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Max Planck Encyclopedia of Public International Law [MPEPIL]

Cultural Life, Right to Participate in, International Protection

Roger O'Keefe

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 14 December 2019

Subject(s):
Economic, social, and cultural rights — Indigenous peoples — Minorities — Disability

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

Art. 15 (1) (a) International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’), embodies in binding form the right of everyone freely to participate in the cultural life of the community recognized in Art. 27 (1) Universal Declaration of Human Rights (1948) (‘UDHR’). The same right is secured in specific contexts by Art. 5 (e) (vi) International Convention on the Elimination of All Forms of Racial Discrimination (1965) (‘CERD’ Racial and Religious Discrimination); Art. 13 (c) Convention on the Elimination of All Forms of Discrimination against Women (1979) (‘CEDAW’ see also Women, Rights of, International Protection); Art. 31 Convention on the Rights of the Child (1989) (Children, International Protection); Arts 43 (1) (g) and 45 (1) (d) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)(‘Migrant Workers Convention’ Migrant Workers); and Art. 30 Convention on the Rights of Persons with Disabilities (2006) (Disabled People, Non-Discrimination of). It is further guaranteed at the regional level by Art. 17 (2)African Charter on Human and Peoples’ Rights (1981) (‘ACHPR’); Art. 14 (1) (a) Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988) (American Convention on Human Rights [1969]); and Art. 42 (1)Arab Charter on Human Rights (2004).

As for non-binding international instruments (Non-Binding Agreements; see also Soft Law), the right to take part in cultural life is expressly recognized in the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1976; in the Universal Declaration on Cultural Diversity, adopted by UNESCO’s General Conference in 2001 (see also Cultural Diversity); in a series of UN General Assembly (‘UNGA’) resolutions entitled Human Rights and Cultural Diversity, from UNGA Resolution 55/91 (4 December 2000) to UNGA Resolution 64/174 (18 December 2009); in a series of resolutions of the now defunct UN Commission on Human Rights (‘UNCHR’; United Nations Commission on Human Rights/United Nations Human Rights Council) entitled ‘Promotion of the Enjoyment of the Cultural Rights of Everyone and Respect for Different Cultural Identities’, from UNCHR Resolution 2002/26 (22 April 2002) to UNCHR Resolution 2005/20 (14 April 2005), as well as in UN Human Rights Council (‘UN HRCouncil’) Resolutions 6/1 (27 September 2007), 10/23 (26 March 2009), and 14/9 (18 June 2010); and, in the particular context of minorities, in Art. 2 (2) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the UNGA in 1992 (see also Minorities, International Protection).

In the light of its affirmation in all these instruments, the right to take part in cultural life is probably part of customary international law, although it is unclear, in the absence of sufficiently explicit State practice and opinio iuris, whether the specific incidents of the right as described below are all customary.

The right to take part in cultural life is a relatively under-elaborated one, perhaps the least explicitly articulated of all the human rights enshrined in the ICESCR and the International Covenant on Civil and Political Rights (1966) (‘ICCPR’). Comparatively little of a formal nature had been said about it until recently, and scholarly writings which take account of the primary sources remain rare. Only in December 2009, with the release of General Comment No 21 did the Committee on Economic, Social and Cultural Rights (CESCR) publish a general comment on Art. 15 (1) (a) ICESCR, although General Comment No 5 on persons with disabilities, and General Comment No 6 on the economic, social and cultural rights of older persons, had previously touched on specific aspects of the right guaranteed in this provision (see also General Comments/Recommendations). Indications of what the right entails can be gleaned from a variety of sources: General Comment No 21; the travaux préparatoires of Art. 15 (1) (a) ICESCR and Art. 27 UDHR; the Revised Guidelines regarding the Form and Contents of Reports to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (‘Revised Guidelines’) circulated in 1991 by the CESCR, now replaced by paras 67–69 Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (‘2009 Guidelines’) published by the CESCR in 2009; the CESCR’s concluding observations over the years on the reports submitted by States Parties under Arts 16 and 17 ICESCR; the Guidelines for States’ Periodic Reports (‘ACHPR Guidelines’) published in 1989 by the African Commission on Human and Peoples’ Rights (ACommHPR) in relation to the reporting obligation laid down in Art. 62 ACHPR; and the UNESCO Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It. Also instructive in the minority and indigenous context is the recent consideration of the right by the ACommHPR in Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya (at paras 239–51; ‘Centre for Minority Rights Development [Kenya]’), the first time at either the international or national level that the right to take part in cultural life has been the subject of adjudication, albeit in this case adjudication of only a quasi-legal nature. Unless otherwise stated, the account of the right to take part in cultural life given below is drawn from this range of documents and instruments.

In 2009, by way of Resolution 10/23, the UN HRCouncil established for a period of three years the special procedure mandate of an Independent Expert in the Field of Cultural Rights (Special Rapporteurs of Human Rights Bodies). The Independent Expert, Farida Shaheed indicated in her first report to the UN HRCouncil, that the ‘most obvious right’ falling within the mandate is the right to take part in cultural life as recognized in the various international human rights instruments (at para. 12).

B.  Content of the Right

1.  General

The right to take part in cultural life relates to culture in two distinct but overlapping senses of the word: first, in the narrower sense of the external manifestations, tangible and intangible, of human self-expression and creativity, from the traditional high cultural canon of art, literature, music, drama, and architecture to the more demotic phenomena of the mass media, contemporary and folk music, arts and crafts, hobbies and sports; secondly, in the broader sense, derived from social anthropology, of a characteristic worldview and way of life. In either sense of the word, the notion of culture posited, is non-prescriptive. The Revised Guidelines, for example, referred to ‘the right of everyone to take part in the cultural life which he or she considers pertinent, and to manifest his or her own culture’ (at 19). Similarly, General Comment No 21 speaks of ‘the right of everyone to engage in their own cultural practices’ and of the creation of an environment in which individuals ‘can participate in the culture of their choice’ (at para. 55).

Under both Art. 27 UDHR and Art. 15 (1) (a) ICESCR, the right in question is secured to ‘everyone’, meaning to each individual (see also Individuals in International Law). However, the anthropological conception of cultural life poses the question whether the right to take part in cultural life is also a group right (Group Rights). The answer is that, as conceived in these provisions and in the other international human rights treaties, the right to take part in cultural life remains an individual right but, to the extent that it protects cultural identity, one which presupposes the existence of a group and is commonly exercised in the context of that group. In this light, the ACHPR Guidelines’ inclusion of Art. 17 (2) ACHPR (‘Every individual may freely take part in the cultural life of his community’) under the rubric of ‘peoples’ rights’ is mistaken: while it is true, as the ACommHPR notes in para. 241 Centre for Minority Rights Development (Kenya), that Art. 17 ACHPR has both individual and collective dimensions, the right of every individual embodied in Art. 17 (2) ACHPR is patently an individual right. For her part, the Independent Expert in the Field of Cultural Rights has indicated in her first report that she proposes ‘to explore further the relationship between individual and collective cultural rights, taking into consideration the practice of human rights mechanisms at the national, regional and international level’ (at para. 10).

As emphasized by the CESCR, a State does not guarantee the right to take part in cultural life simply by refraining from and removing unjustifiable restrictions on participation in culture. The right to take part in cultural life imposes an obligation on States to take positive measures to enable cultural participation, including through public support for private initiative and, conversely, through the prevention and removal of unjustifiable restrictions by private and other third parties. Nor do States acquit their obligations merely by removing formal barriers to participation. They are obliged to monitor on a continuing basis the degree to which participation in cultural life is actually taking place and improving. At the same time, in accordance with Art. 2 (1) ICESCR, the nature of a State Party’s obligations under Art. 15 (1) (a) ICESCR is one of progressive realization to the maximum of that Party’s available resources.

2.  Cultural Life in the Narrower Sense

As regards culture in the narrower sense, the right to take part in cultural life encompasses both the right to enjoy cultural, literary, and artistic works and values and the right to create such works and values. The most obvious way a State can begin to fulfil the obligations imposed by the right to take part in cultural life in this first sense is by allocating funds and, where necessary, legislating to promote cultural development and to foster participation in cultural activities. Importance is placed first of all on the creation and maintenance of the infrastructure necessary for participation in culture in the material sense—venues such as museums, galleries, libraries, theatres and cinemas, and organizations and groups such as symphony orchestras, dance troupes, learned societies, craft guilds and sporting associations. Participation in cultural life also implies the accessibility of cultural activities to the widest possible audience, including persons belonging to disadvantaged groups. Affordability is stressed, with States being encouraged to subsidize cultural outlets, so as to facilitate access by persons with limited means, and to monitor the cost of newspapers and magazines (see also Information and Communication, Freedom of, International Protection). Access is looked at in geographical terms as well, with States being expected to work to overcome pronounced regional disparities in the availability of cultural facilities. Communication barriers can compromise access to cultural life too, and the CESCR has concerned itself with the non-availability of cultural programmes, literature, and broadcasting and print media in widely spoken languages of indigenous peoples. The issue of physical access to cultural venues by persons with disabilities has also been highlighted. A key aspect of the right to take part in cultural life, and one which again often implicates both funding and the necessary legislation, is the obligation to preserve and present mankind’s cultural heritage, in the words of both the Revised Guidelines (at 19; Common Heritage of Mankind) and the ACHPR Guidelines (at 88). As para. 50 (a) General Comment No 21 puts it, the right to take part in cultural life implies that ‘[c]ultural heritage must be preserved, developed, enriched and transmitted to future generations’. The obligation encompasses a duty to conserve the physical state of cultural property, which includes a prohibition on its wilful destruction and a positive duty to protect it from vandalism and theft.

10  In Resolution 6/1 on the Protection of Cultural Rights and Property in Situations of Armed Conflict (27 September 2007), the UN HRCouncil reaffirmed that ‘the destruction of or any other form of damage to cultural property may impair the enjoyment of cultural rights, in particular of article 15 of the International Covenant on Economic, Social and Cultural Rights’ (preamble), and emphasized that ‘protection of cultural property during armed conflicts can contribute to the full enjoyment of the right of everyone to take part in cultural life’ (at para. 4). In a similar vein, one Special Representative of the UN Secretary-General on the situation of human rights in Cambodia characterized the vandalism and looting of Angkor Wat as an issue going to Art. 15 (1) (a) ICESCR (UN Commission on Human Rights M Kirby ‘Report on the Situation of Human Rights in Cambodia’ [24 February 1994] UN Doc E/CN.4/1994/73 paras 118–22; see also Cambodia Conflicts [Kampuchea]). The link between Art. 15 ICESCR and the protection of cultural heritage, especially from intentional destruction, is also made in UN HRCouncil Resolution 6/11 on Protection of Cultural Heritage as an Important Component of the Promotion and Protection of Cultural Rights. The right to take part in cultural life further implies a right of access to cultural heritage, a point emphasized by the Independent Expert in the Field of Cultural Rights. For their part, the States Parties to the Council of Europe (COE) Framework Convention on the Value of Cultural Heritage for Society (1999) acknowledge in the preamble that ‘every person has a right to engage with the cultural heritage of their choice … as an aspect of the right freely to participate in cultural life enshrined in the United Nations Universal Declaration of Human Rights (1948) and guaranteed by the International Covenant on Economic, Social and Cultural Rights (1966)’; and they recognize in Art. 1 (a) that ‘rights relating to cultural heritage are inherent in the right to participate in cultural life’.

11  Cultural life, as conceived of in the various instruments and documents, comprehends creative freedom. Art. 15 (2) ICESCR expands on Art. 15 (1) (a) ICESCR in this regard, making it clear that the steps to be taken to achieve the full realization of the right to take part in cultural life include those necessary for the diffusion of culture. Art. 15 (3) ICESCR explicitly enunciates the link between the right to take part in cultural life and freedom of thought and expression by obliging States Parties to respect the freedom indispensable for creative activity (see also Opinion and Expression, Freedom of, International Protection). In this respect, there is considerable overlap between Art. 15 ICESCR and Art. 19 (2) ICCPR, which guarantees freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds ‘in the form of art, or through any other media’. At the same time, in accordance with Art. 4 ICESCR, parties may subject the rights guaranteed in the ICESCR to such limitations as are determined by law, in so far as this may be compatible with the nature of these rights, for the purpose of promoting the general welfare in a democratic society. The Revised Guidelines (at 20), as prefigured verbatim in the ACHPR Guidelines (at 88) and restated more succinctly now in the 1999 Guidelines (at para. 72), asked parties to give details of legislation protecting freedom of artistic creation and performance, including the freedom to disseminate the results of such activities, as well as an indication of any restrictions or limits imposed on these freedoms. Restrictions of all kinds and on all grounds have been queried by the CESCR. Publishing, film-making, and all other artistic and creative endeavours, even when in receipt of State subvention, are to be free from official control and financially autonomous, and States must be capable of justifying the criteria applied in selecting groups and individuals to be supported. States must also ensure that the actions of private bodies do not curtail creative freedom to an extent that would amount to an infringement of the right to take part in cultural life if done by the government.

3.  Cultural Life in the Broader Sense

12  The right to take part in cultural life in the broader, anthropological sense of the term implies the right of persons belonging to minority and indigenous groups to practise their characteristic ways of life. States must remove barriers to the expression of, and must take active measures to, preserve and foster minority and indigenous cultures. The point is underlined in Art. 17 (3) ACHPR, which supplements the right of every individual to freely take part in the cultural life of his or her community posited in Art 17 (2) ACHPR by stipulating that ‘[t]he promotion and protection of morals and traditional values recognized by the community shall be the duty of the State’; and as made clear in Centre for Minority Rights Development (Kenya), where the ACommHPR usefully elaborated on the content of Art. 17 ACHPR in its application to culture in the anthropological sense, the provision encompasses minority and indigenous communities. As a function of their right to take part in cultural life, persons belonging to such communities are entitled to a degree of cultural autonomy. In all these respects, the right to take part in cultural life finds counterparts in Arts 1 and 2 (1) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; in Art. 31 (1) Migrant Workers Convention; in Arts 5, 8 (1), 8 (2) (a), 11–16, 31 and 34 United Nations Declaration on the Rights of Indigenous Peoples (UNGA Res 61/295 [13 September 2007]), which give the most detailed indication of what the cultural autonomy to which indigenous persons are entitled may entail, even if they are framed in terms of group, rather than individual rights; in various provisions of the Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries (1989), adopted under the auspices of the International Labour Organization (ILO); in the UNESCO Universal Declaration on Cultural Diversity; in the UNGA resolutions on human rights and cultural diversity and the UNCHR resolutions on the promotion of cultural rights and respect for cultural identities; in Art. 1 (1) Declaration of the Principles of International Cultural Cooperation, adopted by UNESCO’s General Conference in 1966, also expressed in the language of group rights; as well as in Arts 4 (2), 5, 915 and 17 COE Framework Convention for the Protection of National Minorities (1995); and in preamble and Arts 4 (c) and 5 (1) Charter for African Cultural Renaissance (1986). At the bilateral level, it is mirrored in, by way of one example among many, Art. 15 Treaty of Understanding, Cooperation and Good Neighbourliness between Romania and the Republic of Hungary (1996), on minority rights (1966 UNTS 77). Perhaps most obviously, the minority-culture aspect of the right to take part in cultural life overlaps with Art. 27 ICCPR.

13  Additionally, a State is called upon by the right to take part in cultural life to nurture the distinctive identity of the national culture as a whole. Governments are expected to promote domestic cultural content. They may also be required to temper overly aggressive foreign cultural influences. In this regard, the right to take part in cultural life would appear to have elements in common with the right of peoples to self-determination under Art. 1 common to the ICCPR and ICESCR, in so far as this speaks of peoples freely pursuing their cultural development, although the former is an individual right and the latter a group right. It is also in keeping with Art. 1 (1) and (2) Declaration of the Principles of International Cultural Cooperation, the latter proclaiming that every people has the right and duty to develop its own culture; with the Universal Declaration on Cultural Diversity; with the UNGA resolutions on human rights and cultural diversity and the UNCHR resolutions on the promotion of cultural rights and respect for cultural identities; with Art. 22 (1) ACHPR; with preamble Charter for African Cultural Renaissance; and with Art. 17 (originally Art. 13) Charter of the Organization of American States. In reliance on Art. 15 (1) (a) ICESCR, the CESCR has encouraged certain States to monitor the domestic cultural impact of tourism and foreign workers. The CESCR also takes seriously the possible undermining of national cultures by foreign mass media, urging States to keep a watchful eye on the cultural influence of foreign satellite and cable television and on the proportion of imported to local programming on terrestrial channels.

14  However, while promoting the distinctive character of each culture, whether minority, indigenous, or national, the right of individuals to participate in the cultural life of their choice and to conduct their own cultural practices is subject, as Art. 5 Universal Declaration on Cultural Diversity recalls, to respect for other internationally protected human rights and fundamental freedoms. In the words of Art. 4 Universal Declaration on Cultural Diversity, para. 18 General Comment No 21 and para. 4 common to UNHRC Resolution 10/23 (26 March 2009) and UNHRC Resolution 14/9 (18 June 2010) ‘no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope’. As indicated in para. 20 General Comment No 21, this is in line with Art. 5 (1) ICESCR, which aims to counter abuse of ICESCR rights. It also accords with the rule of treaty interpretation embodied in Art. 31 (3) (c) Vienna Convention on the Law of Treaties (1969) (see also Interpretation in International Law). The equivalent point is made in the specific context of minorities in Arts 4 (2) and 8 (2) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and Arts 20 and 22 Framework Convention for the Protection of National Minorities; and in respect of indigenous peoples in Art. 34 Declaration on the Rights of Indigenous Peoples and Arts 8 (2) and 9 (1) Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries. As regards attitudes to women, Art. 5 (a) CEDAW obliges States Parties to take all appropriate measures to:

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 stereotyped roles for men and women.

For its part, Art. 4 (1) (b) Convention on the Rights of Persons with Disabilities entails an obligation on States Parties to take all appropriate measures to ‘modify or abolish … customs and practices that constitute discrimination against persons with disabilities’. In sum, to borrow from para. I (5) Vienna Declaration and Programme of Action of the Vienna World Conference on Human Rights (1993), as well as from para. 121 of the 2005 World Summit Outcome, from the UNGA resolutions on human rights and cultural diversity, from para. 3 common to UNHRC Resolution 10/23 (26 March 2009) and UNHRC Resolution 14/9 (18 June 2010), and from para. 17 General Comment No 21, while the significance of national and regional particularities and of historical, cultural and religious backgrounds must be borne in mind, the right to take part in cultural life does not support cultural relativist claims to derogation from other international human rights obligations. The Independent Expert in the Field of Cultural Rights has indicated in her first report that she will pay particular attention to this issue (at para. 37).

15  Nor, as made clear by the CESCR, does the obligation to promote the distinctive identity of minority, indigenous, and national cultures suggest a duty to seal them off from other cultures. This would itself violate the right to take part in cultural life, both by excessively restricting the right of each citizen freely to receive the fruits of culture, a freedom which is the essence of the cultural diffusion that States Parties to the ICESCR are obliged by Art. 15 (2) ICESCR to promote, and by preventing the processes of cultural interaction which have historically driven the cultural development that States are also bound to foster. Rather, the various material sources of the right to take part in cultural life, along with the Declaration of the Principles of International Cultural Cooperation, the Universal Declaration on Cultural Diversity, the UNGA resolutions on human rights and cultural diversity, and the UNCHR resolutions on the promotion of cultural rights and respect for cultural identities, all emphasize cultural interaction, as does Art. 15 (4) ICESCR, in which States Parties recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in cultural fields. For its part, the CESCR has made it clear that, insofar as persons belonging to minority and indigenous groups may wish to participate in the wider national culture, they are entitled to do so on an equal footing with other individuals.

C.  Assessment

16  It might be asked whether a right to take part in cultural life is really necessary, not because cultural life is any less a public good, but because other internationally recognized human rights and other non-human-rights-based international obligations in effect secure it. That is, insofar as the right implies the freedom indispensable for creative activity, the freedoms of expression and association (Association, Freedom of, International Protection) arguably cover the field; insofar as the right suggests a range of rights in favour of persons belonging to minority or indigenous groups, these rights already fall under the respective rubrics of minority rights, the rights of indigenous peoples or, in some cases, the right to education (Education, Right to, International Protection); insofar as the right to take part in cultural life has implications for a national culture, the right to self-determination enshrined in Art. 1 common to ICCPR and ICESCR arguably does the same job, as do, in a far more programmatic manner, the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), both adopted under the auspices of UNESCO; and so on. However, there are several possible responses to this line of argument. First, not every element of the right to take part in cultural life is shared with another international human right or other international obligation: the former retains an independent purchase, especially as regards certain aspects of culture in the narrower sense. Secondly, not every overlapping right is currently legally binding and the object of scrutiny by a treaty-based monitoring body (Human Rights, Treaty Bodies). Finally, it is hard to see what is wrong with a mutually reinforcing relationship among different international human rights guarantees and between human rights-based and other international legal obligations. In this regard, it is worth noting that para. 9 UNHRC Resolution 10/23 (26 March 2009) directs the Independent Expert in the Field of Cultural Rights ‘[t]o work in close co-ordination, while avoiding unnecessary duplication, with intergovernmental and non-governmental organizations, other special procedures of the Council, the Committee on Economic, Social and Cultural Rights and the United Nations Educational, Scientific and Cultural Organization, as well as with other relevant actors’.

17  Perhaps more persuasively, it might be asked whether a public good as protean as cultural life is appropriate for protection by means of legally opposable individual human rights. In modern—indeed, postmodern—societies characterized by radical cultural pluralism, governmental decisions as to the allocation of limited resources to cultural ends implicate an almost bewildering array of competing interests, and necessarily involve trade-off and compromise. They are, in short, the stuff of political judgment, not legal adjudication. The same could be said of the fine balances to be struck by a State committed to supporting national culture in the face of globalization. In response, however, a few points could be made. To begin with, the usual means by which the right to take part in cultural life is enforced at the international level is not through litigation and adjudication but via the more supple and holistic constructive dialogue which characterizes the system of State reports under the ICESCR, a system which has proved itself well adapted to the nuanced, fact-sensitive assessments called for by the right. That said, and although it is yet in fact to do so, the right to take part in cultural life can, in the relevant context, form the basis of an individual communication under the CERD (see also Human Rights, Individual Communications/Complaints), the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999), the Migrant Workers Convention, the Optional Protocol to the Convention on the Rights of Persons with Disabilities (2006) and, when it enters into force, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008). However, in such potential cases, as well as in potential cases in relevant domestic courts (Human Rights, Domestic Implementation), it might be expected that only relatively clear-cut and serious violations—those, for example, involving a complete absence of or discriminatory denial of access to cultural facilities or the obviously unjustifiable censorship of cultural works—would be litigated, would be justiciable in domestic courts, and would ultimately ground a ruling against the State or government. In short, there is no reason why international monitoring bodies and domestic courts should prove incapable of distinguishing in this context, as in others in the field of human rights (especially economic, social, and cultural rights), between permissible exercises of political discretion and violations of international legal standards. In this respect, the application of the right to take part in cultural life in Centre for Minority Rights Development (Kenya), in which the ACommHPR found a violation of Art. 17 (2) and (3) ACHPR where ‘the very essence of the Endorois’ right to culture ha[d] been denied, rendering the right, to all intents and purposes, illusory’ (at para. 251), augurs well.

18  Most fundamentally, it might be asked whether cultural life can ever really be fostered through governmental action. Perhaps, in the words of Eduard Steuermann, the more that is done for culture the worse it fares. Perhaps, as Theodor Adorno argued, one is faced with the dilemma that ‘culture suffers damage when it is planned and administered’, but, when left to itself, ‘threatens not only to lose its possibility of effect, but its very existence as well’ (Adorno 94). Alternatively, perhaps government intervention, if judicious, cannot but help culture. Whatever the case may be, States are legally required by the right to take part in cultural life to take certain measures for the avowed benefit of culture in both senses of the word. Only history will tell if this was for the good.

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