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CULTURAL RIGHTS
peoples) in community with other members of their group from denial of their
right to enjoy their culture, as does Art. 30 of the CRC, further elaborated in the
1992 UN Declaration on the Rights of Persons belonging to National or Ethnic,
Religious and Linguistic Minorities. CRC Art. 30 and ICCPR Art. 27 reflect a
general norm of international law protecting indigenous peoples and minorities
from ‘denials’ of their right to enjoy their cultures and therefore are binding on
states irrespective of whether they have ratified the treaties.5
As discrimination is often an underlying cause for violation of cultural rights,
ICERD is also highly relevant.6 ICERD explicitly recognizes cultural rights, both
alone and in conjunction with a series of other rights (right to property and inheritance, for instance). It also protects the rights of groups in addition to individuals.
A number of UNESCO Declarations also recognize cultural rights and their
relationship to the prohibition of discrimination (e.g. the 1978 Declaration on
Race and Race Prejudice and the 2001 Declaration on Cultural Diversity). Finally,
ILO’s Indigenous and Tribal Peoples Convention (No. 169) contains numerous
articles that explicitly and implicitly protect cultural rights.
At the regional level, cultural rights are guaranteed directly and indirectly in all
of the instruments of the Inter-American system; the African Charter on Human
and Peoples’ Rights guarantees cultural rights both to individuals and collectively to
peoples; and cultural rights are also protected under the European Convention on
Human Rights (indirectly), the 2000 Charter of Fundamental Rights of the
European Union (Art. 22; by implication) and, although in relatively weak terms,
the European Framework Convention for the Protection of National Minorities
(FCNM). While the FCNM’s provisions may be considered weak, the Convention’s
Advisory Committee has nonetheless interpreted its provisions expansively.
UN and regional human rights bodies have developed substantial jurisprudence
on cultural rights in the case of minorities and indigenous peoples.7 The HRC’s
jurisprudence is the most detailed, setting out the content and contours of the
rights of minorities and indigenous peoples under Article 27.8 Substantively, this
includes, among others: the rights of persons to engage in economic and social
activities which are part of their culture; protection from forcible relocation; land
and resource rights; guarantees against severe environmental degradation; and
protection of sites of religious or cultural significance.9 CERD has called on states
to ‘recognize and respect indigenous distinct culture, history, language and way of
life as an enrichment of the state’s cultural identity and to promote its preservation;
[and to] [e]nsure that indigenous communities can exercise their rights to practise
and revitalize their cultural traditions and customs…’.10 The Committee on the
Rights of the Child has concluded that states are obligated to guarantee the rights
of children under the Convention ‘including those rights related to minority
populations and indigenous peoples’,11 and, in 2003, it elaborated on the rights of