Cultural Rights (International Law)

Introduction

Cultural rights are often called the “Cinderella of human rights,” since they have not been explored in depth either by international human rights bodies or in the academic literature. Although specific issues such as minority practices have recently attracted the attention of international lawyers, and theoretical approaches relating to cultural rights have featured prominently in discussions within political theory, international law is still lacking a comprehensive discussion of cultural rights. International law has recognized the importance of culture—in UNESCO documents, for example. However, culture was long seen as capital or creativity, and cultural rights were seen as rights of individuals or rights of states. This view has changed recently, especially after the explosion of minority discussions in international law in the 90s and indigenous cultural rights in the 00s; hence culture is now defined broadly as a way of life. Recent UNESCO work on “cultural heritage” has also affected the scope of cultural rights. Although the law of cultural heritage is much wider than the human rights considerations, it raises important issues related to cultural rights. At the center of cultural rights is the generic “right to culture,” recognized in Article 15 of the International Covenant on Economic, Social and Cultural Rights. The article recognizes the right to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and the rights of scientists and artists. It also recognizes “the freedom indispensable for scientific research and creative activity.” The right to participation in culture has recently been seen in its broad sense to include “the right to benefit from cultural values created by the individual or the community” (Report of the International Committee on Economic, Social and Cultural Rights, Seventh Session, UN Doc E/1993/22, para. 202 and 223). States must also ensure that there is no unjustified discrimination in the enjoyment and participation in cultural activities (Article 5(e)(vi) of the International Convention on the Elimination of All Forms of Racial Discrimination). Cultural rights of minorities and indigenous peoples are further protected by specific instruments, including Article 27 of the International Covenant on Civil and Political Rights (ICCPR), as elaborated in the UN Declaration on Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Declaration on Minorities) and the UN Declaration on the Rights of Indigenous Peoples. Such rights also raise issues that are either not fully explored, such as customary legal systems and group rights to intangible culture, or that are seen under the prism of other rights, such as minority dress codes, discussed mainly under the right to religion. This chapter will focus on cultural rights stricto sensu.

General Monographs and Edited Collections

Although a number of works have been published touching on cultural rights, only two monographs have been written on cultural rights: Stamatopoulou 2007 discusses the foundations of cultural rights in international law and especially as recognized by the United Nations, whereas Donders 2002 focuses on the right to cultural identity and argues, in contrast to Stamatopoulou, that “translating cultural identity into a separate right is neither desirable nor necessary.” According to Donders, individual rights have to be put above cultural identity. Among the edited collections on cultural rights, one may distinguish Nieć 1998, one of the first such collections focusing on understandings and challenges of culture and cultural rights around the world. Francioni and Scheinin 2008 offers a solid overview of the various issues regarding cultural rights, including analyses of WTO and the EU initiatives on cultural rights, as well as wider discussions on cultural identity. Donders and Volodin 2007 offers some interesting chapters on aspects of cultural rights not often discussed, such as justifiability, indicators and access to benefits. Borelli and Lenzerini 2012 is an up-to-date mélange of chapters on cultural rights and cultural heritage. Finally, Nafziger, et al. 2010 is the only textbook that exists on cultural law. Although crossing human rights, intellectual property (IP) rights, and other areas, it offers an important selection of relevant discussions and case studies.

Borelli, Silvia, and Federico Lenzerini, eds. Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law. Leiden, The Netherlands: Brill, 2012.
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An up-to-date discussion of several issues regarding broadly understood cultural rights, including manifestations of cultural diversity, clashes between global interests and communities’ cultural rights, underwater heritage, and restitution.
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Donders, Yvonne. Towards a Right to Cultural Identity? Antwerp: Intersentia, 2002.
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One of the rare monographs on cultural rights; Donders argues against the recognition of the right to cultural identity in soft law, especially in its collective capacity. Although, a decade later, collective cultural rights are more firmly recognized, the monograph continues to offer an interesting analysis discussing valid arguments.
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Donders, Yvonne, and Vladimir Volodin, eds. Human Rights in Education, Science and Culture, Legal Developments and Challenges. Paris: UNESCO, 2007.
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Contains interesting topics that have not been explored, including the justiciability of cultural rights; the development of indicators for participation in cultural rights and access to the benefits of science; and the right to enjoy the benefits of scientific and technological progress.
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Francioni, Francesco, and Martin Scheinin, eds. Cultural Human Rights. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2008.
DOI: 10.1163/ej.9789004162945.i-372Save Citation »Export Citation »E-mail Citation »
Having a firm focus on collective cultural rights, this edited collection includes chapters on the relationship between cultural rights and the state, that between cultural rights and self-determination, cultural rights of minorities and of indigenous peoples, and discussions around cultural identity. Chapters review UNESCO, WTO, and EU instruments and initiatives on cultural rights, and address cultural identity and religious freedom.
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Nafziger, James A. R., Robert Kirkwood Paterson, and Alison Dundes Renteln. Cultural Law: International, Comparative, and Indigenous. Cambridge, UK: Cambridge University Press, 2010.
DOI: 10.1017/CBO9780511751004Save Citation »Export Citation »E-mail Citation »
The only textbook on cultural law, it includes pieces from a plethora of courses regarding culture and cultural rights in their broad sense. Discusses state practice, important cases, comparative perspectives, and wider issues regarding culture and the law.
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Nieć, Halina. Cultural Rights and Wrongs. Paris: UNESCO, 1998.
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One of the first attempts to discuss cultural rights, this edited collection attempts to show the differences in the way culture is understood and to highlight the different issues related to cultural rights in the different continents of the world. Contains a rare chapter on the right to artistic freedom.
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Stamatopoulou, Elsa. Cultural Rights in International Law. Leiden, The Netherlands, and Boston: Martinus Nijhoff, 2007.
DOI: 10.1163/ej.9789004157521.i-336Save Citation »Export Citation »E-mail Citation »
The book focuses on the work of the United Nations monitoring bodies in analyzing and pushing forward the contours of cultural rights and the right to participate in cultural life, as this has been the main focus of cultural rights. It includes a solid section on cultural rights of minorities and indigenous peoples.
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General Articles and Chapters

There are not a lot of pieces that discuss the standards of cultural rights in international law. Symonides 1998 identified early on the lack of focus on cultural rights and the reluctance of states to talk about such rights. Stavenhagen 1998, a well-known piece, pushed for a wider understanding of the notion of culture away from creativity and property to the more embracing notion of it as a way of life. Turning to a discussion on standards on cultural rights, Bidault 2010 explicitly links cultural rights to the overarching principle of nondiscrimination. O’Keefe 1998 discusses Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its interpretation by the Monitoring Committee, whereas McGoldrick 2007 discusses generally the standards of cultural rights, with particular emphasis on the ICESCR General Comment No 17. Stamatopoulou 2012 focuses more on the work of the United Nations monitoring bodies in expanding the notion and protection of cultural rights, while Yusuf 2007 puts forward a comprehensive overview of UNESCO’s work on cultural rights. Finally, of great interest is the report by the Northern Ireland Human Rights Commission (see United Nations General Assembly 2014) on the right to culture in post-conflict societies, a very interesting topic that has just started attracting more interest.

Bidault, Mylène. La protection internationale des droits culturels. Louvain, Belgium: Bruylant, 2010.
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An analysis on cultural rights as human rights, in French. It includes a discussion on cultural identity, rights of minorities, and indigenous peoples. Links cultural rights to the principle of discrimination.
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McGoldrick, Dominic. “Culture, Cultures and Cultural Rights.” In Economic, Social and Cultural Rights in Action. Edited by Mashood Baderin and Robert McCorquodale, 447–474. Oxford: Oxford University Press, 2007.
DOI: 10.1093/acprof:oso/9780199217908.001.0001Save Citation »Export Citation »E-mail Citation »
Sheds light on General Comment 17 of the International Committee on Economic, Social and Cultural Rights, which differentiates between human rights and intellectual property rights, as well as the politics, successes, and shortcomings of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
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O’Keefe, Roger. “The Right to Take Part in Cultural Life” Under Article 15 ICESCR.” International and Comparative Law Quarterly 47.4 (1998): 904–923.
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A classic piece, discussing the interpretation of Article 15 ICESCR by its Monitoring Committee. It highlights the positive nature of states’ obligations, including access to cultural works, protection of the cultural environment, accessibility of cultural heritage, protection of creative freedom, and protection from the homogenization of culture. It also highlights the clear interpretation of the Committee that the provision includes minority and indigenous protection for their cultures.
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Stamatopoulou, Elsa. “Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and the Response of Cultural Rights.” Human Rights Quarterly 34.4 (2012): 1170–1192.
DOI: 10.1353/hrq.2012.0065Save Citation »Export Citation »E-mail Citation »
The article argues that the United Nations human rights monitoring bodies have played an important role in the validation of international cultural rights. It follows the development of cultural rights in the United Nations and examines more in depth the work of the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, and the Independent Expert on Cultural Rights.
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Stavenhagen, Rodolfo. “Cultural Rights: A Social Science Perspective.” In Cultural Rights and Wrongs. Edited by Halina Nieć, 1–20. Paris: UNESCO, 1998.
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Discusses different conceptions of culture and consequences of an anthropological, wide definition of culture for the protection of cultural rights.
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Symonides, Janusz. “Cultural Rights: A Neglected Category of Human Rights.” International Social Science Journal 50.158 (1998): 559–572.
DOI: 10.1111/1468-2451.00168Save Citation »Export Citation »E-mail Citation »
This article traces the extent to which cultural rights are a neglected category in international law and practice. An important reason for this neglect would be states’ concerns about minorities’ and indigenous peoples’ claims of separate cultural identities. Symonides discusses UNESCO’s groundbreaking work here, the potential positive impact of new information and communication technologies, and the mixed blessings of cultural globalization.
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United Nations General Assembly. Information Presented by the Northern Ireland Human Rights Commission on The Derry/Londonderry Report on Upholding the Human Right to Culture in Post-Conflict Societies. UN Doc. A/HRC/25/NI/5. New York: UN General Assembly, 2014.
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A rare discussion of the concept and application of cultural rights in societies emerging from ethnic conflict. Discusses how the application of cultural rights without adaptation to particular post-conflict situations may lead to surprising and inadequate results.
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Yusuf, Abdulqawi A. Standard-Setting in UNESCO. Vol. 1, Normative Action in Education, Science and Culture. Paris: UNESCO, 2007.
DOI: 10.1163/ej.9789004164505.1-430Save Citation »Export Citation »E-mail Citation »
Although not focused on cultural rights per se, this volume explores the work of UNESCO on important relevant topics, including copyright, ethics and human genetics, cultural heritage, natural heritage, cultural exchange and diversity, and tolerance and understanding. Copublished by Martinus Nijhoff (Dordrecht).
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Culture, Cultural Identity, and Human Rights

Cultural identity and cultural politics have attracted a lot of attention from the fields of political theory and sociology, but this has not fully rubbed off to the international law literature. A series of pieces have been written on theoretical underpinnings of cultural rights, which have influenced international lawyers. Kymlicka’s groundbreaking thesis that protection of cultural membership and liberalism are indeed compatible changed the landscape of international cultural rights and paved the way for the wider acceptance of collective cultural rights by liberals. Kukathas 1992 disagrees on the importance of cultural allegiances and puts forward the traditional liberal argument on the need to allow for free agency and individual rights. Donnelly 1984 is a key reference on the debate of universalism versus cultural relativism from the Western liberal’s perspective openly favoring the idea of universalism. In contrast, An-Na’im 1992 offers a more varied discussion on the importance and challenges of cultural membership that also relates to non-European understandings of human rights. Prott 1998 is a solid overview of arguments and counterarguments on collective cultural rights. Lenzerini 2014 offers Federico Lenzerini’s thoughts on the discussion, using the work of international bodies. Finally, Vrdoljak 2013 discusses how cultural dimensions of human rights have important consequences in the way we view big concepts, and how international institutions have dealt with such questions.

An-Na’im, Abdulah, ed. Human Rights in Cross-Cultural Perspectives: A Quest for Consensus. Philadelphia: University of Pennsylvania Press, 1992.
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A reference source for anyone interested in the cultural dimensions of international human rights. Discusses wider issues such as Western liberalism and communitarianism, as well as thematic case studies (e.g., gender, indigenous peoples, self-determination) and regional case studies (e.g., Australia, Brazil).
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Donnelly, Jack. “Cultural Relativism and Universal Human Rights.” Human Rights Quarterly 6 (1984): 400–419.
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A classic article that discusses universalism versus cultural relativism, favoring universalist approaches to international human rights standards.
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Kukathas, Chandran. “Are There Any Cultural Rights.” Political Theory 22 (1992): 105–139.
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A response to Kymlicka’s thesis that reasserts the need for individual rights, exposes the problems associated with collective cultural rights, and stresses the importance of the right to exit, i.e., the right of the member of the minority to leave the group if she so chooses.
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Kymlicka, Will. Liberalism, Community and Culture. Oxford: Clarendon, 1989.
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A groundbreaking text that reinterprets liberalism to show that respect for minority cultural rights is compatible with liberal equality. Based in political theory, but widely used in international law texts related to cultural rights.
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Lenzerini, Federico. The Culturalization of Human Rights Law. Oxford: Oxford University Press, 2014.
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Analyzing the usage of the concept of “culture” in human rights theory and practice, this volume uses the work of international law bodies to discuss—in mystifying language at times—the conflict and coexistence of universalism versus cultural relativism.
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Prott, Lyndel. “Understanding One Another on Cultural Rights.” In Cultural Rights and Wrongs. Edited by Halina Nieć, 161–175. Paris: UNESCO, 1998.
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A thoughtful overview of the arguments and counterarguments relating to cultural rights, especially individual and collective cultural rights.
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Vrdoljak, Ana Philipa, ed. The Cultural Dimension of Human Rights. Oxford: Oxford University Press, 2013.
DOI: 10.1093/acprof:oso/9780199642120.001.0001Save Citation »Export Citation »E-mail Citation »
Not focused on cultural rights per se, this volume discusses the cultural dimensions of human rights and focuses on the effect that culture has on individuals and collectivities. It explores how big concepts such as democracy, liberty, and equality have been affected by culture, and looks at the effects culture has had on the work of several organizations.
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Cultural Rights and Cultural Diversity

Cultural diversity has not been attached in the legal literature to cultural rights, but more broadly to international law, often using the (2005) UNESCO Convention on the Protection and Promotion of Diversity of Cultural Expressions as a starting point. Although the Convention does not recognize cultural rights, discussions are related to such rights, and hence are of interest to the researcher in this field. Kono and van Uytsel 2012 is a comprehensive analysis of the main issues arising from the CONVENTION, whereas Stoll and von Scholmeler 2012 offers a more detailed commentary of the Convention. Donders 2012 discusses the gradual changes in UNESCO’s focus of culture, and analyzes the shortcomings of the above-mentioned Convention. Moving on away from this Convention, UNESCO’s report on cultural diversity (World Commission on Culture and Development 1996) presents contributions from all over the world discussing global ethics and the protection of cultural diversity. Ringelheim 2011 is also very interesting, as it brings together discussions on difficult and topical issues, such as multiculturalism, integration, and secularism, and discusses how national courts have dealt with such concepts.

Donders, Yvonne. “The Cultural Diversity Convention and Cultural Rights: Included or Ignored?” In The Convention on the Promotion and the Protection of Diversity of Cultural Expressions: A Tale of Fragmentation in International Law. Edited by Toshiyuki Kono and Steven van Uytse. Cambridge, UK, and Portland, OR: Intersentia, 2012.
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The chapter gives an overview of the UNESCO work related to cultural rights and focuses on the Cultural Diversity Convention. It argues that the Convention is rather disappointing, as it is not a cultural rights instrument and is limited in scope by its focus on national cultures and on “diversity of cultural expressions.”
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Kono, Toshiyuki, and Steven van Uytsel, eds. The UNESCO Convention on the Diversity of Cultural Expressions: A Tale of Fragmentation in International Law. Cambridge, UK, and Portland, OR: Intersentia, 2012.
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Discusses the origins and provisions of this Convention in depth, including intellectual property and cultural expression, the rights of minorities and indigenous peoples, and sustainable development.
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Ringelheim, Julie, ed. Le droit and la diversite culturelle. Paris: Bruylant, 2011.
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A valuable collection of essays coming from Continental Europe, with several chapters on how the state, with particular focus on Belgium, applies concepts such as neutrality, multiculturalism, and integration, and how the courts—national, European, and international—consider difficult challenges related to cultural diversity in social, family, and penal law. In French.
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Stoll, Peter Tobias, and Sabine von Scholmeler, eds. The UNESCO Convention for the Promotion and Protection of the Diversity of Cultural Expressions: A Commentary. Berlin: Springer, 2012.
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Offers a comprehensive analysis of the Convention, with commentary on each of the articles of the Convention. Each chapter includes the drafting history of the relevant article.
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World Commission on Culture and Development. Our Creative Diversity. Paris: UNESCO, 1996.
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Trying to find a balance between cultural relativism and universalism, and at times being vague and contradictory, this report is nevertheless a worthy exercise in highlighting the duality of cultural diversity and common global ethics that draw on norms common to all cultures and religions.
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Cultural Rights and Cultural Heritage

Although cultural heritage has recently started attracting more attention, with several collections of essays on the topic, its relationship with cultural rights has not been fully untangled. One of the earliest attempts to distinguish the concept of culture from that of cultural heritage was Blake 2000. More recently, Nafziger and Nicgorski 2009 explores cultural rights and cultural heritage in depth, focusing especially on the human rights considerations raised by efforts to identify and protect cultural heritage. Logan 2007 pinpoints the specific challenges that cultural heritage raises. Very interestingly, the 2011 UN Special Rapporteur Report, Access to Cultural Heritage (UN Human Rights Council 2011), discusses the more unambiguous concept of “access to cultural heritage” as a human right, including its scope and protection. Ubertazzi 2010 and Vadi 2012 both integrate several areas of law when discussing cultural heritage, and in this way show how cultural rights are attached to such legal areas. Ubertazzi discusses which approach, the intellectual property one or the cultural rights one, is more helpful for claims of cultural misappropriation, whereas Vadi places cultural rights next to other discussions of cultural heritage as property, as economic interest, and as public good. O’Keefe 2013 focuses on tangible heritage, whereas Lixinski 2013 discusses intangible heritage and its protection. Finally, Langfield, et al. 2010 gives us interesting examples of how cultural heritage is protected (or not) in various parts of the world.

Blake, Jane. “On Defining the Cultural Heritage.” International and Comparative Law Quarterly 49.1 (2000): 61–85.
DOI: 10.1017/S002058930006396XSave Citation »Export Citation »E-mail Citation »
One of the earlier attempts in legal literature to discuss cultural heritage. Blake addresses cautions regarding the problems that may be attached to the usage of the word “cultural heritage” instead of “cultural property,” and discusses the differences between the former and “culture.”
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Langfield, Michelle, William Logan, and Mairead Nic Craith, eds. Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice. London and New York: Routledge, 2010.
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Focused on case studies from all over the world, including Iraq, Australia, Cyprus, Namibia, and Burma, this collection of essays highlights the current problems related to cultural heritage and the inadequacy of responses in current international law standards.
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Lixinski, Lucas. Intangible Cultural Heritage in International Law. Oxford: Oxford University Press, 2013.
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Not on human rights per se, this book looks at the various mechanisms for safeguarding intangible cultural heritage, and argues that cultural heritage is best protected through multilevel protection. Offers a solid framework that includes human rights considerations.
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Logan, William S. “Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage Protection.” In Cultural Heritage and Human Rights. Edited by Helaine Silverman and D. Fairchild Ruggles, 33–52. Berlin: Springer, 2007.
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Discusses the challenges to the protection of cultural rights associated with cultural heritage, including rights of nonstate groups to their cultural heritage, selective interpretations of cultural heritage, and cultural practices that contravene human rights. Logan demonstrates the ways in which cultural heritage law is linked to and influences cultural rights.
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Nafziger, James A. R., and Ann M. Nicgorski, eds. Cultural Heritage Issues: The Legacy of Conquest, Colonization, and Commerce. Leiden, The Netherlands: Martinus Nijhoff, 2009.
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This volume goes to the heart of cultural heritage and, in doing so, explores themes relevant to cultural heritage and human rights. Contributors first discuss broad issues, including the concept of cultural heritage, the role of governments, and the responsibility of museums; secondly, they address the legal instruments and parameters; and thirdly, they look at important case studies from different parts of the world, including the United States, Canada, New Zealand, Africa. and Iraq.
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O’Keefe, Roger. “Tangible Cultural Heritage and International Human Rights Law.” In Realising Cultural Heritage Law: Festschrift for Patrick O’Keefe. Edited by Lyndel Prott, Ruth Redmond-Cooper, and Stephen Urice, 87–95. Builth Wells, UK: Institute of Art and Law, 2013.
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A solid overview of the issues related to tangible cultural heritage and human rights.
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Ubertazzi, Benedetta. “Territorial and Universal Protection of Intangible Cultural Heritage from Misappropriation.” New Zealand Yearbook of International Law 8 (2010): 69–109.
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A very interesting article that discusses specific cases of misappropriation of cultural heritage. In order to overcome the territoriality of the protection given by the current IP protection of cultural heritage, Ubertazzi discusses the universality offered by human rights protection to cultural heritage, either through drawing analogies with the international crime of piracy, through existing human rights relevant to cultural heritage, or through rules relevant to the UNIDROIT Convention.
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UN Human Rights Council. Access to Cultural Heritage: Report of the Special Rapporteur in the Field of Cultural Rights, Fareda Shahid. UN Doc A/HRC/17/38. New York: UN General Assembly, 21 March 2011.
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Making the case for a human rights-based approach to cultural heritage matters, the report has a comprehensive discussion of all international law provisions related to cultural heritage and human rights. Shahid explores human rights issues surrounding cultural heritage, including states’ obligations and limitations. Also includes recommendations.
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Vadi, Valentina. “The Cultural Wealth of Nations in International law.” Tulane Journal of International and Comparative Law 21 (2012): 87–133.
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Argues in favor of cultural law becoming a new separate branch of international law. In doing so, Vadi discusses the different legal streams that are relevant to cultural heritage, including cultural rights. The article is important because it places cultural rights within the wider discussions taking place on cultural heritage.
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Individual Cultural Rights

Very few sources on international law discuss the individual right to culture, and even fewer discuss the right to artistic freedom. Eide 2001 sets out the main parameters of the individual right to culture. Decaux 1998, another classic, focuses on the rights of artists and their limitations. The same right is also analyzed by the UN Special Rapporteur Fareda Shahid. In UN Human Rights Council 2013, the Special Rapporteur discusses current aspects of the right, including artistic freedom as political consent and religious defamation. The European Convention on Human Rights does not include an article on the right to culture; however the European Court of Human Rights has on several occasions discussed the contours of this right. This is the focus of European Court of Human Rights 2011. Keans 2012 discusses specifically how the Court has failed to adequately protect such a right in the name of a very broadly understood margin of appreciation. Finally, Almqvist 2005 and Donders 2002 pay homage to the individual right to culture and its protection by international law standards. Using different arguments, they are very much in tune in their efforts to protect the individual right to culture. Finally, Deguergue 2010 places human rights considerations within the general context of law and art.

Almqvist, Jessica. Human Rights, Culture, and the Rule of Law. Oxford: Hart, 2005.
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Discusses the concept of culture and its place in international human rights law. Almqvist argues that culture is better understood as property possessed by the individual. Linking culture to communities is argued to be a flawed concept of human rights that erodes individual freedom.
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Decaux, Emmanuel. “On the Freedom of the Author and the Artist.” In Cultural Rights and Wrongs. Edited by Halina Nieć, 21–41. Paris: UNESCO, 1998.
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An earlier work that continues to be relevant. The paper discusses limits to the freedom of artist as set by the international instruments as well as the case law of the European Court of Human Rights in the 1990s.
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Deguergue, Maryse, ed. L’art et le droit: Écrits en hommage à Pierre-Laurent Frier. Paris: Publications de la Sorbonne, 2010.
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Not focused on human rights, this book gives an excellent overview of the challenges and issues related to art, the artist, and the law. Several chapters touch on human rights issues.
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Donders, Yvonne. Towards a Right to Cultural Identity? Cambridge, UK, and Portland, OR: Intersentia, 2002.
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Donders disagrees with both the recognition of the right to cultural identity and its recognition as a collective right. Although a decade later collective cultural rights and the right to cultural identity are more firmly recognized, the monograph continues to offer an interesting analysis discussing valid arguments.
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Dupuy, René-Jean. “La protection et les limites de la liberté d’expression de l’artiste dans la société européenne.” Revue des droits de l’Homme 7 (1974): 41–59.
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An early piece of work that discusses in depth the rights of artists. In French.
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Eide, Asbjørn. “Cultural Rights as Individual Rights.” In Economic, Social and Cultural Rights. 2d ed. Edited by Eide Asbjørn, Catarina Krause, and Allan Rosas, 289–302. Dordrecht: Martinus Nijhoff, 2001.
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Gives a comprehensive overview of individual cultural rights. An excellent basis for any research on the topic.
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European Court of Human Rights. Cultural Rights in the Case-Law of the European Court of Human Rights. Strasbourg: Council of Europe, January 2011.
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Although the European Convention does not include a provision on cultural rights, the Court has held a number of decisions on individual cultural rights broadly speaking, including the right to artistic expression, the right to academic freedom, and rights falling within cultural rights in a broad sense, such as linguistic rights and rights to education.
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Keans, Paul. “The Judicial Nemesis: Artistic Freedom and the European Court of Human Rights.” Irish Law Journal 1 (2012): 56–92.
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A rare article that discusses artistic freedom. It argues that the protection of artistic freedom by the European Court of Human Rights is inadequate, largely because of the imposition of moral considerations the Court allows as part of a very widely defined margin of appreciation.
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UN Human Rights Council. The Right to Freedom of Artistic Expression and Creativity, Report of the Special Rapporteur in the Field of Cultural Rights, Fareda Shahid. UN Doc A/HRC/23/34. New York: UN General Assembly, 14 March 2013.
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A rare discussion of the human rights standards surrounding the individual right to artistic freedom and creativity. It offers a comprehensive analysis of the human rights framework and discusses the challenges, including artistic freedom as political dissent, religious defamation and offense, and corporate interests.
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Cultural Rights of Minorities

Contrary to other areas of international law, the cultural rights of minorities have attracted quite a lot of attention. Yupsanis 2012 uses the general human rights provision recognizing cultural rights as a starting point to discuss how minority cultural rights are recognized. Holt 2007 uses the minority instruments as the basis for a discussion of the cultural rights of minorities in international law. Several pieces have been written on specific rights that are considered part of cultural rights in its strict or broader sense. Ringelheim 2013b and Peroni 2013 both appear in a collection edited by Eva Brems that aims at rewriting some of the most important cases of the European Court of Human Rights. In commenting the Chapman case, Ringelheim 2013b discusses the right to traditional lifestyle within the parameters of the European human rights standards, while Peroni 2013 focuses on the right to names as an aspect of one’s cultural identity. In another piece in a Henrard collection, Ringelheim 2013a focuses on the minority right to education as a vehicle to maintain and develop the minority’s culture. The chapter also includes a discussion on separate minority schools, a highly controversial topic in some states. Finally, May 2011 discusses language rights for minorities, again as an important way of maintaining cultural identity.

Holt, Sally. “Family, Private Life and Cultural Rights.” In Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies. Edited by Marc Weller, 203–252. Oxford: Oxford University Press, 2007.
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Offers a solid overview of the sources and the international jurisprudence relevant to minority and indigenous cultural rights, clarifies the states’ duties regarding the protection and promotion of minority cultural rights, and discusses the permissible limitations.
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May, Stephen. “Language Rights: the ‘Cinderella’ Human Right.” Journal of Human Rights 10.3 (2011): 265–289.
DOI: 10.1080/14754835.2011.596073Save Citation »Export Citation »E-mail Citation »
Discusses language rights, mainly of minorities. May first discusses language rights in political theory, before analyzing the international law related to language rights and finally discussing the Catalan case.
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Peroni, Lourdes. “Erasing Q, W and X, erasing cultural differences.” In Diversity and European Human Rights: Rewriting Judgments of the ECHR. Edited by Eva Brems, 445–469. Cambridge, UK: Cambridge University Press, 2013.
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In the same volume as Ringelheim 2013b, Peroni rewrites the Kemal Taskin and others v. Turkey case, which involves names and cultural identity. Again, a rare discussion of how the European Court of Human Rights deals with cultural diversity and cultural rights.
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Ringelheim, Julie. “Between Identity Transmission and Equal Opportunities: The Multiple Dimensions of Minorities’ Right to Education.” In The Interrelation between the Right to Identity of Minorities and Their Socio-Economic Participation. Edited by Kristin Henrard, 91–104. Dordrecht, The Netherlands: Martinus Nijhoff, 2013a.
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Discusses how international human rights law deals with the challenge of promoting equal education while attending to minorities’ specific needs. Discusses cultural dimensions of education rights, including the transmission of the minority identity, the promotion of intercultural education, and the question separation, including of minority separate schools.
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Ringelheim, Julie. “Chapman Redux: the European Convention of Human Rights and Roma Traditional Lifestyle.” In Diversity and European Human Rights: Rewriting Judgments of the ECHR. Edited by Eva Brems, 426–444. Cambridge, UK: Cambridge University Press, 2013b.
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In a very interesting volume that discusses how judgments of the European Court on Human Rights that touch on diversity could be rewritten, Ringelheim criticizes the Chapman v. UK judgment and pushes for recognition by the Court of minorities’ right to pursue their traditional lifestyle as part of the nondiscrimination principle.
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Yupsanis, Athanassios. “The Meaning of ‘Culture’ in Article 15(1)(a) of the ICESCR—Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority Cultures.” German Yearbook of International Law 55 (2012): 345–383.
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The article discusses the notion of culture in international law as perceived in a traditional way as high art, and in a more anthropological way as a way of life, and the positive contribution of CESCR’s General Comment No. 21 in endorsing this latter understanding of the concept.
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Multicultural Dilemmas and Cultural Rights

Multicultural societies currently face several dilemmas that go to the heart of cultural rights. In this section, authors look at specific dilemmas that have been discussed under the remit of cultural rights in international law. One of the most important of these dilemmas is the conflict between freedom of speech and minority cultural identity; Ghanea 2010 gives us a comprehensive overview of the relevant standards of international law and the challenges posed. Keane 2008 uses the controversy of Danish cartoons to discuss conflicts between artistic expression and offense of religious, cultural and ethnic identity. The issue of minority dress code is often seen through the lens of the right to religion; Borelli 2012 links it to cultural identity and rights. In a more comprehensive manner, Mullally 2006 discusses in depth how feminism and women’s rights and cultural claims/rights may coexist. Turning to multiculturalism, McGoldrick 2005 discusses the limited role that the concept has played in the development of international human rights standards. In contrast, Xanthaki 2010 argues that although references to multiculturalism are scarce, minority standards, as currently discussed by the UN bodies, incorporate many elements of multiculturalism. Wiater 2010 argues that the European Court of Human Rights places great emphasis on intercultural dialogue as a means of resolving challenges related to cultural diversity. Finally, Bielefeldt 2007 uses the concept of “enlightened multiculturalism” to discuss the state’s obligations toward cultural (and religious) practices.

Bielefeldt, Heiner. Menschenrechte in der Einwanderungs-gesellschaft: Pladoyer fur einen aufgeklarten Multiculturalismus. Wetzlar, Germany: Transcript, 2007.
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An excellent analysis of the concepts of multiculturalism and integration, and how such policies impact on the cultural rights of immigrants and minorities. Using the concept of “enlightened multiculturalisim,” Bielefeldt discusses especially headscarves, forced marriages, and citizenship tests, particularly with respect to Muslims.
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Borelli, Silvia. “Of Veils, Crosses and Turbans: The European Court of Human Rights and Religious Practices as Manifestations of Cultural Diversity.” In Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law. Edited by Silvia Borelli and Federico Lenzerini, 55–82. Dordrecht, The Netherlands: Martinus Nijhoff, 2012.
DOI: 10.1163/9789004228382_004Save Citation »Export Citation »E-mail Citation »
Although many articles have been written on religious dress code and symbols as part of the right to religion, Borelli successfully views the debate as part of cultural rights as well.
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Ghanea, Nazila. “Minorities and Hatred: Protections and Implications.” International Journal on Minority and Group Rights 17 (2010): 423–446.
DOI: 10.1163/157181110X512151Save Citation »Export Citation »E-mail Citation »
Discusses the conflict between freedom of speech and minority rights. Includes a comprehensive analysis of the relevant standards of international human rights law and a discussion on the different approaches that the ECHR and the HRC have taken.
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Keane, David. “Cartoon Violence and Freedom of Expression.” Human Rights Quarterly 30 (2008): 845–876.
DOI: 10.1353/hrq.0.0031Save Citation »Export Citation »E-mail Citation »
A case study on freedom of artistic expression and religious offense, this article elaborates on the relevant human rights standards and how they apply to the Danish cartoons case. Interestingly, it also includes a discussion on other cartoons that offend ethnic and racial groups.
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McGoldrick, Dominic. “Multiculturalism and Its Discontents.” In Minorities, Peoples and Self-Determination: Essays in Honour of Patrick Thornberry. Edited by Nazila Ghanea and Alexandra Xanthaki, 211–236. Leiden, The Netherlands: Martinus Nijhoff, 2005.
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The article discusses the limited role that multiculturalism has played in the international human rights landscape. It presents the arguments and the controversies that have dominated the multicultural debate, and argues in favor of the prevalence of equality over cultural claims.
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Mullally, Siobhan. Gender, Culture and Human Rights: Reclaiming Universalism. Oxford: Hart, 2006.
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Mullally discusses specifically cultural claims that restrict women’s rights, and explores a way to reconcile human rights, including cultural rights, with women’s rights and feminism.
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Wiater, Patricia. Intercultural Dialogue in the Framework of European Human Rights Protection. White Paper Series 1. Strasbourg, France: Council of Europe Publishing, 2010.
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Wiater explores the importance that the ECtHR places on intercultural dialogue in managing cultural diversity, and relates the legal approach that the ECtHR adopts toward cultural diversity. The analysis focuses on the freedoms of religion, expression, and association.
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Xanthaki, Alexandra. “Multiculturalism and International Law: Discussing Universal Standards.” Human Rights Quarterly 32 (2010): 21–48.
DOI: 10.1353/hrq.0.0139Save Citation »Export Citation »E-mail Citation »
Although international law standards do not include references to multiculturalism, Xanthaki argues that minority instruments as interpreted by the United Nations bodies promote such a policy. She also discusses how conflicts between cultural rights and other human rights may be resolved by using international law tools.
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Cultural Rights of Indigenous Peoples

The literature on the cultural rights of indigenous peoples has exploded recently, especially after the adoption of the UN Declaration on the Rights of Indigenous Peoples. Daes 1993 had already discussed the issue of cultural property vis-à-vis cultural heritage in the early 1990s: Daes’s work is still very relevant. Xanthaki 2007 goes more in depth into the challenges that indigenous understandings of culture pose for the current human rights system, as well as ways to overcome such challenges. Wiessner 2011 discusses the principles that should govern discussions on indigenous cultural rights, while Stamatopoulou 2011 analyzes in depth the content of the UN Declaration on the Rights of Indigenous Peoples on cultural rights. Odello 2012 gives a general overview of indigenous cultural rights in Spanish and assesses their transposition in Canada and Mexico. Xanthaki 2011 tackles a common argument regarding individual rights and, specifically, women’s rights that states and traditional liberals give against the recognition of indigenous cultural rights. Gibson 2011 analyzes indigenous cultural rights related to intellectual property rights. Finally, Vrdoljak 2006 discusses the return of indigenous cultural objects.

Daes, Erica Irene. Discrimination against Indigenous Peoples: Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, by Erica Irene Daes, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group of Indigenous Populations. UN Doc. E/CN.4/Sub.2/1993/28. Geneva, Switzerland: UN Commission on Human Rights, 28 July 1993.
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An early work, but still very relevant. Touches upon important violations of indigenous rights, including on sacred sites, human remains, authenticity of artworks, communal rights to designs, tourism and the effect on indigenous cultural rights, and confidentiality. Includes recommendations that are still relevant.
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Gibson, Joanna. “Community Rights to Culture.” In Reflections on the UN Declaration on the Rights of Indigenous Peoples. Edited by Stephen Robert Allen and Alexandra Xanthaki, 433–456. Oxford: Hart, 2011.
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Discusses traditional knowledge, communal ownership, and customary access, and links them to cultural self-determination, cultural relativism, public domain, and community-based documentation. Gibson explains why conventional intellectual property rights may not be appropriate to protect indigenous rights; however, disparate forms of recognition of customary law may also not be helpful in the long run, as they undermine the potential of finding a sui generis universal protection.
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Odello, Marco. El derecho a la identidad cultural de los pueblos indígenas de América: Canadá y México. Madrid: Liberia UNED, 2012.
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A book focused on the cultural rights of indigenous peoples. Discusses the United Nations and American standards on indigenous rights, and then looks specifically at the constitutional arrangements in Canada and Mexico, including their challenges and weaknesses.
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Stamatopoulou, Elsa. “Taking Cultural Rights Seriously: The Vision of the UN Declaration on the Rights of Indigenous Peoples.” In Reflections on the UN Declaration on the Rights of Indigenous Peoples. Edited by Stephen Robert Allen and Alexandra Xanthaki, 387–412. Oxford: Hart, 2011.
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Offers a historical overview of indigenous cultural rights, including the prohibition of genocide. The piece outlines the relevant provisions of the UN Declaration on the Rights of Indigenous Peoples and discusses them in the light of the case law and practice of international bodies. It has a specific section on the obligations of the states.
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Vrdoljak, Ana Filipa. International Law, Museums and the Return of Cultural Objects. Cambridge, UK: Cambridge University Press, 2006.
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A historical analysis of how colonized peoples, and especially indigenous communities, had their cultural objects taken away, beginning in the 19th century. Discusses restitution of indigenous artifacts as part of decolonization. Although completed before the adoption of the UN Declaration on the Rights of Indigenous Peoples, the analysis is still very relevant.
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Wiessner, Siegried. “The Cultural Rights of Indigenous Peoples: Achievements and Continuous Challenges.” European Journal of International Law (2011): 121–140.
DOI: 10.1093/ejil/chr007Save Citation »Export Citation »E-mail Citation »
The article views indigenous peoples as organic groups, and discusses the principles that should guide any discussion on indigenous cultural rights.
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Xanthaki, Alexandra. “Indigenous Cultural Rights.” in Indigenous Rights and United Nations Standards. By Alexandra Xanthaki, 196–236. Cambridge, UK: Cambridge University Press, 2007.
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Xanthaki discusses how indigenous cultural claims fit in the human rights conundrum. Differences as to the meaning of culture, its collective element, and its commercial element pose challenges to the adequate protection of indigenous cultural rights. Includes states’ statements on the issue from the elaboration of the UN Declaration.
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Xanthaki, Alexandra. “The UN Declaration on the Rights of Indigenous Peoples and Collective Rights: What’s the Future for Indigenous Women?” In Reflections on the UN Declaration on the Rights of Indigenous Peoples. Edited by Stephen Robert Allen and Alexandra Xanthaki, 413–432. Oxford: Hart, 2011.
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The piece discusses the concerns raised that recognition of collective cultural rights of indigenous peoples may trump the rights of indigenous women. Xanthaki advocates against perceiving indigenous peoples as a separate case, as this, she argues, would deprive them of using the tools that international law offers to deal with such conflicts.
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