Part III Rights to Culture, Ch.10 Culture: Articles 11(1), 12, 13(1), 15, and 34
Edited By: Jessie Hohmann, Marc Weller
- Indigenous peoples — Self-determination
Articles 11(1), 12, 13(1), 15, and 34
Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with the indigenous peoples concerned.
Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.
2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.
The freedom of Indigenous peoples to have their Indigenous identities and cultures respected has been the main incentive for their struggle and one of the main reasons for the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The recognition of Indigenous cultural rights is deeply rooted in the principles of respect of the diversity and richness of their identities, the end of historical injustices committed against them, and the principle of self-determination, all of which are incorporated in the Preamble of the Declaration. The gross disrespect of Indigenous cultures by States has been evident in their assimilationist policies, which have included the brutal removal References(p. 274) of Indigenous children from their families, unprecedented destruction of Indigenous cultures, and wide suppression of Indigenous languages and religions. Patterns of expropriation of Indigenous religious and cultural objects and neglect, even destruction of Indigenous cultural manifestations, unfortunately still continue.1 Together with more awareness of the rights of vulnerable groups, recent decades unfortunately also witness the unruly development of projects by transnational corporations without the appropriate cultural sensitivity, especially in Indigenous areas previously considered remote and inaccessible. In addition, new waves of tourism beyond ‘the beaten track’ commodify important Indigenous historical and archaeological sites. It is therefore of no surprise that the protection of culture is so prominent in the whole text of the Declaration. The link between land rights and Indigenous cultural rights is of particular significance, but will be analysed in Chapter 14 on the provisions on land rights in this volume.
Aspects of Indigenous cultural rights can be found throughout the text of the Declaration; however, the Articles that focus on cultural rights are Articles 11 to 13, together with Articles 15 and 34. Articles 11 to 13 distinguish between Indigenous tangible heritage (Article 11); Indigenous traditions and customs (Article 11); the spiritual and religious aspects of Indigenous cultures (Article 12); and Indigenous intangible heritage (Article 13); whereas Article 25 focuses on inter-culturality in education and public information. The distinction is rather blurred and the language of the provisions errs towards the excessive. Indigenous representatives have insisted that the detailed language, with all its flaws, reflects to a large degree the experiences and problems Indigenous peoples face vis-à-vis their cultural rights.2
The above provisions of the Declaration regarding cultural rights must be put within the general context of current standards of international law.
Several UNESCO documents have maintained the importance of culture for the identity and development of the individual. The 1966 UNESCO Declaration of the Principles of International Cultural Co-operation3 declared the respect that States should have to ‘the distinctive character of each’ culture. This is reflected in the statement of the Preamble of the UNDRIP that ‘all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind’. The 1972 Convention concerning the Protection of the World Cultural and Natural Heritage is also reflected in the UNDRIP provisions on cultural rights in the recognition that cultural heritage has References(p. 275) to be protected.4 The 2001 UNESCO Universal Declaration on Cultural Diversity5 is also in accordance with the spirit of the UNDRIP as it declares ‘that culture is at the heart of contemporary debates’ on identity and social cohesion, affirms that respect for the diversity of cultures is necessary for international peace, and views the defence of cultural diversity as ‘an ethical imperative, inseparable from respect for human dignity’. The text supports cultural pluralism. Similarly, but using a stronger language, the UNDRIP’s Preamble proclaims that ‘all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.’ In addition, the 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore6 specifically protects the culture of sub-national groups, while the (2005) UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions,7 which has 129 State Parties, recommends ‘the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples’ (Article 2). Finally, also of relevance is the (2003) UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage,8 which specifically recognizes that Indigenous communities play an important role in the production, safeguarding, maintenance, and recreation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity.
Turning to human rights instruments, the individual right to culture has been recognized in Article 27(1) of the Universal Declaration of Human Rights9 and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).10 The work that the Committee on Economic, Social and Cultural Rights (CESCR) has done on the definition of culture and the right to participate in the culture is particularly important for Indigenous peoples.11 In actual truth, one may argue that in a similar manner to the UN Declaration on Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (UN Declaration on Minorities)12 and Article 27 of the ICCPR, the UNDRIP provisions on cultural rights represent an interpretative tool of Article 15 References(p. 276) of the ICESCR specifically on Indigenous cultural rights. In addition, the cross-fertilization among the UN human rights bodies regarding the interpretation of Indigenous cultural rights is obvious, as the Human Rights Committee (HRComm), the CESCR, the Committee on the Elimination of Racial Discrimination (CERD), and the Committee on the Elimination of All forms of Discrimination against Women (CEDAW Committee) all discuss Indigenous cultural rights in a way that adopts the content of the UNDRIP.
Of paramount importance has been the work of the HRComm especially prior to the adoption of the UNDRIP. The Committee has referred to the broad understanding of the term ‘culture’ and has talked about Indigenous linguistic rights,13 cultural autonomy in terms of cultural institutions, consultation regarding traditional means of livelihood,14 and protection of sites of religious or cultural significance.15 The Committee’s comments in its concluding observations followed discussions on Indigenous cultural rights in the case law, including Apirana Mahuika and Others v New Zealand,16 Lubicon Lake Band v Canada,17 Lansman and Others v Finland in 199418 and 1996,19 Francis Hopu and Tepoaitu Bessert v France,20 Lovelace v Canada,21 and Kitok v Sweden.22 These comments of the HRComm have been important in convincing the States of the validity of the UNDRIP related to cultural rights
The work of the CERD has also been particularly important in elaborating Indigenous cultural rights: Article 5(e)(vi) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)23 prohibits discrimination before the law in the exercise of cultural rights and recognizes in particular ‘the right to equal participation in cultural activities’. The CEDAW Committee has increasingly been interested in discussing cultural frameworks that affect Indigenous women.24 The Convention on the Rights of the Child25 also recognizes in its Preamble ‘the importance of the traditions and cultural values of each people for the protection and harmonious development of the child’. Article 30 of the Convention proclaims that the Indigenous child ‘should not be denied the right’ to enjoy his or her own culture. For example, General Comment 11 of References(p. 277) the Committee has emphasized that positive measures are needed in order to fulfil the rights of the Indigenous child to his or her culture.26
In addition to the above, one should not forget the positive contribution that the adoption of regional instruments has had on paving the way to the adoption of cultural rights in the UNDRIP. In the 2000 ASEAN Declaration on Cultural Heritage,27 Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam recognized the importance of cultural identity. Even though the text refers several times to the ‘national cultures’, it also mentions Indigenous cultures. It urges States to protect tangible and intangible heritage and intellectual property rights, and put a stop to the illicit transfer of cultural items. Similar is the spirit of the 2006 Charter for African Cultural Renaissance,28 which protects tangible and intangible heritage, but also leans towards the preservation of ‘national integrity’ with no mention of tribal or Indigenous cultures. Still, the text emphasizes the need to end cultural domination. The 2011 Faro Council of Europe Framework Convention on the Value of Cultural Heritage for Society,29 a binding document for State Parties, explicitly refers to ‘heritage communities’ and their rights to participate in and benefit from the cultural heritage.30 The Convention has been ratified by seventeen European States so far, mainly from Eastern Europe.31
Regional bodies have been instrumental in helping the recognition of strong cultural rights in the UNDRIP. The Inter-American Court has commented on cultural rights in a way that complements and further interprets the content of the UNDRIP. Interesting has been the reference of the Court to the Indigenous ‘right to cultural integrity’. In Pueblo Indígena Kichwa de Sarayaku v Ecuador decided in June 2012,32 the Court held that among other rights, the granting of a concession for oil exploration and exploitation within the Sarayaku people’s territory without their consent violated ‘the right to cultural integrity’.33 Gilbert has noted that the emergence and development of an Indigenous ‘right to cultural integrity’, which includes rights to subsistence, livelihood, cultural diversity, and heritage, is the outcome of a human-rights-based approach to culture.34 Significantly, the Court’s culturally driven approach to land rights has carved the way for growing international practice in this field. This will be discussed more with regard to the provisions on land rights in this volume.
The African system of human rights protection appears to follow the steps of the Inter-American system and its invaluable contribution to the evolution of Indigenous rights in the cultural domain. The African Charter on Human and Peoples’ Rights requires States to take References(p. 278) specific measures for the promotion of cultural identity and the awareness and enjoyment of the cultural heritage of national ethnic groups and minorities and Indigenous sectors of the population.35 In 2010, the African Commission on Human and People’s Rights ruled that the Endorois’ eviction from their traditional land for tourism development violated the religious and cultural rights of the Endorois.36 In 2017, the Court held in the African Commission of Human and Peoples’ Rights v Kenya (the ‘Ogiek case’) that the Ogiek violated the right to culture as recognized in the African Charter, interpreted in light of the UNDRIP.37
Although ILO Convention 10738 aimed at the ‘progressive integration’ of Indigenous peoples into the lives of their respective countries (Article 2 of ILO Convention 107) and assimilationist practices were tolerated, still Indigenous cultural rights are protected by the Convention to some extent. For example, States are urged to take measures to promote Indigenous ‘cultural development’ (Article 2(2)(b)). One could sense that the cultural development promised was at the time of drafting the Convention considered part of a narrowly understood ‘integration’ project; however, an interpretation of this Article in line with the current multicultural spirit of international law can truly protect Indigenous cultures.
Contrary to ILO Convention 107, ILO Convention 16939 is more forthcoming in its protection of Indigenous cultural rights. Article 2(1) ensures that States must take action to promote the full realization of Indigenous cultural rights ‘with respect for their social and cultural identity, their customs and traditions and their institutions’. The Convention asks States to take special measures to ‘safeguard’ the cultures of Indigenous peoples (Article 4). The ‘social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected’ according to Article 5 of ILO Convention 169 and ‘due account shall be taken of the nature of the problems which face them both as groups and as individuals’. Indigenous communities have been disappointed that the Convention does not view Indigenous cultural rights under the framework of self-determination; this, though, should not detract from the effectiveness of the instrument. The Committee of Experts has repeatedly commented on cultural rights of Indigenous peoples that are protected both by ILO No 169 and the UNDRIP, including health practices consistent with Indigenous cultures, respect for Indigenous customary laws, and respect for cultural heritage.40 This application of the same standards undoubtedly strengthens the force of the cultural rights provisions of the UNDRIP.
References(p. 279) UN instruments on the rights of members of minorities are also relevant to Indigenous cultural rights as they include provisions on the right to participate effectively in cultural life41 and on the right to development.42 In the European context, the 1990 CSCE Copenhagen Document recognizes the right of persons belonging to national minorities to freely express, preserve, and develop their ethnic, cultural, linguistic, or religious identity and to maintain and develop their culture in all its aspects, free of any attempts of assimilation against their will (paragraph 32). This recognition is also included in the 1995 Framework Convention for the Protection of National Minorities. Although the UNDRIP went much further than such instruments, the latter have been important ammunition in convincing States that the UNDRIP provisions on cultural rights were a step towards the evolution of existing standards rather than alien to international human rights law.
Indigenous cultural rights have been at the heart of the text of the Declaration since its very inception. The Declaration of Principles adopted in 1984 by the Fourth General Assembly of the World Council of Indigenous Peoples in Panama was one of the first documents compiled by Indigenous representatives to express their claims.43 The Declaration noted that ‘the cultures of the indigenous peoples are part of the cultural heritage of mankind’ (Principle 3) and ‘the traditions and customs of indigenous people must be respected by the States, and recognized as a fundamental source of law’ (Principle 4). Interestingly, even at that early stage Indigenous representatives put limits to their own rights: Principle 7 accepted that ‘the institutions of indigenous peoples and their decisions, like those of States, must be in conformity with internationally accepted human rights both collective and individual.’ Principle 13 reflected the needs that Indigenous peoples have vis-à-vis the protection and development of their cultural rights: ‘the original rights to their material culture, including archaeological sites, artefacts, designs, technology and works of art, lie with the indigenous people.’
The 1985 Draft Principles, put forward by the newly established UN Working Group on Indigenous Populations of the then Sub-Commission (WGIP), had four of its seven paragraphs referring to Indigenous cultural rights. Among others, the draft Principles recognized to Indigenous peoples ‘the right to manifest, teach, practice and observe their own religious, traditions and ceremonies, and to maintain, protect, and have access to sites for these purposes’ (Article 4); the right to preserve their culture, identity, and traditions, and to pursue their own cultural development (Article 6); and the right to References(p. 280) promote intercultural information and education, recognizing the dignity and diversity of their cultures (Article 7).44
As the drafting of the new instrument intensified in the following years, more discussions within the working group led to more changes and additions; in this process, Indigenous peoples played an important role. Their suggestions, submitted in a document after a preparatory meeting of Indigenous representatives, were really detailed and had a very strong collective element throughout. For example, Article 11 read: ‘Indigenous nations and peoples continue to own and control their material culture, including archaeological, historical and sacred sites, artifacts, designs, knowledge, and works of art. They have the right to regain items of major cultural significance and, in all cases, to the return of human remains of their ancestors for burial according with their traditions.’ Article 13 prohibited any ‘technical, scientific or social investigations, including archaeological excavations; without their prior authorization, and their continuing ownership’, and ‘indigenous nations and peoples shall always enjoy unrestricted access to, and enjoyment of sacred sites in accordance with their own laws and customs, including the right of privacy.’45
Even though cultural rights, mainly included at the time in Articles 12 to 14, were in principle viewed as non-controversial rights, the collective element of the provisions, their detailed language, and the clear obligations they included made States restless. Even at this early stage of the drafting, Finland noted the difference between the cultural rights as included in the draft instrument and ‘the individual and negative nature of States obligations’ under Article 27 of the ICCPR. Canada also noted the need to balance Indigenous rights with the public interest or non-Indigenous rights.46
In 1989, a provision on language rights was added recognizing the right of Indigenous peoples ‘to develop and promote their own languages, including an own literary language, and to use them for administrative, juridical, cultural and other purposes’.47 Interestingly, the Saami Parliament asked for the inclusion of the requirement that officials know the language of Indigenous peoples when dealing with them, but this was not adopted.48
In 1993, the Chairperson of the Working Group on Indigenous Populations, Erica-Irene Daes, submitted a revised draft of the Declaration; by then, the provisions looked very similar to the ones finally adopted in 2007, almost fifteen years later. Consistent with the 1995 Daes ‘Principles and Guidelines for the Protection of the Heritage of Indigenous People’, Indigenous ownership over their culture is recognized to be collective, permanent, and inalienable, as prescribed by their customs and traditions. Daes insisted that no alienation of these elements of their culture should be allowed by international or national law, unless made in conformity with Indigenous peoples’ own traditional laws and with the approval of their own local institutions.49
References(p. 281) Four paragraphs recognized cultural rights: one was on tangible heritage; one on religious and spiritual traditions; one on more general intangible heritage, including languages; and one introducing a new right, the right of Indigenous peoples ‘to retain and develop their customs, laws and legal systems, in a manner not incompatible with universally recognised human rights and fundamental freedoms’.50 This last provision was to be strengthened even further: by August 1993, the draft provision recognized the right of Indigenous peoples ‘to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognised human rights standards’.51 The 1994 Technical Review of the Declaration brought up the issue of terminology: ‘cultural heritage’, as also mentioned by the Daes study on the protection of cultural and intellectual property, was more appropriate than ‘cultural property’. The Review also emphasized the importance of an individual right to culture that would coincide with a collective one and noted the additional limitations that the right to manifest one’s religion has under the ICCPR and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief. It finally asked the Working Group to consider placing cultural and intellectual property rights together; this was also UNESCO’s suggestion.52
The attempts of the Indigenous representatives throughout the sessions of the Working Group of the Draft Declaration (WGDD) not to change the text adopted by the Sub-Commission for fear of diluting it were remarkable. Articles on cultural rights included in Part III of the then draft Declaration appeared to get consensus in principle, but States still tried to restrict their scope.53 The main issue that States had with regard to these Articles continued to be their collective nature and debates were difficult and controversial. A few States, including France, Japan, and Sweden, argued repeatedly that international law did not recognize collective rights.54 Other States recognized the existence of collective rights, but feared that their inclusion would lead to the weakening of the respective individual rights.55 One ‘solution’ repeatedly suggested by the United States was the adoption of a language similar to the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, recognizing individual rights under collective capacity ‘exercised individually or in community with others’.56 Another suggestion was the inclusion of a paragraph protecting third parties, but again, this was rejected by Indigenous representatives.57 Such language indeed would lower the standards of international law on Indigenous rights, as both ILO Conventions 107 and 169 had already recognized a wide range of Indigenous collective rights without such explicit restrictions. Also, adoption of a language that would emphasize individual rights would nullify the References(p. 282) raison d’être of the new instrument. The United States also suggested that the cultural rights be redrafted to avoid the endorsement of special measures.58 Ironically, Argentina brought up the common heritage of mankind as an argument to restrict Indigenous cultural rights and asked for the omission of the word ‘right’ ‘in cases where, as in the present instance, the concept corresponds more to a general objective or aspiration’.59 During the discussions in the Working Group of the Commission, States also tried to delete the words ‘archaeological and historical sites’, disagreed on the inclusion of ‘spiritual property’60 and ‘spirituality’,61 and questioned the provisions on education as promoting separate systems for Indigenous communities.62
The discussion in the Working Group of the Commission also saw several suggestions for changes in Article 34 (then Article 33). The original version, Article 33, read:
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards.
States were reluctant to accept the inclusion of this provision in the final text, as they perceived it as far-reaching. Several States asked for the inclusion of restrictions based on the national legal system.63 The informal plenary at the Eleventh Session of the Working Group suggested the inclusion of the phrase ‘where they exist’ before juridical systems and customs, the implication being that not all Indigenous communities have such systems; of course, it would be up to the States in the first instance to decide on this matter. Also, some States asked for consistency of these customs and systems not only with the international human rights system, but also with national systems; otherwise, they claimed, this would allow Indigenous peoples ‘to opt out of national legal systems’.64 States also pushed for the inclusion of the term ‘reasonable’ before any measures they would have to agree on for the protection of Indigenous cultures.65
Despite all the disagreements of the States, the text formally remained unchanged for many years, a victory for Indigenous peoples. On 29 June 2006, the new Human Rights Council adopted the Draft Declaration on the Rights of Indigenous Peoples,66 incorporating most of the proposals submitted by the Chair of the Working Group on the Draft Declaration in 2006; some changes in the numbering of the Articles also occurred. Article 34 became Article 33; the references of distinct Indigenous juridical systems had survived the test so far, despite fierce opposition of States. Article 12 became Article 11, but maintained its content. However, restitution was diluted into redress in References(p. 283) the 2006 text. The second paragraph of Article 12, the old Article 13, also changed. The Human Rights Council submitted its resolution with the Declaration to the Sixty-First Session of the General Assembly, but the Declaration67 did not go through the Third Committee, as Namibia introduced amendments68 which were adopted by a recorded vote of 82 to 67, with 25 abstentions.69 Under the pressure by African States supported by Australia, Canada, New Zealand, and the United States,70 on 30 November 2006, the Third Committee deferred consideration and action pending on UN consultations, but put the end of the Sixty-First Session by September 2007 as a deadline for the adoption of the Declaration.71 Subsequent changes submitted by the African States focused on land rights,72 but they also wanted the right of Indigenous peoples to their institutional structures and juridical systems to become subject to national laws. Still, the suggested change was rejected. Other States which jumped on the opportunity for further changes pushed for the inclusion of clauses protecting the rights of others. In August, Canada, Colombia, New Zealand, and the Russian Federation presented yet another non-paper on the Declaration to the President of the General Assembly, tabling a complete alternative Declaration text. The non-paper introduced amendments to thirteen of the Declaration’s Articles, some of them clearly non-starters with Indigenous peoples and States alike. All these suggestions were not accepted.
Finally, the Declaration was adopted without any changes to the Human Rights Council’s text on cultural rights. In the interpretative statements delivered after the adoption of the Declaration, several States, including Australia, Canada, and Japan, repeated their concerns regarding the recognition of collective rights and the effect that their recognition would have on third parties.73
The UNDRIP does not define ‘culture’; however, all its provisions on Indigenous cultural rights follow a broad understanding of the concept, which includes language, literature, philosophy, religion, science, and technology, as well as ‘ideological systems’, such as knowledge, beliefs, values, customs, and habits. This is consistent with the approach of several UN bodies. In General Comment 23, the HRComm observed ‘that culture manifests itself in many forms’ and gave as examples ‘traditional activities [such] as fishing or hunting and the right to live in reserves protected by law’.74 In the Kitok and Lubicon Lake Band cases, the HRComm reaffirmed this wide understanding of culture. CERD General Recommendation XXIII on the Rights of Indigenous Peoples also gave a broad scope of the References(p. 284) concept that includes ‘distinct culture, history, language and way of life as an enrichment of the State’s cultural identity’.75 The UNDRIP views Indigenous peoples as the primary guardians and interpreters of their cultures, the true collective owners of their works, arts, and ideas. Consistent with the 1995 Daes ‘Principles and Guidelines for the Protection of the Heritage of Indigenous People’, Indigenous ownership over their culture is recognized to be collective, permanent, and inalienable, as prescribed by their customs and traditions. These principles have been followed in the Declaration.
The broad understanding of culture has had an important effect on the understanding of ‘the right to culture’. The actual scope of the right to culture has been a matter of concern for UN bodies.76 Article 15 of the ICESCR recognizes several aspects of this right, including the right: (a) to take part in cultural life; (b) to enjoy the benefits of scientific progress and its applications; (c) to benefit from one’s own scientific work and creative activity; and (d) to freedom of scientific work and creative activity. The right to take part in one’s cultural life seems most relevant to Indigenous peoples, yet at the same time quite generic and vague. Human rights instruments refer to ‘cultural rights’ or ‘the right to culture’, without being more specific than this. UN monitoring bodies have been making continuous attempts to open up the scope of the provisions on cultural participation in order to include other aspects of the right to culture.77 For example, importantly for Indigenous peoples, the CESCR has confirmed that the right to ‘participation in cultural life’ also includes ‘the right to benefit from cultural values created by the individual or the community’.78 The opinion of the Committee is quite a step forward from the actual language of the provision. The General Comment of the Committee explicitly links Article 15 of the ICESCR to the UNDRIP and recognizes the collective dimension of the right to participate in culture, put as ‘the right to take part in cultural life individually, or in association with others’.79
Contrary to other international instruments, the UNDRIP unfolds the generic ‘right to culture’ into several other rights included in several Articles, including the right of Indigenous peoples to their cultural traditions and customs; to manifestations of their cultures, spiritual, and religious traditions; to their histories, languages, and oral traditions; and so forth. Therefore, even though the understanding of culture is broad and so is the scope of the cultural rights included in the UNDRIP, the text clarifies such a scope. It is the first instrument that recognizes aspects of the ‘right to culture’ in such detail, treats such aspects as human rights (rather than State rights), and links them to sub-national groups (rather than to whole populations of States). In this respect, the Declaration pushes forward the existing standards of international law in cultural rights. UNESCO treaties, which have viewed cultural heritage as very much an issue of States, need to be re-interpreted in order to ensure consistency with the contents of the References(p. 285) Declaration. Interestingly, an Indigenous ‘right to cultural heritage’ is being currently discussed; its distinction from the Indigenous right to culture is not very clear.80 The UN Independent Expert in the Field of Cultural Rights referred for the first time in 2011 to a right to cultural heritage. ‘Considering access to and enjoyment of cultural heritage as a human right’, she noted, ‘is a necessary and complementary approach to the preservation/safeguard of cultural heritage.’81 The Faro Convention (2011), for example, recognizes the right of everyone ‘to benefit from cultural heritage’.
As mentioned earlier, of paramount importance for the UNDRIP provisions on cultural rights has been the work of the HRComm previous to the adoption of the UNDRIP as it has helped shaping the provisions of the UNDRIP. The Committee had talked about Indigenous linguistic rights,82 cultural autonomy in terms of cultural institutions, as well as consultation regarding traditional means of livelihood83 and protection of sites of religious or cultural significance.84 The Committee’s comments in its concluding observations followed discussions on Indigenous cultural rights in the case law, including Apirana Mahuika and Others v New Zealand,85 Lubicon Lake Band v Canada,86 Lansman and Others v Finland in 199487 and 1996,88 Francis Hopu and Tepoaitu Bessert v France,89 Lovelace v Canada,90 and Kitok v Sweden.91 These comments of the HRComm have been important in convincing the States of the validity of the UNDRIP related to cultural rights.
Since the adoption of the UNDRIP, the monitoring bodies have at times continued to refer to the generic right of Indigenous peoples to culture, such as the HRComm in the case of the Thule language and culture,92 but have also used the UNDRIP as the basis to refer to specific elements of Indigenous cultures. For example, the HRComm used in the concluding observations for New Zealand language very similar to that of the UNDRIP: the Committee recognized the ‘Māori’s right to conserve, promote and develop their own culture, language and cultural heritage, traditional knowledge and traditional cultural expressions, and the manifestations of their sciences and cultures’.93
One element that may be missing from the UNDRIP is the recognition of the right of Indigenous peoples to join in the culture and cultural activities of the State; in other words, the recognition of the duality of Indigenous rights recognized to Indigenous peoples as References(p. 286) members of the population of the State as well as separate culture bearers. One should recognize that first, such an aspect of the right to culture is included in the wide prohibition of discrimination in Article 2 of the UNDRIP, and, second, general human rights instruments have covered this aspect more than adequately: for instance, the CESCR has explained that the right to take part in cultural life in Article 15 includes a negative dimension, which the Committee defined as ‘non-interference with the exercise of cultural practices and with access to cultural goods and services’, and a positive aspect, defined as ‘ensuring preconditions for participation, facilitation and promotion of cultural life, and access and preservation of cultural goods’.94 Thus, it seems that the UNDRIP Articles referring to Indigenous cultural rights must also be interpreted as including a negative aspect and a positive aspect, even in the cases where both aspects are not explicitly in the text. The CERD has also focused on equality of Indigenous peoples in the exercise of their cultural rights using the prohibition in Article 5(e)(vi) of the ICERD on the prohibition of discrimination before the law in the exercise of economic, social, and cultural rights, and in particular ‘the right to equal participation in cultural activities’.
Another aspect of cultural rights that is not included in the UNDRIP provisions on cultural rights relates to theories of inferiority of Indigenous cultures. One has to remember that Article 15 of the UNDRIP talks about interaction and awareness of Indigenous cultures; more specifically, the Preamble condemns theories of racial superiority, and Article 8(2) includes a prohibition against any form of propaganda designed to promote racial discrimination. Still, hate speech against Indigenous cultures is not included as such in the UNDRIP. Monitoring bodies such as the CERD have touched on this issue, for example with respect to the dissemination of ideas based on racial superiority against the Mestizo and Maya in Belize.95
Article 11(1) of the UNDRIP recognizes the Indigenous ‘right to practice and revitalize their cultural traditions and customs’. It reflects the (2005) UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which recognizes that cultural diversity can be protected only through human rights, including the right to choose cultural expressions, and recommends ‘the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples’ (Article 2). Article 11(1) is stronger than Article 4(b) of ILO Convention 107, the latter also requiring States to recognize ‘the danger involved in disrupting the values and institutions’ of Indigenous peoples, and further including a clause: ‘unless they can be replaced by appropriate substitutes which the groups concerned are willing to accept’. There is no suggestion in the Convention how the wishes of the group would be understood; maybe more suspiciously, one cannot easily think of benign ‘appropriate substitutes’ to the values and institutions of Indigenous groups that come from outside. Article 2(2)(b) of ILO 169 requires States to take measures ‘promoting the full realisation of the … cultural rights of [indigenous] peoples with respect for their social and cultural identity, their customs and traditions’, while Article 5 promotes the ‘social, cultural, religious and spiritual values and practices’ of Indigenous peoples.
References(p. 287) Although the protection in Article 11(1) of the UNCDRIP is strong, one should not forget that the right to cultural practices and traditions is not absolute. States have repeatedly raised concerns about the possible conflicts between such cultural practices and rights of individuals. Such fears are indeed addressed by the UNDRIP. Articles 1 and 46 of the UNDRIP place the text of the Declaration within the general standards of international law, including its well-known principles of solving conflicts between human rights. It is necessary to ensure that Indigenous communities are informed and give their free, prior, and informed consent before any interference with their cultural practices; non-discrimination must always be taken into account; and recognition of Indigenous communities as the main interpreters of their traditions as owners must be ensured. At the same time, the Declaration does not stand on its own, but forms part of the wider human rights system and, thus, is susceptible to the checks, guarantees, and limits set by this system. This is clear in the language of preambular paragraph 16, which encourages States ‘to comply with and effectively implement all international instruments’, as well as the individual human rights guarantee included in Article 1 of the UNDRIP. According to this, nothing in the UNDRIP shall lower the existing standards on the rights of peoples as well as individuals. Even though the explicit reference to international human rights is not necessary, neither is it unjustified: the rights recognized are not absolute.
Who and how will decide whether the specific Indigenous cultural practice or tradition is in conflict with international human rights? The individual whose rights are put in question by the tradition or custom must be the first point of reference.96 Of importance is also that the Indigenous group must be allowed to exercise its own rules of interpretive and decision-making processes (part, themselves, of their culture) in the application of universal human rights norms.97 Overall, conflicts between international human rights and Indigenous rights will put in motion the Lovelace test of proportionality, necessity, equity, and balance of rights.98
In addition to Indigenous cultural traditions and customs, Article 11(1) of the UNDRIP also protects the right of Indigenous peoples to their tangible heritage. The Article recognizes ‘the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature’. The terms ‘develop’ and ‘future manifestations’ remind the international community that Indigenous cultures are not objects of the past;99 the Declaration recognizes that cultures evolve and does not attempt to freeze cultural development—rather, to give Indigenous peoples control to determine their own cultural evolution.
Although the right of Indigenous peoples to their tangible heritage was one of the least controversial discussions in the elaboration of the UNDRIP, serious violations of this right can still be observed all around the world. Indeed, there has been renewed interest in guaranteeing Indigenous peoples rights to their tangible cultural heritage, References(p. 288) usually initiated by Indigenous communities themselves. Of particular importance is the work of museums when they involve the exhibits of Indigenous communities. Common problems relate to the lack of specific references to Indigenous cultures and knowledge, the misreading of Indigenous artefacts and their meaning by non-Indigenous outsiders, and the lack of participation of Indigenous communities in the preparation, exhibition, and benefits that derive from such exhibitions.
International law has been to a degree a mere observer to the misappropriation of Indigenous artefacts, allowing States to treat Indigenous exhibits as ‘national’ treasures and to make the decisions regarding their transfer and exhibition.100 The (1972) UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), for example, only protects objects of outstanding or monumental value and does not give Indigenous peoples any role in protecting their own heritage. The Convention does recognize States’ ‘duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage’ (Article 4), but recognizes no right of any group to such heritage. In addition, if one sticks to the letter of the Convention, unauthorized filmings of Indigenous religious ceremonies and secret recordings of songs and rituals would be protected by the Convention as it protects photographs, films, and sound recordings that have a historical value; at the same time, Indigenous communities have no protection against such unauthorized filmings and recordings. Even though the right to culture as included in general and minority human rights instruments helps Indigenous peoples in their claims, the adoption of the UNDRIP clearly changes the rule of the 1972 Convention: now, Article 4 has to be interpreted in the light of Article 11(1) of the UNDRIP as well as the right of Indigenous peoples to free, prior, and informed consent on matters that directly affect them. In other words, States’ duty to identify, protect, conserve, and present Indigenous tangible heritage found on their territory must coincide with the right of the relevant Indigenous community to control the protection, conservation, and presentation of such tangible Indigenous heritage The inscription of specific Indigenous sites in the UNESCO World Heritage List has uncovered several problems relating to the different understandings of the importance or the type of management of these sites between the Indigenous communities in question and the officials. Similarly, the (1970) UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property must be interpreted in a way consistent with the UNDRIP. The Convention protects:
(a) Cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory; (b) cultural property found within the national territory.
The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, created to compliment the 1970 Convention, recognizes the heritage of tribal and Indigenous communities living in a Contracting State. Although the 1995 Convention puts the State where such heritage comes from in charge of such a claim against References(p. 289) another State and is of no use for heritage taken by the State without the consent of the Indigenous community, nevertheless it explicitly proclaims that the missing object ‘will be returned’ to the tribal or Indigenous community to which it belongs. One has to admit that recently there have been instruments that distance themselves from such restrictive understandings of culture. For example, at the European level, although the Fribourg Declaration of Cultural Rights falls short of recognizing a collective right to culture, it does recognize the right to culture for ‘everyone, alone or in community with others’; and the Council of Europe Framework Convention on the Value of Cultural Heritage for Society recognizes the right ‘alone or collectively’. Such instruments ‘have opened new perspectives on social participation in heritage making.’101
Indeed, the duality that prevails in instruments that view cultural heritage as belonging either to the State or to an individual ends after the adoption of the UNDRIP, which explicitly recognizes the right of Indigenous peoples to their cultural heritage found within the State territory and Indigenous control over their cultural tangible heritage. The recognition that the UNDRIP now offers to Indigenous peoples is important in turning them from passive participants in processes of alienation from their objects102 to actively deciding the fate of their cultural objects.103
Concerns have been raised with regard to the Indigenous control over their cultural heritage and rights of individuals and/or the common culture of mankind. The right of Indigenous peoples to their heritage, critics have suggested, may lead to unjustified restrictions in the access to the heritage of mankind. Total Indigenous control over their cultural heritage may deprive, critics argue, other writers and artists of being inspired by Indigenous artefacts, literatures, and philosophies. Article 15 of the ICESCR protects the right of everyone to enjoy the benefits of scientific progress and its applications and to benefit from the moral and material interests resulting from scientific production. In the 1950 Agreement on the Importance of Educational, Scientific and Cultural materials (the Florence Agreement), the Contracting States undertook that they will as far as possible ‘contribute their common efforts to promote by every means the free circulation of educational, scientific and cultural material, and abolish or reduce any restrictions to that free circulation’.104 In principle, one would see the need to protect the cultural rights of vulnerable groups such as Indigenous peoples overriding the need for free access of cultural objects, but of course such issues can only be resolved in an ad hoc case.
References(p. 290) 3.5 Rights to Spiritual and Religious Tradition (Article 12 of the UNDRIP)
Turning to spiritual and religious tradition, Article 12 recognizes the right of Indigenous peoples to ‘manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains’. Again, the scope of the provision is wide, as it rightly adopts the understanding of religion endorsed by the HRComm in General Comment 22 on the Right to Thought, Conscience and Religion, which includes the right to hold ‘theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.’
Article 12 is the first clear and explicit recognition of Indigenous spiritual and religious rights in international law. The recognition of Indigenous spiritual and religious beliefs relates to Article 18 of the ICCPR, which protects the right of everyone ‘to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching’. It is noteworthy that Article 18 protects equally religion or belief; in this respect, whether or not the State recognizes the Indigenous spiritual values as a religion is irrelevant. The CESCR has stated that ‘States parties must also respect the rights of indigenous peoples … to maintain and strengthen their spiritual relationship with their ancestral lands and other natural resources traditionally owned, occupied or used by them, and indispensable to their cultural life.’
The right to religion has so far been of limited use to Indigenous peoples, mainly because of its recognition as an individual right in international law; hence, current, national case law has been heavily reliant on the right to property or even intellectual property rights for the protection of manifestations of the Indigenous spiritual beliefs.105 The UNDRIP is the first international instrument that recognizes explicitly a collective aspect of the right to religion. Newman has noted that although the right is individually framed in Article 18 of the ICCPR, ‘the fact that individuals normally require like-minded communities to be able to exercise their religious rights effectively is sufficient justification for accepting that religious associations as juridical persons are also beneficiaries of subjective rights under Article 18.’106 National courts have only recently started discussing the collective element in the right to religion.107
References(p. 291) The recognition of a collective right to religion in the UNDRIP is an important step forward in international law standards and may have a considerably positive effect on Indigenous peoples’ rights,108 provided that States implement such a provision. One has to note that in conflicts between Indigenous religious rights and third parties’ rights, Indigenous peoples’ concerns should prevail as international law has accepted that the latter are more vulnerable and need further protection. More problematic may be situations when Indigenous religious rights conflict with religious rights of other Indigenous or minority groups.109
More generally, Article 12 reflects and codifies several judgments of the IACtHR, including the Saramaka case.110 In the Aloeboetoe case, the Court took into account the customary marriage practices of the Saramacan people.111 The Inter-American Court also ordered reparations to reinforce the cultural traditions and customary law of the Achí Mayan peoples when their culture was almost destroyed through human rights violations. The Court found in the Massacre of Plan de Sánchez case that the deaths of the women and elderly, who were traditionally the oral transmitters of the Mayan Achí culture, interrupted the passage of cultural knowledge to future generations, and the militarization and repression after the massacre resulted in the Indigenous peoples’ loss of faith in their traditions.112 The Court specifically discussed Indigenous burial sites and implied that prohibition of such sites violates their right to religion. Indeed, the prohibition of the Indigenous group to practise their traditional burial ceremonies because of their relocation was deemed a violation of their rights,113 which Guatemala accepted as a violation of ‘the freedom to manifest their religious, spiritual, and cultural beliefs’.114 In the Bamaca Velasquez case, the Court also noted that the funeral ceremonies of the Mam ethnic group were ‘something that is traditional in the indigenous culture’.115 The Case of Moiwana Community v Suriname, where an Indigenous people were denied the right to honour their deceased according to their own traditions, is of huge importance for the protection of Indigenous culture. As the Indigenous peoples did not know what happened to the remains of their deceased, the Court ordered Suriname to take all measures ‘to recover promptly the remains of the Moiwana community members killed’ by the national army in 1886.116 Therefore, in fulfilling Indigenous peoples’ cultural rights, States are now under the obligation to act in positive and precise ways in order to recover the remains of Indigenous members.
Article 13(1) recognizes the right of Indigenous peoples ‘to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, References(p. 292) writing systems and literatures, and to designate and retain their own names for communities, places and persons’, while Article 13(2) urges States to take measures to this end, as well as measures to ensure that Indigenous peoples understand and are understood in ‘political, legal and administrative proceedings’. Such measures have to be effective, so the mere establishment of measures without regular evaluation concerning their outcome does not fulfil the letter of the provision.
The confusion between the scope of Articles 11 and 13 of the UNDRIP reflects the confusion around the (2003) UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage and the (2005) UNESCO Convention for the Protection and Promotion of the Diversity of Cultural Expressions. Indeed, State reports revealed a lack of understanding in the distinction of the ‘diversity of cultural expressions’, which is the object of the 2005 Convention, and the ‘manifestations of intangible cultural heritage’, the object of the 2003 Convention.117 The (2003) UNESCO Convention for Safeguarding of the Intangible Cultural Heritage defines intangible cultural heritage as the practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts, and cultural spaces associated therewith—that communities, groups, and, in some cases, individuals recognize as part of their cultural heritage. Hence, one would say that although the 2005 UNESCO Convention applies to all UNDRIP provisions on cultural expressions, the 2003 Convention and intangible heritage correspond mainly to Articles 12 and 13 of the UNDRIP. Indigenous cultural heritage is transmitted from generation to generation, is constantly recreated by communities and groups, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. The 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage specifically recognizes that Indigenous communities play an important role in the production, safeguarding, maintenance, and recreation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity.
The protection of Indigenous names in Article 13(1) of the UNDRIP reflects the UN Declaration on Minorities, which also protects minority names; still, the UNDRIP goes much further because of the detailed recognition of various Indigenous cultural elements and its strong collective element. In essence, Indigenous communities are rightfully confirmed as the primary guardians and interpreters of their cultures and the true collective owners of their works, arts, and ideas.
At times, there is tension between the protection of the world’s cultural heritage and allowing Indigenous peoples to be in charge of their own cultural heritage. For example, implementing the World Heritage site of Laponia in northern Sweden, which obtained its World Heritage status in 1996, became an arena for ‘Sami ethno-political struggle for increased self-governance and autonomy’,118 where the Saami vision conflicted with the vision of the municipalities and the State.119 These incidents are not uncommon.
References(p. 293) Of particular importance is the protection of Indigenous languages. Included in Article 13 of the UNDRIP, the right to Indigenous languages carries with it the work of the HRComm on language rights. In addition to several European instruments on language rights,120 the right of members of minorities to their language is also linked to the right to education in the 1960 Convention against Discrimination in Education. The Convention provides for separate schools under certain conditions (Article 2(b)) and recognizes the right of minorities to carry on their own educational activities and, in so doing, to use or teach in their own language (Article 5). Should such education be funded by the State? May believes that the effective protection of this right brings with it some reasonable expectation for some sort of State support.121
The CERD has implemented the provision on Indigenous language rights when discussing the New Zealand report. The Committee specifically encouraged New Zealand to develop a new Māori language strategy and a specific schedule to implement changes in the law regarding Indigenous intellectual and cultural rights.122 The CERD has also expressed its concern regarding inadequate measures for ethnic language in Laos, ‘in particular the non-written languages, which form part of the national cultural heritage’.123 The Inter-American Court has emphasized the importance that language has for Indigenous populations as one characteristic that differentiates them from the rest of the population and as ‘one of the most important elements of identity of any people, precisely because it guarantees the expression, diffusion, and transmission of their culture’.124
Notwithstanding the continuing challenges, one should mention that some Indigenous languages are currently experiencing some revitalization. The UNDRIP protection of the Indigenous languages will no doubt help Indigenous groups expose their children to their Indigenous languages.
Article 15 underlines the need that Indigenous ‘cultures, traditions, histories and aspirations’ be reflected in general education and public information and, once again, asks States to eliminate prejudice and discrimination and promote tolerance, understanding, and good relations among Indigenous peoples and other segments of the populations.
Article 15 of the UNDRIP encapsulates the multicultural vision, as reflected in several UNESCO documents, a vision of a society where cultures and traditions interact and people get to know about each other’s identities in a two-way approach.125 This is important in view of the general State practice to insist on the Indigenous communities learning about the non-Indigenous culture, language etc. without also insisting on the References(p. 294) need for the non-Indigenous population to be aware of and familiar with the Indigenous cultures, languages, and identities. It is interesting to note that the provision places obligations on the States for promoting tolerance, understanding, and good relations; Indigenous peoples themselves are under no obligation by the Declaration to interact with the non-Indigenous segments of the population. This is particularly important for Indigenous communities who wish to continue to live in voluntary isolation.126 As the CESCR has confirmed particularly with regard to Indigenous peoples, ‘the decision by a person whether or not to exercise the right to take part in cultural life individually, or in association with others, is a cultural choice and, as such, should be recognized, respected and protected on the basis of equality.’127
Article 15 of the UNDRIP reflects the 2001 UNESCO Universal Declaration on Cultural Diversity,128 which affirms the importance of culture for international peace, and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which urges States to create an environment that would encourage the protection and promotion of Indigenous cultures. The 2005 Convention has a pluralistic vision of State cultural policies. Polymenopoulou argues that this convention ‘has been the first UN binding instrument giving teeth to both the concepts of cultural diversity and intercultural dialogue’.129 The importance of cultural diversity and inter-cultural dialogue were further stressed in the 2007 World Summit Outcome document.130
Article 29 of the Convention of the Rights of the Child is also in the same spirit as Article 15 of the UNDRIP, as it stresses the importance of ‘understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin’. The Committee has expressed concern that aboriginal children in the Canadian welfare system are not able to preserve their identity, keep their name, culture, and language, and receive an education in their own cultural background.131
Article 34 of the UNDRIP recognizes the right of Indigenous peoples ‘to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards’. Article 34 embodies the right to self-determination as expressed in the Preamble and Articles 3, 4, and 5 of the Declaration. Here, the right to cultural autonomy is not separated from the right to self-determination as opposed, for example, to Articles 1 and 27 of the ICCPR, which separate self-determination and cultural autonomy respectively. On this point, the HRComm has emphasized the distinction that the Covenant draws between the right to References(p. 295) self-determination and the rights of minorities.132 Conversely, Article 34 draws together self-determination and cultural rights.
Of course, it is interesting that Article 34 of the UNDRIP does not refer to Indigenous ‘laws’, but to ‘customs’; also, the text includes the limiting clause ‘in the cases where they exist’. Still, the recognition of the right of Indigenous peoples to promote, develop, and maintain their institutional structures and juridical systems is a major success, especially as several States had objections to the inclusion of this right. Australia, for example, argued in the General Assembly that:
The Declaration places indigenous customary law in a superior position to national law. Australia will read the whole Declaration in accordance with domestic laws and international human rights standards.
Obviously, this statement does not follow current standards of international law: the International Court of Justice has confirmed that ‘the fundamental principle of international law [is] that it prevails over domestic law’.133 Making the rights recognized by the Declaration subject to national law would just not make sense.
It is obvious that the UNDRIP takes a substantial step further than existing instruments on minority rights. In accordance with Article 34 of the UNDRIP, States must allow Indigenous judicial customs and systems to run parallel to the national judicial systems. Indigenous customs and structures, including circle sentencing and Indigenous sentencing courts, community-based structures and bodies, especially community-based family violence programmes, mentoring and policing programmes, as well as community-based alternatives to prisons are included in such customs and structures.134 Although theory as well as practice worldwide has accepted legal and judicial pluralism,135 international law has not really followed. Even though human rights instruments recognize autonomy, especially instruments referring to minority rights, they include no references to juridical customs and institutions. ILO Conventions 107 and 169 are the only human rights instruments referring to customs, albeit in a prototype manner. ILO Convention 107 recognizes Indigenous customs and institutions, but its language and the several clauses act as a double sword: these populations will be ‘allowed to retain their own customs and institutions where these are not incompatible with the national legal system or the objectives of the integration programmes’ (Article 7(2)). The requirement of compatibility of Indigenous customs and institutions with non-Indigenous ones does not stand well in today’s vision of Indigenous rights. Similarly, Article 8 reads that ‘to the extent consistent with the interests of the national community and the national legal system’, ‘(…) the methods of social control and the Indigenous customs in regard to penal matters’ are to be respected (Article 8). Although References(p. 296) the Convention is now closed for ratification, it is still in force in eighteen States, some with significant Indigenous populations.
ILO Convention 169 is more forthcoming: it requires that the ‘integrity of the values, practices and institutions’ of Indigenous peoples ‘shall be respected’ (Article 5(b)). The ILO has specifically explained that any protection should not be ‘restricted only to traditional institutions, but rather also apply to current practices of indigenous peoples’ economic, cultural and social development’.136 Article 8 of ILO Convention 169 requires States to give due regard to the customs or customary laws of Indigenous peoples, when applying national laws and regulations. The ILO has explained that the criteria of Article 8(1) are cumulative; in other words, Indigenous customs can be restricted only when incompatible both with the national legislation and the international human rights standards.137 This double condition is rather limiting. In contrast, Article 34 of the UNDRIP goes further: apart from being more detailed about the rights of Indigenous peoples, it does not require compatibility with the national legal system, but only compatibility with international human rights standards. Finally, Article 9 of ILO Convention 169 asks for respect of the Indigenous methods that deal with offences and customs with regard to penal matters. In 2012, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) asked Fiji to indicate areas where there is ‘an interaction between customary law and written law of the country and how the judiciary has dealt with cases of such nature, by providing copies of court decisions’.138 In 2011, the CEACR also commended Mexico for measures in the administration of justice that take into account the Indigenous habits and customs and ensure the translation of the proceedings to the Indigenous languages.139
Problems arise when Indigenous customs and decisions of Indigenous institutions conflict with individual rights. The same principles as discussed earlier with respect to other conflicts between Indigenous cultural rights and other rights and interests apply. When a conflict between total Indigenous control over their cultural matters and individual rights arises, the balance lies in principle towards the vulnerable group, namely Indigenous peoples as the victims of continuous disrespect of their cultures. The maintenance of multiple legal systems within the State brings with it some challenges that have to be addressed; one of the main ones, emphasized as seen above by States, has been a possible conflict between a specific Indigenous juridical custom and other human rights. The Australian Report on Customary Law states that customary law may mean control of the judicial processes by male elders or family members who were themselves perpetrators of crimes.140 UN bodies have also expressed their concern: the Committee on the Rights of the Child has mentioned customary laws and cultural practices that have a detrimental References(p. 297) effect on Indigenous children and especially girls.141 Article 34 prioritizes international human rights in a possible conflict with Indigenous juridical customs and systems.
The second challenge relates to the hierarchy of systems. Will the State have the ultimate word on a judicial matter? In other words, will the Supreme Court of the State be able to comment and overrule judgments by Indigenous juridical bodies? Indigenous self-determination and Indigenous control as recognized in the UNDRIP will be important guiding principles in answering such difficult questions. In Apirana Mahuika, the HRComm linked the limitations of Indigenous cultural rights to the Indigenous group’s own right to participation and control over such matters. The Committee decided that the right to culture of an Indigenous population under Article 27 of the ICCPR could be restricted where the community itself participated in the decision to restrict such a right. This conforms with Article 34 of the UNDRIP.
Another challenge relates to the interpretation of Indigenous customs in Western-style law courts. The choice of who will be chosen to give his or her opinion on the Indigenous custom is important and has, in principle, to be made by the Indigenous community in question. For example, in Palau, ‘the courts are increasingly viewed as becoming a part of customary processes of dispute resolution, while the inclusion of chiefs in legislature and state government bodies is seen as forging a compromise between western and customary models of governance.’142 How Indigenous and non-Indigenous systems of law can interact with mutual respect and efficiency are issues that need to be further elaborated. Should Indigenous customary laws also bind non-Indigenous peoples found in Indigenous areas? And what form of recognition may the Indigenous cultural laws take? These are questions that need to be discussed generically but also ad hoc, taking into account the specific circumstances of each case. The implementation of the UNDRIP will push for further reflection and discussion on such matters.
The provisions on cultural rights found in the UNDRIP are in general consistent with international law standards on cultural rights. Recent discussions on cultural loyalties, inter-culturality, and the value of culture have been incorporated in the Declaration in a way that make the text up-to-date and progressive. The prohibition of discrimination, an important pillar in the provisions of cultural rights, as discussed in Chapter 7 of this volume, is a well-accepted part of customary international law, in some aspects a peremptory norm of international law. In this respect, provisions that recognize that Indigenous peoples must not be discriminated against with regard to their cultural rights are well established in international law.
The second pillar of the provisions related to cultural rights, the principle of Indigenous control over their future, is a raison d’être of the Declaration. Some of the elements of the Declaration do go further than other human rights instruments; rights to Indigenous juridical systems and collective religious rights are two such issues. One has to remember References(p. 298) that although these provisions push the contours of international law further, they are still consistent with the spirit of international law. Being consistent does not mean being repetitive; international law is dynamic and ever evolving;143 these provisions map such an evolution.
The UNDRIP provisions on cultural rights bring with them their own conflicts and difficulties. Whose interpretation of cultural practices will prevail? What happens when cultural rights of two Indigenous groups are in conflict? Does the State have the ultimate word on juridical issues? These are difficult questions that need further exploring; however, they cannot be used to stall the implementation of the content of the Declaration. States’ specific circumstances and Indigenous own reflections will be important in finding solutions for such issues.
In all such questions, the work of both the UN monitoring bodies and the regional human rights bodies should not be undermined. Recent concluding observations of the CERD on New Zealand,144 the Russian Federation,145 and other examples prove that the UNDRIP provisions on cultural rights continue to be elaborated, crystallized, and implemented. Such concluding observations, together with the case-law and the several studies demonstrate the invaluable role of international human rights bodies both in pushing forward the implementation of the UNDRIP and interpreting it in a manner consistent both with current standards of international law and the claims of Indigenous peoples.
3 UNESCO, Declaration of Principles of International Cultural Co-operation, Adopted by the UNESCO General Conference at Its Fourteenth Session, Paris, 4 November 1966, UNESCO’s Standard-Setting Instruments, IV.C (1994).
7 UNESCO, Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted on 15 October 2005, UN Doc CLT-2005/CONVENTION DIVERSITE-CULT REV, <http://unesdoc.unesco.org/images/0014/001429/142919e.pdf> accessed 16 October 2017.
8 UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003), UN Doc MISC/2003/CLT/CH/14, <http://unesdoc.unesco.org/images/0013/001325/132540e.pdf> accessed 16 October 2017.
10 United Nations, International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No 16) at 49, UN Doc A/6316 (1966) (entered into force 3 January 1976), 993 UNTS 3.
11 CESCR, General Comment 21: Right of Everyone to Take Part in Cultural Life, UN Doc E/C.12/GC/21 (21 December 2009); also previously, General Discussion on the Right to Take Part in Cultural Life as Recognized in Article 15 of the Covenant, UN Commission on Economic, Social and Cultural Rights, UN Doc E/C.12/1992/SR.17 (11 October 1992) para 32.
13 See, eg, UN Doc CCPR/CO/71/UZB (2001) para 5, where the Committee welcomes Uzbekistan’s language policy whereby education at all levels is offered in ten languages, including the languages of the minority groups.
14 See, eg, UN Doc A/55/40, para 75, where the Committee notes positively the transfer of certain cultural institutions to the Saami in Norway, as well as the full consultation with the Saami in matters affecting their traditional means of livelihood.
23 United Nations, International Convention on the Elimination of All Forms of Racial Discrimination adopted and opened for signature and ratification by General Assembly Res 2106 (XX) of 21 December 1965 (entered into force 4 January 1969), 660 UNTS 195.
24 eg CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination of Women, Mexico, CEDAW/C/MEX/CO/7-8 (2012) paras 34–35; CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination of Women, Paraguay, CEDAW/C/PRY/CO/6 (2012) para 32.
34 J Gilbert, ‘Custodians of the Land: Indigenous Peoples, Human Rights and Cultural Integrity’ in M Langfield, W Logan, and NM Craith (eds), Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice (Routledge 2010) 31–44.
35 African Commission of Human Rights, ‘General Guidelines Regarding the Form and Contents of Reports to be Submitted by States Members Regarding the Meaning, Scope and Weight of “the Rights of Peoples” Recognized by Articles 17(2), 19 to 20 of the Charter’ (1990) 417–18.
36 African Commission on Human and Peoples’ Rights, Comm No 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (25 November 2009).
39 International Labour Organisation, Convention concerning Indigenous and Tribal Peoples in Independent Countries, entered into force in 1991 (ILO No 169), 72 ILO Official Bull 59, entered into force 5 September 1991.
40 See the comments of the Committee of Experts in <http://www.ilo.org/dyn/normlex/en/f?p=1000:20010:::NO:::>.
41 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Art 2, paras 1 and 2. See also Council of Europe, Framework Convention for the Protection of National Minorities, ETS No 157, Art 15.
42 Declaration on the Right to Development, adopted 4 December 1986, UNGA Res 41/128, UN GAOR, 41st Sess, 97th plen, Art 1. In its General Comment 4, para 9, the Committee considers that rights cannot be viewed in isolation from other human rights contained in the two international Covenants and other applicable international instruments.
49 ibid paras 171–75; see also ‘Principles and Guidelines for the Protection of the Heritage of Indigenous People’, Report of the Technical Meeting on the Protection of the Heritage of Indigenous People (Geneva, 6–7 March 1997), UN Doc E/CN.4/Sub.2/1997/15, Annex, para 3.
55 See Report of the 1996 Session, UN Doc E/CN.4/1997/102, paras 108–13; see also Argentina’s comments in UN Doc E/CN.4/1995/WG.15/2 (1995) para 11; also 2002 Session of the Working Group, UN Doc E/CN.4/2002/98 (2002) para 51.
70 See UN Department of Public Information, Press Conference on Declaration of Indigenous Peoples’ Rights (12 December 2006), <http://www.un.org/News/briefings/docs/2006/061212_Indigenous.doc.htm> accessed 16 October 2017.
72 W van Genugten, ‘The African Move towards the Adoption of the 2007 Declaration on the Rights of Indigenous Peoples: The Substantive Arguments behind the Procedures’, paper prepared for the Committee on the Rights of Indigenous Peoples of the International Law Association (1 March 2008), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1103862> accessed 14 March 2010.
82 eg UN Doc CCPR/CO/71/UZB (2001) para 5, where the Committee welcomes Uzbekistan’s language policy whereby education at all levels is offered in ten languages, including the languages of the minority groups.
83 eg UN Doc A/55/40, para 75, where the Committee notes positively the transfer of certain cultural institutions to the Saami in Norway, as well as the full consultation with the Saami in matters affecting their traditional means of livelihood.
86 See n 17 above.
94 CESCR, General Comment 21 (n 11) para 6.
95 CERD, Concluding Observations on Belize, UN Doc CERD/C/BLZ/CO/1 (2012) para 9. See Chapter 5 of this volume.
97 ibid 26.
98 Lovelace v Canada (n 21).
103 T Lanauze, S Forbes, and M Solomon, ‘A Practical Approach to Traditional Knowledge and Indigenous Heritage Management: A Case-Study of Moriori Heritage Management Practice’ in SM Subramanian and B Pisurati (eds), Traditional Knowledge in Policy and Practice (United Nations Press 2010) 330.
106 D Newman, ‘Recognition of Collective Religious Rights as a Means to Legal Protection of Sacred Natural Sites’, paper given at the Conference on ‘Protecting the Sacred: Recognition of Sacred Sites of Indigenous Peoples for Sustaining Nature and Culture in Northern and Arctic Regions’, Northern Institute for Environmental and Minority Law (Rovaniemi, 11–13 September 2013); also see R Kuppe, ‘Religious Freedom Law and the Protection of Sacred Sites’ in TG Kirch and B Turner (eds), Permutations of Order: Religion and Law as Contested Sovereignties (Ashgate 2009).
107 Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland  NZHRRT  (17 October 2013) para 3. As discussed by D Newman, E Ruozzi, and S Kirchner, ‘Legal Protection of Sacred Natural Sites within Human Rights Jurisprudence: Sapmi and Beyond’ in L Heinamaki and TM Herrmann (eds), Experiencing and Protecting Sacred Natural Sites of Sami and other Indigenous Peoples (Springer Polar Sciences 2017).
109 See, eg, Arizona District Court, Hopi Tribe v Navajo Nation, complaint filed in the US District Court of Arizona on 5 July 2013, terminated on 8 November 2013, <http://turtletalk.files.wordpress.com/2013/07/hopi-tribe-v-navajo-nation-complaint-07-05-13-copy.pdf> assessed 15 November 2017.
117 Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, Sixth Ordinary Session, Paris, UNESCO Headquarters, UN Doc CE/12/6.IGC/4 (10–14 December 2012) para 26.
119 ibid 99.
120 These instruments include the (1990) Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (Art 32), Recommendation 1201 of the Parliamentary Assembly of the Council of Europe (Arts 7, 8(1)), and the European Charter for Regional or Minority Languages (1998).
127 CESCR, General Comment 21 (n 11) para 7.
128 UNESCO, Universal Declaration on Cultural Diversity (n 5).
131 See also similar comment on Australia, CommRC, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations: Australia, UN Doc CRC/C/AUS/CO/4 (2012) para 37.
132 HRComm, General Comment 23 (n 74).
135 W Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2010) 20 Duke Journal of Comparative and Legal Law 473. K Tuori, ‘Legal Pluralism and Modernisation: American Law Professors in Ethiopia and the Downfall of the Reinstatements of African Customary Law’ (2010) 62 J Legal Pluralism 43; see also W Twining, ‘The Restatement of African Customary Law: A Comment’ (1963) 1 J Modern African L 221.
137 ibid 82.
139 Direct Request (CEACR)—adopted 2011, published 101st ILC Session (2012), Indigenous and Tribal Peoples Convention, 1989 (No 169), C169, Indigenous and Tribal Peoples Convention, 1989 (No 169) Mexico.
142 B Tobin, ‘The Role of Customary Law in Access and Benefit-Sharing and Traditional Knowledge Governance: Perspectives from Andean and Pacific Island Countries’ in WIPO Report (WIPO and UNU 2008) 1–97.
143 Thornberry (n 99).