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Cultural Rights in the Case Law of the International Court of Justice

Published online by Cambridge University Press:  24 April 2014

ELENI POLYMENOPOULOU
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Abstract

One of the most remarkable developments of the new millennium has been the expansion of debates on culture at the highest levels of the international community's decision-making processes. This has, out of necessity, had an impact on the empowerment of cultural rights, enhancing their justiciability. Substantial progress has been made both at a regional and international level. Yet not all thresholds have been reached. The International Court of Justice (‘ICJ’) has never explicitly addressed cultural rights in its case law. Despite its multicultural composition, it is only with great difficulty that the Court examines questions related to culture. However, a thorough examination of the jurisprudence of the ICJ reveals that opportunities to take cultural rights seriously have arisen more than once. Recent judgments of the Court reveal the emergence of a certain trend calling for a culturally sensitive understanding of legal issues brought to the Hague. This article submits that this trend is beneficial not only for the protection of cultural rights, but also for the maintenance of human and cultural diversity, as well as for the survival and livelihood of indigenous peoples. In light of the urgent worldwide need for peace, addressing culture as a legal issue before the ICJ, in accordance with Articles 36 and 60 of its Statute, may be a fruitful pathway for the Court to follow in order to resolve international disputes.

Keywords

collective claimscultural diversitycultural rightsindigenous rightsintangible cultural heritage
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 27 , Issue 2 , June 2014 , pp. 447 - 464
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 Vienna Declaration, A/CONF.157/23 12 July 1993, at 1.

2 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005, in force 18 March 2007, in UNESCO, Records of the General Conference, 33rd session, Paris, 3–21 October 2005, (2 vols.), Vol. I, at 83, Art. 1(c)(d)(e).

3 See 2005 World Summit Outcome, UN Resolution 60/1 of 24 October 2005, para 14; see also e.g. Promotion of Religious and Cultural Understanding, Harmony and Cooperation, UN Res. 60/11, 3 November 2005, para. 4.

4 Fribourg Declaration on Cultural Rights, 7 May 2007, preamble, para. 6.

5 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Art. 3(d) and ICTY's Rules of Procedure and Evidence; Rome Statute of the International Criminal Court (ICC), Art. 8.2(b)(ix) and Art. 8.2 (e)(iv).

6 Cultural issues have been examined in a number of cases before the ICTY regarding the looting and destruction of non-Serb cultural and religious institutions, treasures, and monuments. See, e.g,. Gotovina (IT-06–90-T); Tadić (IT - 94–1-T); Miodrag Jokić (IT-01–42/1) ‘Dubrovnik’; Mladic (IT-09–92-T); Kordić and Čerkez (IT-95–14/2) ‘Lašva Valley’.

7 See, generally, Pasqualucci, J., ‘International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights in the Light of the United Nations Declaration on The Rights Of Indigenous Peoples’, (2009) 27 Wisconsin International Law Journal 51Google Scholar; Xanthaki, A., ‘Indigenous Cultural Rights in International Law’, (2000) 2 EJIL 343Google Scholar.

8 See, generally, J. Ringelheim, ‘Ethnic Categories in European Human Rights Law’, (2011) Ethnic and Racial Studies 1; see also, J. Ringelheim, Diversitè Culturelle et Droits de l’Homme: La Protection des Minoritès par la Convention Europèenne des Droits de l’Homme (2006), at 353–4.

9 See, e.g., the Endorois Welfare Council v. Kenya, 4 February 2010, Communication No. 276/2003; see also Shelton, D., ‘Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon’, (2011) 105 AJIL 60, at 77–80CrossRefGoogle Scholar.

10 Higgins, R., ‘Human Rights in the International Court of Justice’, (2007) 20 LJIL 745, at 746CrossRefGoogle Scholar. See also, Simma, B., ‘Mainstreaming Human Rights: The Contribution of the International Court of Justice’, (2012) 16 Journal of International Dispute Settlement 7CrossRefGoogle Scholar, and also Zyberi, G., ‘The Development and Interpretation of International Human Rights and Humanitarian Law Rules and Principles through the Case Law of the International Court of Justice’, (2007) 25 Netherlands Quarterly of Human Rights 117CrossRefGoogle Scholar.

11 See Higgins, ibid. Apart from judges with human rights backgrounds, such as Rosalyn Higgins herself, the first woman to join the Court, and the German judge, Bruno Simma, former member of the Human Rights Committee, the jurisprudence of the Court is forged by the experiences of a number of judges with culturally sensitive backgrounds’. The Brazilian judge and former president of the Inter-American Court, Antonio Cançado Trindade, who recently joined the Court, has been an inspirational force in the understanding of the interrelationship between the individual and international justice, and the former UNESCO Somali judge, Abdulqawi Ahmed Yusuf, who joined the Court in 2009, was prior to his appointment legal adviser and Director of the Office of International Standards and Legal Affairs at UNESCO for eight years (March 2001–January 2009). In the past, the Sri Lankan Judge Weeramantry substantially contributed to the understanding of the plurality of legal systems in international law through its separate opinions, while the Indian Judge Singh, who had been involved in the revision of the 1954 Hague Convention for the Protection of the Cultural Property in case of Armed Conflict, was also a member of the UNESCO Commission for India.

12 Rights of Minorities in Upper Silesia (Minority Schools), 1928 PCIJ (Ser. A) No. 15; Fourth Annual Report of the PCIJ (15 June 1927–15 June 1928), Ser. E, No. 4, at 210–14, reprinted in: Summaries of Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice, available at <http://untreaty.un.org/cod/PCIJsummaries/documents/english/PCIJ_FinalText.pdf>, 141, at 145.

13 Greco-Bulgarian Communities case, PCIJ Advisory Opinion of 31 July 1930 (Ser. B) No. 17), Seventh Annual Report of the Permanent Court of International Justice, (15 June 1930 – 15 June 1931), Ser. E, No. 7, reprinted in: Summaries of Judgments, supra note 12, at 204:

The criterion for determining what is a community . . . is the existence of a group of persons . . . having a race, religion, language and traditions of their own, and united by this identity of race, religion, language and traditions in a sentiment of solidarity with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and up-bringing of their children in accordance with the spirit and traditions of their race and mutually assisting each other.

14 Minority Schools in Albania case, PCIJ Advisory Opinion of 6 April 1935, (Ser. A/B) No. 64), Eleventh Annual Report of the Permanent Court of International Justice, (15 June 1934 – 15 June 1935), Series E, No. 11, at 245–54, reprinted in Summaries of Judgments, supra note 12, at 351. See also, Jakubowski, A., Key Issues in the Relationship between the World Heritage Convention and Climate Change Regulation, in Borelli, S. and Lenzerini, F. (eds.), Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law (2012), 382Google Scholar.

15 Ibid., para. 351. According to the Court, ‘equality in fact supplements equality in law; it excludes a merely formal equality’.

16 Ibid. In the wording of the Court, this principle was ‘the grant to minorities of suitable means for the preservation of their racial peculiarities, their traditions and their characteristics’.

17 Ibid.

18 This has also been clarified by the ICJ since the 1970s; see South West Africa, Second Phase, Judgment, ICJ Rep. 1966, at 39–41, paras. 66–9.

19 ICJ Statute, Art. 34, para.1.

20 Ibid, Art. 35, para.1.

21 C. Greenwood, ‘Recent Developments in International Law and the Role of the International Court of Justice’, Lecture at the London School of Economics (LSE), 29 July 2010.

22 Ibid. See also on this point the South West Africa cases, supra note 18, para. 88 : ‘although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present: nor is the Court able to regard it as imported by the “general principles of law” referred to in Article 38 (1)(c) of its Statute.’

23 ICJ statute, Art. 36, para. 1 provides that ‘the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’.

24 According to Art. 96, para. 2 of the UN Charter, the General Assembly may authorize the specialized agencies to request advisory opinions on legal questions arising within the scope of their activities.

25 See Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO, Advisory Opinion, ICJ Rep. 1956. See also generally, A. Yusuf (ed.), Standard-Setting in UNESCO (2007) Vol. 1.

26 See, e.g., Symonides, J., ‘Cultural Rights’, in Symonides, J. (ed.), Human Rights, Concept and Standards (2000), 175, 175–227Google Scholar; Symonides, J., ‘Cultural Rights: A Neglected Category of Human Rights’, (1998) 158 International Social Science Journal, at 559CrossRefGoogle Scholar, and more generally, P. Meyer-Bisch, Les Droits Culturels, Une Catègorie Sousdèveloppèe des Droits de l’Homme (1993).

27 See, e.g., supra notes 1–4, and generally, E. Stamatopoulou, Cultural Rights in International Law: Article 27 of the UDHR and Beyond (2007). See also M. Bidault, La Protection Internationale des Droits Culturels (2010).

28 This right is recognised in Art. 27(1) of the Universal Declaration of Human Rights, in Art. 15(1)(a) of the International Covenant for Economic, Social and Cultural Rights (‘ICESCR’), as well as in a number of other instruments. See in this respect, UN Committee on Economic, Social and Cultural Rights, General Comment No. 21, ‘The Right of Everyone to Take Part in Cultural Life’, 21 December 2009, E/C.12/GC/21, para. 3, and A. Yupsanis, ‘The Meaning of “Culture” in Article 15(1)(a) of the ICESCR – Positive Aspects of CESCR's General Comment No. 21 for the Safeguarding of Minority Cultures’, (2012) 55 GYIL, at 345; see also E. Stamatopoulou, ‘The Right to Take Part in Cultural Life, Article 15(1)(a) of the ICESCR’, ESRC Committee, E/C.12/40/9, 9 May 2008, at 3.

29 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rec. 136.

30 Ibid., at 192, para. 130, regarding the right to work (Arts. 6 and 7 of the ICESCR); protection and assistance accorded to the family and to children and young persons (Art. 10 of the ICESCR); the right to an adequate standard of living, including adequate food, clothing, and housing; and the right ‘to be free from hunger’ (Art. 11 of the ICESCR); the right to health (Art. 12 of the ICESCR); the right to education (Arts.13 and 14 of the ICESCR).

31 Ibid., at 192, para. 130, referring to Arts. 16, 24, 27, and 28 of the CRC.

32 Ibid., at 174–5, paras. 95–6, finding the Fourth Geneva Convention applicable in the Occupied Palestinian Territories.

33 Ibid., at 181–93, paras. 114–37. See also Coomans, F., ‘The Extraterritorial Scope of the International Covenant on Economic, Social, and Cultural Rights in the Work of the United Nations Committee on Economic, Social, and Cultural Rights’, (2011) Human Rights Law Review 11, 15, fn. 53CrossRefGoogle Scholar.

34 Ibid., at 199, para. 155.

35 Ibid., at 181, para. 112, invoking especially Art. 14 of ICESCR on the right to education, which provides for transitional measures.

36 Ibid., at 180, para. 112. According to the Court, the Covenant applies not only to the territories over which a state party has sovereignty, but also to ones over which that state exercises territorial jurisdiction, even though it contains no provision on its scope of application.

37 Ibid., at 159, para. 133, citing the Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories Al5131311, 22 August 2003, para. 26.

38 Citing UN Doc. EICN.41200416, 8 September 2003, para. 9 and the Report by the Special Rapporteur of the United Nations Commission on Human Rights, Jean Ziegler, ‘The Right to Food’, Addendum, Mission to the Occupied Palestinian Territories, ElCN.41 2004110lAdd.2, 31 October 2003, para. 49.

39 F. Coomans, Economic, Social and Cultural Rights, (1995), SIM Special No. 16, Reports Commissioned by the Advisory Committee on Human Rights and Foreign Policy of the Netherlands, at 4, para 4.

40 See Stamatopoulou, supra note 28; General Comment No. 21, supra note 28, paras 49–50 and 51 in fine; also, Donders, Y., ‘Towards a Right to Cultural Identity?’, (2002) 15 School of Human Rights Research SeriesGoogle Scholar.

41 For example, the free exercise of one's cultural identity, and the right to be taught about one's own culture can be deduced by Arts. 6(b) and 7(b) of the Fribourg Declaration, cited supra note 4. See General Comment No. 21, supra note 28, para 49.

42 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 17 October 2003), Art. 3.

43 Dispute Regarding Navigational And Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009.

44 Memorial of Costa Rica, Vol. 1, 29 August 2006, paras. 1.07–1.08, 5.142 et seq.

45 Due to the absence of jurisdictional basis, not all issues related to the way of life of the riparian communities were examined (e.g. the fact that the inhabitants of the boards of the river ‘commonly used and still uses the river for travel for the purpose of meeting the essential needs of everyday life which require expeditious transportation, such as transport to and from school or for medical care’. See paras. 74–6 of the judgement and also Greenwood, supra note 21.

46 See supra note 43, at 265, para. 141: ‘The Court recalls that the Parties are agreed that all that is in dispute is fishing by Costa Rican riparians for subsistence purposes. There is no question of commercial or sport fishing’.

47 Ibid., at 262–4, paras. 134–6.

48 See, M. Milanovic, ‘The ICJ and Evolutionary Treaty Interpretation’, (2009), European Journal of International Law: Talk! (14 July 2009) <http://www.ejiltalk.org/the-icj-and-evolutionary-treaty-interpretation/> (visited 28 July 2013).

49 See supra note 43, at 264, para. 137: ‘the Court notes that the alleged interferences by Nicaragua with the claimed right of subsistence fishing post-date the filing of the Application’.

50 Ibid., at 264, para. 137: ‘the Court considers that in the circumstances of this case, given the relationship between the riparians and the river and the terms of the Application, there is a sufficiently close connection between the claim relating to subsistence fishing and the Application, in which Costa Rica, in addition to the 1858 Treaty, invoked other applicable rules and principles of international law’.

51 Ibid., at 246, para. 79.

52 General Comment No. 23: The Rights of Minorities (Article 27): 04 August 1994, CCPR/C/21/Rev.1/Add.5, para. 7. Cultural rights being group rights have also been implied by the Committee in other cases, starting with the Lubikon Lake Band case, as well as the Kitok case where ‘the HRC reaffirmed this wide understanding of culture’; see A. Xanthaki, ‘Multiculturalism and International Law : Discussing International Standards’ Human Rights Quarterly (2010), at 27. Furthermore, the understanding of an indigenous cultural identity in particular is a central, if not the main, aspect, of a people's right to self-determination and indeed to a people's existence. According to the UN Charter, this right is also the prerequisite for the maintenance of peaceful and friendly relations among nations, as well for their international cultural cooperation, whereas, in Art. 22 of the African Charter, all peoples shall have the right to their economic, social, and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.

53 UN Declaration on the Rights of Indigenous Peoples, GA 61/295, Art. 26, para. 2.

54 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Request for the Indication of Provisional Measures, Order, 8 March 2011, para.1.

55 Ibid., paras. 61–4.

56 Frontier Dispute (Burkina Faso/Niger), Judgment, 16 April 2013.

57 Frontier Dispute (Burkina Faso/Niger), Memorial of the Republic of Niger, April 2011, at 40, para. 2.5.

58 Frontier Dispute (Burkina Faso/Niger), supra note 56, para.112.

59 Ibid., para. 112.

60 Judge Antonio Cançado-Trindade, Separate Opinion, Chapter IX. The Human Factor and Frontiers.

61 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Rep. 2010. Judge Antonio Cançado-Trindade, particularly Chapter XII and Chapter XIII. See also infra, notes 106–10.

62 Request for Interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) Judgment, ICJ Rep. 2013 (11 November 2013). See infra, notes 114–9.

63 Ibid., Separate Opinion of Judge Cançado Trindade, para. 30–3.

64 Ibid., para. 31, referring also to A. A. Cançado Trindade, International Law for Humankind : Towards a New Jus Gentium (2013).

65 See generally, Zyberi, G., ‘Self-Determination through the Lens of the International Court of Justice’, (2009) 56 (3)Netherlands International Law Review, at 429CrossRefGoogle Scholar; A. Cassese, ‘The International Court of Justice and the Right of Peoples to Self-Determination’, in Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996), at 351.

66 See, e.g., the Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, ICJ Rep. 1986, at 554, in which Mali had extensively referred to indigenous Logomaten people's presence in the disputed area.

67 Namibia, Advisory Opinion, ICJ Rep. 1950, para. 131. In this case, the people of Namibia are recognized, inter alia, as a cultural entity, even though no further explanations are given as to the meaning of this identity.

68 Western Sahara, Advisory Opinion of 16 October 1975, para. 152. In this case, the Mauritanian entity (i.e. the indigenous Sahrawi people, living in Western Sahara already, prior to the Spanish colonization and Morocco occupation) is identified by its distinguishable nomadic way of life.

69 Kasikili/Sedudu Island (Botswana v Namibia) Judgement, ICJ Rep. 1999, at 1094, para. 74. One of Namibia's arguments in casu was the fact that the Masubia people had been occupying Eastern Caprivi from the beginning of the colonial period, highlighting that ‘[t]he Masubia of the Caprivi Strip have used and occupied Kasikili Island as a part of their lands and their lives’.

70 Specifically, whether the long-standing, unopposed, presence of Masubia tribespeople on Kasikili/Sedudu Island constituted subsequent practice in the application of the [1890] treaty. The Court replied in the negative.

71 Kasikili/Sedudu Island, supra note 69, para. 74: ‘It is, moreover, not uncommon for the inhabitants of border regions in Africa to traverse such borders for purposes of agriculture and grazing, without raising concern on the part of the authorities on either side of the border’.

72 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, ICJ Rep. 2011, at 644.

73 Ibid., Dissenting Opinion of Judge ad hoc Professor Roucounas, at 729, para. 23.

74 Yet the majority of the Court did not seem to be persuaded about Greece's objection, i.e. that the applicant's admission to NATO was taken for the purpose of achieving the cessation of FYROM's use of the symbol, at 689–90, paras. 156–7.

75 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, ICJ Rep. 2002, at 303.

76 Ibid., at 315, para. 21.

77 See, e.g., Nigeria's Counter-Memorial of the Federal Republic of Nigeria, Vol. 1 Bakassi (Chapters 1–11), 1999, at 21 et seq., 80 et seq., and 425 et seq.

78 Land and Maritime Boundary, supra note 75, at 405, para. 205 (Nigeria's Counter-Memorial cited by the Court). As the Court noted, ‘in sub- Saharan Africa . . . treaties termed “treaties of protection” were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory’.

79 See the voices for a review of the matter by the ICJ according to Art. 61 of the ICJ statute; see, e.g., J. A. Unachukwu, ‘ICJ Judgment on Bakassi: The ‘Fresh Facts’, 9 October 2012, <thenationonlineng.net/new/law/icj-judgment-on-bakassi-the-fresh-facts/>. Indigenous peoples do not have access, either as third parties intervening, in virtue of Art. 62 of the ICJ statute, which provides that ‘1. Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 2. It shall be for the Court to decide upon this request.’

80 Territorial Dispute (Libyan Arab Jamahiriya/Chad), 3 February 1994, ICJ Rep. 1994, at 6. The two parties brought the dispute to the Court after they failed to respect the relevant Peaceful Settlement agreement.

81 Memorial submitted by the Great Socialist People's Libyan Arab Jamahiriya, Vol. 1, 26 August 1991, 38–54.

82 Territorial Dispute, supra note 80, at 38, para.75.

83 Ibid., at 232, Para. 5.145 et seq.

84 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Rep. 2007, at 43.

85 Ibid., at 176, para. 320, and 182, para. 335.

86 Ibid., at 146–7, para. 344: ‘However, in the Court's view, the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the grouat. Although such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group’.

87 Ibid., Dissenting Opinion of Judge Ahmed Mahiou (ad hoc judge appointed by Bosnia and Herzegovina), at 387, para.74.

88 Ibid., at 431, para. 84.

89 Ibid., at 477, para. 91, referring particularly to ICTY Trial Chambers judgments in the Krstić and Blagojević et al. cases regarding the massacre in Srebrenica:

is true that the decisions reached on the merits by the ICTY in genocide cases are not numerous, but there are a great many findings of fact and of law concerning the commission of crimes against humanity, murder, rape, forcible displacement and the destruction of mosques and other traces of Muslim culture, and when these findings are taken cumulatively, they point to the existence of a broader plan entailing a policy of genocide.

90 Ibid., at 513, Separate Opinion of Judge Milenko Kreća (ad hoc judge appointed by Serbia and Montenegro), para. 86:

ethnic purification is seldom an isolated act of forcible displacement, for it is generally accompanied by murder, rape, torture and other acts of violence and the destruction of the religious and cultural heritage in order to wipe out all trace of the ousted ethnic group.

91 Ibid., at 539, para. 113.

92 Ibid., at 513, para. 35.

93 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, ICJ Rep. 2008, at 412

94 Ibid., paras. 21.1 and 21.2(c), as well as 142. See also the Written Statement of the Republic of Croatia of its observations and submissions on the preliminary objections raised by the Federal Republic of Yugoslavia (Serbia and Montenegro), Vol. 1, 29 April 2003, at 42–44 regarding the ‘missing cultural property’.

95 Ibid., para 45.

96 Ibid., para 45. See also, the Application Instituting Proceedings filed in the registry of the Court on 2 July 1999 (Croatia v. Yugoslavia), para. 12 in fine, and para. 17, regarding ‘1,821 cultural monuments were destroyed or damaged, including about 651 in the area of Dubrovnik-Neretva County and about 356 in the area of Osijek-Baranja County’ and ‘19 park cultural monuments were damaged’.

97 See supra note 6.

98 Case Concerning Application of the International Convention on the Elimination Of All Forms Of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, 1 April 2011. The claims were relevant to disputes, which arose in 1992 and 2008 and the application of Georgia was lodged on the basis of a breach of Arts. 2(1)(a), 2(1)(b), 2(1)(d), 3, and 5 of the Covenant.

99 Memorial of Georgia, Vol. 1, 2 December 2009, para. 9.10.

100 Ibid., 1.3 and 2.31, with respect to the attempts of Russia ‘to change or to uphold a changed demographic composition of an area against the will of the original inhabitants’.

101 Ibid., paras. 2.40–2.41. According to Georgia,

The destruction of culture and identity is equally impermissible and is prohibited by Articles 2(1)(a), 2(1)(b) and 2(1)(d), among others. Although Article 5 does not specifically guarantee the equal enjoyment of the right to culture or identity as such, that right is embraced within a number of the other rights that are specifically mentioned, including: the right to freedom of thought, conscience and religion (Article 5(d)(vii)); the right to freedom of opinion and expression (Article 5(d)(viii)); and the right to equal participation in cultural activities (Article 5(e)(vi)).

102 Ibid., para. 3.83, referring to the case of the destruction of cultural monuments in two villages of the Eredvi municipality.

103 Ibid., para 6.74, referring to Abkhazia's de facto foreign minister, Sergei Shamba's speech. According to Shamba, ‘[t]he only obstacle to the integration of South Ossetia [into Georgia] is a separatist regime that basically consists of elements from security services from neighbouring Russia that have no historical, ethnic or cultural links to the territory’.

104 Judge Tanaka, Dissenting Opinion, at 285 et seq.

105 South West Africa cases, supra note 18, para. 17.

106 See, supra notes 29–36 and accompanying text.

107 Kosovo Opinion, supra note 61, at 403, para.75.

108 Including of the ‘reconfiguration process’ of the UN interim administration, see, e.g., the further written contribution of the Republic of Kosovo, 17 July 2009, para. 3.35, with regard to the violation of the constitutionally protected right ‘to preserve, foster and express their cultural, linguistic and other peculiarities’, and 4.36–4.39, referring to the cultural aspects of common Art. 1(1) of the ICCPR and the ICCPR, to the Vienna Declaration cited also supra note I, as well as to the Canadian Supreme Court Judgement, Secession of Quebec, [1998] 2 SCR 217 (Can.), para. 138.

109 Kosovo Opinion, supra note 61, para. 67, referring to Reports of the Secretary-General on the UN Interim Administration Mission in Kosovo, providing inter alia for the preservation and protection of cultural and religious heritage. Issues related to cultural rights were raised only in the Separate Opinion of Judge Cançado Trindade (in Ch. VII, and also paras. 164–5, referring to IACHR cases and the Durban Declaration), as well as the Dissenting Opinion of Judge Yusuf (in para. 15., through a small reference to the Secession of Quebec case).

110 Ibid., paras. 79–83.

111 Nuclear Tests (New Zealand v. France), Judgment, ICJ Rep. 1974, at 457.

112 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Rep. 2010, regarding the construction of polluting pulp factories on the River Uruguay.

113 See, e.g., Francioni, F., ‘The Human Dimension of International Cultural Heritage Law: An Introduction’, (2011) 22 EJIL 9CrossRefGoogle Scholar, arguing that the elevation of attacks against cultural property may attend the legal status of international crimes, especially war crimes and crimes against humanity, triggering the international community responsibility.

114 See, e.g., Judge Weeramantry's Dissenting Opinion in the Advisory Opinion on the Legality of the Use of Nuclear Weapons, 8 July 1996, paras. 243–5 and 467.

115 Request for Interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) request for the indication of provisional measures, 2011 ICJ 151, TT 1–3 (18 July 2011), regarding sovereignty over the temple and the ‘vicinity’ [of the Temple] on Cambodian territory. In the 1962 Judgement, the Court had declared that the Temple of Preah Vihear, situated on the hill of Phnom Trap, was under Cambodian sovereignty, going on to observe that only Thailand was under the obligation to retreat its military forces.

116 Ibid., Separate Opinion of Judge Cançado Trindade, para. 74.

117 See Temple of Preah Vihear case (judgement), supra note 62.

118 Ibid., at para 106. The judgement in fact explicitly mentions that ‘the Temple of Preah Vihear is a site of religious and cultural significance for the peoples of the region . . . listed by UNESCO as a world heritage site’ and that ‘under Article 6 of the World Heritage Convention, to which both States are parties, Cambodia and Thailand must co-operate between themselves and with the international community in the protection of the site as a world heritage’.

119 Ibid., Declaration of Judges Guillaume and Cot (in French).

120 Ibid., Separate Opinion of Judge Cançado Trindade, para. 12.

121 The UN Charter stipulates inter alia that ‘developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples is among the purposes and principles of the Charter of the United Nations’.

122 ‘Bolivia institutes proceedings against Chile with regard to a dispute concerning the obligation of Chile to negotiate the sovereign access of Bolivia to the Pacific Ocean’, ICJ Press Release, No. 2013/11, 24 April 2013.