Chapter 4 - Human Rights as a Sword. To Protect and Promote Cultural Diversity

Summary

INTRODUCTION

The present and subsequent chapter aim to provide a comprehensive overview of the various cultural diversity considerations in the treaties and the treaty bodies’ concluding observations.

The present chapter examines the ‘positive’ manifestations of cultures and cultural diversity in the treaties, general comments and recommendations and concluding observations, i.e., the – explicit and implicit – obligations of States parties to respect, protect and promote cultural diversity. Several treaty provisions explicitly protect and promote cultural diversity. These provisions contain explicit cultural rights, which are concerned with the right to preserve, develop and have access to culture and cultural identity. One example is the right of members of minorities to enjoy their own culture, practice their own religion and speak their own language, as laid down in article 27 ICCPR. Another example is the right of everyone to participate in cultural life, as laid down in article 15 ICESCR. Essentially, these cultural rights aim to sustain the distinctiveness, uniqueness and exclusivity of a community's way of life, beliefs and traditions, i.e., to protect and promote cultural exclusivity. Accommodating and preserving cultural differences as an end in itself.

Cultural diversity is also protected through the overarching equality and nondiscrimination principle. The principle of equality and non-discrimination is not only an essential component of all human rights, but is also of crucial importance to culturally diverse communities, and especially minorities and indigenous peoples. It has even been called the conditio sine qua non for minority protection, and hencefor the protection and promotion of culture and cultural diversity. Guarantees of non-discrimination and equality in international human rights treaties mandate both de jure and de facto equality. It is not enough for States to ensure that there is no discrimination in their laws. States parties also have an obligation to improve the de facto situation through concrete and effective policies and programmes. To get there, two distinct types of obligations can be identified. On the one hand, the principle requires redressing the inequality suffered by members of (ethnic, linguistic, religious, indigenous or otherwise) minorities, which is often the consequence of historical and persistent prejudice.