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Introduction an important contribution to this debate in ultural are often called the acknowledging a detailed and broad number of ‘Cinderella’ of because not previously explicitly recognized C of the limited attention that has as human rights, such as ‘archaeological and been paid to them. However, recent years have historical sites, artefacts, designs, ceremonies, witnessed more attention being paid to this area, technologies and visual and performing arts and particularly in terms of the cultural rights of literature’ (Article 11) and ‘human and genetic minorities and . Human rights resources, seeds, medicines, knowledge of the legal instruments refer to ‘cultural rights’ or ‘the properties of fauna and flora, oral traditions, right to ’ or the ‘right to take part in the literatures, designs, sports and traditional games culture’. However, even these interchangeable and visual and performing arts’ (Article 31).4 In terms do not reflect the plethora of aspects that 2009, the UN Committee on Economic, Social the right to culture contains for minority and and Cultural Rights (CESCR) issued a General indigenous peoples. Litigation has therefore Comment on the Right to Take Part in Cultural played a major role in determining and defining Life, which expanded this understanding beyond the exact legal parameters of these concepts. indigenous peoples. This chapter will outline the various key Lately, the debate on the right of minorities international human rights legal standards that and indigenous peoples to their culture has been may come into play when considering minority closely linked to the concept of ‘’, and indigenous peoples’ cultural rights, and draw a term found in several international instruments, on jurisprudence of international and regional including the Heritage Convention, the Protecting the courts and quasi-judicial mechanisms, illustrating Framework Convention on National Minorities how litigation, including (FCNM), the Faro Framework Convention on Group International’s (MRG) own legal cases the Value of Cultural Heritage for Society and programme, has assisted in their development. UNDRIP. right to culture As will be shown, using litigation to develop the Similar approaches have been adopted at right to culture has usually involved the right the regional level. For example, in the African being claimed in conjunction with other rights, context, ‘culture’ has a number of meanings, all such as the right to language or the right to land, of which have been recognized by the African for minorities and rather than litigating the right to culture directly. Commission on Human and Peoples’ Rights (ACHPR). The first understanding of culture Defining the right to culture is ‘culture as capital’: the accumulated material The understanding of what is meant by ‘culture’ heritage of mankind or particular groups, is essential in defining the scope of the right to exemplified by monuments and artefacts. The indigenous peoples: culture. As explained in the keynote chapter, second is ‘culture as creativity’: the process (and ‘Cultural rights and their implications for products) of artistic and scientific creation.5 minority and indigenous communities’, a greater Article 17(2) and (3) of the African Charter on understanding of culture in Human and Peoples’ Rights (the African Charter) an overview has developed over time that has assisted the therefore provides: protection of minorities and indigenous peoples’ right to culture. The United (UN) ‘(2) Every individual may freely take part in the Human Rights Committee (HRC) has observed cultural life of his community. of international that ‘culture manifests itself in many forms’2 and (3) The promotion and protection of morals and the UN Committee for the Elimination for All traditional values recognized by the community shall Forms of Racial (CERD) has be the duty of the .’ 6 given a broad scope of the concept that includes case law ‘distinct culture, history, language and way Culture, in this sense, therefore equates to the of life as an enrichment of the State’s cultural sum total of the material and spiritual activities 3 1 identity’. The 2007 UN Declaration on the and products of a given social group that Lucy Claridge and Alexandra Xanthaki Rights of Indigenous Peoples (UNDRIP) made distinguishes it from other communities.

State of the World’s Minorities Protecting the right to culture for 61 and Indigenous Peoples 2016 minorities and indigenous peoples Applying the right to culture to Right: Saami indigenous people in herd minorities and indigenous peoples . Michiel van Nimwegen. The right to culture – and the right to take part in culture – was, at first, purely an also one’s own culture. The right to ‘participation individual right, as provided by Article 15 of in cultural life’ also includes ‘the right to benefit the International Covenant on Economic Social from cultural values created by the individual or and Cultural Rights (ICESCR). However, the the community’.11 The negative dimension of right to take part in culture has been expanded the right to participate in the culture includes through a wider interpretation of Article 27 non-interference by the state in ‘the exercise of of the International Covenant on Civil and cultural practices and access to cultural goods and Political Rights (ICCPR), which affirms the services’, while the positive obligation ensures right to culture for members of minorities ‘preconditions for participation, facilitation and indigenous peoples. Article 27 specifically and promotion of cultural life, and access and stipulates that persons belonging to ethnic, preservation of cultural goods’.12 In Khurshid religious or linguistic minorities ‘shall not be Mustafa and Tarzibachi vs. , for example, denied the right, in community with other the European Court of Human Rights (ECtHR) members of their group, to enjoy their own held that the eviction of tenants on account culture’. Although the language is quite generic, of their refusal to remove a satellite dish that it is now accepted that positive protection is enabled them access to television programmes in required to realize the provisions of Article 27.7 Arabic and Farsi of their of origin was In a slightly different formulation, the indigenous contrary to the right of members of minorities right to culture under UNDRIP incorporates a ‘who may wish to maintain contact with the collective element: states are under an obligation culture and language of their country of origin’.13 to protect indigenous peoples’ full enjoyment of In interpreting Article 27, the HRC has their human rights either as individuals or as a confirmed a high threshold for a violation to be collective. established, with consultation of minority groups The rights of persons belonging to minorities being a key criterion. In Länsman vs. Finland, a and indigenous peoples to enjoy their own case concerning the Saami indigenous people, people’s own right to participation and control of Article 27 in the implementation of the culture are permanent. Importantly, their the applicants complained about the decision over such matters. The HRC was tasked with legislation.18 realization may need special measures. Such of the state authority to allow stone quarrying assessing the extent to which the negotiations UNDRIP affirms indigenous peoples as the special measures are well recognized in to take place on their land, disrupting their between the and the Māori primary guardians and interpreters of their international law as not being discriminatory,8 reindeer-herding activities. With regard to the in relation to fishing rights complied and the true collective owners of their and are mandatory, rather than discretionary measure interfering with the applicants’ rights with Article 27 of the ICCPR. While particular works, arts and ideas. On the basis of indigenous as some states have indicated.9 Therefore, state under Article 27, the HRC indicated the impact attention was paid to the cultural and religious self-determination, former UN Special policies that simply provide for non‑interference of such a measure must be substantial ‘that it importance of fishing for the Māori throughout Rapporteur on the rights of indigenous peoples, in the right to culture of minorities and does effectively deny to the authors the right the consultation process, the HRC acknowledged Erica-Irene Daes, has argued that no alienation of indigenous peoples do not fulfil the current to enjoy their cultural rights in the region’.14 ‘Article 27 does not only protect traditional these elements of their culture should be allowed obligations of states under the prevailing Nevertheless, the situation complained of did means of livelihood of minorities, but allows also by international or national law, unless made interpretation of contemporary international law. not constitute a denial of the applicants’ rights. for adaptation of those means to the modern way in with indigenous peoples’ own Considering the quarrying in the affected area of life and ensuing technology.’16 ‘By engaging traditional laws, and with the approval of their The right to participate in cultural that had already taken place, the HRC concluded itself in the process of broad consultation before own local institutions.19 However, indigenous life: what does this mean in practice? that reindeer‑herding ‘does not appear to have proceeding to legislate, and by paying specific rights to tradition are not absolute. Articles 1 and As explained in the keynote chapter, the right been adversely affected by such quarrying’.15 The attention to the of Māori fishing 46 of UNDRIP place the text of the Declaration of members belonging to minorities to practise fact that the affected community was consulted activities’, the HRC concluded that the state within the general standards of international law, their culture, recognized in Article 27 of the and its interests were considered in the process party had taken the necessary steps to ensure including its well-known principles of solving ICCPR, must be read in conjunction with the leading to contracting the private company was that the legislation regulating possibilities conflicts between human rights.20 It is necessary right of everyone ‘to take part in cultural life’, also taken into account. for the Māori to engage in commercial and to ensure that indigenous communities are recognized in Article 15 of the ICESCR.10 ‘The In a later case, Apirana Mahuika and others vs. non‑commercial fishing was compatible with informed and give their free, prior and informed culture’ in which everyone has the right to , the HRC linked the limitations Article 27.17 Nevertheless, the state party is consent before any interference with their cultural participate is not only the national culture, but of indigenous cultural rights to the indigenous bound to pay attention to the requirements practices. Further, of great importance is the

62 Protecting the right to culture for State of the World’s Minorities State of the World’s Minorities Protecting the right to culture for 63 minorities and indigenous peoples and Indigenous Peoples 2016 and Indigenous Peoples 2016 minorities and indigenous peoples principle of non-discrimination in participation permitted outside the ones enumerated in the and develop their cultural customs, practices and that, the Court held that there is a right to freely in, and access and contribution to the culture, specific provisions and the core of the right has to traditions. These are at the core of indigenous choose one’s own cultural or ethnic identity and both in the national and the minority culture.21 be maintained. identities, and respect for such elements has a to have the choice respected, provided that the Recognition of indigenous communities as the The evolution of the application of this salutary impact on the general well-being of choice is based on objective grounds, within the main interpreters of their traditions must also be approach is clearly demonstrated in the case law individuals and the communities. Studies have ambit of Article 8.37 ensured. At the same time, the Declaration does of the UN HRC. In Kitok vs. Sweden,26 the HRC shown that the lack of respect for identity is The ECtHR has also recognized a significant not stand on its own, but forms part of the wider was faced with a question of restricting the rights closely related to endemic problems of alcoholism link between and the maintaining human rights system and therefore is susceptible of an individual member of the Saami indigenous and poor physical and mental health in of the of minorities. In to the checks, guarantees and limits this system people as opposed to the rights of the community indigenous communities. States are encouraged Podkolzina vs. Latvia38 the Court found a sets, as set out later in this chapter. as a whole. To reduce the number of reindeer to take specific measures that enable the violation of the right to free elections under breeders, a new provision had been introduced development of minority cultures, traditions and Protocol No. 1, Article 3, where the applicant, Justifying restrictions on minority into law limiting the right to reindeer husbandry customs, with assimilation clearly prohibited.31 a member of the Russian-speaking minority and to culture: a of those members of the Saami indigenous In practice, this right has been litigated in in Latvia, was struck out as a candidate in difficult balancing act people who had engaged in other professions for international courts in conjunction with a variety the elections to the Latvian parliament, due Conflicts between the right of members of three years. As a result, the applicant was denied of other rights, including the right to privacy to insufficient knowledge of the state official minorities and indigenous peoples to culture the respective right, in spite of the fact that his and family life, and the right to freedom of language. Although the requirement of a and other human rights have been used as an family had been active in reindeer breeding for association. command of Latvian at the upper level was excuse for states not to recognize minority and more than 100 years. According to the HRC, Evaluating a claim under Article 8 of the considered to pursue a legitimate aim of the indigenous customs and practices. Recent voices the restriction imposed upon an individual ‘must European Convention on Human Rights proper functioning of the institutional system,39 that present human rights values as only part of be shown to have a reasonable and an objective (ECHR), which protects the right to privacy and the Court held that the decision to eliminate the the western ‘way of life’ are erroneous, undermine justification and to be necessary for the continued family life, the ECtHR has noted: applicant from the list of candidates could not be the respect for minority and indigenous cultures viability and welfare of the minority as a whole’.27 regarded as proportionate to any such legitimate and lead to unhelpful stereotypes. The 2005 In this respect, the HRC acknowledged that the ‘an emerging international consensus … recognising aim.40 Educational, Scientific and applicant was permitted to graze and farm his the special needs of minorities and an obligation to A further important aspect of the right Cultural Organization Convention on the reindeer, as well as hunt and fish, and held there protect their security, identity and lifestyle … not to culture is the right of minorities to form Protection and Promotion of the Diversity had been no violation of Article 27 as a result. only for the purpose of safeguarding the interests of associations aimed at promoting their culture. of Cultural Expressions recommends ‘the The proportionality of the measures interfering the minorities themselves but to preserve a cultural The ECtHR has considered this right in the recognition of equal dignity of and respect for with the rights under Article 27 was also diversity of value to the whole community’.32 context of Article 11 of the ECHR, which all cultures, including the cultures of persons scrutinized by the HRC in the case of Lovelace vs. protects the right to freedom of assembly belonging to minorities and indigenous Canada.28 The applicant, an indigenous woman, Particularly with respect to Roma, the Court and association. In Sidiropoulos and Others vs. peoples’ (Article 2). The rhetoric of ‘integration’ lost her legal status and rights with regard to has recognized the positive obligations of states Greece,41 the ECtHR found that a refusal of state is unfortunately often used in Europe to the Canadian , after she had married to facilitate the Roma way of life, including authorities to register a not-for-profit association unnecessarily restrict minority cultural rights.22 a non-indigenous man. As a result she could consideration of their needs and their different of persons with Macedonian ethnic origin, on the Hate speech against individuals on the basis of not claim a right to reside on her ’ lifestyle. So, in Chapman vs. The United grounds of the protection of Greece’s territorial their culture has been repeatedly criticized by reserve. The HRC indicated that the state’s Kingdom,33 a case concerning a Roma who was integrity, was in violation of the applicants’ international monitoring bodies. action in this respect must have an objective prevented by the authorities from occupying right to freedom of association. Considering the At the same time, international monitoring and reasonable justification and be consistent a caravan on the land she had purchased, the aims of the association ‘to preserve and develop bodies have rightly identified and criticized with other ICCPR provisions.29 Given that the ECtHR concluded that the right to follow a the traditions and folk culture of the Florina cultural practices that have a negative effect marriage of the applicant had broken up, the traditional way of life fell also within the ambit region’42 to be legitimate, since ‘the inhabitants on individuals.23 The Siracusa Principles on HRC did not consider denying the right of of Article 8. According to the Court’s assessment, of a region in a country are entitled to form Limitations and Derogations24 together with residence to the applicant reasonable or necessary such a way of life was ‘an integral part of her associations in order to promote the region’s the case law of monitoring bodies25 provide an for preserving the identity of the Indian . ethnic identity as a Gypsy, reflecting the long special characteristics, for historical as well as important guide as to how to deal with such The HRC concluded, therefore, that the denial, tradition of that minority of following a travelling economic reasons’,43 the Court held, as a result, cases. Any restriction of the right to culture to the applicant, of the legal status as an Indian lifestyle’.34 that the interference in the right indicated was of a member of a will have amounted to a violation of Article 27.30 Similarly, in Ciubotaru vs. Moldova,35 a case not proportionate.44 to be based on grounds justifying limitations that involved the refusal of the state authorities recognized by a relevant provision of international Rights to minority and indigenous to record the applicant’s ethnic identity on Culture and religion law, will have to respond to a pressing public or customs, practices and traditions his identity card, the Court considered an Religious expressions are also included in the social need, to pursue a legitimate aim and to A central part of minority and indigenous individual’s ethnic minority as an essential aspect concept of intangible culture. At times, the be proportionate to that aim. No limitations are cultural rights is their right to protect, maintain of his or her right to private life.36 In addition to difference between culture and religion is blurred.

64 Protecting the right to culture for State of the World’s Minorities State of the World’s Minorities Protecting the right to culture for 65 minorities and indigenous peoples and Indigenous Peoples 2016 and Indigenous Peoples 2016 minorities and indigenous peoples Prohibition of or disrespect towards ‘religion or Right: Maya in Belize perform a traditional belief systems, rites and ceremonies’45 violates dance with incense. Chelsea Purvis/MRG. both the right to culture and the freedom of religion. One has to bear in mind that religious/ peoples to language are twofold: on the one cultural expressions of members of minorities hand, they have the right to learn the national and indigenous peoples require additional language on the same basis as the rest of the protection to such expressions of the majority, population, without any discrimination. As set as the former are inherently vulnerable because out further below, states have to take positive of their non‑dominance in the society. Today, measures to ensure equal access to the teaching of it is recognized that the right to indigenous the language. On the other hand, minority and spiritual and religious beliefs is a collective indigenous communities also have the right to right.46 The Inter‑ Court of Human learn their own languages.54 Rights (IACtHR) has developed considerable The ACHPR commented on the role of jurisprudence in this respect. Violations of the language and linguistic rights in the life of a customary marriage practices of indigenous community in African Association and peoples,47 the interruption of the passage Others vs. Mauritania.55 Although it was not of cultural knowledge to future generations able to determine there had been a violation of by the deaths of women and elderly acting Article 17 of the African Charter on the basis as the oral transmitters of the Maya Achí of the evidence available, it recognized language culture, and the loss of faith in their traditions as a means of participation in community life following militarization and repression48 have and also indicated that ‘to deprive a man of such all been criticized by the Court. The Court participation amounts to depriving him of his has clarified that funeral ceremonies are part identity’.56 of indigenous cultures,49 while prohibition of The UN HRC has touched upon the issue of access to indigenous burial sites, often a result provision of education in a preferred education was based solely on the territories and resources of indigenous peoples of relocation and development projects on the in Mavlovov and Sa’di vs. Uzbekistan.57 In this criterion of the parents’ residence, the Court held cannot be separated from the preservation and lands of the burial sites, or prohibition against case, public media authorities refused to register that the law in question was discriminatory and enjoyment of their cultural heritage. Nature practising traditional burial ceremonies,50 are a newspaper written in the Tajik language, in violation of Article 14 in conjunction with often provides the material basis for distinct obstacles to the community’s ways of honouring containing materials for Tajik students to Protocol 1, Article 2.62 indigenous cultural practices, and the dead, fostering lack of knowledge on the supplement existing textbooks. The HRC The ECtHR Grand Chamber was faced identity. Development projects often lead to whereabouts of the remains of the indigenous acknowledged the use of minority language press with the question of access to education in a the displacement of indigenous communities ancestors, 51 which constitute violations of their as ‘an essential element of the Tajik minority’s minority language in the more recent case of and have disastrous effects for their cultures, cultural rights. These rights have similarly been culture’58 and held there had been a violation of Catan and Others vs. Moldova and .63 In the including their separation from their sacred sites, recognized in the African human rights system.52 Article 27 in respect of Uzbekistan. breakaway region of Transdniestria, restrictions the loss of their traditional livelihoods, and the States are now under the obligation to act in The right to mother tongue education as an on the use of the Moldavian language written in loss of food systems and spiritual and cultural positive and precise ways in order to recover important cultural right of minorities has also the Latin script were introduced and use of the practices.65 Such processes affect indigenous the remains of deceased members of indigenous been scrutinized by the ECtHR. In its landmark Cyrillic script was enforced, further isolating the peoples by disrupting traditional activities communities. judgment in the Case ‘relating to certain aspects Moldavian community in the region. Parents important for the survival and well-being of these of the laws on the use of languages in education who continued to send their children to communities. The has acknowledged Languages in Belgium’ vs. Belgium,59 the Court assessed using the Latin script were both intimidated that the ‘distinct circumstances’ of indigenous The loss of minority and indigenous languages the position of French-speaking applicants and harassed, while the schools were closed. peoples expose them ‘to different types of risks contributes to the erosion of their identity and residing on the outskirts of Brussels, where the The Court held there had been a violation of and levels of impacts from development projects, . Language is an essential Flemish language was predominant and where the protected under Protocol including loss of identity, culture, and customary part of minority and indigenous cultures as the law restricted the access of the applicants to No. 1, Article 2, in respect of Russia, which had livelihoods, as well as exposure to disease’.66 it differentiates them from the rest of the French‑language schools. The Court held that the over the Transdniestria region.64 The IACtHR has engaged with indigenous population and guarantees ‘the expression, right to receive education in one’s own language cultural rights on several occasions. Repeatedly, diffusion, and transmission of their culture’.53 was not included within the right to education Land rights and indigenous it has addressed the link between the cultural Most of the endangered languages around the under Protocol No. 1, Article 2,60 and ruled that rights to culture identity of indigenous communities and their world are languages of minorities and indigenous the right to education per se was not violated.61 Many indigenous practices and traditions relate traditional lands. Cases of indigenous peoples peoples. Rights of minorities and indigenous However, since the restriction in access to the to land. Indeed, the protection of the lands, evicted from or denied access to their ancestral

66 Protecting the right to culture for State of the World’s Minorities State of the World’s Minorities Protecting the right to culture for 67 minorities and indigenous peoples and Indigenous Peoples 2016 and Indigenous Peoples 2016 minorities and indigenous peoples lands have been approached by the Court Right: Members of the Ogiek community through reading into attend a public meeting with journalists the . The failure of the state to in . MRG. provide basic necessities for the communities deprived of their traditional livelihood has also especially with regard to the been found to amount to a violation of the right of the consultation. In addition to developing to a dignified life. firm jurisprudence in respect of the indigenous In the landmark judgment Mayagna (Sumo) right to property, the Court has succeeded in Awas Tigni Community vs. , the applying the concept to children, specifically. Court recognized the land rights of indigenous In Chitay Nech and Others vs. Guatemala, peoples in Latin America for the first time. the Court pronounced a duty of the state to Significantly, the Court drew on a collective guarantee the right to cultural life of indigenous meaning ascribed to property in the context of children.74 Furthermore, it indicated that the indigenous communities while the relationship of child’s development requires that the children live the communities to their ancestral lands includes ‘within their natural and cultural environment, a spiritual element, in addition to the material particularly because they possess a distinctive element.67 identity that roots them with their land, culture, In two other cases involving a violation of the religion, and language’.75 communal right to property as well as the right In the same vein, the Inter-American to life, the Court indicated that dispossessing Commission on Human Rights (IACHR) has the indigenous communities of their traditional acknowledged the distinct nature of the right to lands leads to a risk of ‘irreparable ethnic and property when applied to indigenous peoples. cultural loss’.68 In accordance with its previous In a case in which MRG has been advising jurisprudence, the Court affirmed the concept of the Maya, Maya Indigenous Communities of the culture as being determined by the relationship Toledo District vs. Belize, the Commission held or language. While it acknowledged the creation was postponed, and which remained in effect for of the indigenous community to its traditional that the continued enjoyment of indigenous of a game reserve on the ancestral lands of the a period of more than 12 years. In spite of the land (Yakye Axa Indigenous Community vs. culture depends on the free exercise of the right Endorois community as a legitimate aim, the legitimate aim, the duration of the interference ),69 and of the indigenous right to to property by indigenous communities.76 To denial of access to the lands was not found to be together with the uncertainty experienced by property as being linked to the preservation of give effect to the indigenous right to property, proportionate to such an aim. By such a measure, the applicants, who were effectively prevented the in a broader sense, including the the state has the duty to consult the community, the Endorois community was denied access to from enjoying their right to property, further preservation of cultural identity (Sawhoyamaxa accordingly. ‘an integrated system of beliefs, values, norms, aggravated the detrimental effects of the Indigenous Community vs. Paraguay).70 In both As far as the indigenous right to culture in , traditions and artefacts’, meaning ‘the interference on the applicants.81 The Court found cases, the Court ordered restitution of the the African context is concerned, the ACHPR very essence of the Endorois’ right to culture’ was a violation of Protocol No. 1, Article 1, in respect traditional lands along with the duty of the has pronounced on individual elements that the denied.78 of Bulgaria.82 state to adopt provisional measures and provide cultural identity of a community is defined in Importantly, the ECtHR has used the right basic necessities for the affected communities. In a number of cases. In the landmark case which to property to engage with the issue of the The right to the conservation and protection of another significant case against the government MRG supported concerning the Endorois protection of cultural and natural heritage. In the environment of Paraguay, Indigenous Community Xakmok community, the ACHPR addressed culture as a: Debelianovi vs. Bulgaria,79 the Court held that Finally, indigenous peoples have important Kasek vs. Paraguay, the Court affirmed the the preservation of cultural and architectural contributions to make in environmental right of the indigenous community to return ‘complex whole which includes a spiritual and heritage was a legitimate aim when considering management and development because of their to their ancestral land as a precondition for the physical association with one’s ancestral land, an interference with the right to property.80 The rich traditional knowledge.83 They can contribute preservation of their cultural identity.71 As far knowledge, belief, art, law, morals, customs, and applicants claimed a violation of Protocol No. 1, considerably to environmentally sound practices as procedural rights of indigenous communities any other capabilities and habits acquired by Article 1, of the ECHR, which protects the right and . International law are concerned, the Court referred in humankind as a member of society – the sum total to property, in relation to the return of a house has recognized to a degree the importance of People vs. Suriname to the communities’ right of the material and spiritual activities and products that had been expropriated by the Government traditional knowledge in this respect. Measures to consultation and the duty to obtain their of a given social group that distinguish it from other of Bulgaria from their father and then turned must be established to recognize that traditional free, prior and informed consent.72 The Court similar groups.’ 77 into a museum as a historic monument. The and direct dependence on renewable resources reiterated its jurisprudence and developed the National Assembly subsequently introduced a and eco-systems, including sustainable harvesting, standard of prior consultation and consent in Accordingly, the ACHPR has linked culture to moratorium on the restitution laws, by virtue continues to be essential to the cultural, Pueblo Indigena Kichwa de Sarayaku vs. Ecuador,73 such characteristics of a community as religion of which the restitution of applicants’ property economic and physical well-being of indigenous

68 Protecting the right to culture for State of the World’s Minorities State of the World’s Minorities Protecting the right to culture for 69 minorities and indigenous peoples and Indigenous Peoples 2016 and Indigenous Peoples 2016 minorities and indigenous peoples 84 para. 9.4. Women, ’, UN doc. para. 208. (revised April 2013). people and their communities. and jurisprudence have clearly contributed 17 Ibid., para. 9.8. CEDAW/C/PRY/CO/6 52 See further Centre for 67 IACtHR, Mayagna (Sumo) Indigenous cultures also include ‘traditional significantly to the further crystallization and 18 Ibid., para. 9.9. (2012), para. 32. Minority Rights Development Awas Tingni Community vs. lifestyles relevant for the conservation and elaboration of their rights. The interpretation of 19 See: Principles and 24 UN Commission on (Kenya) and Minority Rights Nicaragua, Series No. 79 Guidelines for the Human Rights, The Group International on (2001), para. 149. sustainable use of biological diversity’, protected older legal instruments in the light of these recent Protection of the Heritage Siracusa Principles on the behalf of Endorois Welfare 68 IACtHR, Yakye Axa by the Convention on Biological Diversity, which understandings and standards is therefore vital of Indigenous People, Limitation and Derogation Council v. Kenya, (2009) Indigenous Community vs. Elaborated by the Special Provisions in the supra note 6, at para. 239 Paraguay, Case 12.313 requests states to respect, preserve and maintain to the protection of minorities’ and indigenous Rapporteur, Mrs. Erica- International Covenant on and 251. (2005), para. 216. such knowledge and practices, and promote peoples’ right to culture. Irene Daes, in conformity Civil and Political Rights, 53 IACtHR, López Álvarez v. 69 Ibid., para. 135. with resolution 1993/44 UN doc. E/CN.4/1985/4 Honduras, Series C No. 141 70 IACtHR, Sawhoyamaxa their wider application with the approval and Further, as a result of these legal advances, the and decision 1994/105 (1984), para. 27. (2006), paras. 169–171. Indigenous Community vs. involvement of the holders. In particular, state realization of the right to culture now includes of the Sub-Commission 25 UN HRC, Sandra Lovelace 54 See Document of the Paraguay, Case 0322/2001 on Prevention of v. Canada, Communication Copenhagen Meeting of (2006), para. 150. obstacles to indigenous traditional activities a plethora of aspects that include the protection Discrimination and No. R.6/24, UN doc. Supp. the Conference on the 71 IACtHR, The Xakmok or their traditional practices of cultivation, of both intangible and tangible heritage. Protection of Minorities of No. 40 (A/36/40) (1981). Human Dimension of the Kasek Indigenous the Commission on Human 26 UN HRC, Ivan Kitok v. CSCE (1990), Article 32; Community vs. Paraguay, agriculture and animal herding and fishing also In protecting these rights, the meaningful Rights, Economic and Sweden, Communication Recommendation 1201 of Case 12,420 (2010), para. constitute obstacles to indigenous cultures, participation of minorities and the free, prior Social Council, UN doc. No. 197/1985, UN doc. the Parliamentary Assembly 51. and informed consent of indigenous peoples are E/CN.4/Sub.2/1995/26 CCPR/C/33/D/197/1985 of the 72 IACtHR, Saramaka People with dire effects on indigenous livelihoods, Annex (1995); see also: (1988). (1993), Articles 7–8; and vs. Suriname, Case 12.338 socio‑economic rights and health. Distinct important. In addition, and as a necessary pre- Principles and Guidelines 27 Ibid., para. 9.8. the European Charter (2007), paras. 129–140. indigenous beliefs about food, its preparation and condition to a series of other rights, the rights to for the protection of the 28 Sandra Lovelace v. Canada, for Regional or Minority 73 IACtHR, Pueblo Indigena Heritage of Indigenous supra note 25. Languages (1998). Kichwa de Sarayaku vs. its consumption, form part of their ceremonies participate in cultural life, to education and the peoples, Report of the 29 Ibid., para. 16. 55 ACHPR, Malawi Ecuador, Series C No. 245 and rituals and, ultimately, their identity. environment all play a part. International law Technical Meeting on 30 Ibid., para. 19. Association, Amnesty (2012). the Protection of the 31 FCNM, Art. 5, supra note International, Ms Sarr 74 IACtHR, Chitay Nech et al. Recently, the IACtHR explored the link and jurisprudence will continue to occupy a key Heritage of Indigenous 8. Diop, Union interafricaine vs. Guatemala, Series C No. between the rights of indigenous peoples, and determinant role in further elucidating these People, UN doc. E/CN.4/ 32 ECtHR, Chapman v. des droits de l’Homme 212 (2010), para. 168. ■ Sub.2/1997/15 (1997), The United Kingdom, and RADDHO, Collectif 75 Ibid., para. 169. their procedural rights and environmental rights. Annex, at para. 3. Application no. 27238/95 des veuves et ayants- 76 IACHR, Maya indigenous conservation, in Kaliña and Lokono Peoples vs. 20 See Xanthaki, A., (2001) at para. 93. Droit, Association community of the Toledo Endnotes ‘ and 33 Ibid. mauritanienne des droits District v. Belize, Case Suriname, where restrictions were placed on international law: discussing 34 Ibid., para. 73. de l’Homme /Mauritania, 12.053 (2004), para. 155. the natural reserve of indigenous communities. 1 The authors are also Recommendation No. 32 universal standards’, Human 35 ECtHR, Ciubotaru v. Communications 54/91- 77 Centre for Minority Rights grateful to Gabriela on ‘The meaning and scope Rights Quarterly, vol. 32, Moldova, Application no. 61/91-96/93-98/93- Development (Kenya) and According to the Court, the indigenous Majercikova for her of special measures in the no. 1 (2010). 27138/04 (2010). 164/97-196/97-210/98 Minority Rights Group communities need to participate effectively extensive on International Convention 21 See International 36 Ibid., para. 53. (2000). International on behalf of and their agreement with conservation agencies relevant case law. on the Elimination Convention on the 37 Ibid., para. 57. 56 Ibid., para. 137. Endorois Welfare Council vs. 2 UN HRC, General of All Forms Racial Elimination of All Forms 38 ECtHR, Podkolzina v. 57 UN HRC, Rakhim Kenya (2009), supra note 6, 85 needs to be sought, while the traditional Comment No. 23, Art. 27 Discrimination’, UN doc. of Racial Discrimination, Latvia, Application no. Mavlonov and Mr. Shansiy at para. 241. practices contributing ‘to the sustainable care (Rights of Minorities), UN CERD/C/GC/32 (2009), Art. 5(e)(vi); Convention 46726/99 (2002). Sa’di v. Uzbekistan, 78 Ibid., paras. 250, 251. doc. CCPR/C/21/Rev.1/ para. 30. on the Elimination of All 39 Ibid., para. 34. Communication No. 79 ECtHR, Debelianovi vs. and protection of the environment should be Add.5 (1994), para. 7. 10 See Council of Europe Forms of Discrimination 40 Ibid., para. 38. 1334/2004, UN doc. Bulgaria, Application no. maintained, protected and promoted’.86 The 3 CERD, General Framework Convention against Women, Art. 13 (c); 41 ECtHR, Sidiropoulos CCPR/C/95/D/1334/2004 61951/00 (2007). Recommendation XXIII on on the Value of Cultural Convention on the Rights and Others v. Greece, (2009) at para. 2. 80 Ibid., para. 54. matter has also recently been argued in one of the Rights of Indigenous Heritage for Society (2005), of the Child, Art. 31.2; Application no. 58 Ibid., para. 8.7. 81 Ibid., para. 59. MRG’s legal cases before the African Court of People, UN doc. A/52/18 Art. 1(a). International Convention 57/1997/841/1047 (1998) 59 ECtHR, Case ‘relating to 82 Ibid., para. 60. (1997). 11 CESCR, General on the Protection of the at para. 43. certain aspects of the laws 83 Rio Declaration on Human and Peoples’ Rights, concerning the 4 UN doc. A/Res/61/295 Discussion on the Right to Rights of All Migrant 42 Ibid., para. 44. on the use of languages Environment and Ogiek community of Kenya.87 The case remains (2007). Take Part in Cultural Life Workers and Members 43 Ibid. in education in Belgium’ Development, Principle 22, 5 See ACHPR, ‘Guidelines as Recognized in Article of Their Families, Art. 44 Ibid., para. 47. v. Belgium (No. 2), UN doc. A/CONF.151/26 pending but it is hoped that judgment will be for National Periodic 15 of the Covenant, UN 43.1(g); Convention on 45 UN CESCR, General Application nos. 1474/62, (vol. I)(1992). delivered in 2016. Reports’, in Second Annual doc. E/C.12/1992/SR.17 the Rights of Persons with Comment No. 21, supra 1677/62, 1691/62, 84 UN (1992), Activity Report of the African (1992), para. 32. , Art. 30.1. note 12 at para. 13. 1769/63, 1994/63, Article 26.3. Commission on Human and 12 Ibid., para. 6. 22 Xanthaki, A., ‘On 46 UNDRIP, Art. 12, supra 2126/64 (1968). 85 IACtHR, The Kaliña and Conclusion Peoples’ Rights (1988–1989), 13 ECtHR, Khurshid Mustafa weakening minority note 4. 60 Ibid., p. 27, para. 3. Lokono Peoples vs. Suriname, While they constitute a vital part of human ACHPR/ RPT/2nd, Annex and Tarzibachi v. Sweden, protection’, International 47 IACtHR, Aloeboetoe et al. v. 61 Ibid., p. 84. Case 12.639 (2015), para. XII. Application no. 23883/06 Journal of Human Rights Suriname, Series C No. 15 62 Ibid., p. 83. 230. diversity, most minority and indigenous cultures 6 See also Centre for Minority (2008), para. 44. (forthcoming). (1993). 63 ECtHR, Catan and Others 86 Ibid., para. 181, footnote are facing serious challenges. Therefore, progress Rights Development (Kenya) 14 UN HRC, Länsman 23 See e.g. CEDAW, 48 IACtHR, Plan de Sánchez vs. Moldova and Russia, 231. and Minority Rights and Others v. Finland, ‘Concluding Observations Massacre v. Guatemala, Application nos 43370/04, 87 African Court of Human with regard to the protection of the minority Group International on Communication No. of the Committee on Series C No. 116 (2004). 8252/05, 18454/06 (2012). and Peoples’ Rights, and indigenous right to culture is urgently behalf of Endorois Welfare 511/1992, UN doc. the Elimination of 49 IACtHR, Bámaca-Velásquez 64 Ibid., paras. 123, 150. ACHPR vs. Kenya, Council v. Kenya (2009), CCPR/C/52/D/511/1992 Discrimination against v. Guatemala, Series C No. 65 See Centre for Minority Application 006/2012. needed. International understanding of the Communication No. (1994), para. 9.5. Women, Mexico’, 91 (2002), para. 82. Rights Development (Kenya) full scope of the right to culture is deepening, 276/03, para. 241. 15 Ibid., para. 9.6. UN doc. CEDAW/C/ 50 IACtHR, Plan de Sánchez and Minority Rights Group 7 UN HRC, General 16 UN HRC, Apirana MEX/CO/7-8 (2012), Massacre v. Guatemala, International on behalf of however, greatly assisted by advocacy and Comment No. 23, supra Mahuika et al. v. New paras. 34–35; CEDAW, Series C No. 105 (2004), Endorois Welfare Council vs. cases brought before international tribunals note 2, para. 38. Zealand, Communication ‘Concluding observations para. 43. Kenya (2009), supra note 6, 8 Council of Europe FCNM No. 547/1993, of the Committee on 51 IACtHR, Moiwana at para. 173. by minority and indigenous communities (1995), Art. 5.1. UN doc. CCPR/ the Elimination of Community v. Suriname, 66 World Bank, Operational themselves. Developments in international law 9 CERD, General C/70/D/547/1993 (2000), Discrimination against Series C No. 124 (2005), Directive 4.10, July 2005

70 Protecting the right to culture for State of the World’s Minorities State of the World’s Minorities Protecting the right to culture for 71 minorities and indigenous peoples and Indigenous Peoples 2016 and Indigenous Peoples 2016 minorities and indigenous peoples