2. Women’s Cultural Rights: La Lutte Continue
2.1 Disentangling Culture, Cultural Rights, and Cultural Heritage
In scholarship looking at the interconnectedness of cultural heritage, cultural rights, and the broader human rights framework, it is commonly observed that, until relatively recently, cultural rights remained largely unexplored and substantively underdeveloped, particularly when compared with the attention afforded to civil and political rights or economic and social rights.1 In seeking to rationalize this decades-long conceptual and normative neglect, numerous theories and arguments have been advanced relating to individual and sovereign self-determinism, the heated cultural relativist discourse, Cold War politics, and the hermeneutic and epistemological uncertainties that go hand-in-hand with ‘culture’ as a legal, social, and anthropological category.2 As Asbjørn Eide (p. 433) remarks, ‘“[c]ultural rights” derive from the word “culture”, an overworked concept with little semantic precision’.3 In recent times, the obliqueness of cultural rights has subsided somewhat, helped in part by related efforts within the international legal sphere to advance the safeguarding and protection of cultural heritage. As a category of rights, cultural rights continue to expand in human rights law and practice, such that, as Pok Yin Chow suggests, ‘analysing the scope and content of each and every right which could be said to form part of the category of cultural rights may do more to obscure than to clarify’.4
Great multi- and interdisciplinary effort has been expended in courageous (if perhaps misguided) attempts to succinctly capture the stable elements of an accepted notion of ‘culture’ and the individual and collective components of the rights that attend to it. Trite as it may seem, ‘culture’ and cultural rights are inherently fuzzy, contested notions that carry multiple meanings and embrace both objective and subjective dimensions.5 In attempts to add a modicum of clarity to the character and tentative scope of cultural rights, legal scholars have offered various classifications of both culture and ‘cultural rights’. For example, Roger O’Keefe, in wrestling with the understanding to be given to the concept under article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), suggests a deconstructed, three-pronged conception of culture: ‘culture’ in the highbrow, elitist sense (art, literature, classical music, theatre, etc.); a pluralist or popular notion of ‘culture’ incorporating diverse everyday means of expression and creativity (popular music, television and radio, sports, etc.); and, finally, ‘culture’ as understood through an anthropological lens—that is, as ‘a way of life’.6 This simple categorization, while useful in understanding the boundaries of article 15, is commendable but far from satisfying in a sociological and anthropological sense. However, it may ultimately be entirely misguided to attempt to define ‘culture’ for the purposes of the elucidation of cultural rights.7 Any definition of culture in the legal context must retain a deliberate fluidity in order to capture its amorphous, multifaceted, (p. 434) and transformative character.8 Culture is not, after all, an immobile expression of human individual and communal lives and, therefore, changes accordingly in flows of creation, preservation, transmission, and contestation of (in)tangible cultural heritage.
The deliberate avoidance of a categorical, contained definition of culture was explicitly endorsed in the first report of the Special Rapporteur in the Field of Cultural Rights, stating that the adoption of such a definition was ‘not necessary, and may be inappropriate’9 in defining the scope of her mandate. Instead, guidance was to be sought from the variety of hard and soft law sources that have offered working definitions. In particular, the Special Rapporteur relied on the definitions included in the preamble to the Universal Declaration on Cultural Diversity,10 General Comment No 21 on the right to take part in cultural life adopted by the Committee on Economic, Social and Cultural Rights (CESCR) in 2009,11 and article 2(a) of the Fribourg Declaration on Cultural Rights.12 As the Special Rapporteur pointed out, these definitions illustrate ‘that culture can be understood as a product, as a process and as a way of life’ and that it goes beyond reductive understandings of ‘ethnicity, language and religion’.13 This position finds support in General Comment No 21, which views culture as ‘a broad, inclusive concept encompassing all manifestations of human existence. Article 15(1)(a)’s invocation of the (p. 435) expression ‘cultural life’ is an explicit reference to culture as a living process, historical, dynamic and evolving, with a past, a present and a future.’14
The rights attaching to manifestations of culture belie comprehensive, simple categorization by virtue of their interconnectedness with, and bolstering of, a host of related rights and freedoms.15 Central in this respect is the relationship between cultural rights and notions of humanity, human dignity, and individual and collective identity.16
For the purpose of this chapter, and indeed this Handbook generally, it is important to understand the relationship between cultural rights and cultural heritage. If cultural rights are conceived as the individual and collective rights of peoples to continuously develop and express their humanity, cultural heritage pertains to those expressions, whether tangible or intangible, and in the process of their protection, preservation, transmission, and communication of such individual and collective expression. In the words of the Special Rapporteur, ‘[c]ultural heritage is to be understood as resources enabling the cultural identification and development processes of individuals and communities which they, implicitly or explicitly, wish to transmit to future generations’.17 The dynamic character of cultural heritage is reflected in the manner in which the definition of cultural heritage has evolved in an international legal context over the course of the past fifty years or so.
As this Handbook attests, the development of international cultural heritage law has been consciously driven by recognition of the need to account for the diverse nature of heritage as it relates to all individuals and communities, especially marginalized and indigenous communities. As such, international instruments (alongside supporting regional counterparts) emphasize the indivisibility of rights and obligations pertaining to the constantly evolving and interconnected manifestations of tangible, intangible, and natural cultural heritage. The increased sophistication of international law’s understanding of cultural heritage is illustrative of the recognition of the intimate link between (p. 436) cultural heritage and cultural identity.18 Individual and collective rights as they relate to cultural heritage defy simple classification.
In this respect, the right to take part in cultural life, the link between individual and collective identity, is set forth by article 27(1) of the Universal Declaration of Human Rights19 and further developed in article 15(1)(a) of the ICESCR, which provides for the right of everyone to take part in cultural life. The CESCR’s General Comment No 21 identifies three elements of the right—participation in, access to, and contribution to cultural life—as well as five conditions necessary for the realization of the right: availability, accessibility, acceptability, adaptability, and appropriateness.20 In this regard, the Special Rapporteur has stated that ‘[t]he right to participate in cultural life implies that individuals and communities have access to and enjoy cultural heritages that are meaningful to them, and that their freedom to continuously (re)create cultural heritage and transmit it to future generations should be protected’.21 Article 27 of the ICCPR specifically protects the rights of minorities to enjoy their own culture, to profess and practise their own religion, and to use their own language. Related and supplementary provisions are found in numerous instruments, many of which emphasize principles of non-discrimination and equal treatment.22
The International Bill of Rights, therefore, provides a minimum set of cultural rights that apply both individually and collectively to all peoples. However, this chapter is not concerned with basic, generally applicable rights and obligations pertaining to culture. They merely provide context and set the scene for the unpacking of the contours of women’s cultural rights and the exploration of their embeddedness within fundamental human rights principles and the manner in which they are reflected in international cultural heritage law.
2.2 Securing Women’s Cultural Rights: Universality, Cultural Diversity, and Non-discrimination
While the individual and collective components of cultural rights continue to evolve in practice and scholarship, a number of foundational principles critical to the realization (p. 437) of women’s cultural rights have crystallized—namely, the universality of cultural rights and their interaction with notions relating to respect for cultural diversity, and their observation pursuant to the principles of equality and non-discrimination.23 The 2009 UNESCO World Report states:
Recognition of cultural diversity grounds the universality of human rights in the realities of our societies by drawing attention to their appropriation by all individuals who can identify these rights with a sense of ownership, regardless of language, tradition and location. In the same vein, the fact that these rights and freedoms are meant to be exercised in a wide variety of cultural environments by no means implies that universal norms can be relativized in terms of their application.24
This statement reiterates the more general language of the 1993 Vienna Declaration and Programme of Action which provides that, ‘all human rights are universal, indivisible, and interdependent and interrelated … While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems to promote and protect all human rights’.25 General Comment No 21 institutes that States’ ‘obligations to respect and protect freedoms, cultural heritage and diversity are interconnected’. States are required to: ‘[r]espect and protect cultural heritage in all its forms, in times of war and peace, and natural disasters … [r]espect and protect cultural heritage of all groups and communities, in particular the most marginalized individuals and groups … [and] [r]espect and protect the cultural protections of indigenous peoples, including their traditional knowledge, natural medicines, folklore, rituals, and other forms of expression’.26 The universality of cultural rights has been the focus of sustained attention before the UN treaty bodies and in the work of the Special Rapporteur in the Field of Cultural Rights. For example, in a recent report the Special Rapporteur noted that ‘[c]ultural rights are a vital component of universality, and universality is (p. 438) essential to defend the foundations of cultural rights: the flourishing of cultural diversity, cultural mixing and openness, and the right of everyone to take part in a dynamic cultural life without discrimination’.27 In highlighting the relationship between universality and cultural diversity, particular care has been taken to emphasize that the safeguarding and promotion of cultural diversity are in no way synonymous with cultural relativist justifications of human rights violations. Instead, there is also the recognition that not all cultural practices are in keeping with human rights standards.28
The balance between the protection of cultural rights and compliance with human rights standards, which revolves around the issue of universality versus relativity of the latter, has a fixed fulcrum that informs their interpretation. The principles of non-discrimination and equal treatment are central to any discussion of the cultural rights of women. Article 13(c) of the Convention on the Elimination of Discrimination Against Women (CEDAW) expressly recognizes the equal right of women to participate in all aspects of cultural life.29 General Comment No 21 makes clear that article 15(1)(a) is being interpreted in light of articles 2(2)30 and 331 of the Covenant:32 ‘no one shall be discriminated against because he or she chooses to belong, or not to belong, to a given cultural community or group, or to practise or not to practise a particular cultural activity. Likewise, no one shall be excluded from access to cultural practices, goods and services.’33 The General Comment suggests that recognition of the inherent value of cultural diversity is an important contributing factor along the road to equal treatment and non-discrimination. In this regard, the Special Rapporteur has remarked that ‘respect for cultural rights and cultural diversity, without discrimination and in accordance with international standards and as interpreted by human rights bodies, is a core aspect of implementing universality’.34
(p. 439) General Comment No 20 addressing the principle of non-discrimination in the context of economic, social, and cultural rights (i.e., article 2(2) of the Covenant) is emphatic in declaring that non-discrimination—understood as ‘any distinction, exclusion, restriction or preference or other differential treatment … which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of Covenant rights’—is an ‘immediate and cross-cutting obligation’.35 With regards to discrimination on the grounds of ‘sex’, General Comment No 20 makes clear that for the CESCR this ground of discrimination is not limited in a simplistic, binary, biological sense but rather should be understood as incorporating understandings of the ‘social construction of gender stereotypes, prejudices, and expected roles, which have created obstacles to the equal fulfilment of economic, social and cultural rights’.36 General Comment No 16 on the equal right of men and women to economic, social, and cultural rights elaborates that
[g]ender affects the equal right of men and women to the enjoyment of their rights. Gender refers to cultural expectations and assumptions about the behaviour, attitudes, personality traits, and physical and intellectual capacities of men and women, based solely on their identity as men or women. Gender-based assumptions and expectations generally place women at a disadvantage with respect to substantive enjoyment of rights, such as freedom to act and to be recognized as autonomous, fully capable adults, to participate fully in economic, social and political development, and to make decisions concerning their circumstances and conditions. Gender-based assumptions about economic, social and cultural roles preclude the sharing of responsibility between men and women in all spheres that is necessary to equality.37
The effect of article 3 on the right to cultural life under article 15(1)(a) is to require States to overcome ‘institutional barriers and other obstacles, such as those based on cultural and religious traditions, which prevent women from fully participating in cultural life’ on an equal basis to men.38
(p. 440) With the establishment of the mandate of the Special Rapporteur in the Field of Cultural Rights in 2009, there has been concerted engagement with the intersecting issues impacting on the full realization of the cultural rights of women. In establishing the post, the Human Rights Council (HRC) was explicit in mandating the adoption of a gender perspective.39 Both holders of the position to date—Farida Shaheed and Karima Bennouna—have placed gender issues at the heart of their activities and outputs. In her first report to the HRC, in which she outlined the parameters of her mandate, Shaheed set out three dimensions of the gender perspective she sought to pursue: the right of women and girls to participate in cultural life regardless of their gender identity; ‘the need to implement cultural rights in a way that is fully respectful of the right of women and girls not to be discriminated against and that upholds all their human rights’; and ‘the contribution of women and girls to the cultural development of communities they belong to’.40 This prioritization of the cultural rights of women is testament to the significant advances secured by the women’s rights movement over the course of the past half-century which has emphasized that defending the ‘universality of the rights of women is … crucial to any defense of the universality of human rights’.41
Articles 5(a) and 13(c) of CEDAW have been fundamental in efforts aimed at advancing the cultural rights of women. Article 5(a) requires States ‘[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyping roles for men and women’.42 The failure to counter gender stereotypes ‘den[ies] women the autonomy to live their lives according to their own choices and convictions about their personal and unique contribution to sustaining and developing humanity’.43 Article 5 installs equality as a transformative principle capable of countering gender ideology but also ‘the systemic and structural inequality of women’.44 However, as noted by the Special Rapporteur,
[d]espite the near universal ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, a “deep schism” between the legal provisions of equality and women’s lives has persisted across time and cultures, including in the international sphere; women simply do not enjoy the universal human rights (p. 441) to which they are entitled globally or locally, in the West or the East, the North or the South. The Special Rapporteur is of the view that this is at least partly because women do not enjoy cultural rights.45
As has been outlined, article 15(1)(a) of the ICESCR provides for the equal right of women and men to participate in, have access to, and contribute to cultural life, including the right to access and enjoy tangible and intangible cultural heritage. What these elements of the right to cultural life imply for the cultural rights of women is worth emphasizing. Firstly, women’s right to participate in cultural life relates to freedom of individual identity, and importantly ‘the right not to participate in specific traditions, customs and practices, particularly those that infringe on human rights and dignity’.46 It implies the right of women to create new cultural spaces that have a role in the development of individual and collective identity, to challenge hegemonic, patriarchal seats of power, authority, and discrimination, and subvert gender stereotypes, all free of threats of punishment or violence. Secondly, access relates to the equal right of women and men ‘to know, understand and benefit from the cultural heritage and cultural life of their own communities as well as that of other communities’. It also implies ‘the ability, inter alia, to know, understand, enter, visit, make use of, maintain, exchange and develop cultural heritage’.47 Thirdly, women’s right to contribute to cultural life relates to ‘the ability to use imagination and intellect in both experiencing and producing works and events of one’s own choice: spiritual and material, intellectual and emotional, including in all forms of artistic creativity’.48
Finally, all tangible and natural cultural heritage is inextricably linked to an element of intangible heritage—that is, in the interpretation of what any manifestation may signify. Consequently, from the perspective of cultural rights, perhaps the most crucial aspect relating to cultural heritage for women and girls is not just the right to participate in the preservation or safeguarding of cultural heritage but the right to identify what constitutes cultural heritage and what this signifies. This is a necessary prelude to determining whether particular cultural manifestations should be preserved for transmission to future generations.
2.3 Advancing Women’s Cultural Rights: ‘Negative Practices’, Essentialism, and the Importance of Agency
Of the few country visits that have been completed by the Special Rapporteur in the Field of Cultural Rights since 2010 (eleven at the time of writing), several of the resulting reports have included observations on the cultural rights of women. These observations have tended to focus on issues relating to gender stereotyping, women’s access to and participation in religious practice and instruction, restrictions on women’s right to (p. 442) cultural expression, and the imposition of cultural practices in violation of fundamental human rights—the latter is often referred to, by way of shorthand, as ‘negative cultural practices’. It is worth briefly exploring these observations in order to get a sense of the manner in which the Special Rapporteur has sought to advance the cultural rights of women through the country visit process.
In her report following her mission to Morocco in 2011, the Special Rapporteur welcomed the development of programmes aimed at appointing women as spiritual guides and preachers as ‘a first step towards ensuring equal opportunities for women to guide and explain religious subjects to others’.49 Such initiatives were also viewed as creating a sociocultural space within which women could ‘share their experience and strengthen their participation in the cultural life of local communities’.50 The Special Rapporteur recommended that steps should be taken to instruct female spiritual guides in women’s rights, thus equipping them with effective tools aimed at raising awareness of women’s rights issues within their communities.51 Attention was also given to the participation and portrayal of women in national media and, in particular, the prevalence of mainstream gender stereotyping: ‘[m]edia seldom use gender-sensitive language, frequently portray women’s roles as linked with the home and raising children, downplay their accomplishments in the public sphere and project a passive and negative image of women. This discourages any effective participation in social, political and cultural life.’52
In the context of Vietnam, the Special Rapporteur also sought to highlight the impact of gender stereotyping on women’s cultural rights: ‘[t]he Special Rapporteur notes … the specific role attributed to women as “good mothers” who are expected to build “happy families” which are patriotic, progressive, and live in harmony. In many countries, women are too often tasked with reproducing the dominant culture of their communities. Women must be encouraged to be not only guardians but creators of cultural values and new family traditions.’53 Similarly, in the context of Cyprus, the Special Rapporteur highlighted the clearly discriminatory and subjugatory nature of article 2(7) of the Constitution which states that ‘married women shall belong to the “community” to which their husbands belong and that children under the age of 21 who are not married (p. 443) shall belong to the “community” to which their fathers belong’.54 Women have full autonomy to choose their own identity, to choose their own community or communities, and to participate in the group in any way they choose: ‘the choices of women should not depend on the decisions of their husbands on such matters’.55
In her Mission Report on the Russian Federation, the Special Rapporteur noted the erosion of gender rights since the break-up of the Soviet Union, precipitated by a revival in discourses pertaining to religious identity and traditional values.56 With specific regard to Chechnya, Ingushetia, and the North Caucasus, the report brings attention to the imposition of cultural practices that violate women’s rights: ‘honour killings have taken place; women have been forced to wear a headscarf, or experience extreme pressure to do so; and may be humiliated and physically attacked if not deemed to be dressed appropriately’.57 The Special Rapporteur reiterated women’s rights to a cultural life, including their right to ‘decide which cultural traditions, values or practices are to be kept, reoriented, modified or discarded’.58
In the context of her Mission Report on Malaysia, the Special Rapporteur expressed her concern that growing Islamization and Arabization of society was resulting in ‘cultural engineering’ and as a consequence the denial of women’s cultural rights. This was particularly illustrated in the widespread imposition of a ‘modest’ dress code for women ‘which is not traditional to Malaysia, and reduced Muslim women’s cultural choices’.59 The report is clear in rejecting the deployment of religious or cultural arguments (particularly those predicated on interpretations of sharia) in an attempt to justify the imposition of patriarchal structures that promote and pursue practices that violate women’s fundamental human rights.60 Invoking the work of the Committee on the Elimination of Discrimination against Women, the report is outspoken in its condemnation of policies instituting mandatory female genital mutilation (highlighting, in particular, the fatwa issued by the Malaysian National Council of Islamic Religious Affairs in 2009).61 The report also draws attention to restrictions on women’s right to artistic expression, such as that observed in Kelantan province where women are prevented from performing freely before mixed audiences.62
(p. 444) Justifying the denial of women’s rights on the grounds of religious or cultural tradition is amongst the most dominant tropes of the cultural relativist discourse. A frequent focal point of contestation in this regard has been the impact of religious or cultural practices on women’s right to bodily integrity and sexual and reproductive autonomy. Indeed, the issue, embodied most visibly in the heated, ongoing controversy surrounding female genital mutilation, has been an ever-present feature of the discourse going back to 1956 and the establishment of the mandate of the Special Rapporteur on Traditional Practices Affecting the Health of Women and Children. While female genital mutilation is a clear illustration of the tension between women’s rights and practices relating to group identity, international human rights law has consistently and repeatedly rejected any arguments seeking to legitimize it. The issue, however, is far from limited to female genital mutilation. In Fact Sheet No 23, the Office of the High Commissioner for Human Rights refers to a range of related practices such as ‘forced feeding of women; early marriage, the various taboos or practices which prevent women from controlling their own fertility; nutritional taboos and traditional birth practices; son preference and its implications for the status of the girl child; female infanticide; early pregnancy; and dowry price’.63 Practices of this kind are labelled with stark candour as being pillars of patriarchal structures of power and domination ‘performed for the male benefit’.64 It comments further that ‘female sexual control by men, and the economic and political subordination of women, perpetuate the inferior status of women and inhibit structural and attitudinal changes necessary to eliminate gender inequality’.65
The Special Rapporteur on Traditional Practices Affecting the Health of Women and Children has expressed a similar sentiment, stating that ‘it is clear that whatever the practice may be, and wherever it exists, the origins lie in the historical unequal and social relationships between men and women, resulting in a perceived inferior status of the woman’.66 This echoes the observations of the Special Rapporteur on Violence Against Women, Its Causes and Consequences who has consistently drawn attention to the intersectionality of religious and cultural practices and violence against women67 and article 4 of the Declaration on the Elimination of Violence Against Women, which calls on States to ‘condemn violence against women and [to not] invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination’.68 CEDAW’s General Recommendation No 19 is forthright in pointing (p. 445) out the regrettably common interaction between traditional practices and violence against women:
Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them of the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to their low level of political participation and to their lower level of education, skills and work opportunities.69
Similarly, ICCPR General Comment No 28 on the equal rights of men and women states:
Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes. The subordinate role of women in some countries is illustrated by the high incidence of prenatal sex selection and abortion of female foetuses. States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights. States parties should furnish appropriate information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardize, or may jeopardize, compliance with article 3, and indicate what measures they have taken or intend to take to overcome such factors.70
Despite widespread condemnation and the consistency of international human rights law and practice, the discourse on the intersectionality of religious and cultural traditions and women’s rights continues to raise complex questions relating to the tensions between individual and group identity, ambivalence, essentialism, and neo-imperialism’s ‘arrogant gaze’.71 Radhika Coomaraswamy has drawn attention to the historical link (p. 446) between women’s empowerment and the sociological ‘legacy’ of colonialism.72 In doing so, she highlights the dichotomy within which women must negotiate between often competing desires for individual identity and their membership in groups commonly governed by men. She argues: ‘Though their sense of self and dignity comes from how the wider society treats women, they often have to face discrimination within local groups. They may have to submit to discriminatory practices and laws, as well [as] engage in rituals, customs, and habits that reinscribe the subordinate status of women within the hierarchy of their religious, ethnic, or tribal identity’.73 Women in such a situation are effectively forced to choose between enduring the discriminatory tenets of the group or resisting and risking ostracization, stigmatization, and violence.
This choice is rarely self-evident given the embeddedness of individual dignity with the identity of the group, to the extent that in some circumstances women may feel that an attack on the group is ‘an assault on their own dignity’.74 In effect it often forces a binary determination, forcing women to choose between prioritizing their individual rights over the cultural rights of the group; as Chow has put it, ‘it is like asking a minority woman to give up one aspect of her “self” ’.75 Such a situation is illustrative of the paradox that must be confronted in exploring the relationship between ‘cultural choices’ and ‘negative cultural practices’. This paradox is played out in General Comment 21. On the one hand, it provides that restrictions on cultural rights ‘may be necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions, that infringe on other human rights’.76 However, on the other hand, it goes on to state that ‘[t]he 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 recognised, respected and protected on the basis of equality. This is especially important for all indigenous peoples, who have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms’.77 In emphasizing individual and collective cultural choices, the CESCR is making clear that it is not for States ‘to impose their judgment on what they think is best for communities and individuals’.78
However, cultural choices can only be such if they are autonomous, voluntary, and free of any semblance of coercion. Chow points out that this conception of cultural choice leads to questions relating to the way in which international human rights law (p. 447) can ‘reconcile the existence of cultural practices which are deemed oppressive with instances where the individual genuinely consents to engage in these practices’. He points out that often cultural choice is a fiction when recognition is given to the emotional, economic, and social consequences of rejecting certain cultural practices.79 Framing ‘negative practices’ within the sphere of ‘culture’ similarly ignores the influence of economic and political factors on the structural foundations of discrimination and subordination through which such practices are pursued.80 Ultimately, in many circumstances the choice is existential, not cultural. Conceiving of culture as determinative of women’s lived experiences undermines their individual and collective agency and reduces women to the status of permanent victims who lack the agency to bring about social reform.81 It also has the effect of polarizing ‘culture’ and women’s rights.82 Negative practices—such as, for example, forced marriage and polygamy—are rarely if ever pursued for purely cultural reasons but because they also serve economic, social, and political ends.83
Indeed, all societies have more than a single culture: the dominant culture of those with the power to impose the rules and deploy sanctions for contravening these; and the subaltern cultures of the marginalized—be they women, minorities, or even youth.84 Secondly, belonging to a community does not confer equality of opportunity or decision-making, including decisions of what are to be considered the essential aspects of cultural heritage that define a community of shared cultural values. It is therefore incumbent on the State to ensure that all voices within the community are heard equally and have equal opportunities to participate in cultural life and, as a consequence, determine and produce cultural heritage.85
This all points to the danger of essentializing culture and simplistically identifying it as the dominant obstacle to be overcome in women’s emancipation. This is particularly observable in discussions relating to human rights violations endured by women in the Global South, which often show a tendency ‘to essentialize traditional cultures as inherently harmful to women’.86 There is little doubt that attempts are made with alarming (p. 448) frequency to legitimate violations of the rights of women by invoking culture, religion, and tradition.87 However, as Shaheed has argued, ‘[b]y attributing self-propelling agency to “culture” independent of the actions of human beings, it diverts attention from specific actors, institutions, rules and regulations, keeping women subordinated within patriarchal systems and structures’.88 It negates the agency of women and ‘the trajectories of their resistance to violence and oppression’.89
While essentialist conceptions of culture are simplistic, it is paramount that the lived experiences of women are not subject to the same misguided essentialist logic. Female identity is not a monolithic, static, and homogeneous construct; nor, indeed, are the forms of oppression that the women’s rights movement continues to confront.90 The forms of oppression experienced by women globally are inherently intersectional91 with simultaneous categories of identity—race, ethnicity, religion, physical ableness, age, class, and so on—determining and differentiating the forms of oppression encountered.92 The oppression of women cannot be conceived of as operating on a single plane; conscious regard must be had for its multidimensional nature.93 Women’s agency to resist cultural practices (including resisting the banning of certain cultural practices) in whatever way they choose and in a manner consistent with their individual identity should be (p. 449) respected.94 However, this reality is not adequately reflected in General Comment No 21, nor more broadly within international human rights law.
Women’s agency and their participation in the creation, reproduction, and preservation of cultural heritage, however, are not solely curbed by coercive acts. The likely punitive actions for transgressing the established rules play a central role in creating, reproducing, and maintaining the figuration of particular social orders and the dominant culture inherited from the past. Fear serves as an internalized self-control mechanism. Self-imposed silences and rules are ‘adhered to because they are perceived as a moral duty [but also] because they may be sanctioned by, for instance, some people becoming angry if such duties are not performed’.95
The nuance from essentialization of culture and the ‘self-imposed’ silence is especially important when analysing the issue of women’s cultural rights in the Global North. On one hand, the human rights machinery is mainly focused on issues occurring in the Global South, disproportionately reporting, naming, and shaming violations of cultural rights in those countries.96 This distorts the notion of cultural rights in the region, imposing Northern standards and biases, leading to the essentialization of gender identities and curbing the full enjoyment of cultural rights by women and girls.97 On the other hand, ‘self-imposed’ silence in countries of the Global North is also the origin of many violations of cultural rights, negating the agency of women. For example, the lack of visibility of female historical characters, or the diminished cultural production by women, only reaffirms the patriarchal oppression of European countries.98 In this respect, although the institutional machinery mostly focuses on the Global South when discussing the issue of violations of the rights of women to cultural heritage, this focus creates a shade where Global North countries can continue to violate women’s cultural rights.
There is no questioning the link between certain religious and cultural practices and violence against women. However, this is not the only plane where violations of women’s cultural rights are seen. The lack of women’s agency in the creation, reproduction, and preservation of cultural heritage and the (rather silent) unacceptance of women as equal participants in the creation of cultural expressions and their role as decision-makers in (p. 450) the process of (in)tangible cultural heritage also violate the full enjoyment of cultural rights by women and girls.
This recognition is important to understand the daily practices of those involved in identifying and safeguarding tangible, intangible, and natural cultural heritage. Although considering that ‘nearly all heritage sites are gendered’,99 as stated by the Deputy Director of the Heritage Division of UNESCO, the role of women’s agency in the institutional protection of cultural heritage, as well as countering the existing gender bias in their identification and safeguarding, remains an incipient discourse. These aspects, and the discussions that follow them, play an important role in understanding how UNESCO, the drafters, and the treaty bodies of the main cultural heritage treaties have addressed women’s cultural rights.
3. The Recognition of Women within the Framework of International Cultural Heritage Law
While it is important to locate women’s cultural rights in the broad spectrum of cultural rights, reaffirming the importance of non-discrimination and agency, we must turn to examine the extent to which this is reflected in the framework of international cultural heritage law. The analysis focuses on three main treaties (the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1972 World Heritage Convention; and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage), their respective treaty bodies and, more generally, the manner in which UNESCO has endeavoured to incorporate a gendered perspective in the context of cultural heritage protection and safeguarding. The objective is not only to analyse whether women’s cultural rights were taken into consideration in the drafting of these treaties but also to examine how UNESCO and the treaty monitoring bodies take up and address gender issues in their practices.
Before moving to the discussion proposed in this section, a disclaimer: while UNESCO and the treaty bodies talk about gender to some extent, the expression is understood as a simplistic, binary concept that fails to take into consideration the diversity and sociological complexity of gender as reflected in science and literature today.100 Gender equality is understood, in this context, as the bipolarity between men and women. Other expressions that are part of the gender spectrum—inter alia, transgender, gender fluid, or non-binary—are not contemplated by the UNESCO definition of (p. 451) gender equality. Therefore, as to the descriptive purpose of this section, gender will be treated in the same way UNESCO does, despite the conceptual restrictions of this definition.
3.1 Legal Silence through the Years: The Drafting of Cultural Heritage Treaties
Although the Deputy Director of the Heritage Division of UNESCO now recognizes that ‘nearly all heritage sites are gendered’,101 international lawmaking in terms of protecting cultural heritage has generally been blind to issues of gender equality and the role of women in accessing, participating, and contributing to cultural life. Since the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two protocols, which were built on the foundations of the 1899 and 1907 Hague Regulations,102 a gender-neutral tone has been adopted when discussing and codifying the protection of cultural heritage. It is noticeable that, while considering the addressees of the Convention, the High Contracting Parties chose words such as ‘mankind’ to point out that cultural heritage belongs to all of humankind;103 indeed, the arcane nature of this language was recognized by the former Director-General of UNESCO, Irina Bokova.104 While it can be said that the intended scope of the 1954 Convention offered little space within which gender dimensions could be recognized, there is no evidence that such issues were even momentarily contemplated by the drafters.105
International lawmakers came back to the issue of cultural heritage in the 1972 UNESCO World Heritage Convention106 and the 1972 UNESCO Recommendation concerning the Protection at National Level of the Cultural and Natural Heritage.107 Protecting both natural and cultural sites of outstanding universal value, no consideration (p. 452) was given by the drafters of these two instruments to the role of women in heritage creation, interpretation, or preservation. While the 1972 World Heritage Convention repeats the formula of using ‘mankind’ to denote the universality of the protection of cultural heritage, overlooking the role of gender aspects in this regard, it places cultural and natural heritage as central components in human development.108
The ending of international cultural heritage law’s gender silence began with the 1998 Action Plan on Cultural Policies for Development, adopted by the UNESCO Intergovernmental Conference on Cultural Policies for Development. Deemed a soft-law instrument, States Parties discussed, among other things, the issue of gender equality in culture,109 especially in light of globalization.110 Based on the discussions, the Conference affirmed that ‘cultural policies must respect gender equality, fully recognising women’s parity of rights and freedom of expression and ensuring their access to decision-making positions’.111 Amongst the objectives of the Conference was to recognize ‘women’s achievement[s] in culture and development and [to] ensure their participation in the formulation and implementation of cultural policies at all levels’.112
Notwithstanding this modest advance, in 2001, UNESCO issued the Universal Declaration on Cultural Diversity without any mention of women’s cultural rights or a gender-approach to cultural heritage. With the benefit of hindsight, the lack of provisions regarding these issues seems out of place, considering that UNESCO convened at least two expert meetings before the Declaration was issued specifically to discuss the role of women in the transmission of intangible cultural heritage113 and regional approaches to women and intangible heritage.114 This is even more regrettable considering that women have been one of the priority groups within UNESCO programmes since at least 1995.115
Building on the Universal Declaration, the drafting of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage saw delegates divided into two diametrically opposed camps:116 on one side, those States in favour of placing particular emphasis on specifically and expressly recognizing issues relating to women and (p. 453) intangible cultural heritage;117 on the other, those who opposed such an express emphasis, fearing discrimination against women. Ultimately, no mention of women’s rights or roles in the creation, interpretation, and protection of intangible cultural heritage was made in the Convention. The drafters, however, included an avenue for the protection of women’s rights within article 2(1) of the Convention, stating that the interpretation of the convention should follow existing international human rights instruments. These instruments include CEDAW, thereby strengthening the protection of women’s cultural rights in the interpretation of the 2003 Convention, especially when it comes to the conflict between traditional cultural practices and violence and discrimination against women.118
Despite not mentioning women’s rights in the 2003 Convention, UNESCO convened an expert meeting on gender and intangible heritage shortly after its adoption.119 Discussing the links between gender issues and cultural heritage,120 the experts recommended to UNESCO several actions to be taken in order to address gender questions arising from the application of the 2003 Convention. Recommendation 2 is particularly significant in this regard as it recognizes that ‘the safeguarding of intangible cultural heritage includes understanding and respecting gender practices and representations, as well as acknowledging the significance of contact zones in these processes’.121
3.2 Gender in Practice: The Implementation of Cultural Heritage Treaties
The conventions and declarations can perhaps be viewed as products of their own time. They are generally entirely silent on the need for gendered approaches to cultural heritage and on questions related to women’s cultural rights. Nevertheless, the practice of the respective treaty bodies has attempted to a greater or lesser extent to address these obvious deficiencies.
In the context of the 1954 Hague Convention, the lack of consideration of gender issues in any way is obviously problematic. The meetings of the High Contracting Parties, which monitor and review the implementation of the Convention, have remained silent with respect to women’s cultural rights in their twelve meetings so far.122 The periodical reports of States Parties and the Director-General on the implementation of the 1954 (p. 454) Convention also fail to mention the relationship between gender, cultural heritage, and armed conflict.123 One positive development can be seen with respect to UNESCO’s consideration of the destruction of cultural heritage in the context of the Syrian conflict, where it recognized the role of cultural heritage in empowering women and vulnerable groups.124 More attention, however, needs to be given to exposing the intersectionality of the deleterious effects of armed conflict on women’s cultural rights.125
In the early days, the practice of treaty bodies created by the World Heritage Convention was dependent on the understanding to be given to the notion of cultural heritage of ‘outstanding universal value’.126 This concept, however, developed by the Operational Guidelines, adopted an evident gender bias in the context of its recognition of the ‘Great Men of History’.127 Taking into consideration 114 nomination dossiers up until 2013, the marginalization of references to women is clear and shows a ‘strong bias towards androcentric representations of the past’.128 This is illustrated, for example, in the Japanese government’s bid to register the Sacred Sites and Pilgrimage Routes in the Kii Mountain Range.129 Some NGOs and citizens protested that such registration would reinforce gender discrimination because such routes are expressly prohibited to women;130 however, this was given no consideration by UNESCO in reaching its decision.
A rare example of UNESCO taking into consideration women’s cultural expressions is seen in the inscription of Flemish Béguinages as World Heritage Sites, which recognized the outstanding universal value in ‘the cultural tradition of independent religious women in north-Western Europe in [the] middle ages’.131 External evaluations, especially one made in 2005, pointed out that gender imbalance on technical committees and councils interferes directly with the nomination of World Heritage Sites.132 After (p. 455) the 2005 evaluation, the implementation of the World Heritage Convention began to pay more attention to gender perspectives under the meaning of ‘outstanding universal value’. However, the only mention of gender in the Operational Guidelines is related to the use of gender-neutral language in the preparation of statements of Outstanding Universal Value.133
In terms of the 2003 Convention, the General Assembly also adopted Operational Directives for its implementation.134 Such directives inform the inscription of cultural elements in the Safeguarding list as well as recognize forms of community participation. Adopted in 2008, a modest reference to gender discrimination was made in the 2010 version of the Directives, encouraging parties to take particular care to not contribute to justifying any form of gender-based discrimination.135 Although stakeholders of the 2003 Convention acknowledge the question of gender equality, they also recognize that an in-depth debate about gender equality and intangible cultural heritage has not yet happened.136
This gender blindness has resulted in gaps in the nomination and reporting mechanisms regarding the links between gender equality and intangible cultural heritage.137 Following the 2016 evaluation report, amendments to the Directives included a whole chapter on gender equality. States are now required to pay special attention to the role of gender when considering the nomination of intangible cultural heritage138 and to foster gender equality in the contribution to intangible cultural heritage, as well as in the planning, management, and implementation of safeguarding measures.139
The measures are being implemented, although admittedly at a slow pace. For example, in contrast to earlier practice, the 2016 Examination of the Reports of States Parties on the Implementation of the 2003 Convention includes several examples of the central roles played by women in intangible cultural heritage.140 Furthermore, the equivalent report in 2018 focused on the issue that almost half of States’ periodic reports address (p. 456) gender roles in safeguarding intangible cultural heritage,141 such as inventorying, capacity-building, and transmission initiatives. The analysis of States’ reports and the evaluation of them by the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage shows that, since the 2013 evaluation report, the treaty bodies of the 2003 Convention are progressively giving greater focus to gender roles and women’s cultural rights in intangible cultural heritage.
3.3 Remedying Gender-Blindness in Cultural Heritage: How UNESCO Is Leading the Line
As discussed, the role of women in cultural heritage continues to be overlooked in treaty texts and their monitoring bodies. Nevertheless, the progressive effort to adopt gender approaches to cultural heritage is among the main goals of the UN and UNESCO specifically. The rhetoric of the UN and its specialized agencies has identified women as a common priority since at least 1975, when the Decade for Women programme was launched,142 and gender equality has been included in Sustainable Development Goal 5.143 Concerning UNESCO, the connection of its mandate to the issue of women’s rights can be traced back to the 28th session of the General Conference in 1995.144 Currently, UNESCO has a Division for Gender Equality, which ensures the overall coordination of UNESCO policies, strategies, and actions in support of gender equality and women’s empowerment.145 In terms of cultural heritage, there is a strong focus on ‘reshaping cultural policies’,146 in light of a multifaceted gender gap in all cultural fields.147
In reaction to these developments, UNESCO established a Global Priority Gender Equality framework.148 In a 2014–2021 Medium-Term Strategy,149 translated into an Action Plan150 and operationalized in programmes and budgets,151 UNESCO plans to (p. 457) prioritize gender equality through its policies, programmes, and initiatives. The agency focuses on gender-specific programming, empowering men and women, as well as mainstreaming gender equality considerations in its policies, programmes, and initiatives. UNESCO expects that these actions will result in (i) increased recognition of women’s contribution to cultural life; (ii) encouragement of women and girls’ participation in creativity; and (iii) cultural policies that respect gender equality and participatory rights.152
While the practice of cultural heritage protection has in the past lacked consistent consideration of gender equality, UNESCO is taking action to promote and encourage gender perspectives on cultural heritage. Several examples that set forth the gender aspects of cultural heritage have been published by UNESCO in the past years and have helped create greater awareness of the role of women in the context of both cultural sites153 and forms of cultural expression.154 It is important to highlight in this regard the 2014 Gender Equality, Heritage, and Creativity report, in which several recommendations were made with a view to addressing the shortcomings described in this chapter.155 Although the struggle to consider women’s cultural rights gained a new partner in the form of UNESCO’s approach to policymaking, this is only the beginning if meaningful progress is to be made in overcoming the relative gender blindness of international cultural heritage law.
1 F. Francioni, ‘Culture, Heritage and Human Rights: An Introduction’ in F. Francioni and M. Scheinin (eds), Cultural Human Rights (Brill 2008) 1; J. Symonides, ‘Cultural Rights: A Neglected Category of Human Rights’ (1998) 158 International Social Science Journal 559, 559.
2 See UNESCO, Cultural Rights as Human Rights (UNESCO 1970) 15–23; B. Leander, Preliminary List of Cultural Rights (Culture and Development Coordination Office 1996); P. Y. S. Chow, Cultural Rights in International Law and Discourse: Contemporary Challenges and Interdisciplinary Perspectives (Brill Nijhoff 2018) 4: ‘[A]nswers to questions as to what culture is, and the theoretical basis for protecting culture, remain obscure. For instance, why are some cultural practices considered protected expressions, and others subject to prohibition? Why are some organised ways of living considered to constitute “distinctive” ways of life worthy of human rights protection while others are not? Why are culture and identity often addressed together when individuals from the same community may have different understandings of what the essence of their tradition is, and therefore of what is worthy of protection’; E. Stamatopoulou, Why Cultural Rights Now? (Carnegie Council for Ethics in International Affairs 2004) available at <www.carnegiecouncil.org/studio/multimedia/20040923b-why-cultural-rights-now> accessed 23 July 2019: ‘Globalization and polarization, the North–South tension, the culturalization of political life and rhetoric, migration and racism, cultural relativism and identity politics, peace and security, the huge economic interests invested in current international intellectual property regimes and the “dialogue among civilizations”, the World Conference against Racism, Racial Discrimination, Xenophobia and related intolerance and the post-September 11 era and the impact of terrorism on human rights, constitute the political chessboard on which cultural rights are played or neglected today.’ See also E. Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights (Martinus Nijhoff 2007).
3 A Eide, ‘Cultural Rights as Individual Human Rights’ in A. Eide et al. (eds), Economic, Social and Cultural Rights: A Textbook (2nd edn, Martinus Nijhoff 2001) 289.
4 Chow, Cultural Rights in International Law and Discourse (n 2) 13. See, also, I. Szabo, Cultural Rights (Sijthoff 1974) 108; Y. Dinstein, ‘Cultural Rights’ (1979) Israel Yearbook of Human Rights 58, 74.
5 Chow, Cultural Rights in International Law and Discourse (n 2) 3. See also R. O’Keefe, ‘The “Right to Take Part in Cultural Life” Under Article 15 of the ICESCR’ (1998) 47 International and Comparative Law Quarterly 904, 905: ‘any neat classification of a notion as nuanced as culture can never hope to do it justice’.
6 O’Keefe, ‘The “Right to Take Part in Cultural Life” ’ (n 5) 905. An alternative three-pronged definition is offered by anthropologist Rodolfo Stavenhagen, who identifies the categories of ‘culture as capital’ (accounting for the entire corpus of material culture), ‘culture as creativity’ (relating to artistic and scientific creativity), and ‘culture … as the sum total of all material and spiritual activities and products of a given social group that distinguishes it from other social groups’. R. Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in H. Niec (ed), Cultural Rights and Wrongs (UNESCO Publishing and Institute of Art and Law 1998) 1–20.
7 Chow, Cultural Rights in International Law and Discourse (n 2) 29.
8 UN Committee on Economic, Social and Cultural Rights, General Comment No 21: Right of Everyone to Take Part in Cultural Life (art 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights), 21 December 2009, UN Doc E/C.12/GC/21 (hereafter ‘UN CESCR, General Coment No 21’), para 10: ‘Various definitions of “culture” have been postulated in the past and others may arise in the future. All of them, however, refer to the multifaceted content implicit in the concept of culture.’
9 UN Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Ms Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights Council, 22 March 2010, UN Doc A/HRC/14/36 (hereafter, ‘Independent Expert Report 2010’), para 5.
10 Observatory of Diversity and Cultural Rights, Organisation Internationale de la Francophonie and UNESCO, Fribourg Declaration on Cultural Rights, 7 May 2007 (hereafer ‘Fribourg Declaration on Cultural Rights’), Preamble: ‘Reaffirming that culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs.’
11 UN CESCR, General Comment No 21 (n 8) para 13: ‘The Committee considers that culture for the purpose of implementing article 15(1)(a), encompasses, inter alia, ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter, and the arts, customs and traditions through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view representing their encounter with the external forces affecting their lives. Culture shapes and mirrors the values of well-being and economic, social and political life of individuals, groups of individuals and communities.’
12 Fribourg Declaration on Cultural Rights (n 10), art 2: ‘The term “culture” covers those values, beliefs, convictions, languages, knowledge and the arts, traditions, institutions and ways of life through which a person or a group expresses their humanity and the meanings that they give to their existence and to their development.’
13 UN Human Rights Council, ‘Report of the Independent Expert in the Field of Cultural Rights, Ms Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights Council’ (21 December 2009) UN Doc A/HRC/14/36 (hereafter ‘Independent Expert Report 2009’) para 5.
14 UN CESCR, General Comment No 21 (n 8), para 12.
15 Independent Expert Report 2010 (n 9), para 11: ‘It must be stressed that cultural rights are so closely interconnected with other human rights that it is sometimes difficult to draw a clear line between cultural and other rights.’ That said, the Independent Expert goes on to identify a non-exhaustive list of explicit and interrelated cultural rights, including: art 27 of the Universal Declaration of Human Rights and art 15(1)(a), (b), and (c) of the International Covenant on Economic, Social and Cultural Rights on the rights to take part and participate in cultural life; the right to enjoy the benefits of scientific progress; and the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he or she is the author; arts 13 and 14 of the ICESCR and arts 28 and 29 of the Convention on the Rights of the Child, relating to the right to education. Note was also taken of art 27 of the ICCPR; the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; the United Nations Declaration on the Rights of Indigenous Peoples; ILO Convention No 169, Concerning Indigenous and Tribal Peoples in Independent Countries; art 26 of the Declaration on the Rights of Indigenous Peoples; the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families.
16 Independent Expert Report 2009 (n 13), paras 3 and 9.
17 UN Human Rights Council, ‘Report of the Independent Expert in the Field of Cultural Rights, Ms Farida Shaheed, Submitted Pursuant to Resolution 10/23 of the Human Rights Council’ (21 March 2011) UN Doc A/HRC/17/38 (hereafter ‘Independent Expert Report 2011’) para 6.
18 Ibid, paras 20 and 21. See, also, the UNESCO Declaration on the Intentional Destruction of Cultural Heritage (adopted by the 32nd Session of the General Conference, Paris, 17 July 2003) Doc 32 C/25: ‘cultural heritage is an important component of the cultural identity of communities, groups and individuals, and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights’.
19 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (hereafter ‘UDHR’), art 27(1).
20 UN CESCR, General Comment No 21 (n 8), para 15.
21 Independent Expert Report 2011 (n 17), para 50.
22 See, for example, the International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 21 December 1965, entered into force 4 January 1969) UNTS 660, art 5(e)(vi): ‘The right to equal participation in cultural activities’. See UN CESCR, General Comment No 21 (n 8), para 3 for further examples.
23 See Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted on 20 October 2005, entered into force on 18 March 2007) UNES Doc CLT.2005/Convention Diversite-Cult Rev.2, Preamble: ‘Affirming that cultural diversity is a defining characteristic of humanity … Conscious that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all … Celebrating the importance of cultural diversity for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized instruments … Emphasizing the importance of culture for social cohesion in general, and in particular its potential for the enhancement of the status and role of women in society’ (original emphasis). Art 2(1): ‘Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.’
24 UNESCO, UNESCO World Report: Investing in Cultural Diversity and Intercultural Dialogue (UNESCO 2009) 225.
25 UN General Assembly, Vienna Declaration and Programme of Action (12 July 1993) UN Doc A/CONF.157/23, para 5.
26 UN CESCR, General Comment No 21 (n 8), para 50.
27 UN General Assembly, Universality, Cultural Diversity and Cultural Rights (22 July 2018) UN Doc A/73/227, para 3.
28 Independent Expert Report 2011 (n 17), para 74.
29 Convention on the Elimination of Discrimination Against Women (opened for signature 18 December 1979, entered into force 3 September 1981) UNTS 1249 (hereafter ‘CEDAW’) art 13(c): ‘States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular … The right to participate in recreational activities, sports and all aspects of cultural life.’
30 International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, entered into force 3 January 1976) UNTS 993 (hereafter ‘ICESCR’) art 2(2): ‘the rights enunciated in the … Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status’ (emphasis added).
31 ICESCR, art 3: States Parties ‘undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights’.
32 UN CESCR, General Comment No 21 (n 8), para 21: ‘Article 2, paragraph 2, and article 3 of the Covenant prohibit any discrimination in the exercise of the right of everyone to take part in cultural life on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Interpretative guidance is also found in arts 1(3) and 55 of the Charter, and art 2(1) of the UDHR.
34 UN General Assembly, ‘Universality, Cultural Diversity and Cultural Rights’ (n 27), para 11.
35 UN CESCR, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights (art 2, para 2, of the International Covenant on Economic, Social and Cultural Rights) (2 July 2009) UN Doc E/C.12/GC/20 (hereafter ‘UN CESCR, General Comment No 20’) para 7. See, also, UN CESCR, General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights (art 3 of the International Covenant on Economic, Social and Cultural Rights) 4 (11 August 2005) UN Doc E/C.12/2005 (hereafter ‘UN CESCR, General Comment No 16’) paras 3, 11, 16, and 22.
36 UN CESCR, General Comment No 20 (n 35), para 20.
37 UN CESCR, General Comment No 16 (n 35), para 14.
38 Ibid, para 31; See also UN CESCR, General Comment No 21 (n 8), para 25. Also reflected in the Beijing Declaration and Platform for Action (15 September 1995) A/CONF.177/20 (1995) and A/CONF.177/20/Add.1, paras 12 and 32: ‘[We affirm our commitment to:] The empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief, thus contributing to the moral, ethical, spiritual and intellectual needs of women and men, individually or in community with others and thereby guaranteeing them the possibility of realizing their full potential in society and shaping their lives in accordance with their own aspirations … [We are determined to:] Intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people.’
39 Independent Expert Report 2009 (n 13), para 9(e).
40 Independent Expert Report 2010 (n 9), paras 62–4.
41 UN General Assembly, ‘Universality, Cultural Diversity and Cultural Rights’ (n 27), para 22, quoting C. Bunch, ‘Legacy of Vienna: Feminism and Human Rights’, International Expert Conference on Vienna+20, Vienna, 27–28 June 2013.
42 CEDAW (n 29), art 5(a). See, also, CEDAW, General Recommendation No 3: Education and Public Information Campaigns’ (1987) UN Doc A/42/38.
43 M. A. Freeman, C. Chinkin, and B. Rudolf, The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (Oxford University Press 2012) 145.
45 UN General Assembly, ‘Cultural Rights’ (10 August 2012) UN Doc A/67/287 para 64.
49 UN Human Rights Council, Report of the Independent Expert in the Field of Cultural Rights, Farida Shaheed—Mission to Morocco (5–16 September 2011) (2 May 2012) UN Doc A/HRC/20/26Add.2 (hereafter ‘Independent Expert Morocco Report’) para 65. In a similar vein, in her report on Botswana, the Special Rapporteur welcomed the involvement of women in leadership roles with customary structures but cautioned that it was ‘clearly not sufficient to ensure the cultural rights of women on an equal basis with men’. Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights on Her Visit to Botswana (12 January 2016) UN Doc A/HRC/31/59/Add.1 para 25.
50 Independent Expert Morocco Report (n 49), para 65. See also, UN Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights on Her Visit to Malaysia (10 January 2019) UN Doc A/HRC/40/53/Add.1 (hereafter ‘Independent Expert Malaysia Report’) para 50, noting the failure of the Malaysian government in this regard.
51 Independent Expert Morocco Report (n 49), para 65.
53 UN Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, on Her Visit to Viet Nam from 18 to 29 November 2013 (29 January 2015) UN Doc A/HRC/28/57/Add.1, para 70.
54 UN Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights on Her Mission to Cyprus (3 March 2017) UN Doc A/HRC/34/56/Add.1 para 32 (hereafter ‘Independent Expert Cyprus Report’). See, also, Independent Expert Morocco Report (n 50), para 48.
55 Independent Expert Cyprus Report (n 54), para 95.
56 UN Human Rights Council, ‘Report of the Special Rapporteur in the Field of Cultural Rights on her Mission to the Russian Federation (16–26 April 2012) (11 March 2013) UN Doc A/HRC/23/34/Add. 1 (hereafter ‘Independent Expert Russia Report’) para 105.
57 Ibid, para 106. Similar stories were expressed in the context of the Special Rapporteur’s report on Serbia and Kosovo: UN Human Rights Council, ‘Report of the Special Rapporteur in the Field of Cultural Rights on Her Mission to Serbia and Kosovo’ (19 January 2018) UN Doc A/HRC/35/55/Add.1 para 58.
58 Independent Expert Russia Report (n 56), para 107.
59 Independent Expert Malaysia Report (n 50), para 76.
63 UN OHCHR, Fact Sheet No 23: Harmful Traditional Practices Affecting the Health of Women and Children (August 1995) 1–2.
66 UN HRC, Report by Special Rapporteur on Traditional Practices Affecting the Health of Women and Children, Halima E. Warzazi (23 October 1995) UN Doc E/CN.4/Sub.2/1995/6.
67 UN HRC, ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Yakin Ertürk—Intersections Between Culture and Violence Against Women (17 January 2007) UN Doc A/HRC/4/34 (hereafter ‘Intersections Between Culture and Violence Report’).
68 UN GA Res 48/104 Declaration on the Elimination of Violence Against Women (20 December 1993) UN Doc A/RES/48/104, art 4. See, also, Chow, Cultural Rights in International Law and Discourse (n 2) 187: ‘[C]ulture also lies at the heart of contemporary issues surrounding women’s rights, gender discrimination and gender violence’; Convention on the Rights of the Child (opened for signature 20 November 1989, entered into force 2 September 1990) UNTS 1577, art 24(3).
69 CEDAW (n 29), General Recommendation No 19: Violence Against Women (1992) UN Doc A/47/38, para 11. See, also, UN Committee on the Rights of Children, General Comment No 11: Indigenous Children and their Rights under the Convention’ (12 February 2009) UN Doc CRC/C.GC/11, para 22: ‘[C]ultural practices provided by article 30 of the Convention must be exercised in accordance with other provisions of the Convention and under no circumstances may be justified if deemed prejudicial to the child’s dignity, health and development. Should harmful practices be present, inter alia early marriages and female genital mutilation, the State party should work together with indigenous communities to ensure their eradication.’
70 OHCHR, General Comment No 28: Article 3 (The Equality of Rights Between Men and Women) (29 March 2000) UN Doc CCP/C/21/Rev.1/Add/10 para 5.
71 Chow, Cultural Rights in International Law and Discourse (n 2) 186–93. See, also, R. Coomaraswamy, ‘Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women’ (2002) 34 George Washington International Law Review 483, 492.
72 See S. Wynter, ‘Genital Mutilation or Symbolic Birth? Female Circumsicion, Origins and the Acculturalism of Feminist/Western Thought’ (1997) 47 Case Western Reserve Law Review 501.
73 Coomaraswamy, ‘Identity Within’ (n 71) 484.
74 Ibid, 488. See, also, V. Das, ‘Cultural Rights and the Definition of Community’ in O. Mendelsohn and U. Baxi (eds), The Rights of Subordinated Peoples (Oxford University Press 1994); H. Niec, ‘Casting the Foundation for the Implementation of Cultural Rights’ in UNESCO, Cultural Rights and Wrongs: A Collection of Essays in Commemoration of the 50th Anniversary of the Universal Declaration of Human Rights (UNESCO Publishing 1998).
75 Chow, Cultural Rights in International Law and Discourse (n 2) 222.
76 UN CESCR, General Comment No 21 (n 8) para 19.
78 Chow, Cultural Rights in International Law and Discourse (n 2) 198.
81 Ibid, 216. See, also, S. Speed, ‘Gendered Intersections: Collective and Individual Rights in Indigenous Women’s Experience’ in M. Goodale (ed), Human Rights: An Anthropological Reader (Wiley-Blackwell 2009).
82 Chow, Cultural Rights in International Law and Discourse (n 2) 221.
84 See, in this regard, L. Lixinski, ‘A Third Way of Thinking about Cultural Property’ (2019) 44 Brooklyn Journal of International Law 563, 576.
85 Although practitioners push for community-oriented practices of cultural heritage, a necessary and welcomed effort to correct the focus of (in)tangible cultural heritage practice to marginalized groups and persons, it is important to highlight the ‘colonial baggage tied to the term community, from when communities were created as managerial units for colonial practices’, as explained by Lucas Lixinski in ‘A Third Way of Thinking’ (n 85) 579.
86 ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Yakin Ertürk—Intersections Between Culture and Violence Against Women’ (17 January 2007) (n 67), para 20. See also Coomaraswamy, ‘Identity Within’ (n 71), who explores the historical link between the struggle for women’s empowerment and western imperialism.
87 For an important insight into this phenomenon, see Intersections Between Culture and Violence Report’ (n 67): ‘In order to successfully uphold universally agreed values, in particular the principle that no custom, tradition or religious consideration can be invoked to justify violence against women, the report identifies the myths around cultural discourses and outlines general guidelines for an effective strategy to counter and transform culture-based discourses, which constitute one of the major obstacles to the implementation of women’s rights.’
88 UN General Assembly ‘Cultural Rights’ (n 45), para 3.
89 Intersections Between Culture and Violence Report (n 67), para 20.
90 Coomaraswamy, ‘Identity Within’ (n 71) 483: ‘Identity is not an essential, immutable, permanent status, it has many constituent elements. Future experiences often transform the nature and direction of personal identity. Identity is often composite, made up of multiple selves, often contesting, contradicting, and transforming the other.’
91 For the seminal work of Kimberle Crenshaw, see K. Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ 1989 University of Chicago Legal Forum 139. See also CEDAW, General Recommendation No. 28: Core Obligations of States Parties Under art 2 of the Convention on the Elimination of Discrimination Against Women (16 December 2010) UN Doc CEDAW/C/GC/28 para 18: ‘Intersectionality is a basic concept for understanding the scope of the general obligations of States parties contained in article 2. The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, caste and sexual orientation and gender identity. Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree or in different ways to men. States parties must legally recognize such intersecting forms of discrimination and their compounded negative impact on women concerned and prohibit them. They also need to adopt and pursue policies and programmes designed to occurrences.’
92 OCHCR, General Comment No 28 (n 70), para 30: ‘Discrimination against women is often intertwined with discrimination on other grounds such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status.’
93 Coomaraswamy, ‘Identity Within’ (n 71).
94 Chow, Cultural Rights in International Law and Discourse (n 2) 236. Indeed, this argumentation recognizes the dangers of instituting blanket bans of certain cultural practices, such as the wearing of headscarves.
95 T. M. Bolstad, ‘Kar-Contracts in Norway: Agreements Made by Men Concerning Women’s Work, Ownership and Live’ (1995) 46 Working Papers in Women’s Law 26, 27.
97 C. Brumann, ‘Slag Heaps and Time Lags: Undermining Southern Solidarity in the UNESCO World Heritage Committee’ (2019) 84 Ethnos 719, 731.
99 M. Rössler, ‘Gendered World Heritage? A review of the implementation of the UNESCO World Heritage Convention (1972)’ in UNESCO, Gender Equality, Heritage and Creativity (UNESCO 2014) 78.
100 See, for example, A. Fausto-Sterling, ‘The Five Sexes: Why Male and Female are not Enough’ (1993) The Sciences 20.
101 Rössler, ‘Gendered World Heritage?’ (n 99) 78.
102 Convention [No. II] with Respect to the Laws and Customs of War on Land, with annex of regulations, July 29, 1899, 32 Stat 1803, 1 Bevans 24 and 18 Convention [No IV] Respecting the Laws and Customs of War on Land, with annex of regulations, 18 October 1907, 36 Stat 2277, 1 Bevans 63.
103 Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization and held at The Hague from 21 April to 14 May 1954, published by the Government of The Netherlands (Staatsdrukkerij en Uitgeverijbedrijf 1961) 99–134, 307.
104 Irina Bokova, ‘Introduction’, in UNESCO, The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two (1954 and 1999) Protocols Basic Texts (2010) UNESDoc CLT-2010/WS/5 CLD-4625.9.
105 Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization and held at The Hague from 21 April to 14 May 1954.
106 Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force on 17 December 1975) (World Heritage Convention) 151 UNTS 1037.
107 UNESCO, 1972 Recommendation concerning the Protection at National Level, of the Cultural and Natural Heritage, adopted on the Report of the Commission for General Programme Matters at the Thirty-Second Plenary meeting on 16 November 1972, UNESDoc 17 C/Resolutions + CORR.
108 R. L. Meyers, ‘Travaux Preparatories for the UNESCO World Heritage Convention’ (1976) 2 Earth Law Convention 45, 46.
109 UNESCO, Intergovernmental Conference on Cultural Policies for Development: Final Report (31 August 1998) UNESDOC CLT.98/CONF.210/5, CLT.98/CONF.210/CLD.19 25, 50, 60–1, 79, 89.
110 UNESCO Intergovernmental Conference on Cultural Policies for Development, Action Plan on Cultural Policies for Development (2 April 1998) 3.
111 Ibid, Objective 2, item 8.
113 UNESCO, Final Report on the International Symposium on the Role of Women in the Transmission of Intangible Cultural Heritage, Tehran, September 1999 <https://ich.unesco.org/doc/src/00156-EN.pdf> accessed 19 July 2019.
114 UNESCO, Synthesis Report—Activities in the Domain of Women and Intangible Heritage: International editorial meeting and future activities in the domain, Tehran, June 2001 <https://ich.unesco.org/doc/src/00160-EN.pdf> accessed 19 July 2019.
115 UNESCO, Beijing Declaration and Platform for Action (n 38).
117 See, in this regard, the delegations from the Netherlands, Egypt, and South Africa supported amendments in UNESCO, Compilation of Amendments from Member States Submitted during the Second Session of the Intergovernmental Meeting of Experts on the Preliminary-Draft Convention for the Safeguarding of Intangible Cultural Heritage (2 April 2003) UNESDoc CLT-2003/CONF.206/2
119 UNESCO, Final Report on Expert Meeting ‘Gender and Intangible Heritage’ (n 116).
124 UNESCO, Five years of conflict: the state of cultural heritage in the Ancient City of Aleppo: A Comprehensive multi-temporal satellite imagery-based damage analysis for the Ancient City of Aleppo (UNESCO 2018) 135.
125 For the question of gender and armed conflict, see C. Chinkin, ‘Gender and Armed Conflict’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014).
127 UNESCO, Comparative Studies of Nominations and Criteria for World Cultural Heritage (UNESCO 1979).
128 S. Labadi, UNESCO, Cultural Heritage, and Outstanding Universal Value: Value-based analyses of the World Heritage and Intangible Cultural Heritage Conventions (Altamira 2013) 78.
129 For the discussion, see Rössler, ‘Gendered World Heritage?’ (n 99) 78.
131 UNESCO, Report—Convention concerning the Protection of the World Cultural and Natural Heritage—World Heritage Committee—Twenty-second session (30 November–5 December 1998) UNESDoc WHC-98/CONF.203/18, 27 <http://whc.unesco.org/archive/repcom98.pdf> accessed 22 July 2019.
133 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention (26 October 2016) UNESDoc WHC.16/01.
134 Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1, art 7.
135 UNESCO, Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by the General Assembly of the State Parties to the 2003 Convention on 2008, amended in 2010, Directive 102.
136 UNESCO, Report on the evaluation by the Internal Oversight Service of UNESCO’s standard-setting work of the Culture Sector and the related audit of the working methods of Cultural Conventions (2013) ITH13/8.COM/5.c, iv.
138 Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by the General Assembly of the State Parties to the 2003 Convention on 2008, amended in 2016, Directives 157 and 162.
140 UNESCO, Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Examination of the reports of States Parties on the implementation of the Convention and on the current status of elements inscribed on the Representative List of the Intangible Cultural Heritage of Humanity (2016) UNESDoc ITH/16/11.COM/9.a, para 25.
141 UNESCO, Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, Examination of the reports of States Parties on the implementation of the Convention and on the current status of elements inscribed on the Representative List of the Intangible Cultural Heritage of Humanity (2018) UNESDoc ITH/18/13.COM/7.a, Rev para 25.
142 UNGA Res 31/136 (16 December 1976) UN Doc A/RES/31/136.
143 UNGA Res 70/1 (21 October 2015) UN Doc A/RES/70/1.
149 UNESCO, Medium-Term Strategy, 2014–2021 (2014) UNESDoc 37 C/4, 16 and 25.
150 UNESCO, UNESCO Priority Gender Equality Action Plan: 2014–2021 (2014) UNESDoc 37 C/4-C/5 Compl. 1.
151 UNESCO, Programme and Budget 2014–2017 (2014) UNESDoc 37 C/5.
152 UNESCO Priority Gender Equality Action Plan: 2014–2021 (n 154) Expected Results 1–4.
153 See, for example, UNESCO, ‘In Focus: World Heritage and Gender’ (n 126).
155 UNESCO, Gender Equality, Heritage and Creativity (n 99) 135.