COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS HOLDS DAY OF GENERAL DISCUSSION ON RIGHT TO TAKE PART IN CULTURAL LIFE
The Committee on Economic, Social and Cultural Rights today held a Day of General Discussion on article 15 (1a) of the International Covenant on Economic, Social and Cultural Rights on the right to take part in cultural life.
The discussions were organized around four main themes: exploring the definition of cultural life in the context of human rights; analyzing the right to have access to cultural life and to participate in cultural life; identifying the interlinkages between cultural rights and the universality of human rights; and assessing the individual and collective dimensions of the right to take part in cultural life.
On the theme of exploring the definition of cultural life in the context of human rights, speakers focused on the definition and scope of the right to culture, including questions on cultural freedom as well as the inclusion of indigenous communities and the problems to maintain individual rights in a mainstreamed environment.
With regards to analyzing the right to have access to cultural life and to participate in cultural life, speakers discussed the issue that cultural rights should be regarded as fundamental rights in the fight against poverty, and that the fundamental needs of the poor should not be set in a hierarchical order, but according to each individual’s needs. The social construction of heritage on the basis of different statuses, and the effects of copyrights and intellectual property rights on the right to culture were also raised.
Concerning the theme of identifying the interlinkages between cultural rights and the universality of human rights, speakers focused on similar problems experienced in the attempt to eliminate racial discrimination and the protection of the right to culture; a right did not exist in a vacuum, as instruments of human rights existed in cooperation with each other. The question of the empowerment of communities to protect their own rights, religious aspects in the protection of the right to culture, the complementary or exclusive nature of human rights and cultural diversity, the definition of universality of rights and full tolerance and respect of the dignity of man as the basics of the right to culture, and the distinction between collective and individual rights, diversity and cultural freedoms were also discussed.
When assessing the individual and collective dimensions of the right to take part in cultural life, speakers discussed the changing environment in which the right to culture and human rights in general were applied, the balancing nature of the collective dimension with regard to the existing imbalance, the broad or narrow definition of the right to culture and the effects of trade policies on the right to culture, including biopiracy and technical protection mechanisms.
The Committee will next meet in public at 10 a.m. on Friday, 16 May when it will issue its concluding observations and recommendations on the reports of France, Benin, Bolivia and India before concluding its session.
Opening Statements
PHILIPPE TEXIER, the Chairperson of the Committee on Economic, Social and Cultural Rights, opening the Day of General Discussion, welcomed the participants and said that economic, social and cultural rights were a very important part of human rights. Article 15 (1a) of the Covenant was of great importance, but many times it was sacrificed, maybe because it was the last article. This Day of General Discussion would help the Committee elaborate a General Comment on the right to take part in cultural life.
JAIMÉ MARCHAN ROMERO, Member of the Committee on Economic, Social and Cultural Rights, introducing the Day of General Discussion, said that the Committee had been putting greater importance on cultural rights in its discussion with the States parties. Seminars and workshops on the one hand, and globalization on the other hand had contributed in recent years to a greater awareness of cultural rights. Cultural life made explicit reference to the nature of culture as a living process. From the anthropological point of view, it became culture as a way of life. In developing its work, the Committee had avoided the temptation to create its own definition of the term. Culture was an interactive process of communicating. The culture of humanity as a species took account of the individuality but also put culture in relative positions. The normative content of the rights within cultural life had to be defined. Everyone referred to the individual and the collective subject. Cultural rights could be exercised individually or in connection with others or through a community collectively. Some rights were collective by their very nature. As such, there was a difference between collective rights and rights with a collective aspect. The choice of a person to exercise or not to exercise part or all of his cultural rights was a cultural right and had as such to be protected and respected. The term “participate” contained the meaning of “taking part in”. The right to participate contained at least three different elements: the right to access to culture, the right to choose the culture of one’s preference and the right to enabling rights such as education.
Cultures had no given borders. Globalization had put different cultures into contact. The access to culture for all was popular. Core obligations required a minimum satisfaction, set out in the Covenant. Unfortunately, violations happened very frequently. Regarding the format of the General Comment which would be elaborated on the right to take part in cultural life, the Committee would possibly follow similar formats as in its previous 18 General Comments.
Exploring the Definition of Cultural Life in the Context of Human Rights
YVONNE DONDERS, Director of the Amsterdam Centre for International Law at the University of Amsterdam, said someone had once said that “any attempt to talk about cultural issues may be slippery and difficult”. This was because these rights were unclear. Culture could refer to many different things. Today however, the discussion on cultural rights should not focus on cultural rights as a whole category but on the right to take part in cultural life. In 1990 the Committee on Economic, Social and Cultural Rights had adopted the revised guidelines for the reporting procedure, including new procedural rules for reporting on the right to culture. The term cultural life was not defined, as the Committee wanted to leave this up to the State. However, the inclusion of references to indigenous and national communities endorsed a wider definition of cultural life. Recently, the Committee had addressed a wide variety of topics related to the right to take part in cultural life, while paying attention to specific situations of minority groups. Language rights had also been referred to by the Committee. With respect to cultural practices that may be harmful to the enjoyment of human rights, the Committee had urged States to address these issues. Thus, over the years, the Committee had accepted a broader definition of cultural life as a way of life of individual and communities, touching upon a wide range of topics, including promotion and preservation of cultural rights and cultural heritage and cultural institutions. These issues were closely linked to other human rights. She concluded by saying that the tasks ahead were difficult. One of the main difficulties would be to define a core content beyond non-discrimination. The relationship of cultural rights and other human rights was an important issue to address. The basis of human rights was the protection of the right to a cultural life for the individual.
ABDULAYE SOW, Coordinator of the Interdisciplinary Centre for Cultural Rights at the University of Nouakchott, said that there should be articles on the participation in cultural rights. Without the capacity to connect to this side of life, it was meaningless, and a democratic space had to be created to guarantee this. The instrumentalization of participation had boiled down cultural life in some countries. If they wanted a world of peace and justice, then the right to cultural life was an important right to be ensured, as it was at the heart of one’s identity.
In the interactive discussion, speakers spoke about the difference between multiculturalism, mainstream culture and individual cultural traditions and customs. The evolution of the definition of culture encompassed other elements such as food, housing, health and education. One speaker pointed out that the Covenant referred to the individual right, however, development and other human rights had shown that there were three dimensions to this right, the individual, groups of individuals and the collective right. States were not doing enough to deal with the collective dimension, and it was only States which could do so. There was no country in this world which had a mainstream culture which was not influenced by other cultures, one speaker said.
Speakers raised issues concerning the rights of migrants and second generation migrant communities. In an increasingly globalized and mainstreamed world, keeping up individual rights was very important. Other comments related to other international instruments which had been adopted and might be of assistance to the work of the Committee in this area, such as the ILO Conventions and the Convention on the Rights of Indigenous People. The obstacles which some cultures presented for the human rights of women were also considered.
In rounding up the discussion on this theme, speakers said the concept of culture was changing and this fact had to be accepted and taken into account. The right to culture was closely linked to other human rights. States had to recognize and respect the right to culture. The interlinkages between several human rights had to be recognized, as it was of great importance also for the questions of individual or collective rights.
Analyzing the Right to Have Access to Cultural Life and to Participate in Cultural Life
Poverty and Access to Culture
ANNELISE OESCHGER, President of NGOs of the Council of Europe, said that there were people living in extreme poverty and that there was more to fighting poverty than providing these people with a roof over their heads and food. However, cultural needs of people in extreme poverty were not seen and recognized. In determining the fundamental needs of people one had to take into account the whole person, which led to culture being part of these fundamental needs. A recent publication had found that without a cultural dimension, nobody could get out of a situation of poverty, as without inclusion in thought processes and community lives, people were left out of society. She concluded by stating that seen in this light, the current food crisis was in reality a cultural crisis.
ALESSANDRA AULA, Director of the International Catholic Child Bureau, said that there was a need to look into the cultural practices of the poor and the social relationships developed on this basis. Rights and responsibilities existed in all levels of society. Any kind of status or categorization had to be eliminated. The fundamental needs should not be set in a hierarchical order, but according to each individual needs. The situation in Burma had shown that there was a strong need to listen to others, not to impose help, but to take into account that it was culture which ultimately defined human beings.
In the following discussion, issues were raised related to the connection between the food crisis and the cultural crisis; and the protection and value of extraordinary expressions of the cultures of the poor.
In rounding up the discussion, speakers recognized the cultural wealth of each human being. But the problem was that some people scorned others. The food crisis had been existing for years but the cultural component of this was never taken into account.
Access to Cultural Heritage
GABI DOLF-BONEKÄMPER, Berlin Curator and Member of the Fribourg Group, explained that patrimony was a topic of social construction, defined by several statuses. With regard to objects of museums and collections, she focused on the local, legal and semantic statuses. Questions included where an object was and where it was not, aspects which both had to be taken into account. Regarding buildings, the local, spatial, legal and semantic statuses had to be clarified. Intangible heritages also had various statuses, such as a local, legal, semantic, formal and material and temporary. Those who inherited the construction of patrimony had a local and a social status, and a cultural affiliation to be taken into account. Thus, the heritages had to be localized, while patrimonies could be defined elsewhere. There was a reciprocity between heritage and inheritors, which could lead to the development of a heritage community, which was defined by the Council of Europe Framework Convention on the Value of Cultural Heritage for Society or Faro Convention. The right to cultural heritage was complex, and full of options, without any obligation to build cultural communities on identity communities.
Arts in the Context of Globalization
JOOST SMIERS, Professor Emeritus of Political Science of the Arts at the Utrecht School of the Arts, stressed that the artistic component had to be taken into account in regard to the right to culture. Art did not always provide enjoyment for all, due to different tastes. The artistic field in a society was a battle field. He said that to take part in cultural life and expressions, persons should do something to make it happen. The system of copyrights, the dominance of artistic production, distribution and perception were addressed as main issues in the field of arts. Copyrights ensured the protection of art work for its creator, and thus could be an obstacle for the enjoyment of all of the right to culture. In the western world, the idea of passive consumers existed. There were only a few global conglomerates which controlled the production, distribution and reception of art works. He suggested that therefore copyrights should be abolished as the artists usually did not make any profits out of copyrights. Secondly, the control of arts through global enterprises should be stopped. The effects would be a freedom from heavy investments in blockbusters, bestsellers and stars and thus an open space for a diversity of artists and arts. But at the same time, a normalization of the market should be carried out to create a normal level playing field with opportunities for all artists to publish their work. The public domain, which was privatized at the moment, should be brought back to the public and the right to counter-speak should be ensured.
In the discussion, topics raised related to the respect of the State for cultural heritage; the collective value of goods which were considered to be cultural heritage; definitions of collective and common heritage; the right to common property rights; the inclusion of landscape into the definition of heritage; and the glorification and minimization of arts.
Rounding up the discussion, speakers said that everything needed to be seen from the point of view of the individual as a basis of the whole idea of the right to cultural heritage. The distinction between common and collective rights was very interesting, including a paradox with regard to cultural heritage, as in heritage more heirs limited their share of the heritage, however, in cultural heritage, more people meant more heritage. Thus cultural heritage was a very precious concept and an unlimited notion. Within international organizations, the concept of copyrights was a kind of taboo, however, discussion about it was necessary. There was a need for a more normal regulation of the markets, including free competition policies, and this was the right moment.
Identifying the Interlinkages between Cultural Rights and the Universality of Human Rights
PATRICK THORNBERRY, Member of the Committee on the Elimination of Racial Discrimination, said that the elimination of racial discrimination faced similar problems as the issues connected to the right to culture. The right did not exist in a vacuum, as instruments of human rights existed in cooperation with each other. Each explanation and interpretation was to be seen as a movement forward. Culture manifested itself in many forms, which made clear the complexity of the term. Rather than the idea of a definition, the Committee on Economic, Social and Cultural Rights should embark on a general conceptualization. As a living instrument, the International Covenant on Economic, Social and Cultural Rights had to take into account the surrounding changing circumstances. A major change since the drafting of the Covenant and other instruments was the growth of collective rights as such. In relation to the Committee on the Elimination of Racial Discrimination, the principle of non-discrimination was a universal principle, which was often not so easy to apply in practice. The definition of racial discrimination had cultural consequences. It was a much more nuanced concept than sometimes appeared. Much discrimination was in fact based on cultural disapprovement of someone’s way of living. Compounded with issues of race and colour this could create a vicious circle. Concluding, he said that both treaty bodies had large similarities, in terms of multiculturism, and the complexity was not necessary a reason to refuse the further exploration of an issue.
TAIEB BACOUCHE, Chairman of the Board of the Arab Institute for Human Rights, said that the universal concept of human rights and its interlinkage with cultural diversity had not been clarified – they could be complementary or exclusive. The highlighting of a joint common value would not challenge a common position, for example the human language was expressed through the different existing languages. Thus, human life was made specific by the individuality of each person, and this was again creating a culture which could be referred to as a benchmark. Universality should not be confused with globalization. An individual existed in different communities, so that cultural belonging was an interdependent way which increased independence and universality. Full tolerance and respect of the dignity of man therefore were basics of the right to culture.
PATRICE MEYER-BISCH, Coordinator at the Interdisciplinary Institute for Ethics and Human Rights at the University of Fribourg, said that culture was about finding something through universal language, which made it possible to seek diversity and gave it value and as such gave it universality. On collective rights and the notion of people, the distinction could be made more clearly today. In human rights one of the rights was always individual rights. But rights were also always by definition social. The right to food was the relationship to feed yourself in dignity. Thus one could not make a distinction but had to take the social component into account when defining rights. The concept of people needed to be given greater prominence, as well as the notion of diversity of people and cultures. There was no dialogue of culture but only dialogues of people. It was an interactive diversity. Thus they had to go beyond non-discrimination. If they studied culture they studied meaning. Diversity thus was full of wealth and mutually reinforcing cultural values.
JULIE RINGELHEIM, Senior Fellow at the National Fund for Scientific Research, Centre for Legal Philosophy at the University of Louvain, started with the right to participate in cultural rights in general terms. She asked what the added value of the right to participate in cultural life, with its cross-cutting nature to other rights, was. One could participate in a sense of contributing or in a sense of having access, and participate in decision-making. Thus, there were three areas of concern. Firstly, it covered all of society and addressed all its parts of life. Secondly, the democratization of culture, with effects on access to justice for particular population groups. Thirdly, was the diversification of culture. She also mentioned culture related rights, the different values and opinions regarding cultural rights and tensions between cultural rights and other human rights; differentiation had to be made between culture as a whole and cultural practice. She emphasized that a pragmatic, conscious-sensitive approach was vital. These issues should be reflected in cooperation with all other Committees.
Speakers raised questions related to the characteristics of religions and their effects on the right to culture, such as the effects of the implementation of Sharia law into English law; religion as the core of cultural practices; the added value from cultural rights; diversity and pluralism; the practice of the Committee on the Elimination of Discrimination in dealing with racial discrimination or discrimination of the values of indigenous cultures; and cultural practices and limits of cultural practices.
In rounding up the discussion, speakers said that they did not agree with the statement that collective rights could not be human rights. Collective rights had to be viewed as human rights, because they could otherwise be changed by Government and diminished to nothing but a grant. When being critical of cultural practices, the limited scope that human rights were coming from had to be taken into account. The acceptance of cultural practices by some victims was seen as a very difficult question. With regard to religion, the committee on the Elimination of Racial Discrimination was using the intersectoral approach and was rarely criticized by Governments for this practice. Human rights were a process in itself, and judgments should not be made too quickly, as such, issues such as the women’s issue had to be understood and analyzed properly before taking action. Collective rights were secondary rights, which needed to be protected. Beneficiaries of individual rights had to be addressed collectively.
Assessing the Individual and Collective Dimensions of the Right to Take Part in Cultural Life
The Collective Dimension
EPHRAIM NIMNI, Reader on National and Ethnic Conflict Resolution, School of Politics, International Studies and Philosophy, Queens University Belfast, said that he interpreted world culture as a distinctive set of ideas, patterns of life and ways of life of people. As such, culture had to be understood as a collective right. Cultures were by definition dynamic and arenas for ideological competition, with human rights being a natural competitor. Thus a case for human rights had to be created. Best possible circumstances in different cultures had to be established to prepare the way for human rights. In general, cultural rights did not oppose human rights. The collective dimension was balancing the existing imbalance. There were 192 States represented in the United Nations. Within this, the representation of minority groups was lacking. However, such cultures should be provided access and standing in the public domain. Fundamentalism could only be defeated internally, and the inclusion of minority cultures, including the feeling that they were not under threat, was a way human rights could thrive beyond these cultures. In this regard, the creation and acceptance of the right to culture should be set out in some kind of agreement or treaty. Succession was a big problem, as there was no international tool to acknowledge minority cultures. An instrument would open the space and advance those cultures.
The Individual Dimension
ELISSAVET STAMATOPOULOU, Chief, Secretariat of the Permanent Forum on Indigenous Issues, UN Department of Economic and Social Affairs, said the right to participate was the most neglected human right. Under international law, five rights made up cultural rights. Philosophy behind the human rights regime was to protect the vulnerable. Cultural rights had great importance to reach this goal. Normative elements of cultural rights included non-discrimination and equality, freedom from interference in enjoyment and creation of culture, including the active duty of states to provide for the enjoyment of cultural rights, freedom to choose in which cultures and cultural lives to participate, freedom to participate internationally, right to participate in the definition and creation of public policies, cross-cutting nature of cultural rights. The State had the minimum core obligation regarding individual cultural rights and aspects of group enjoyment. She concluded by saying that the implementation of cultural rights of indigenous people could only be achieved by the transferal of resources form the international community.
EMMANUEL DECAUX, Professor of Public International Law, University of Paris II, said that the fact that there were individual and collective cultural rights was included in the Universal Declaration of Human Rights. He said that a lot of topics were related to cultural life, and as such the term cultural life needed a broad definition. The notion of the past and the future were important, with culture being a heritage of human kind.
CAROLINE DOMMEN, Director, 3D, Trade, Human Rights, Equitable Economics, looked at some of the factors threatening the ability of all to enjoy cultural rights. It was essential for the Committee to address these threats, as often the right to culture was dealt with by actors far away from cultural issues. The way policies were made could affect the right to culture. She mentioned the example of trade policies in the United States regarding the production and use of maize and its effects on Mexican farmers and their cultural rights. Another important issue was the issue of biopiracy. Many intellectual property systems were not able to protect these groups as being inherently individualistic and traditional knowledge did not fall under the scope of intellectual property agreements. In terms of the obligation to protect, private actors also had to be taken into responsibility, however, at the moment international and national trade laws tended to favor these actors. Technological protection mechanisms were put into digital content limiting the access to the content. Some measures were taken such as by librarians around the world to tackle these problems. She called for an alert to the fact that many policy measures could lead to countering the right to culture and the necessity for more transparency.
In the following discussion, speakers raised aspects related to goods involved in the protection of full enjoyment of cultural rights; collective and individual remedies; cultural freedom; the question if the common cultural concept of human kind was applicable to human rights, and if so, in a broad or narrow sense; the right to identify or not to identify with a certain culture or community; the juxta position between individual and collective nature of cultural rights; collective support for individual memory; and trends towards the rejection of indigenous people as a community.
In rounding up the discussion, speakers addressed the obligation of the international community to preserve master pieces of culture, as well as languages; the necessity to declare sites of indigenous people as heritage sites and yet still allow indigenous people to use those sites; the contents of Art 23 of the Declaration of Human Rights which in particular included language rights; the necessity of the establishment of cultural security; the challenge of the acceptance of the culture of indigenous communities; the importance of understanding the continuity of cultures, however in the light of the reinterpretation of times of collective memories; and the continuous learning process in which cultures learn from each other.
Concluding Comments
VIRGINIA BONOAN-DANDAN, Member of the Committee on Economic, Social and Cultural Rights, in concluding remarks, thanked the participants and said that it had been a very good and constructive day, and that the drafting of the General Comment would be happening very soon. She reminded the participants of the wording of article 15 (1a) of the Covenant. The nature of the comment would thus be addressing everyone, which would practically mean the world and thus be very difficult. The Committee would therefore count on the help of all delegates to tackle this slippery slope. She expressed special thanks to UNESCO which had greatly supported the process.
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