I. Overview

[1] Although ‘cultural rights’ are among the five major categories of human rights (alongside civil, political, economic and social rights; → Generations of Human Rights), it is often regarded as the ‘neglected category of human rights’ (Symonides [1998] at 559; McGoldrick [2007]). There are two main reasons for this. First, ‘culture’ is an elusive concept that is difficult to define (Eriksen [2001]; McGoldrick [2007]). This renders obligations in relation to cultural rights difficult to articulate (Wilson [2000]; Dinstein [1979]). Second, because culture is such a vague concept, it is very difficult to pinpoint exactly which rights are cultural rights. For instance, does ‘cultural rights’ refer specifically to the ‘→ rights of minorities’? Are cultural rights collective rights or are they individual rights (→ Collective and Group Rights)?

[3] This observation was inspired by a textual interpretation of the relevant provisions of the → Universal Declaration of Human Rights (UDHR) in which cultural rights were first recognized at the international level. Article 22 UDHR provides that ‘[e]veryone, as a member of society [. . .] is entitled to realization [. . .] of the economic, social and cultural rights, indispensable for his dignity and the free development of his personality’ (emphasis added). The provisions that follow Article 22 are the steps towards fulfilling this goal. Thus, assuming that a person has a minimum level of well-being (Art 25), education (Art 26), employment (Art 23) and reasonable working hours (Art 24), Article 27(1) UDHR provides that ‘[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’ – an element that is necessary for the development of one’s personality (UNESCO [1970]; Chow [2014]).

[5] In line with this understanding, there was emphasis on mass participation in culture (as opposed to the ‘consumption’ of culture) – in formal texts, the right to ‘contribute to’ cultural life (CESCR, GC No 21: Cultural Life [2009]). Further to this, two other important concepts emerged, which are often addressed as ‘cultural rights’: (i) the right to sports, and (ii) the right to leisure and/or recreational activities (see, e.g., Art 30 → Convention on the Rights of Persons with Disabilities (CRPD); Art 30 → Convention on the Rights of the Child (CRC)), as sports and recreational activities are often part of a community’s popular culture and both are essential for the development of one’s personality.

[7] The UNESCO Universal Declaration on Cultural Diversity [2001] further defines culture as ‘the set of distinctive spiritual, material, intellectual and emotional features of society or a social group [encompassing] [. . .] in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs’. This understanding, which is often referred to as the ‘anthropological definition’ of culture (McGoldrick [2007]) (perhaps inappropriately, as there is no single definition of culture in anthropology (Chow [2018])), was inspired by the increased attention on the rights of minorities and indigenous populations (→ Indigenous Peoples) in international human rights law and discourse (i.e. minority cultures) to ‘follow a way of life associated with the use of cultural goods and resources such as land, water, biodiversity, language or specific institutions’ (CESCR, GC No 21: Cultural Life [2009] para 15(b)). For minority groups, ‘the degradation of their particular way of life may ultimately entail the loss of their cultural identity’ (Chow [2014] at 630).

[8] The understanding of culture as a ‘way of life’ has important implications. First, when we view culture as a way of life, cultural rights and minority rights overlap substantially. While being able to participate in cultural life is essential for the development of one’s cultural identity and personhood, it is also essential for ‘ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole’; the latter rationale underlies the purpose of minority rights (HRCttee, GC No 23: Minorities [1994] para 9). The phrase ‘minority cultural rights’ refers to the rights of national and/or cultural minorities to use their language, profess their religion and engage in their cultural traditions – as opposed to the broader notion of minority rights, which may also include, inter alia, the right to political participation and (in so far as minorities also constitute a ‘people’) → self-determination (Barth [2008]).

[9] Second, culture as a way of life further emphasizes the need to protect the intangible → cultural heritage of groups and communities and the diversity of cultural expressions. Yet, this aspect of cultural rights also poses difficulties for international human rights law. For example, the traditions of certain ethno-religious groups may be deemed incompatible with human rights, especially rights of → women. The extent to which such practices may or may not be tolerated within the framework of international human rights law is sometimes addressed in terms of limitations on cultural rights (Chow [2018]).

[10] Third, literature on cultural rights which views culture as a distinctive way of life also addresses the question of whether economic development, privatization activities, trade and → globalization will reduce the diversity of cultural expressions (such as in the form of traditional knowledge, natural medicines and so on) and thus the relationship between cultural rights and international trade and economic law (UNESCO [2001]; CESCR, GC No 21: Cultural Life [2009] para 50(b)(c)).

[11] Fourth, the way of life of an indigenous population often depends on the protection of the natural environment in which that population lives. This is the area where the right to participate in cultural life intersects with environmental rights (→ Environment, Right to) and issues concerning → climate change. General Comment No 21 of the Committee on Economic, Social and Cultural Rights (CESCR), for instance, calls upon state parties to ensure the availability of ‘nature’s gifts, such as seas, lakes, rivers, mountains, forests and nature reserves, including the flora and fauna found there, which give nations their character and biodiversity’ (CESCR, GC No 21: Cultural Life [2009] para 16(a)).

[12] Fifth, extending the concept of ‘culture’ to include the way in which indigenous populations interact with the environment prompted an understanding of culture as ‘a space of socioeconomic, spiritual and cultural anchorage’ (Gilbert [2010] at 35). The idea of a ‘cultural space’ further influenced later developments of the law that see culture (especially in cities) as the interactions of individuals in and with public space, and stress community engagement in the planning and design of shared open spaces (Interarts [2002]). It calls for the deregulation of public space, as a forum that enables cultural, leisure and other recreational activities to take place (in the form of street arts and performances, parades and so on; see CESCR, GC No 21: Cultural Life [2009] para 16), thereby allowing for interaction among creative expressions in all their diversity. Providing access to public space for → persons with disabilities is, for instance, part of their cultural rights (Chow et al [2018]).

[14] By understanding the multiple aspects of culture/cultural life, we can apprehend how cultural rights interact with other rights. For instance, certain aspects of the → right to education overlap with cultural rights, as they both address aspects of personal development (Szabó [1974]); Article 29 of the CRC, for example, provides that a child’s right to education should be directed to ‘[t]he development of respect for the child’s parents, his or her own cultural identity, language and values, for [. . .] the country from which he or she may originate, and for civilizations different from his or her own’. The right of minorities to establish educational institutions, furthermore, is an essential cultural right (PCIJ, Minority Schools in Albania [1935]). The right to → freedom of opinion and expression is important for artistic creation, and all the more so in the contexts of, for instance, protest arts and parodies directed at governments. Cultural rights thus not only encompass a broad range of activities; they also intersect with many other rights in different contexts.

II. Sources

[16] Article 15 ICESCR therefore contains three substantive rights: (i) the right to cultural participation (Art 15(1)(a)); (ii) the right to benefit from scientific advances (Art 15(1)(b)); and (iii) the right to benefit from the protection of intellectual property (Art 15(1)(c)) (→ Intellectual Property Rights). The provision of culture and science in one article may appear awkward at first. As cultural rights are aimed at enabling all forms of artistic and intellectual pursuit, culture and science under Articles 15(1)(a) and (b) are not construed as opposites, but are meant to complement each other as two pathways to self-fulfilment, as they ‘[b]oth relate to the pursuit of knowledge and understanding and to human creativity in a constantly changing world’ (HRC, Report of the Special Rapporteur [2012]). Article 15(1)(c) was incorporated to acknowledge the inherent value in the creation of scientific innovation and artwork for the author of such work and for the progress of society as a whole (CESCR, GC No 17: Intellectual Property [2006]). The reference to ‘moral interest’ in Article 15(1)(c) is to ‘proclaim the intrinsically personal character of every creation of human mind and the ensuing durable link between creators and their creations’ (CESCR, GC No 17: Intellectual Property [2006] para 12), while the reference to ‘material interest’ ‘reflects the close linkage of this provision with the right to own property’ (CESCR, GC No 17: Intellectual Property [2006] para 15). Articles 15(2) to 15(4) provide for the supporting freedoms (i.e. academic and creative freedom) and supporting means (i.e. international cooperation on the conservation, development and diffusion of science and culture) to attain these rights.

[17] The right to take part in cultural life is further recognized in numerous conventions including the CRC (Art 31(1)), the → International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (Art 5(vi)), the → International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) (Arts 43(1)(g) and 45(1)(d)), the CRPD (Art 30) and the → Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (Art 13(c)). The fact that the right is incorporated in all these treaties reflects its importance. Note, nevertheless, that while the above provisions all recognize the right to take part in cultural life, their wordings differ slightly so as to reflect the specific needs of the group that the treaty seeks to protect. Article 31 CRC, for instance, provides that ‘States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts’. The right to play and recreation was included not only because traditional games are often part of a community’s cultural heritage, but because it is through play that ‘children develop physically, mentally, emotionally and socially’ (International Play Association, The Child’s Right to Play); play is thus vital to their well-being and development (CRC Committee, GC No 17: Art 31 [2013]). Article 30 CRPD, on the other hand, emphasizes the obligations of states to make cultural materials available in accessible formats.

[19] Similar to the right to take part in cultural life, provisions that protect minority cultural rights are scattered throughout various conventions (e.g. Art 30 CRC) and are also differently worded so as to highlight the specific needs of the groups that the treaty wishes to protect. Article 31(1) ICMW, for example, provides that ‘States Parties shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin’.

III. Content and scope of the right

[20] CESCR General Comment No 21 characterizes the right to take part in cultural life as a freedom, entailing both → negative and positive obligations on the part of states. Such negative obligations involve the ‘non-interference with the exercise of cultural practices and with access to cultural goods and services’ (CESCR Committee, GC No 21: Cultural Life [2009] para 6), which includes, for example, refraining from the censorship of plays, books, periodicals and films (CESCR, Concluding Observations: Kenya [1993] para 19). Positive obligations pertaining to the right involve the allocation of resources and implementation of policies to ‘ensur[e] preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods’ (CESCR, GC No 21: Cultural Life [2009] para 6). In this respect states are, for instance, urged to provide support and subsidies to cultural associations and artists (CESCR, Concluding Observations: Luxembourg [2003] para 13), to establish and provide affordable, non-discriminatory access to cultural institutions and infrastructure, such as libraries and museums (CESCR, Revised Guidelines [1991] para 1(b); CESCR, Reporting Guidelines [2009] para 67), and to popularize cultural activities, for example, through mass media and the internet (CESCR, Concluding Observations: Libya [1997] para 39). Non-discrimination in access to culture implies obligations to remove physical, social, linguistic and attitudinal barriers to full and equal participation in cultural life for vulnerable groups, such as women (CESCR, GC No 21: Cultural Life [2009] para 25), persons with disabilities (CESCR, GC No 5: Persons with Disabilities [1994]; Art 30 CRPD), → older persons (CESCR, GC No 6: Older Persons [1995]) and linguistic minorities (CERD, Concluding Observations: Albania [2003]; CESCR, GC No 21: Cultural Life [2009] para 52(b)). The protection of the rights of minority groups to participate in their cultural life entails obligations to facilitate their access to their culture and heritage (through mass media or other digital platforms). General Comment No 21 of the CESCR therefore stipulates that an individual has the right ‘to know and understand his or her own culture and that of others through education and information’ (CESCR, GC No 21: Cultural Life [2009] para 15(b)).

[21] The obligations to respect and protect the unique way of life of indigenous populations often involve respect for their use of natural resources that are essential for their economic and cultural viability, such as indigenous hunting, trapping and fishing activities (HRCttee, Lubicon Lake Band v Canada [1990]) and reindeer herding (HRCttee, Kitok v Sweden [1988]; HRCttee, O. Sara and Others v Finland [1994]; HRCttee, Äärelä and Näkkäläjärvi v Finland [2001]). States are also obliged to prevent private parties from interfering with their use of land, for example, through the expropriation and privatization of communal land (HRCttee, Diergaardt v Namibia [2000]) or oil and gas exploration (HRCttee, Lubicon Lake Band v Canada [1990]). Furthermore, states must ‘recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State’s cultural identity and [. . .] promote its preservation’ (CERD Committee, GR No 23: Indigenous Peoples [1997] para 4(a)). Note, however, that the obligation to ‘preserve’ an indigenous group’s culture does not refer to keeping that culture in a ‘primordial’ state. It means that states have an obligation to ensure that people are able to ‘practise and revitalize their cultural traditions and customs’ (CERD Committee, GR No 23: Indigenous Peoples [1997] para 4(e)) as indigenous communities seek to develop culturally, spiritually and/or economically. It therefore requires states to adopt positive measures to ‘ensure the effective participation of members of minority communities in decisions which affect them’ (HRCttee, GC No 23: Minorities [1994] para 7).

IV. Challenges and trends

[22] The tension between cultural rights and rights of → women has always been a thorny issue, as Article 5 CEDAW requires states to ‘modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices [. . .] and all other practices [. . .] based on [. . .] stereotyped roles for men and women’. While international human rights law clearly requires states to prohibit cultural practices that may inflict serious physical and mental harm on women and the girl child, such as → female genital mutilation (CEDAW Committee, GR No 14: Female Circumcision [1990]) and infanticide (CRC Committee, Concluding Observation: DRC [2001] para 175), difficult issues arise when certain cultural/religious practices, viewed as oppressive to women, are considered by the very women who engage in them as crucial for their identity (Niec [1998]) (e.g. veiling; see also → Religious Clothing). The prohibition of these latter practices might be offensive to their sense of dignity and belonging (al-Hibri [1999]; Abu-Lughod [2002]; Merry [2003]; Xanthaki [2019]), and it thus raises legitimate questions about whether international law adequately accommodates the multiple identities of minority women (Ali [2002]; Coomaraswamy [2002]; Chow [2016]).

[23] The above challenge aside, one important trend pertains to subsequent attempts in the discourse on cultural rights which sought to articulate the importance of memorialization processes in post-divided societies (HRC, Report of the Special Rapporteur [2014]). Acts of remembrance and public memorialization activities during and after gross human rights violations are fundamental to the dignity of the oppressed community and should therefore not be prohibited. Moreover, the history of past human rights abuses against a group often forms an essential part of that group’s identity.

[24] Nevertheless, the question of cultural rights can be highly controversial, as it impinges upon the topic of history and the teaching of history (UNGA, Report of the Special Rapporteur [2013]). As noted above, the right to take part in cultural life includes the right to learn about one’s culture. Yet, historical narratives are malleable and may be utilized for political purposes, such as to incite hatred and create divisions within a society or between societies (Logan [2007]). Memory laws are enacted in some states with the obvious intention of preventing denials of gross and systematic violations of human rights (such as Holocaust denials), but they remain controversial, as they may stifle academic research and debates/arguments in relation to history that are conducted and made in good faith (Chow [2015]).

[25] Lastly, an emerging area of research concerns the cultural rights of persons with disabilities – a neglected category of rights of a neglected category of people (Chow et al [2018]). The right to take part in cultural life is an extremely important right for persons with disabilities. Opportunities to engage in culture promote their social inclusion (Singleton and Darcy [2013]) and provide a valuable channel for them to express their thoughts, values and identities in physical and cyber domains (Blanck [2014]). Engaging in cultural activities is a means to challenge stereotypes, such as through disability arts (Ellis [2015]) and disability sports, and enables them to pursue their self-realization. Engagement in culture, sports and other activities provides an important arena where their abilities can be properly recognized (Hall [2013]). As all of the above are critical for the development of their personality, examining the rights of persons with disabilities offers a chance for us to rediscover and reaffirm the very purposes of protecting cultural rights.

V. Conclusion

[26] This entry has explained the idea of cultural rights through the right to take part in cultural life, which is the broadest and arguably the most important of all cultural rights. Culture/cultural life is, for everyone, an inherent part of being human and a necessary manifestation of all communities (Holder [2006]). The concept of culture/cultural life in human rights law is not ethnocentric; rather, it is broad and encompasses multiple dimensions: material (the availability of cultural goods and products), temporal (as a process of development with a past, present and future), spatial (the cultural environment) and symbolic (providing us with meaning). The right to take part in cultural life represents the freedom to pursue one’s artistic, spiritual and intellectual realization, as well as to develop one’s character, identity and personality.