or damage to such heritage, including by third parties. The Declaration on the Rights of Ethnic, Religious and Linguistic Minorities (1992) provides further clarification of the content of the rights of minorities under Article 27. At Article 4(2), it requires states to “take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs ....’ This would, of course, include the protection of the cultural heritage of such groups. In addition, international Conventions against discrimination on grounds of sex and race and setting out the rights of migrant workers and persons with disabilities also include provisions relevant to cultural heritage. Diasporas and →migrants represent two rather challenging groups of cultural minorities since they generally share a cultural identity with a national (or other) community residing in another state. This raises questions as to how far their state of origin may intervene to protect and safeguard their cultural heritage. Migration has been a fact of human civilization for millennia, but more recent migrations in response to economic, environmental and security pressures raise fundamental questions concerning what is both local and national heritage, who identifies it and who ‘owns’ it. This is important for any discussion of human rights related to cultural heritage, in particular what the relative roles of the host state and state of origin may be.

A further significant group that enjoys special rights with regard to heritage are →indigenous peoples. Given the historical experience of dispossession of their land and heritage experienced by indigenous peoples, the international community increasingly accepts that special rights to off-set generations of discrimination are justified (Anaya, 1996). Such special treatment extends to their heritage, sacred places, secret knowledge and human remains etc. and includes restoring their cultural heritage to them, ensuring their access to it and respecting associated customary laws and practices. Indigenous understandings of heritage do not correspond closely with the definitions of ‘cultural heritage’ commonly used in international law since it includes such elements as human remains, natural landscape features, plant and animal species and other natural resources. As a consequence, the protection of indigenous heritage cannot be treated separately from their claims to rights over ancestral lands, control over natural resources and internal, if not external) self-determination. Hence, Article 31 of the Declaration on the Rights of Indigenous Peoples – UNDRIP (UN, 2007) endorses the right of →indigenous peoples to ‘maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora...’. Article 11 of UNDRIP makes direct reference to their rights with regard to heritage, stating that: ‘(they) have the right to practise and revitalize their cultural traditions and customs. This includes 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’. An important disconnect exists, however, between classical human rights approaches based on minority rights from the rights claimed by indigenous peoples: The former are based on protecting rights of individual members of minorities while indigenous peoples stake claims to a collective identity that has to be supported by collective rights.

Many civil and political rights are also implicated in the protection and safeguarding of cultural heritage. Other (non-cultural) human rights are also relevant to cultural heritage in general and without which it would be extremely difficult, if not impossible, to realise the rights of individuals and communities with regard to their cultural heritage. For example, freedom of expression (Article 19(2) of the ICCPR) is a fundamental right that is essential for the creation, enactment, maintenance, enjoyment and transmission of cultural heritage, especially true for minority and indigenous heritage. Other relevant rights include: the rights of freedom of religion and association, expressed in Articles 18 and 22 of the ICCPR; the right to education as set out in Article 13 of the ICESCR; the right of parents to choose the kind of education given to their children found in Article 13(3) of the ICESCR and Article 29(1)(c) of the Convention on the Rights of the Child (UN, 1989) (CRC). The protection afforded to this right in the CRC requires ‘... respect for the child’s parents, his or her own cultural identity, language and values’ balanced in a manner of interest here with ‘the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own’. Moreover, the right to cultural development, with regard to cultural heritage, can be understood as the right of the members of a cultural group to preserve, develop and maintain their own specific culture and cultural heritage (including myths, traditions and symbolic culture) and to have this identity respected by the State and others. The African Charter on Human and Peoples’ Rights (AU, 1981) is the sole binding (regional) instrument so far that directly expresses human rights in relation to cultural heritage, referring as it does to the right to preserve and develop a culture, at Article 22(1), and the right of equal enjoyment of the common heritage of mankind at Article 22(1).

The move in recent years towards a more human rights-based approach to cultural heritage protection in which cultural communities are placed at, or nearer to, the centre (as that taken by the 2003 Convention) is, in part, an attempt to respond to this human rights dimension of heritage. Under the 2003 Convention, heritage is viewed as comprising a value whose safeguarding is of common concern to the international community while its primary significance to the community is respected. This allows for the notion of ownership to be decoupled from that of the need to safeguard and it leaves a space for the immediate cultural community to be directly involved in its identification, inventorying and safeguarding as a whole. Increasingly, cultural heritage is viewed as a social, cultural and economic resource of individuals and the communities they live in, contributing to the development of the capabilities needed for achieving full human development. For example, the ‘Faro’ Convention of the Council of Europe (2005) defines cultural heritage as ‘a group of resources inherited from the past’.

In addition to this, newer approaches towards cultural heritage also operate in tandem with the move towards accepting the collective character of cultural rights or, at the least, as rights of individuals exercised as part of a group or community. As the UN Independent Expert on cultural rights has noted, ‘the existence of collective cultural rights is a reality in international human rights law today’. Indeed, according to logic, cultural rights must protect the interests of the community in order for the individual to protect his or her own rights; hence, a purely individual conception of human rights cannot respond adequately to those (many) societies in which individual identity and dignity are intertwined with membership of the community. However, this does not resolve a potential clash between accepting a collective character for cultural rights and forms of cultural relativism that can lead to harming individuals’ human rights. Here, a subtle and sophisticated approach is required that can allow for some recognition of important local specificities in cultures and systems and the need to implement universal human rights standards appropriately, while protecting the core substance of the right.

The international policy dimensions

Important developments in international cultural and development policy areas since the 1970s have had a direct impact on human rights related to cultural heritage. Up until then, →development was generally conceived as exclusively related to economic growth; as a corollary, traditional culture and/ or heritage was viewed as a break on development. During the 1970s, Africa and Latin America developed the ‘endogenous development’ approach in which local and ethnic cultures (and languages) were given greater value, culture was substituted for the economy in the development model and traditional ways of life were emphasised. Further to this, the Declaration of the World Conference on Cultural Policies for the first time articulated a view of ’culture”’ as a broad notion encompassing ways of life, social organisation and value/ belief systems as well as material culture; it also, importantly, linked this with the idea of cultural identity.

Important new international development occurred during the late 1980s and earlyto mid-1990s, with the introduction of the social development, sustainable development and human development approaches. The value of local and indigenous cultures and their heritage within the wider society and as a resource for its overall development was also becoming better understood at this time. The adoption of the ‘Rio’ Declaration of UNCED in 1992 in which sustainable development was first given universal international endorsement marked a turning point, with its ‘third pillar’ constituting socio-cultural factors and the central roles given to participatory approaches and to indigenous and local communities. It is important to recognise that each of these development approaches contained strong human rights aspects – beyond the solidarity human right to development itself – emphasising, as they did, human capacities (supported by rights) and social justice.

The publication of the Report of the World Commission on Culture and Development in 1996 was particularly significant since it clearly stated not only the constitutive role of culture in development, but also the important place of cultural heritage in this. Another key document in this area was the Action Plan on Cultural Policies for Development (UNESCO, 1998) which recognised as its first Principle that, ‘(s)ustainable development and the flourishing of culture are interdependent’ which then lead to the formulation of its first Objective as: ‘To make →cultural policy one of the key components of development strategy’. Specifically targeted towards cultural heritage, Objective 3 calls on member states to ‘(r)einforce policy and practice to safeguard and enhance the cultural heritage, tangible and intangible, moveable and immovable, and to promote cultural industries’; this approach includes revising the traditional conception of heritage to include ‘all natural and cultural elements, tangible or intangible, which are inherited or newly created. Through these elements social groups recognize their identity and commit themselves to pass it on to future generations in a better and enriched form’. Hence, the connection is made explicitly here between heritage as a holistic concept, the imperative to safeguard it for future generations and the role of heritage in the formation of group identity. The outcome document of the United Nations Conference on Sustainable Development (Rio+20) held in 2012 made direct reference to culture, emphasising that the three dimensions of sustainable development, namely the economic, socio-cultural and environmental dimensions, should all be given importance in UN programming for sustainability. However, it contains only a few, rather modest, references to the role of culture for sustainable development. UNESCO has therefore been working to place culture firmly within the international development agenda, its Hangzhou Declaration: Placing Culture at the Heart of Sustainable Development Policies (UNESCO, 2013) calling for a specific international development Goal focused on culture being included in the post-2015 UN development agenda, ‘based on heritage, diversity, creativity and the transmission of knowledge’.

In the field of cultural rights, so often viewed as the poor relation of the human rights canon, belated attention was being paid from the mid-1990s to the mid-2000s to developing these human rights and better understanding their scope and content. From 1993, ECOSOC began its work on developing a draft Declaration on indigenous rights, although it took until 2007 for the UN General Assembly to adopt the UN Declaration on this subject. In tandem with this process, UNESCO was working alongside experts such as the University of Fribourg to codify cultural rights. This work culminated in the adoption of the (unofficial) Fribourg Declaration on Cultural Rights in 2007 that states in its Preamble that, ‘respect for diversity and cultural rights is a crucial factor in the legitimacy and consistency of sustainable development based upon the indivisibility of human rights’. A further important policy context is the development of →intellectual property protection for ‘traditional knowledge’ and ‘traditional cultural expressions’ that began, in its most recent efforts, with the establishment of the intergovernmental committee on genetic resources, traditional knowledge and folklore within WIPO in 2000. This work continues and two draft provisions (on these two areas) were adopted in 2014.

Exploring eventual trends during the last decades

Beyond the human rights field set out above, important developments have occurred in both international environmental and cultural heritage law. In the former, this has mainly been with regard to the protection of traditional ecological knowledge, and has been most clearly expressed in Article 8(j) of the UN Convention on Biological Diversity (1992) that calls upon the Parties to ‘(r)espect, preserve and maintain knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustained use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices...’. In addition, the Convention on Combating Desertification (UN, 1994) places a high importance on the knowledge and practices of local communities and their participation in national programming and the Treaty on Plant Genetic Resources for Food and Agriculture (FAO, 2001) stresses the need to protect farmers’ rights, such as in the use of seeds. International conservation treaties also commonly contain exceptions to prohibitions on capturing or killing protected species for indigenous peoples employing traditional methods of hunting, as in the Agreement on Conservation of Polar Bears (1973 at Article III.1) and the North Pacific Fur Seal Interim Convention (1957 at Article VII).

The human rights dimension has been present in cultural heritage treaties since the early treaty-making in the 1950s, although this has become much more explicit in more recent treaties. UNESCO’s 2003 Convention refers in the first paragraph of its Preamble to the main human rights instruments and, specifically, to the 1948 UDHR and the two Covenants of 1966. Importantly, the definition it gives of intangible cultural heritage (Article 2(1)) is as a heritage that provides ‘communities and groups and, in some cases, individuals’ with ‘a sense of identity and continuity.’ If we look at particular human rights in turn, it is also possible to identify specific contributions that cultural heritage treaties make to their protection and promotion. The Convention on the illicit movement of cultural property (UNESCO, 1970), for example, notes the importance of cultural property as a vehicle through which ‘peoples may gain consciousness of their own dignity’. This treaty also seeks to protect the right of a people to its own artistic, historical and cultural wealth. At the same time, since the retention of cultural objects is necessary to the →participation in cultural life, the 1970 Convention also contributes to the enjoyment of this right. Furthermore, the whole range of cultural heritage treaties can be seen as supporting cultural diversity, although it is the two most recent UNESCO cultural heritage treaties (adopted in 2003 and 2005) which grew directly out of the Universal Declaration on Cultural Diversity (2001) that make this connection most explicitly. For example, the Representative List of the Intangible Heritage of Humanity of the 2003 Convention underscores the idea that the inscribed elements are chosen as representative of different genres of ICH that the List is testimony to the diversity of this heritage.

The right to education is fundamental to supporting cultural rights and many of the heritage Conventions, especially more recent treaties concluded after 2000, include provisions relating to public education, capacity-building and awareness-raising. Since non-formal means of education where the target group is often a minority cultural community, this can involve mother-tongue language education as well as a culturallyappropriate educational methodology. Public education is also directly connected with the ability of individuals and communities to participate in heritage protection. In UNESCO’s 2003 Convention, ICH is defined in relation to the cultural communities and practitioners that produce and enact it and, as such, their participation (expressly required under Articles 2(1), 11(b), 12 and 15) is central to the Convention. Intellectual property protection also forms part of human rights with regard to heritage and, since it protects ‘(cultural) expressions that result from the creativity of individuals, groups and society and have a cultural content’, the Convention on Diversity of Cultural Expressions (UNESCO, 2005) notes in its Preamble the importance of intellectual property rights to sustaining those involved in cultural creativity (at paragraph 16). The intellectual property aspects are also viewed as important in safeguarding ICH.

The notion of a ‘common heritage of mankind’ is expressed in the Preamble to the 1954 Hague Convention which notes that ‘damage to cultural property belonging to any people whatever means damage to the cultural heritage of mankind’. The approach of the World Heritage Convention (UNESCO, 1972) is predicated on the notion that some heritage has an ‘outstanding universal value’ that goes beyond national heritage. Of course, the concept of a global heritage contains a potential conflict with the special significance the heritage has for a community (or nation) and the 2003 Convention seeks to balance the ‘common interest of humanity’ in this heritage with the primary place of communities in identifying and safeguarding it. This notion also contains within it some sense of a collective interest in protection as well as the idea, present in all cultural heritage, of an obligation towards future generations: these two characteristics of heritage protection treaties mirror important elements of the solidarity human rights (such as the right to development or peace). At the same time, the value of cultural diversity and of specific and local cultures is increasingly recognised: hence, the principle of equal dignity of and respect for all cultures is expressed in the 2005 Convention (Preamble at Principle 3).

Given the ‘soft law’ character of much international cultural heritage law and the high degree to which states have reserved their sovereign jurisdiction in the treaties, human rights can offer an effective strategy for communities and individuals to safeguard their cultural heritage. Furthermore, the disjunction that can occur between cultural heritage and the concerned community as a result of the pressures of modernity and globalisation is an important human rights issue. It requires empowerment of communities and not limiting heritage protection to technical issues of safeguarding, but responding also to the role cultural heritage plays in society and people’s lives. This has been most clearly recognised by the Faro Convention (Council of Europe, 2005) which defines cultural heritage as: ‘(A) group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions’ and which takes a human rights approach to heritage safeguarding. UNESCO’s 2003 Convention also makes explicit reference in the first paragraph of its Preamble to the main human rights instruments, especially to the 1948 UDHR and the 1966 Covenants, thus placing it firmly within a human rights framework.

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