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The “Right to Take Part in Cultural Life” Under Article 15 of the ICESCR

  • Roger O'Keefe

Extract

The fans' representatives also had some thoughts on the televising of games and pay-per-view television. They proclaimed “the right of fans to watch football matches on television without having to pay extra, since they take place in public arenas which have been paid for by the citizens”.1

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1. Fans kick up stink on strike”, Guardian, 20 03 1996, p.11.

2. 993 U.N.T.S. 3, adopted 1966, in force 1976.Reproduced in Brownlie, I. (Ed.), Basic Documents in International Law (4th edn, 1995), p.263.

3. For the meagre secondary material available on Art.15 and its forerunner in the Universal Declaration (Art.27), see Nieć, H. “Human Right to Culture” (1974) 44 Yearbook of the AAA 109; Boutros-Ghali, B., “Droit à la culture et la Déclaration Universelle des Droits de l'Homme” (1968) 24 Rev. Egyptienne Droit Int. 67; Dinstein, Y., “Cultural Rights” (1979) 9 Israel Ybk. H.R. 58, esp. 7379; Melander, G., “Article 27”, in Eide, A. et al. (Eds), The UDHR: A Commentary (1992), p.429; Stavenhagen, R.. “Cultural Rights and Universal Human Rights”, in Eide, A., Krause, C. and Rosas, A. (Eds), Economic, Social and Cultural Rights: A Textbook (1995), p.63; A. Eide, “Cultural Rights as Individual Human Rights”, in idem, p.229.

4. Exceptions are Marks, S. P., “UNESCO and Human Rights: The Implementation of Rights Relating to Education, Science, Culture and Communication” (1977) 13 Texas Int.L.J. 35, 5051 and “Education, Science, Culture and Information”, in Schachter, O. and Joyner, C. C. (Eds), United Nations Legal Order, Vol.2 (1995), p.577 at pp.598603; Kartashkin, , “Economic, Social and Cultural Rights”, in Vasak, K. and Alston, P. (Eds), The International Dimensions of Human Rights, Vol. 1 (1982), p.111 at pp.127130. UNESCO's interpretative role in respect of the right to take part in cultural life is long-standing. The first draft of Art.15 was in fact presented to the Commission on Human Rights by the Organisation's Director-General: see A/C.3/SR.797, para.13. See also E/CN.4/684 and E/CN.4/655/Add.4. In 1968 UNESCO's Secretariat convened a conference of experts to discuss the issue of cultural rights: see UNESCO, Studies and Documents on Cultural Policies 3: Cultural Rights as Human Rights (1970). Most relevantly, the UNESCO General Conference, recalling Art.15's precursor in the Universal Declaration of Human Rights, adopted in 1976 the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to it. UNESCO Doc. 19 C/Resolutions, Annex I. p.29 (“Recommendation on Participation in Cultural Life”). This standard-setting instrument has been suggested as a basis on which States parties to the ICESCR might frame the periodic reports they must make to the Committee on Art.15: see General Discussion on the Right to Take Part in Cultural Life as recognised in Article 15 of the International Covenant on Economic, Social and Cultural Rights. E/1993/22, chap.VII (“General Discussion”), para.208.

5. The Committee on Economic, Social and Cultural Rights (“The Committee”) was created by the Economic and Social Council in May 1986. See ECOSOC Res. 1985/17, 1985 UN ESCOR Supp. (No.1). p.15.E/1985/85 (1985). For an examination of the Committee's background, mandate and workings see Alston, P.. “The Committee on Economic, Social and Cultural Rights”, in Alston, P. (Ed.), The United Nations and Human Rights. A Critical Appraisal (1992), p.473; Craven, M. C. R., The International Convention on Economic, Social and Cultural Rights. A Perspective on its Development (1995), chap.2.

6. The present article makes no attempt to discuss the other rights embodied in Art.15(1) of the ICESCR, namely the right of everyone to enjoy the benefits of scientific progress and its applications (subpara. b) and the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (subpara. c). Furthermore, as the obligations arising under paras.2, 3 and 4 of Art.15 are derivative of the rights declared in para.1. they are treated herein only to the extent that they relate to para.1, subpara. a.

7. ICESCR. Art.2(1). The Committee elaborated on the nature of States parties' obligations under Art.2(1) in General Comment No.3 (1990). E/1991/23. Annex III. especially in this regard at paras.1, 2 and 9. When Art.2(1) operates via provisions such as Art.15 which “recognise” certain rights, “the relevant obligations can best be understood as hybrids between obligations of result and obligations of conduct”: Alston, P. and Quinn, G., “The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights” (1987) 9 Human Rights Q. 156, 185.See also Craven, , op. cit. supra n.5, at pp.106136.

8. Revised Guidelines regarding the Form and Contents of Reports to be submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, E/1991/23, p.88 at p.108 (“Revised Guidelines”), para.1(a).

9. The Committee stresses the need for appropriate and accurate indicators by which to measure the progress being made: see E/1997/22, paras.93, 105, 112, 149; E/C.12/1/Add.17, 12/12/97 para.26.

10. See ICESCR, Art.2(1); Revised Guidelines, supra n.8, at para.1, introductory subpara.: General Comment No.3, supra n.7, at paras.3, 4, 6. See also E/1992/23, paras.90, 129, 283.

11. See E/1988/14, para. 247; E/1989/22, para.190; E/1991/23, paras. 127, 192; E/1992/23, paras.92, 134, 157, 194, 317; E/1994/23, para.123; E/1995/22, para.224: E/1997/22, paras.126, 214; E/C.12/1996/SR.18, paras. 37–39; E/C.12/1997/SR.21, paras.61–62; E/C12/1/Add.14, 16/5/97, para.4; E/C12/1/Add.17, 12/12/97, para.11. See also Recommendation on Participation in Cultural Life, supra n.4, at preamble, 9th recital.

12. See supra n.8.

13. Idem, para,1(b).

14. See the prefatory statement made to the Third Committee of the General Assembly by the Czech delegate when opening discussion of the draft provision: A/C.3/SR.795, para.6. Art.15 had its earliest origins in Art 27 of the Universal Declaration of Human Rights, whose framers saw the guarantee as involving a duty on the part of States to bring “masterpieces” and “treasures of culture” “within reach of the masses”: UNOGA OR, Third Session (1948), Pt.1, Vol.3, p.623. (Note that cinema occupies a niche within Art.15 as both high and popular culture, depending on whether one emphasises its art-house manifestation as “film” or its Hollywood embodiment as “movies”.)

15. General Discussion, supra n.4, at para.217.

16. ICESCR, Art.2(1). As with other so-called “second generation” rights, the right to take part in cultural life is not contingent upon a State having attained a certain level of prosperity. See General Comment No.3, supra n.7, at paras.10–12. While a State is entitled to a wide measure of discretion when it comes to deciding the amounts it can afford to set aside for the realisation of the rights enumerated in the ICESCR, its “subjective determination as to what constitutes an adequate resource allocation is [not] entitled to complete deference”: Alston, and Quinn, , op. cit. supra n.7, at pp.177181 (quote at p.178).See also Craven, , op. cit. supra n.5, at pp.136144. (In this light, the acute economic difficulties currently experienced by the former socialist States as they attempt the transition to a market economy, while viewed sympathetically by the Committee, do not relieve them of their obligations under Art.15. See General Discussion, supra n.4, at para.218; E/1993/22, para.130; E/1994/23, para.138; E/1995/22, para.90, E/1996/22, para.258; E/1997/22, paras.276–277; E/C.12/1/ Add.13, 20/5/97, para.13. The same applies as regards the impact of international sanctions on Iraq: E/C.12/1/Add.17, 12/12/97, para.9) Moreover, principles 23 and 24 of the Limburg Principles on the Implementation of the ICESCR make it clear that the obligation of progressive realisation of the rights enshrined in the Covenant does not necessarily involve increased spending. Rather, it simply requires “effective use of resources available”, including “societal resources”: E/CN.4/1987/17, Annex, reproduced at (1987) 9 Human Rights Q. 122, 126. At the other end of the scale, more affluent countries are clearly expected to spend sums on cultural life commensurate with their comparative wealth.

17. From time to time the Committee has enquired bluntly into the percentage of the national budget allocated to culture. See E/1988/14, para.266; E/1992/23, paras.214, 247, 284; E/1993/22, paras.62, 97, 121.

18. See Revised Guidelines, supra n.8 at para.1(b); E/1992/23, paras.284, 310, 312; E/1993/22, para.147; E/C.12/1994/SR.6, para.23; E/C.12/1996/SR.4, para.31.

19. See Revised Guidelines, idem, para.1(a); E/1992/23, paras.151, 247, 310. See also Recommendation on Participation in Cultural Life, supra n.4, at para.10. This includes support for amateur activities: idem, paras.7(a) and 10(h).

20. General Discussion, supra n.4, at para.205. See also Limburg Principles, supra n.16, at principle 11. This may include artists as well as audiences: Recommendation on Participation in Cultural Life, idem, para.10(f).

21. See General Discussion, idem, para.220.

22. E/1988/14, para.58. See also Revised Guidelines, supra n.8, at para.1, concluding sub-para, (special mention of right of “disadvantaged and particularly vulnerable groups” to take part in cultural life); E/1990/23, para.166; E/1992/23, paras.151, 248, 284; E/C.12/1996/SR.4, para.40. See also Recommendation on Participation in Cultural Life, supra n.4, at preamble, 8th recital and para.6(h). Note that the Committee considers the levying of different charges for nationals and non-nationals to be discriminatory: E/1992/23, para.284. This includes different prices for EU nationals and non-EU nationals: Ibid. In addition, the UNESCO Secretariat, in a working paper for its 1968 conference of “cultural experts”, pointed out that the cost of culture can refer to more than admission prices. Dress regulations and the opening hours of galleries and museums can constitute unwitting forms of discrimination: UNESCO, op. cit supra n.5, at p.12. See also the Recommendation on Participation in Cultural Life, idem, para.4(r), which calls on States to “lay down conditions governing … the operational organization of cultural institutions which will enable the greatest possible number of people to gain access to culture and participate in cultural life”. For more detail, see UNESCO's clearly influential Recommendation concerning the Most Effective Means of Rendering Museums Accessible to Everyone, adopted in 1960 and reproduced at UNESCO, Conventions and Recommendations of Unesco Concerning the Protection of the Cultural Heritage (1985), pp.117et seq. and in particular Part III (“Material arrangements in and admission to museums”).

23. See Draft List of Questions for inclusion in the Revised General Guidelines, E/1992/23, Appendix I, para.12; General Discussion, supra n.4, at para.219; E/1988/14, para.58; E/1992/23, paras.214, 249; E/1993/22, paras.73, 147; E/C.12/1994/SR.6, para.24; E/C.12/1996/SR.4, para.40. See also the Committee's General Comment No.6 (1995), E/1996/22, Annex IV, para.39.

24. See Revised Guidelines, supra n.8, at para.1(h); E/1992/23, paras.249, 310; E/C.12/ 1994/SR.6, para.23; E/C.12/1997/SR.21, para.63. See also Recommendation on Participation in Cultural Life, supra n.4, at preamble, 21st recital, and para.10(d).

25. See E/1992/23, paras.151, 214, 219, 247; E/1993/22, paras.97, 121.

26. See E/1992/23, paras.265, 283; E/1994/23, para.155. It is a truism that the constitutional incapacity of a central government to intervene in particular spheres of State, provincial or regional legislative competence is no defence to a State's responsibility at international law for the violation of a human rights norm.

27. E/C.12/1996/SR.4, paras.30–31.

28. General Comment No.5 (1994), E/1995/22, Annex IV, para.37. In general, the Recommendation on Participation in Cultural Life, supra n.4, at para.4(h), calls on States to “ensure that the handicapped are integrated into cultural life and have opportunities of contributing to it”. See also idem, para.6(h); E/1997/22, paras.254, 259.

29. General Comment No.5, idem, para.36.

30. General Comment No.6, supra n.23, at para.40.

31. See Revised Guidelines, supra n.8, at para.1(f); General Discussion, supra n.4, at para.213. See also Recommendation on Participation in Cultural Life, supra n.4, at para.4(q) (i). Prott, L. V. and O'Keefe, P. J., Law and the Cultural Heritage, Vol.I: Discovery and Excavation (1984), pp.2829, identify Art.15, along with several other human rights provisions, as forming “the nucleus of a rudimentary system” of human rights capable of protecting the cultural heritage.

32. See E/1991/23, para.79; E/1992/23, paras.310, 312; E/1993/22, para.186.

33. See E/1993/22, para.186. Similarly, a report of the Secretary-General's Special Representative to Cambodia discusses the looting of the monuments and archaeological sites of Angkor and the illicit international traffic in Khmer antiquities as an issue going to Art.15: E/CN.4/1994/73, paras.118–122.

34. See E/1995/22, para.136 (Iraq's destruction of the cultural heritage of religious communities and minorities).

35. Revised Guidelines, supra n.8, at para.1(f). Highlighting the dual nature of a State's duty under Art.15 to safeguard the cultural heritage, the Secretary-General's Special Representative to Cambodia writes: “Angkor and Angkorian artefacts must be preserved and protected for all Cambodians, and the world”: E/CN.4/1994/73, para.120 (emphasis added). See similarly UNESCO's Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, adopted in 1972 and reproduced in UNESCO, op. cit. supra n.22, at pp.165 et seq, Art.4. A useful definition of the term “cultural heritage” as used in the Revised Guidelines can be found in Art.1 of the Convention concerning the Protection of the World Cultural and Natural Heritage 1972, 1037 U.N.T.S. 151, reproduced in UNESCO, idem, pp.77 et seq. The Convention—UNESCO's flagship legal instrument in the field of the cultural heritage—is clearly influential in the application of this particular aspect of Art.15, as is the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, 823 U.N.T.S. 231, reproduced idem, pp.59 et seq., and the Recommendation on International Principles Applicable to Archaeological Excavations, adopted in 1956 and reproduced idem, pp.103 et seq.

36. See E/1992/23, para.313. UNESCO's influence is once more apparent: see Recommendation on International Principles Applicable to Archaeological Excavations, Part III (“Regulations governing excavations and international collaboration”). The Recommendation on Participation in Cultural Life, supra n.4, at para.2(a), states that access to culture includes “the concrete opportunities available to everyone … for enjoying … cultural property”. It is unclear precisely what such opportunities would entail.

37. See E/1992/23. para.313.

38. idem, para.315.

39. For another incident of the rights of minorities to their cultural heritage, see Prott, and O'Keefe, , op. cit. supra n.31, at p.29; and Prott, L., “Cultural Rights as Peoples' Rights”, in Crawford, J. (Ed.), The Rights of Peoples (1988), p.101.

40. A/C.3/SR.796, paras.12, 14 (Pakistan), para.30 (China); A/C.3/SR.798, para.1 (Indonesia), para.20 (Sweden).

41. See similarly Revised Guidelines, supra n.8, at paras.1(i), 4. See also Recommendation on Participation in Cultural Life, supra n.4, at para.12.

42. See similarly Revised Guidelines, idem, para.5; General Discussion, supra n.4, at para.205. See also Recommendation on Participation in Cultural Life, idem, preamble, 17th recital and para.2(a), (b). There is considerable overlap in this regard between Art.15 and Art.19(2) of the International Covenant on Civil and Political Rights 1966, 999 U.N.T.S. 171 (“the ICCPR”), reproduced in Brownlie, , op. cit. supra n.2, at p.276, which guarantees freedom of expression, including the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media”.

43. Revised Guidelines, idem, para.1(g); E/1990/23. para.128; E/1992/23, paras.151, 310; E/1993/22, paras.72, 147; E/1994/23, para.128.

44. Revised Guidelines, Ibid.

45. See E/1988/14, para.206; E/1992/23, paras.151, 154, 157; E/1994/23, para.85; E/1995/22, paras.135, 137. Note that the former Eastern bloc countries are expected to move swiftly to dismantle the system of State censorship inherited from the communist era: see E/1993/22, paras.72, 121, 147.

46. In this context, the former Zaīre was questioned as to its policy of “authenticity” (the stipulation that all cultural works be genuinely African, in the then-Zaïrean President's understanding of the word): E/1988/14, para.298. See similarly the Committee's criticism of Libya's censorship of literary and artistic expression on the grounds of “cultural security”: E/C12/1/Add.15, 16/5/97, para.19 and E/C.12/1997/SR.21, paras.61–62.

47. See E/1992/23, para.190; E/1994/23, paras.126, 128; E/1995/22, para.143.

48. See E/1992/23, para.214. The Committee has also expressed the view that the practical application of certain unspecified provisions of the Australian customs regulations which prohibit the import of particular materials “may run counter to the freedom of artistic creation and performance”: E/1994/23, para.154.

49. See E/1990/23, para.31.

50. See E/1992/23, para.214. See also Recommendation on Participation in Cultural Life, supra n.4, at para.4(o).

51. See E/1991/23, para.80.

52. See E/1989/22, para.238; E/1992/23, para.284.

53. E/1994/23, para.128.

54. E/1992/23, para.248.

55. This reading of the question's gist is supported by the Committee's later and more specific enquiries of Sweden in this regard see E/1996/22, para.146.

56. See also Art.19(1) of the almost-unrversally ratified Convention on the Rights of the Child 1989 (UN Doc.A/RES/44/25, repr. in Evans, M. D., Blackstone's International Law Documents (3rd edn, 1996), pp.408et seq.), which obliges States parties to take all appropriate measures “to protect the child from all forms of physical or mental violence, injury or abuse, … maltreatment or exploitation, including sexual abuse”. States parties' obligations under ICESCR, Art.15, may have to be interpreted in the light of their obligations under Art.19(1) of the Convention on the Rights of the Child, in accordance with Art.31(3)(c) of the Vienna Convention on the Law of Treaties (1155 U.N.T.S. 331, repr. in idem, p.171). For further evidence of international concern over child pornography, see the most recent reports of the UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography to the Commission on Human Rights (E/CN.4/1998/101 and Add. 1 & 2) and to the General Assembly (A/52/482, Annex), as well as those two bodies' most recent respective statements on the matter (E/CN.4/RES/1998/76, Pt.III and A/RES/52/107, Pt.III). See also proposals for a draft optional protocol to the Convention on the Rights of the Child dealing specifically with the sale of children, child prostitution and child pornography (E/CN.4/1998/103).

57. See UNGA OR, Third Session (1948), Pt.1, Vol.3, p.623 (USSR), p.627 (Venezuela), p.628 (Saudi Arabia).

58. A/C.3/SR.796, para.11 (Pakistan). See similarly idem, para.27 (Philippines); A/C.3/ SR.797, para.18 (Greece).

59. Working paper prepared by the UNESCO Secretariat, in UNESCO, op. cit. supra n.4, at p. 10.

60. Ibid.

61. Recommendation on Participation in Cultural Life, supra n.4, at preamble, 5th recital, subpara. (c).

62. idem, para.3(a).

63. Note that what is contended by this more inclusivist conception is that popular manifestations of creativity are rightly considered culture. The author does not intend to discuss the related but nonetheless distinct question of whether these and other examples of mass culture could be called art. This is not the place to conduct the stereotypical debate between the connoisseur and the fundamentalist populist, which generally proceeds along the lines of whether the Mono Lisa and a comic strip are equally valid representational idioms.

64. Recommendation on Participation in Cultural Life, supra n.4, at preamble, 6th recital (emphasis added).

65. A/C.3/SR.796, para.18 (India). See similarly idem, para.19.

66. Revised Guidelines, supra n.8, at para.1, introductory subpara. See similarly E/1991/23, para.79; E/1992/23, para.310.

67. See Revised Guidelines, idem, para.1(b); E/1992/23, para.310.

68. See Revised Guidelines, ibid; E/1992/23, paras.151, 310; E/1993/22, para.147; E/C.12/ 1996/SR.4, para.31.

69. See Revised Guidelines, idem, para.1(e); E/1991/23, para.79. See also Recommendation on Participation in Cultural Life, supra n.4, at preamble, 22nd recital.

70. See E/1997/22, para.209. At the same time, in what at first blush would seem to be a case of the Committee's wanting to have its cake and eat it too, it appears that a government which imposes statutory limits on the price of newspapers may infringe the freedom of the press implied by Art.15: see E/1990/23, para.253.

71. See E/C.12/1996/SR.4, para.30. See also Recommendation on Participation in Cultural Life, supra n.4, at para.14(h).

72. See E/C.12/1996/SR.4, para.43. Again, see also Recommendation on Participation in Cultural Life, ibid.

73. See E/1991/23, para.80.

74. See ibid; E/1992/23, para.248.

75. General Comment No.5, supra n.28, at para.37. Similarly, the Recommendation on Participation in Cultural Life, supra n.4, at para.14(h), speaks of “visual languages accessible to all audiences”.

76. E/1992/23, paras.248, 249.

77. General Comment No.5, supra n.28, at para.36. The Recommendation on Participation in Cultural Life, supra n.4, at para.14(b), speaks of “sports events” as “opportunities for cultural contact and exchange”.

78. E.g. gymnasiums, swimming pools, basketball courts, football pitches, skating rinks, skateboard ramps and so on (depending on the culture).

79. General Comment No.5, supra n.28, at paras.36,38. The Recommendation on Participation in Cultural Life, supra n.4, at para.14(b), also speaks of tourism.

80. E/1993/22, para.73. See similarly Recommendation on Participation in Cultural Life, idem, para.4(r).

81. The Recommendation on Participation in Cultural Life, ibid, suggests that States “lay down conditions governing working and leisure hours… which will enable the greatest possible number of people … [to] participate in cultural life”. See timilarly ICESCR, Art.7(d).

82. In this regard, the Recommendation on Participation in Cultural Life, idem, para.11, calls on States to “make sure that the criterion of profit-making does not exert a decisive influence on cultural activities”.

83. Recall that this was considered an incident of Art.15 at General Discussion, supra n.4, at para.205.

84. This is acknowledged and sought to be countered in the Recommendation on Participation in Cultural Life, supra n.4. In terms of the selection procedure for State support, para.10(g) suggests that States “ensure the multiplicity of bodies called upon to assess works of art and the regular renewal of their membership … so as to safeguard the freedom of creative artists”.

85. Szabó, I., Cultural Rights (1974), pp.4849.

86. But cf. Chomsky, N., Keeping the Rabble in Line (1994), pp.254255, 258260, who contends that contemporary popular culture in fact serves the State, by distracting people's attention away from social realities and hence from mobilising opposition to injustice.

87. This broad (or in anthropological parlance, “deep”) conception of culture owes much to the work of American social anthropologists such as Ruth Benedict, Melville J. Herskovits and Clifford Geertz. See Benedict, R., Patterns of Culture (1952); Herskovits, M. J., Cultural Dynamics (1964); Geertz, C., The Interpretation of Cultures (1973).

88. In fact, as explained to the Third Committee of the General Assembly by the representative of the UN Secretariat, the term “cultural life” was an abbreviation of “manifestations of national and international cultural life”, as used in the more detailed version of UNESCO's preliminary draft article: A/C.3/SR.797, para.13.

89. See A/C.3/SR.796, para.18 (India), para.32 (Japan); A/C.3/SR.799, para.25 (Iraq).

90. UNESCO, op. cit supra n.4, at p.116. Paraphrasing Voltaire, the experts declared, ibid: “Culture is like prose—people who speak it do not normally classify it as such or even think about it in any kind of way.”

91. General Discussion, supra n.4, at paras.204, 209, 210.

92. Idem, para.213. See similarly Prott, op. cit supra n.39, at pp.9495; and Our Creative Diversity. Report of the World Commission on Culture and Development (2nd rev. edn, 1996), Introduction. The Commission, headed by former Secretary-General Pérez de Cuélar, was an independent body jointly established by UNESCO (whose Secretariat worked on the report) and the UN. UNESCO has set up a Steering Committee, assisted by the Organisation's Secretariat, to plan and co-ordinate the follow-up to the Report.

93. Revised Guidelines, supra n.8, at paras.1(c), 1(d) and concluding subpara.

94. Prott, , op. cit supra n.39, at p.97.

95. But cf the discussion paper prepared by Samba Cor Konaté, sometime Committee member, and presented at the Committee's day of general discussion on Art.15, which suggested that the “right to have access to culture and the need for equal opportunities and non-discrimination… might be regarded as a group right”: General Discussion, supra n.4, at para.205.

96. See also UNESCO's Declaration of Principles of International Cultural Co-operation, adopted in 1966, UNESCO Doc. 14 C/Resolutions, p.86 (“Principles of International Cultural Co-operation”), Art.1(2). In a similar vein, see the non-governmental Universal Declaration of the Rights of Peoples, adopted in 1976 (“the Algiers Declaration”, repr. in Crawford, op. cit. supra n.39, at pp.187 et seq.), Arts.2, 13, 14, 15; and J. Crawford, “The Rights of Peoples: ‘Peoples’ or ‘Governments’?”, in idem, p.57.

97. This is the approach explicitly taken by the Recommendation on Participation in Cultural Life, supra n.4: see paras.2(b), 2(c), 3(a).

98. Sec E/1997/22, Annex IV. Despite the misgivings expressed by some that Art.15 is too vague to be the subject of a communications procedure, the Committee has decided that there is insufficient reason “to single it out for exclusion while retaining other formulations of equivalent generality”: idem, para.24.

99. Idem, paras.19–21.

100. Revised Guidelines, supra n.8, at para.1, concluding subpara.

101. See idem, para.1(d); General Discussion, supra n.4, at para.206. The Committee's thinking on this subject meshes with the approach taken by the General Assembly in its Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, A/RES/47/135, adopted in 1992, and that taken by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in its Draft Declaration on the Rights of Indigenous Peoples, E/CN.4/Sub.2/1994/45, adopted in 1994. For a discussion of cultural integrity as an aspect of ICCPR, Art.27 (the minority rights provision) see Anaya, S. J., Indigenous Peoples in International Law (1996), pp.98104.Recall, however, that Art.27 of the ICCPR is cast explicitly as an individual right (Lovelace v. Canada, UN Doc.A/36/40, p.166; Kitok v. Sweden, UN Doc.A/43/40, p.221), albeit exercised in a group context (Lubicon Lake Band v. Canada, UN Doc.A/45/40, p.1; Lansman v. Finland, UN Doc.CCPR/52/D/511/1992). See generally the Human Rights Committee's General Comment No.23(50) (Art.27), UN Doc.CCPR/C/21/Rev.1/Add.5, 1994.

102. See E/1988/14, paras.206, 266; E/1993/22, para.121; E/1994/23, para.126; E/1995/22, paras.94, 97, 138,143; E/C12/1996/SR.13, para.18; E/1997/22, para.226; E/C.12/1/Add.17, 12/12/97 paras.13, 29.

103. See E/1994/23, paras.153, 162; E/1997/22, para.302

104. See E/1989/22. para.188; E/1990/23, paras.127, 231; E/1991/23, paras.79, 154; E/1992/23, paras.129, 189–190, 247–248, 259, 284, 310; E/1993/22, para.97; E/C.12/1996/SR.4, para.32; E/C.12/1996/SR.12, para.59; E/1997/22, para.302; E/C.12/1/Add,13, 20/5/97, paras. 14, 30 (action required in respect of widespread pollution to ensure indigenous peoples' access to traditional sources of food); E/C.12/1/Add.14, 16/5/97 para.39 (action required to stop forced eviction of indigenous peoples from Amazon basin); E/C.12/1/ Add.19, 4/12/97 para.20, 32 (UK required to give same status and degree of support to Irish language in Northern Ireland as is currently given to Gaelic in Scotland and Welsh in Wales). See also Recommendation on Participation in Cultural Life, supra n.4, at para.4(g).

105. See E/1988/14, para.206; E/1996/22, paras.138, 211; E/C.12/1997/SR.21, paras.64, 67. In this respect, considerable overlap is apparent between Art.15 of the ICESCR and Art.1 (the self-determination provision) common to both the ICESCR and the ICCPR, which speaks inter alia of peoples freely pursuing their cultural development.

106. See E/1988/14, para.298; E/1990/23, para.231; E/1991/23, paras.154, 190; E/1992/23, para.249, 319; E/C.12/1996/SR.12, para.60. See similarly Recommendation on Participation in Cultural Life, supra n.4, at para.4(f) (which posits minority cultures as forming “part of the common heritage of mankind”).

107. Revised Guidelines, supra n.8, at para.1(c). See also E/1992/23, para.310.

108. General Discussion, supra n.4, at para.220. See similarly Recommendation on Participation in Cultural Life, supra n.4, at preamble, 19th and esp. 23rd recitals, where it is stated that the right to take part in cultural life “implies taking measures against the harmful effect of ‘commercial mass culture’, which threatens national cultures”. See also idem, para.14(h).

109. See E/1989/22, para.188; E/1990/23, paras.136, 166; E/C.12/1994/SR.6. para.23; E/C.12/1996/SR.12, para.60.

110. See E/1990/23, para.127 (English versus Filipino debate in the Philippines); E/1993/22, para.63 (role of Russian in Belarus); E/1995/22, para.182 (non-recognition of Kreol and Bhojpuri in Mauritius); E/1996/22, para.163 (Dutch vis–à-vis Sranan Tongo in Surinam).

111. E/1990/23, para.128 (Spanish in the Philippines).

112. See E/1993/22, paras.121, 147; E/1997/22, para.229; E/C.12/1997/SR.14, paras.23, 27.

113. See E/C.12/1994/SR.6, para.23.

114. See E/1989/22, para.307. At the same time, the Recommendation on Participation in Cultural Life, supra n.4, at para.14(b), speaks of tourism as an “opportunit[y] for cultural contact and exchange”.

115. See E/1991/23, para.126.

116. See E/1991/23, para.80; E/1992/23, para.248; E/C.12/1996/SR.4, para.30.

117. See E/1990/23, para.166; E/1991/23, para.80.

118. E/1988/14, paras.249–250; E/1992/23, paras.93–94 (status of women under Islamic law); E/1995/22, paras.344 and esp. 351 (female genital mutilation); E/1996/22, paras.111, 164, 293–294; E/1997/22, paras.69, 125, 161, 166, 233; E/C.12/1/Add.12, 20/5/97 para.10 (arranged marriage of girls and forced remarriage of widows). See also E/1995/22, para.345 (traditional debt bondage in Timbuktu region of Mali held to violate Covenant's prohibition on forced labour); E/1997/22, para.250 (traditional Chinese avoidance of direct confrontation not conducive to right to collective bargaining and right to strike in Macau); General Comment No.5, supra n.28, at para.38 (“measures must be taken to dispel prejudices or superstitious beliefs against persons with disabilities, for example those that view epilepsy as a form of spirit possession or a child with disabilities as a form of punishment visited upon the family”).

119. ICESCR, Art.5(1) states: “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Convention.” This principle does not extend on its face to rights embodied in other international instruments, although Art.31(3)(c) of the Vienna Convention on the Law of Treaties would seem to come into play in such cases. To date, the Committee has not found it necessary to specify the precise rights violated by the impugned acts or even to speak of Art.5(1), and the rights in question could all be characterised as falling under the ICESCR itself.

120. E/1993/22, para.97.

121. Revised Guidelines, supra n.8, at para.2(a). See also General Discussion, supra n.4, at para.213.

122. See E/1996/22, paras.203 et seq.

123. Art.15(4) speaks of “the benefits to be derived from the encouragement and development of international contacts and co-operation in… cultural fields”. See also the UNESCO Constitution, Art.1(2)(a) and (c), reproduced at (1946) 23 B.Y.I.L. 424; Principles of International Cultural Co-operation, supra n.96, generally; Recommendation on Participation in Cultural Life, supra n.4, at preamble, 20th recital and para.18.

124. See Revised Guidelines, supra n.8, at paras.6, 9. See also E/1991/23, para.154; E/1992/23, paras.90, 129, 153, 189; E/1993/22, paras.72, 97.

125. See supra n. 117. The Committee clearly encourages not just the eradication of specific traditional practices which breach human rights guarantees but also fundamental societal shifts in favour of creating a “human rights culture”, as recommended to Guatemala: E/1997/22, para. 146. See the Committee's similar concern in respect of Algeria; E/1996/22, para. 293. The Recommendation on Participation in Cultural Life, supra n.4, cites as an obstacle to the realisation of such participation “a resistance to change… tak[ing] the form of a reaction by closed communities”: preamble, 13th recital.

126. Principles of International Cultural Co-operation, supra n.96, at Art.6.

127. See, in this light, idem. Arts. 1(1) and 6, which speak of respecting and preserving each culture's dignity and distinctive character. See similarly Recommendation on Participation in Cultural Life, supra n.4, at paras.2(c), 3(d)(vii), 4(d), and the endorsement of the Committee's view by one representative of UNESCO: General Discussion, supra n.4, at para.209.

128. Revised Guidelines, supra n.8, at para.1(i), reproducing the wording of ICESCR, Art.15(2). See similarly Principles of International Cultural Co-operation, idem, Arts.4(4) and 7(1). The Recommendation on Participation in Cultural Life, idem, para.4(b), calls on States to “provide effective safeguards for free access to … world cultures”.

129. The raison d'etre of monitoring the impact of foreign transmissions is clearly their contemplated restriction at a point where that impact is deemed excessive.

130. Revised Guidelines, supra n.8, at para.1(a). See also para.1(i), mirroring ICESCR, Art15(2). Similarly, Art.1(2) of the Principles of International Cultural Co-operation, supra n.96, states: “Every people has the right and duty to develop its culture.” See also Recommendation on Participation in Cultural Life, supra n.4, at para.4(d).

131. Benedict, , op. cit supra n.87, at p.10. In the words of the great Femand Braudel, “The history of civilisations, in fact, is the history of continual mutual borrowings over many centuries, despite which each civilisation has kept its own original character”: A History of Civilisations (trans. Mayne, R.) (1993), p.8. For an elegant and perceptive analysis of the tension between cultural preservation and cultural dynamism, see Waldron, J., “Minority Cultures and the Cosmopolitan Alternative”, in Kymlicka, W. (Ed.), The Rights of Minority Cultures (1995), esp. pp.108110. Similarly, useful elaborations of the distinction between the stability of a culture and its character at a particular moment can be found in Kymlicka, W., Liberalism, Community and Culture (1989), pp.166170 and Stavenhagen, , op. cit supra n.3, at p.66. The conundrum outlined above was in fact foreshadowed by the UNESCO delegate to the drafting of ArtlS: A/C.3/SR.797, para.14. See also “Towards a Definition of Culture—Discussion”, in UNESCO, op. cit. supra n.4, at p.18.

132. E/1991/23, para.80.

133. This fact was proffered by a Libyan representative at the Committee's sixteenth session, while being questioned on her State's periodic report. It drew no response from the Committee. See E/C.12/1997/SR.21, para.57.

134. E/1991/23, para.80. See also Recommendation on Participation in Cultural Life, supra n.4, at para.4(o).

135. Recommendation on Participation in Cultural Life, idem, para.18(j).

136. Prott, , op. cit supra n.39, at p.95.See also Working Paper prepared by the UNESCO Secretariat, in UNESCO op. cit. supra n.4, at p.11.

137. idem, p.103.

138. Recommendation on Participation in Cultural Life, supra n.4, at preamble, 10th and 14th recitals.

* The author would like to thank the Overseas Research Students Awards Scheme, the Cambridge Commonwealth Trust and the Leslie Wilson Research Scholarships at Magdalene College, Cambridge for their generous financial support. Warm thanks also to Professor James Crawford for commenting on early drafts.

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