Annexure 3
INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS
Annexure 3 is a summary of the relevant, key principles outlined in the numerous United Nations Declarations and Conventions that promote respect for cultural diversity and international cultural cooperation and the protection of cultural rights.
The United Nations International Convention on Civil and Political Rights 1979
The intent of this Convention is in accordance with the
principles outlined in the Charter of the United Nations and the Universal Declaration of Human Rights.
Article 2 states
that:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
Article 5 states that:
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
Article 18 states that:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
Article 19 states that:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order, or of public health or morals.
Article 26 states that:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
Article 27 states:
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992
The Declaration considers the protection of the rights of ethnic, religious and linguistic minorities as contributing to the political and social stability of the States in which they live. It positions the realization of these rights as an important part of the development of any society.
Article 1(1) states that:
“States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity”.
Article 2 provides that cultural pluralism is a core aspect of a
democratic framework. Subsection (1) further states that:
“persons belonging to [...] minorities have the right to enjoy their own culture [...] in private and in public, freely and without interference or any form of discrimination.”
Article 4 (2) explicitly provides that:
“States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.”
http://www.unhchr.ch/html/menu3/b/d_minori.htm
UNESCO Declaration on Cultural Diversity 2001
The UNESCO Declaration sets out common rules and principles for cultural
diversity at a global level. The Declaration characterises cultural diversity
as necessary for human kind, as a living treasure and a source of exchange,
innovation and creativity. The Declaration makes a significant contribution to
recognising the role and legitimacy of public policy in its protection and
promotion of cultural diversity.
Article 2 states that:
“policies for the inclusion and participation of all citizens are guarantees of social cohesion, the vitality of civil society and peace.”
It then goes on to state:
“Indissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities that sustain public life.”
Article 4 identifies human rights as a guarantee of cultural diversity. It states:
“The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples.”
It further states that:
“No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.”
Article 5 frames cultural rights as an enabling environment for human
rights and is linked to Article 27 of the Universal Declaration of Human
Rights and Articles 13 and 15 of the International Covenant on Economic,
Social and Cultural Rights. It states:
“All persons have therefore the right to express themselves and to create and disseminate their work in the language of their choice, an particularly in their mother tongue; all persons are entitled to quality education and training that fully respect their cultural identity; and all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms.”
Article 6 relates to the right for cultures to express themselves and
make themselves known. It states:
“Freedom of expression, media pluralism, multilingualism, equal access to art and to scientific and technological knowledge, including in digital form, and the possibility for all cultures to have access to the means of expression and dissemination are the guarantees of cultural diversity.”
http://unesdoc.unesco.org/images/0012/001271/127160m.pdf
Promotion of the enjoyment of the cultural rights of
everyone and respect for different cultural
identities
Human Rights Resolution 2005/20
This resolution characterises cultural diversity as an asset and
permanent feature for the advancement, welfare and enrichment of society. It
expresses a specific interest in preventing and mitigating cultural
homogenization in the context of a globalized world, through increased
international cultural interchange and the promotion and protection of cultural
diversity.
Article 4 states that:
“each culture has a dignity and value which must be respected and preserved and that every people has the right and the duty to develop its culture.”
Article 5 recognizes that:
“States have the primary responsibility for the promotion of the full enjoyment of cultural rights by everyone and for the enhancement of respect for different cultural identities”.
Article 7 further recognizes that:
“the promotion and protection of the full enjoyment of cultural rights by everyone and the respect for different cultural identities are vital elements for the protection of cultural diversity in the context of the ongoing process of globalization”.
Article 8 states that:
“all peoples have the right of self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.”
Article 13 further recognizes that:
“the promotion of the cultural rights of everyone, of respect for the distinct cultural identities of peoples and of protection of the cultural diversity of humanity advances the implementation and enjoyment of human rights by all.”
http://www.unifr.ch/iiedh/droits-culturels/odc-documentation/odc-doc-synthese/DS6-eng.pdf
Draft United Nations Declaration on the Rights of Indigenous Peoples
The draft Declaration affirms that all peoples and
cultures contribute to the richness and diversity of civilizations and societies
and reaffirms that indigenous peoples’ should be free from discrimination.
The Declaration’s key principles are linked to those outlined in the
Charter of the United Nations, the Universal Declaration of Human Rights and in
international human rights law.
Article 2 states
that:
“Indigenous individuals and peoples are free and equal to all other individuals and peoples and dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity.”
Article 3 States that:
“Indigenous peoples have the right of self-determination. By virtue of that night they freely determine their political status and freely pursue their economic, social and cultural development.”
Article 4 states that:
“Indigenous peoples have the right to maintain their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.”
Article 8 states that:
“Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.”
Article 16 refers specifically refers to the role of States and stipulates that:
“States shall take effective measures, in consultation with indigenous peoples concerned, to eliminate prejudice and discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all segments of society.”
http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1994.45.En
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981
Article 1 states that:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
Article 2 states that:
1. No one shall be subject to discrimination by any State, institution, group of persons, or person on the grounds of religion or other belief.
2. For the purposes of the present Declaration, the expression "intolerance and discrimination based on religion or belief" means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.
Article 3 states that:
Discrimination between human being on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.
Article 4 states that:
1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.
http://www.unhchr.ch/html/menu3/b/d_intole.htm
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1969
Article 1(1) of the Convention defines racial discrimination as:
“Any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
Article 1(4) of the Convention states that:
“Special measures may be taken for the sole purpose of advancing a particular racial or ethnic group or individuals who require such protections as may be necessary to ensure that such groups/individuals have an equal enjoyment or exercise of their human rights. These special measures do not constitute racial discrimination provided that they do not lead to the maintenance of separate rights for different racial groups and that they are discontinued once their objectives have been achieved”.
Article 2(1) provides that:
“Each States Party should condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; and
(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division”.
Article 2 (2) of ICERD states that:
“State Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups of individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved”.
http://www.ohchr.org/english/law/pdf/cerd.pdf
General Recommendation 23 – ICERD 1997
General Recommendation 23 states that:
1. In the practice of the Committee on the Elimination of Racial Discrimination, in particular in the examination of reports of States parties under article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination, the situation of indigenous peoples has always been a matter of close attention and concern. In this respect, the Committee has consistently affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination.
2. The Committee, noting that the General Assembly proclaimed the International Decade of the World's Indigenous Peoples commencing on 10 December 1994, reaffirms that the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination apply to indigenous peoples.
3. The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.
4. The Committee calls in particular upon States parties to:
(a) Recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation;
(b) Ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;
(c) Provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;
(d) Ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent;
(e) Ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages.
5. The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.
6. The Committee further calls upon States parties with indigenous peoples in their territories to include in their periodic reports full information on the situation of such peoples, taking into account all relevant provisions of the Convention.
http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument
