United Nations High Commissioner for Human Rights
Special Rapporteur in the field of cultural rights
Legal framework and thematic issues addressed by the Special Rapporteur
The Special Rapporteur
Ms. Farida Shaheed (Pakistan) took up her functions as Independent Expert in the field of cultural rights in 2009 and continued as a Special Rapporteur on the same issue, following Human Rights Council Resolution 19/6.
Ms. Shaheed, is a sociologist who has worked for more than 25 years promoting and protecting cultural rights by fostering policies and projects designed in culturally sensitive ways to support the rights of marginalized sectors, including women, peasants, and religious and ethnic minorities. At present, she is the Executive Director of Shirkat Gah-Women’s Resource Centre in Pakistan. Ms. Shaheed has received several national and international human rights awards.
The mandate of the Special Rapporteur
By its resolution 10/23 of 26 March 2009, the Human Rights Council decided to establish, for a period of three years, a new special procedure entitled “independent expert in the field of cultural rights”, as set out in the relevant United Nations human rights instruments.
The mandate was extended in March 2012 for a period of three years, conferring to the current mandate holder the status of Special Rapporteur in the field of cultural rights (resolution 19/6).
The mandate of the Special Rapporteur includes the following:
(a) Identify best practices in the promotion and protection of cultural rights at the local, national, regional and international levels;
(b) Identify possible obstacles to the promotion and protection of cultural rights, and to submit proposals and/or recommendations to the Council on possible actions in that regard;
(c) Work in cooperation with States in order to foster the adoption of measures at the local, national, regional and international levels aimed at the promotion and protection of cultural rights through concrete proposals enhancing sub-regional, regional and international cooperation in that regard;
(d) Study the relationship between cultural rights and cultural diversity, in close collaboration with States and other relevant actors, including in particular the United Nations Educational, Scientific and Cultural Organization, with the aim of further promoting cultural rights;
(e) Integrate a gender and disabilities perspective into his and her work;
(f) Work in close coordination, while avoiding unnecessary duplication, with intergovernmental and non-governmental organizations, other special procedures of the Council, the Committee on Economic, Social and Cultural Rights and the United Nations Educational, Scientific and Cultural Organization, as well as with other relevant actors representing the broadest possible range of interests and experiences, within their respective mandates, including by attending and following up on relevant international conferences and events.
The mandate of the Special Rapporteur is not to protect culture and cultural heritage per se, but to promote the conditions allowing all people without discrimination to access, participate and contribute to cultural life in a continuously developing manner. Therefore, the focus of Special Rapporteur’s country visits is not on visiting cultural sites and institutions per se, but rather on considering how particular policies, legal framework relating to such sites and institutions as well as other aspects of cultural heritage contribute to the realization of cultural rights on the ground. To that end, she would like to meet individuals and communities, managers of cultural sites and directors of cultural and educational institutions, policy makers and administrators.
Cultural rights: legal framework and thematic issues
In her first thematic report (submitted to the Human Rights Council), submitted in June 2010 (A/HRC/14/36), the Special Rapporteur examined which human rights may be considered cultural and how to further define their content.
Taking into consideration various instruments and studies, she underlined that cultural rights relate to a broad range of issues, such as expression and creation, including in diverse material and non-material forms of art; information and communication; language; identity and belonging to multiple, diverse and changing communities; development of specific world visions and the pursuit of specific ways of life; education and training; access, contribution and participation in cultural life; the conduct of cultural practices and access to tangible and intangible cultural heritage.
She stressed that cultural rights protect the rights for each person, individually and in community with others, as well as groups of people, to develop and express their humanity, their world view and the meanings they give to their existence and their development through, inter alia, values, beliefs, convictions, languages, knowledge and the arts, institutions and ways of life. Cultural rights, she underlined, may also be considered as protecting access to cultural heritage and resources that allow such identification and development processes to take place.
The Special Rapporteur also noted that many explicit and implicit references to cultural rights can be found in international instruments and the practice of human rights mechanisms, in particular:
1) The right to take part or participate in cultural life is widely recognized in human rights instruments, and in particular in article 27 of the Universal Declaration of Human Rights and article 15, paragraph 1 (a), of the International Covenant on Economic, Social and Cultural Rights. In its General Comment No. 21, the Committee on Economic, Social and Cultural Rights further clarified the scope and content of this right.
2) The right to enjoy the benefits of scientific progress and its applications, enshrined in article 27 of the Universal Declaration of Human Rights and article 15, paragraph 1 (b), of the International Covenant on Economic, Social and Cultural Rights,
3) The right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which a person is the author, enshrined in article 27 of the Universal Declaration of Human Rights and article 15, paragraph 1 (c), of the International Covenant on Economic, Social and Cultural Rights. In 2005, the Committee on Economic, Social and Cultural Rights adopted its General Comment No. 17 on this right,
4) The freedom indispensable for scientific research and creative activity, set out in article 15, paragraph 3, of the International Covenant on Economic, Social and Cultural Rights. Article 19, paragraph 2, of the International Covenant on Civil and Political Rights must also be mentioned as it recognizes that the right to freedom of expression shall include 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 of one’s choice.
5) The right to education, enshrined in numerous international instruments, in particular articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights, and articles 28 and 29 of the Convention on the Rights of the Child. As stressed in the World Declaration on Education for All (1990), people develop their own particular but ever-evolving world visions and capacities through a lifelong process of education; and it is education that allows access to knowledge, values and cultural heritage.
6) Many other references to cultural rights can be found in provisions and instruments relating to minorities (in particular in article 27 of the International Covenant on Civil and Political Rights and in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities) and indigenous peoples (in particular the United Nations Declaration on the Rights of Indigenous Peoples and the Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169) of the International Labour Organization).
7) The International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families also contains provisions relating to cultural rights, including article 43, paragraph 1 (g), and article 45, paragraph 1 (d), on access to and participation in cultural life. Article 31 relates to the respect for the cultural identity of migrant workers.
8) The non-discrimination principle, enshrined in a large number of international legal instruments, constitutes an important legal basis for the work of the Special Rapporteur. She noted that it is generally agreed that the enjoyment of rights and freedoms on an equal footing “does not mean identical treatment in every instance”, which enables the accommodation required to respect and facilitate the expression of various cultural identities.
9) The right of everyone to rest and leisure, as set out in article 24 of the Universal Declaration of Human Rights, is closely linked to cultural rights and their full implementation.
In her second thematic report, submitted to the Human Rights Council (A/HRC/17/38), the Special Rapporteur focused on the right of access to, and enjoyment of cultural heritage. She stressed that cultural heritage is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and communities in terms of both their identity and development processes. As set out in the report, the right of access to and enjoyment of cultural heritage finds its legal basis in various human rights norms. It includes the right of individuals and communities to, inter alia, know, understand, enter, visit, make use of, maintain, exchange and develop cultural heritage, as well as to benefit from the cultural heritage and the creation of others. It also includes the right to participate in the identification, interpretation and development of cultural heritage, as well as in the design and implementation of preservation/safeguard policies and programmes. However, varying degrees of access and enjoyment may be recognized, taking into consideration the diverse interests of individuals and communities depending on their relationship to specific cultural heritages. In order to promote a human rights-based approach to cultural heritage matters, the Special Rapporteur concluded her report with a number of recommendations addressed to States, professionals working in the field of cultural heritage and cultural institutions, researchers and tourism and entertainment industries.
In her third thematic report, submitted to the Human Rights Council (A/HRC/20/26), the Special Rapporteur addressed the right to benefit from scientific progress and its applications. She stressed the strong link of this right with the right to participate in cultural life, as well as other human rights. The normative content of the right to benefit from scientific progress and its applications includes (a) access by everyone without discrimination to the benefits of science and its applications, including scientific knowledge; (b) opportunities for all to contribute to the scientific enterprise and freedom indispensable for scientific research; (c) participation of individuals and communities in decision-making and the related right to information; and (d) an enabling environment fostering the conservation, development and diffusion of science and technology. The Special Rapporteur made a number of recommendations, most of which could be implemented in a timely manner. She also recommended that further work be conducted to enhance the conceptual clarity of the right to enjoy the benefits of scientific progress and its applications, and proposed to adopt a public good approach to knowledge innovation and diffusion.
In her fourth thematic report, submitted to the General Assembly (A/67/287), the Special Rapporteur focused on the enjoyment of cultural rights by women on an equal basis with men. She proposed to shift the paradigm from one that views culture as an obstacle to women’s rights to one that seeks to ensure equal enjoyment of cultural rights. Women have the right to access, participate in and contribute to all aspects of cultural life. This encompasses their right to actively engage in identifying and interpreting cultural heritage and to decide which cultural traditions, values or practices are to be kept intact, modified or discarded altogether. Throughout her report, the Special Rapporteur underlined that cultural rights must be understood as also relating to who in the community holds the power to define its collective identity, and that the reality of intra-community diversity makes it imperative to ensure that all voices within a community, including those that represent the interests, desires and perspectives of specific groups, are heard, without discrimination. She analysed notions of gender that restrict the cultural rights of women and proposed a set of questions to be asked whenever gender-biased social arrangements are defended in the name of culture. In particular, the Special Rapporteur recommended that States address the issue of restrictions on women wishing to undertake any form of art and self-expression, to enter cultural heritage sites or premises, to participate in cultural events or ceremonies and to engage in interpreting and applying particular texts, rituals or customs. This includes identifying cultural and religious practices, customs and traditions that prohibit such engagement by women.
In her fifth thematic report (A/HRC/23/34), the Special Rapporteur focused on the right to freedom of artistic expression and creation, which includes the right of all persons to freely experience and contribute to artistic expressions and creations, through individual or joint practice, to have access to and enjoy the arts, and to disseminate their expressions and creations. This report addresses laws and regulations restricting artistic freedoms as well as economic and financial issues significantly impacting on such freedoms. The underlying motivations are most often political, religious, cultural or moral, or lie in economic interests, or are a combination of those. The Special Rapporteur studied in detail the international framework on possible limitations to artistic freedom, and also stressed positive obligations of States in support of the right of people to enjoy the arts and their artistic freedoms. The Special Rapporteur encouraged States to critically review their legislation and practices imposing restrictions on the right to freedom of artistic expression and creativity, taking into consideration their obligations to respect, protect and fulfil this right.
In her sixth thematic report (A/68/296), the Special Rapporteur considered the issue of the writing and teaching of history, with a particular focus on history textbooks. The Special Rapporteur noted the importance of historical narratives as cultural heritage and collective identity, with people striving to retrieve, validate, make known and have acknowledged by others their own history on the one hand and contesting interpretations on the other. In other cases, certain groups are excluded from or portrayed negatively in history teaching. The Special Rapporteur therefore sought to identify the circumstances under which the official historical narrative promoted by the State in schools becomes problematic from the perspective of human rights and peace, in addition to proposing a set of recommendations to ensure a multiperspective approach in history teaching.
In her seventh thematic report (A/HRC/25/49), the Special Rapporteur addressed memorialization processes of the events of the past in post-conflict and divided societies, with a specific focus on memorials and museums of history/memory. The Special Rapporteur stressed the significance of actions in the cultural field for achieving the overall societal goals of transitional justice, while noting that entire cultural and symbolic landscapes are designed through memorials and museums, which both reflect and shape, negatively or positively, social interactions and people’s cognition of identities – their own as well as that of others. Addressing some difficult challenges encountered in memorializing the past, the Special Rapporteur made a number of recommendations grounded in the principle that memorialization should be understood as a process that provides to those affected by human rights violations the spaces necessary to articulate their narratives. Memorial practices should stimulate and promote civic engagement, critical thinking and discussion regarding the representation of the past, but equally the contemporary challenges of exclusion and violence.
In her eight thematic report (A/69/286), the Special Rapporteur considered the impact commercial advertising and marketing practices have on the enjoyment of cultural rights, with a particular focus on freedom of thought, opinion and expression, cultural diversity and ways of life, the rights of children with respect to education and leisure, academic and artistic freedom and the right to participate in cultural life and to enjoy the arts. Examining new trends in advertising and marketing strategies, the Special Rapporteur expressed concern about the increasingly blurred line between commercial advertising and other content, especially in the areas of culture and education. An overall concern relates to the disproportionate presence of commercial advertising and marketing in public spaces, the myriad advertisements and marketing messages people receive daily, the dissemination of such communications using a large variety of media in a systematic and integrated way and the resort to techniques aimed at circumventing individual rational decision-making. States should protect people from undue levels of commercial advertising and marketing while increasing the space for not-for-profit expressions. Within the framework of article 19 of the International Covenant on Civil and Political Rights and based on the view that commercial messaging may be granted less protection than other forms of speech, the Special Rapporteur recommended that States regulate the area more effectively. Of particular note is the recommendation to ban all commercial advertising and marketing in public and private schools.
In her ninth thematic report, presented to the Human Rights Council (A/HRC/28/57), the Special Rapporteur examined more closely copyright law and policy from the perspective of the right to science and culture, emphasizing both the need for protection of authorship and increased opportunities for participation in cultural life. The report recalls that “intellectual property” is an umbrella term encompassing a number of distinct legal regimes that create private property rights related to intangible assets. As protection of authorship differs from copyright protection, the Special Rapporteur proposed several tools to advance the human rights interests of authors, as well as ways to expand copyright exceptions and limitations to empower new creativity, increase educational opportunities, preserve space for non-commercial culture and promote inclusion and access to cultural works. She also recommended to promote cultural and scientific participation by encouraging the use of open licenses, such as those offered by Creative Commons.
For more information, please see:
www.ohchr.org/EN/Issues/CulturalRights/Pages/SRCulturalRightsIndex.aspx