Cultural Rights

This essay examines the relationship between two rights guaranteed by the United Nations Universal Declaration of Human Rights: the right to culture and the right to free assembly. While the right to culture has been the focus of anthropological discussions, less attention has been paid to other mechanisms that may encourage cultural  preservation. Drawing upon the example of an indigenous tribal constitution, I look to the voluntary association of interest groups as an alternative legal means for sustaining specific cultural practices and conclude with a discussion of their prospects and limitations.

Apstrakt: Autor u radu nastoji da prikaže razvoj kulturnih prava u praksi Evropskog suda za ljudska prava (u daljem tekstu kao: ESLJP). Nakon uvodnih razmatranja u kojima se ističe slaba razvijenost, ali i sve veći značaj ove grupe ljudskih prava, u nastavku se vrši analiza normativnog okvira kulturnih prava u pravnom sistemu Saveta Evrope. Nakon toga, autor istražuje praksu ESLJP u oblasti kulturnih prava, posebno imajući u vidu najznačajnije presude koje je Sud doneo vezane za pravo na obrazovanje, pravo na učestvovanje u kulturnom životu i slobodu umetničkog stvaralaštva. Potom se u nastavku rada bavi analizom pravne prirode presuda ESLJP u oblasti kulturnih prava. Na kraju, autor sumira značaj presuda Suda, kao i njegovu ulogu u daljem unapređenju kulturnih prava.

This dissertation deals with the problem of cultural rights from the viewpoint of the liberal utilitarianism of John Stuart Mill. It intends to include the author‘s political philosophy in the debates that have been held in recent decades between liberals and communitarians starting from the approach of the philosophical problem of identity. To this end, we try to undo common misconceptions and provide an integrated reading of Mill's philosophy based on careful analysis of his writings, aided by his most eminent interpreters. We attempt to demonstrate that it is based on a previous fundamental adhesion to utilitarianism, as well as from a particular position regarding the access to the truth, that arise the liberal convictions and the centrality of autonomy in his doctrine. Given these premises, we could find that the Millian state, exempting the assumption on the neutrality of public sphere derived from the liberal contractarian doctrine usually professed, reveals itself theoretically compatible with the task of guaranteeing cultural rights. Whilst Mill‘s broad view regarding goods that contribute to happiness is capable of dragging culture into the hedonistic calculus, which affects the measurement of utility over general happiness, his defense of autonomy and diversity seems to justify a special attention to social context which maximize the expression of individuality.

The traditional net bags of West Papua (noken) were recently declared
intangible cultural heritage by the UNESCO, which, all of a sudden, propelled them on to a global stage. Given these new developments and given West Papua’s problematic relationship to the Indonesian nation-state, the net bags give expression not only to local identity but also to global cultural heritage politics, a global indigenous peoples’ movement and the integration into and resistance against the nation-state. Discussing the contradictory meanings of the net bags, this paper points at the problematic nature of the right to culture and diverging cultural policies on a local, national and international level. Culture here not only implies recognition and integration, but also folklorisation, exclusion, competition and the suppression of cultural citizenship of groups that feel marginalised by the national policies.

Review of Indonesian and Malaysian Affairs, vol. 48, no. 1 (2014), pp. 35–66

Drawing on Cass Sunstein's theory of incompletely theorized and specifi ed agreements, this article intends to describe, explain and assess the legal regime of the right to participate in cultural life in international law. It off ers a redefi nition of this human right as an incompletely theorised and specifi ed agreement in order to make this human right suitable for a certain degree of operationalization. As a fi rst step, this article qualifi es the right to participate in cultural life as an incompletely generalized agreement: people do not agree on the theoretical foundations of this human right although there seems to be a loose agreement on the recognition of some component of this human right. As a second step, this article intends to show that the right to participate in cultural life worked and still works as an incompletely specifi ed agreement: monitoring bodies have not yet received much possibility to make clear and operationalise it even if there was an agreement reached on this human right as a low level principle. Th is contribution then off ered a redefi nition of the right to participate in cultural life which aims at authorising an agreement on this human right as a 'mid-level principle' whenever there is still disagreement existing on the foundation of this latter right. Taking into account the dynamic and moving features of cultural life and the general and adaptive nature of international human rights law, this article intends to elaborate a legally relevant defi nition of the right to participate in cultural life as an incompletely generalised and specifi ed agreement on a low level principle. Th is defi nition tries to open a third way between a restrictive defi nition of the right to participate in cultural life as a right to access a set of defi nite artworks and the broad 'anthropological' defi nition given in General Comment No. 21 of the Committee on economic, social and cultural rights.

The Mukogodo of Kenya were once hunter-gatherers speaking a Cushitic language. Over the last century, they were absorbed more and more into the orbit of Maa-speaking pastoralists, adopting pastoralism, as well as Maasai culture and language. In the process, use of their former language declined considerably, and today there are only a few surviving elders who have even a limited grasp of it. Also, Maasai cultural dominance has marginalised the old ways of the Mukogodo, still looked down upon by many Maasai and Samburu as il-torrobo, a contemptuous term for hunter-gatherers. However, influenced by global discourses on indigenous rights, conservation and the worth of preserving endangered languages, there is a movement amongst the Mukogodo to revive their language, reconstruct an ethnic identity as ‘Yaaku’, and demand greater rights to the Mukogodo Forest; this movement has recently culminated in the construction of a museum where it is hoped future generations will learn at least something of the old language and way of life. This article traces the fluctuations of Mukogodo language and culture over the last century, especially focusing on this recent revivalist movement and the people, and local, national and international politics, behind it. It shows how the marginality of the Mukogodo and their old ways and language can be turned to advantage, as being Yaaku and speaking the Yaaku language become major resources in a poverty-stricken region.

The research aimed at (1) determining the efforts of state in providing legal protection and preservation of traditional cultural expressions of the East Java Community, (2) analyzing the Regional Government of East Java in providing legal protection and preservation of traditional cultural expressions in East Java and (3) analyzing the actualization of cultural rights for providing the legal protection and preservation of traditional culture expressions optimally in East Java is related to cultural advancement.
The character of the research is descriptive. This research is empirical-normative research. Empirical-normative research is carried out in two ways, first: library research examines secondary data in the form of primary legal materials, secondary legal materials, and tertiary legal materials. Second, field research is examining primary data sourced from interviews with informants and respondents. After the library data and field data are obtained, then preparation and analysis are carried out using qualitative analysis methods.
The results indicate that: the efforts of the state in providing legal protection and preservation of the traditional cultural expressions of the East Java based on the mandate in the Copyright Act and the Cultural Advancement Act have not been effective, deficiencies and obstacles are still found in its implementation and the application of repressive legal protection has not been implemented. (2) The implementation of legal protection and preservation of the traditional cultural expressions of the East Java by the regional government has not run optimally in its application and (3) actualization of cultural rights for providing legal protection and preservation of East Java traditional cultural expressions related to cultural advancement by forming regional regulations. the application of the concept of recognition of inclusive rights in defensive law protection in the form of informed consent and benefit sharing as well as building synergy between institutions coordinately and subordinately.

IT [english below]:Dalla distruzione dei beni culturali nel vicino oriente, alle lotte per il recupero e la risignificazione dei beni sottratti durante il periodo coloniale, i referenti materiali della memoria culturale e i modi di vita "tradizionali" sono al centro del dibattito sulla salvaguardia dell'identità dei popoli nella globalizzazione. Si parte dalla risposta della comunità internazionale ai recenti fatti in Siria e Iraq per analizzare il consenso intorno all'ingiustificabilità della distruzione del patrimonio in caso di conflitto armato e dunque dell'affermazione dell'interesse dell'umanità nel proteggere queste manifestazioni dell'identità culturale dei popoli. Quindi, si ricostruiscono tappe e discorsi che hanno reso possibile tale interesse dell'umanità: si considera il patrimonio come "questione di Stato", come "questione dell'umanità" e come "questione d'identità". La complessità di questa terza accezione e il suo intersecarsi e opporsi alle altre due dimensioni individuate fanno sì che sia necessario analizzare in profondità l'aspetto relazionale del patrimonio culturale in quanto pratica sociale situata in diversi e asimmetrici contesti socio-politici. Così si evidenziano tre processi contemporanei e interconnessi: il rinnovato interesse verso i diritti culturali e l'emergere del paradigma dello sviluppo umano e sostenibile; il progressivo riconoscimento del valore collettivo dei diritti culturali e della necessità di applicare una visione culturalizzata dei diritti umani in generale; l'affermarsi dei movimenti sociali indigeni come soggetti protagonisti delle politiche internazionali e nazionali che riguardano queste popolazioni. A partire dalla soggettività indigena si traccia, infine, una proposta di cosmopolitismo vernacolare in cui dalle altre storie dei diritti umani, quelle delle sofferenze oppresse, silenziate e complementari alla retorica dominante, sia possibile scorgere prospettive di sviluppo e autodeterminazione centrate negli interessi dei popoli e nel rispetto delle differenze.
EN: From cultural heritage destruction in the Near East, to the struggles for the return and the resignification of properties taken away throughout the colonial period, the material references of the cultural memory and the “traditional” ways of life are at the centre of the current debate on safeguarding peoples' cultural identity in globalization. This work starts with the response of the international community to the recent emergency in Syria and Iraq in order to consider the consent around the unlawful destruction of heritage in the case of armed conflict. So that a general concern for humanity can be traced in the protection of those manifestations of peoples' cultural identity. Therefore, it is necessary to review the emergence of this general interest for humanity by analysing  the contexts and the discourses that made it possible. Three dimensions of heritage have been taken into account: “heritage as a matter of State”, “heritage as a matter of humanity”, “heritage as a matter of identity”. The complexity of the former sense and its overlapping with the others mean that it is required to examine the extent by which cultural heritage is a social practice embedded within different and asymmetrical political contexts. Thereby, three contemporary ad mutually influenced processes are highlighted: the growing concern for cultural rights and the affirmation of human and sustainable development paradigm; the progressive acknowledgement of the collective value of cultural rights and the necessity of a cultural justiciability of human rights in general; the rise of indigenous social movements as subject of international and national politics regarding such people. Finally, on the basis of indigenous subjectivity we can draw a proposal for a vernacular cosmopolitanism insofar the other histories of human rights, those of the oppressed and silenced sufferings but still complementary to the dominant rhetoric, they may open unplanned possibilities to behold perspectives of development and self-determination focused on peoples' concerns and on respecting cultural differences.

U prvom delu rada izložiću neke od ključnih konceptualnih pro- blema koji se postavljaju pred ideju ljudskih prava, kao i najčešće izlagane argumente kojima se ljudska prava brane kao univerzalni i emancipatorni moderni projekat. Na ovo će se nadovezati razmatranja o kulturnim pravima, ko ja se po nekad raz u me ju kao ko rekci ja uni verza li zma ljud skih pra va, a po- nekad kao njihova logična ekstenzija; u tom smislu, pokazaću kako su ljudska prava sve više počela da se shvataju kao kulturna i kolektivna prava. U trećem delu rada predstaviću pregled antropološke kritike pre svega kulturnih prava, a zatim i stavove proizašle iz empirijskih istraživanja koja kritički propituju dominaciju paradigme prava u razumevanju i samorazumevanju različitih lokalnih „kulturnih“ borbi. U zaključku ću se vratiti na pitanje univerzalnosti ljudskih prava (pa i kulturnih prava shvaćenih kao produžetak ljudskih prava) iz perspektive partikularnosti građanskih prava, te propitati svrsishodnost njihovog konceptualnog razdvajanja.

The first Culture/Justice protocol was co-signed on the 25 th of July 1986 by Jack Lang and Robert Badinter.
Following the first international symposium about culture in prison (May-June 1985), this text formalised the
interdepartmental cultural policy in prison which had been in place since the beginning of the 1980's.
However, cultural activities have existed in French penal institutions since the Liberation. From choirs to
theatre groups including concerts, these were often categorised as educational, socio-cultural, recreational and
cultural activities. Initially organised by social assistants, they were then mostly led by prison educators. The
latter had been created as part of the Amor reform in 1946. Only a few penal institutions were affected by
these activites which were supposed to educate, observe and reform the prisoners. In the 1970's, because of
the prison crisis, a new reform was implemented which turned the cultural activities into a means of
rehabilitation and reintegration. In the early 1980's, this approach was transformed because of the intervention
of Minister Lang. New initiatives appeared ; for example, audio-visual technology. From then on, these were led
by artists, associations, and institutions from the world of creativity. The perspective of these new operators
was then to guarantee the right to culture for the detained individuals. Prison educators then had to convert
into coordinators. Consequently, activities depended on the local cultural fabric. Therefore, the penitentiary
administration had to reorganise in order to take on board these new operations.

The doctoral thesis attempts to build a legal regime for the right to culture, which is an individual right with an important collective dimension. The aim of the doctoral thesis is to enable the right to culture to exert all its effects. The fog that still veils the right to culture, despite its fundamental importance and its growing engagement in political discourse, has fuelled a desire, which is the source of my doctoral thesis, to clarify the sources, the content, the obligations and the legal guarantees of the right to culture. To conduct a rigorous definition of the legal right to culture, three majors themes were chosen : the arts, the cultural heritage and the lifelong education. The research has mainly been devoted to constitutional law and international human rights. However, legal evolutions and problems have been clarified and examined by using an interdisciplinary approach, including the disciplines of legal theory and political philosophy. The whole thesis is devoted to the demonstration that the right to culture is a legal, an effective and a legitimate reality. Two hypotheses underlie the doctoral thesis. The first central hypothesis is that the right to culture, if defined, can be considered as a fundamental right because it comprises the eight constitutive elements of every fundamental right (sources, object, democratic values as fundaments, prerogatives, obligations, debtors, titulars and justiciability). The right to culture it entails a full legal regime that implies precise obligations for the State, which are guaranteed by concrete mechanisms. The right to culture is related to a precise content: the diversity of cultural expression and cultural heritage. This right implies concrete prerogatives: the right to artistic freedom of expression; the right to conservation, development and diffusion of culture; the right to access to cultural life and to cultural information; the right to take part in cultural life; the right to freedom of choice in cultural matters; the right to participate in the elaboration on and the implementation of cultural policies. This right can be hold against its debtors. It deploys itself at different levels of effectivity and of justiciability. The second central hypothesis is that the construction of the legal regime of the right to culture and the legitimacy of this right depends on its capacity to manage a permanent balancing between three of its elements which appear to be antagonistic in nature: on the one hand, artistic freedom, and on the other, equality and participation in cultural life. Especially in the theoretical justification of cultural policies, in the mutual enrichment between the different sources of the right to culture, in the definition of the object of the right to culture and in the definition of the elements of this right, this balancing occurs. Two ideas are determining for the whole doctoral demonstration. The first one concerns the definition of the right to culture’s legal regime on the basis of a conception of « culture » . This conception is limited to the diversity of cultural expressions and heritages. This first stance is explored by means of five methodological steps. First, a philosophical exploration of the concept of culture has authorized to discover that this concept has to be understood mainly in reference to the work on meaning that culture build and embodies. Subsequently, the peculiar conditions under which the legal system can apprehend the concept of culture have been identified: the legal concept of culture has to be understood in reference to the embodiment and the materialization of the work on meaning constructed by the « culture » in the anthropological sense of the word. Afterwards, on the basis of a historical analysis of the right to culture’s interpretation, it was observed that, in international law, the interpretation that is sometimes constructed, i.e. what the right to culture concerns, has been taken outside the limits of the legal systems. Indeed, the right to culture, after being set free from a very limited and academic approach of culture by an opening to the diversity of cultural expressions wherever they come, has been constructed in connection with cultural identities. Next to this analysis, this conception of the right to culture was evaluated from a critical point of view, and eventually rejected,, because its fundaments are too weak and because it denatures the right to culture and poses a threat to its effectiveness. Cultural identity is a particular dimension of the right to culture but cannot be its main object. The right to culture is concerned with the protection and promotion of cultural identity even if protection and promotion of cultural identity is not the actual content of the right. Finally, a definition of the right to culture’s object has been developed in connection with the diversity of works, methods, spaces and practices which express, from a critical and creative point of view or as a heritage to transmit, the work on meanings operated by culture in the anthropological sense. This apprehension of the right to culture can disappoint those who see in this right a « magical » right, capable to touch culture in its complexity and to solve all the problems posed by the multiplicity of cultural identities and by the so called « Clash of Civilizations ». But this restriction in the definition of the right to culture’s object is in fact a necessary condition for deploying it in the legal world. Here we come to the second determining stance, which concerns the identification of the effectiveness and of the justiciability of the right to culture, de lege lata et de lege ferenda. Constructing this right in connection to the diversity of cultural expressions and heritages lets us identify the prerogatives that the right to culture implies and the obligations that can be recognized for its debtors. This definition of the right to culture has enabled us to define this right as a justiciable right, i.e. as a right that individuals can seize and that judges can use in their legal reasoning. The justiciability of the right to culture varies of course from one element to another. But, the important finding is that all elements of this right could be recognized as justiciable. For certain elements, as the right to artistic freedom, the right to culture benefits already from “direct effect” in a narrow sense. This is also the case for the right to access to cultural diversity without barriers. Other elements of the right to culture have been contextualized in the legal system in such a degree that they could benefit from direct effect sensu stricto. This contextualisation is visible in for e.g. the right to be protected from abuses of copyrights when using artistic freedom: this particular right is so detailed in Belgian law that a judge already asserted that it has a direct effect, without conflicting with the separation of powers doctrine. Moreover, de lege feranda, a whole range of elements of the right to culture could be recognized as entailing direct effect sensu stricto, quod non today. The other elements of the right to culture donot have “direct effect” and benefit only from a “direct effect” in a broad sense.. For these elements, the standstill obligation is the determining factor because it indicates the compatibility control realized at the “contentieux objectif” by authorizing the judges to compare the litigious norm with the right to culture as it is materialized in Belgian law. Even if the right to culture is defined as it is suggested in the doctoral thesis, it remains a weak right and its effectiveness is far from being confirmed. This a-typical and ambivalent right can only be subjected to legal rationality when permanent conceptual efforts to apprehend this right in a legal way are made. However, the situation isn’t hopeless for all. Firstly, the right to culture opens great possibilities to defend, at the legal and philosophical levels, cultural policies and ways to rethink the conflict between economic law and cultural policies and laws. Furthermore, in a more positive way, the right to culture opens up new ways to rebase and re-legitimate the public law on culture and the cultural policies. These policies could indeed, thanks to the substantial and procedural elements of the right to culture’s legal regime, get a new lease after being out of steam for a long time.

La spécificité des droits culturels ne réside pas dans un régime particulier qui leur aurait été octroyé, ainsi qu’une partie de la doctrine l’a un temps suggéré, mais dans leur objet commun : ce sont des droits protégeant la construction et l’expression libres des identités culturelles, et l’accès aux ressources le permettant. Malgré le caractère peu explicite des dispositions internationales, notamment en dehors des champs relatifs aux minorités et aux peuples autochtones, une tendance se dégage en droit positif, au niveau tant universel que régional, exigeant le respect des identités individuelles et collectives sur la base des principes de liberté et d’égalité. Les droits culturels, destinés à protéger des capacités de créer et les œuvres individuelles ou collectives qui en résultent, sont des droits fondamentaux au sens plein du terme. Ils obligent à l’écoute des blessures identitaires et à l’engagement, en réponse à ces souffrances, à un dialogue articulé autour de la notion de droits de l'homme. En tous domaines, ils engagent les sociétés à interroger les valeurs qui les fondent et à s’adapter aux diverses identités dont elles sont constituées.

This book is a compilation of research papers written by authors from East and Southern African and American based social and
environmental advocacy groups. The papers were prepared and presented during the 2009 Skills Share and Learning Exchange
Conference and Outreach Visit Programme held in Harare, Zimbabwe. The Skills Share and Learning Exchange Programme was designed
to act as a forum for social and environmental justice practitioners to share skills and experiences on strategies to secure and protect the
rights of natural resource dependent communities in East and Southern Africa with the technical and financial support of the Ford
Foundation. Additionally, the programme was established in order to strengthen and broaden the capacities of social and environmental
justice activists to advocate, litigate and research on community rights. The 2009 edition was running under the theme “securing
environmental, economic, social and cultural rights of communities in mining areas”. It was aimed at ensuring that participants understand
and share their ideas about how best community assets and rights in mining areas can be promoted and protected.

WHY CUSTOMARY LAW MATTERS:
THE ROLE OF CUSTOMARY LAW IN THE PROTECTION OF INDIGENOUS PEOPLESʼ HUMAN RIGHTS

PhD thesis available free online at
https://aran.library.nuigalway.ie/…/27…/EThesisCombined.pdf…

Abstract
For millions of Indigenous peoples around the world their own customary laws (non- state laws they consider binding upon them) are their primary, if not their only source of law.
Marginalised by positive law over the past 200 years the status of indigenous peoples’ legal systems and most importantly of their customary laws has changed dramatically in the twenty years between 1990 and 2010. During this period national and international law and jurisprudence has clearly recognised the rights of Indigenous peoples to be governed by their own legal regimes and the obligation of states to respect and recognise their laws and institutions and the ancestral rights they uphold.
The study shows that customary law, far from being an archaic and quaint system of law existing on the margins and of little interest and less importance to the mainstream legal system, is a vibrant and dynamic body of ‘living law’ which is vital for the realisation of Indigenous peoples’ human rights and a crucial element of any system of good global governance

Table of contents
Abstract
Acknowledgements ..ii
Introduction...1
a. Customary international law....5
b. Indigenous peoples' customary law ...7
c. Customary law's global reach .10
d. Giving custom its due .....13
Chapter 1. Customary law in context.... 15
1.1 Historic treatment of custom as a source of law ......15
1.1.1 the historic status of customary law.......16
1.1.2 the common law theory of custom...........17
1.2 Customary law of Indigenous peoples ......25
1.2.1 the nature of Indigenous peoples legal regimes........26
1.2.2 the nature of customary law .....29
1.3 Characteristics of Indigenous peoples’ customary laws.......32 1.3.1 characteristics of customary law ...33
1.3.2 sources of customary law .......37
Chapter 2. Custom’s Colonial Legacy .. 42
2.1 Native Dominium and a Spanish take on the Law of Nations .42
2.1.1 Native Dominium and ‘just war’ in the New World..43
2.1.2 the Irish and their Brehon laws ...47
2.2 Broken treaties and doctrinal fictions......50
2.2.1 Treaty making and breaking ..51
2.2.2 Doctrinal Shenanigans: Discovery and Terra nullius ...55
2.3 Recognition of customary law.....57
2.3.1 in search of customary law....59
2.3.2 Codification of custom.....65
Chapter 3. Customary law today... 75
3.1 Sovereignty and Self-Governance..........76
3.1.1 autonomy in practice............78
3.1.2 indigenous rights of self-identification ..83
3.2 National and international recognition of customary law ... 95 3.2.1 international recognition of Indigenous peoples’ customary law ...95
3.2.2 constitutional recognition of customary law ....98
3.3 Tribal law and tribal courts ...105
3.3.1 the scope of customary law and its status in tribal legal regimes ..106
3.3.2 State recognition of tribal courts and customary jurisdiction
Chapter 4. In Praise of Customary Law ... 119
4.1 Obligations to recognise customary law ...121
4.1.1 participation and consultation ...121
4.1.2 free prior informed consent...126 4.2 Protection of cultural and biological diversity .131
4.2.1 cultural diversity and rights to a ‘way of life’....132
4.2.2 traditional resource management and biodiversity conservation...139
7.3.2 alternative approaches to protection of traditional knowledge
4.3.1 Custom in stateless and failing states.....149
4.3.2 Custom, human rights and the rule of law ...156
Chapter 5 Ancestral rights recovered.... 161
5.1 Indigenous peoples’ rights to land.....163
5.1.1 Indigenous peoples individual and collective land rights ...163 5.2 Native title and its extinguishment..166
5.2.1 native, aboriginal and traditional title ...167
5.2.2 extinguishing native title.......173
5.3 Rights to land and sacred sites .....180
5.3.1 international recognition of traditional title ..182
5.3.2 access to and control of sacred sites...189
Chapter 6 Natural Resources or Essences of Life? . 196
6.1 Rights over natural resources under international law
6.1.1 Indigenous peoples’ rights over natural resources.
6.1.2 native title and the duty to consult ..200
6.2. Mining and subsurface resource rights and wrongs ..204
6.2.1 rights to subsurface resources ...205
6.2.2 righting resource wrongs...209
6.3 Farmers rights and the conservation of agrobiodiversity
6.3.1 access to genetic resources and benefit sharing....213
6.3.2 Farmers seeds and in-situ conservation of agrobiodiversity
Chapter 7. From Cultural Property to Cultural Heritage
7.1 Towards an Indigenous notion of cultural heritage......230
7.1.1 the expanding notion of cultural property and heritage
7.1.2 towards a customary concept of property stewardship .
7.2 Ancestral remains and cultural patrimony....236
7.2.1 repatriation of human remains, cultural and sacred objects
7.3 Traditional knowledge........240
7.3.1 protection of traditional knowledge ...243
7.3.2 alternative approaches to protection of traditional knowledge
Chapter 8. Intercultural legal pluralism
8.1 Recognition and proof of customary law ...265
8.1.1 the judicial interface and the search for the ‘living’ law...265
8.1.2 proof of custom and alternative dispute resolution........271 8.2 The changing face of custom..........276
8.2.1 customising human rights ........276
8.2.2 custom-made law .......286
a. community protocols .................. 287
b. stewardship .. 290
8.3 Intercultural legal pluralism: coming into the light..........293
8.3.1 in search of intercultural equity ......294
8.3.2 restoring the fragmented legal order .......296
Conclusions. .... 302
Bibliography ................306
Table of Cases.............. 321

La trasversalità del cosiddetto diritto al cibo offre l’occasione per una trattazione diffusa del diritto alimentare rispetto alla dicotomia diritto privato diritto pubblico e rispetto al triangolo della giustizia civile, amministrativa e penale; interessando per fonti e competenze, in particolare, il diritto internazionale e dell’Unione Europea, per contenuti il diritto agrario, commerciale, dell’economia e del lavoro, il tributario e il diritto delle religioni.

EXECUTIVE SUMMARY
Recently, the issue of human rights and fundamental rights and freedoms has gained
importance on an international scale. This situation is directly proportional to the fact that
the issue of human rights has grown out of the scope of pure domestic law and has gained a
universal look. International independent civil society organizations on human rights and
developed countries, as well as institutions such as UN and the European Union have
published country reports on the subject regularly. Human rights violations taking place in
any country in the world today arouse interest and provoke reaction not only in that country
but all over the world, and can be questioned. In particular, the rights of minorities living in
a country and their benefiting from the rights of citizenship have become a universal value.
Significant changes have occurred in Bulgaria in the structural sense, which entered
into a democratization process following the downfall of the Zhivkov regime in 1989. The
mentioned amendments have brought about various developments related to human rights
in the country. While various arrangements were being made on the issue in this regard, the
human rights violations taking place in the country, in particular those of minorities were
intended to be prevented in the new period. It is seen that adherence to the arrangements on
human rights, defined in the country's constitution by various parties and totalitarian
regimes in power, had remained on a symbolic level since Bulgaria became an independent
country splitting from the Ottoman Empire. On the other hand, the human rights
conventions of the international organisations such as the United Nations and the OSCE,
which Bulgaria was a party to especially during the communist regime, were not much
binding for the government in Sofia.
As a democratic regime was facilitated with the constitution of 1991 in the country,
the issue of human rights also emerged as an important topic. Since the goal of being a
member of Euro-Atlantic organisations became a foreign policy priority for the Sofia
government in 1990's, this situation ensured Bulgaria to move in a more sensitive way to
human rights. Additionally; Bulgaria, a member of the Council of Europe, became a party
to the framework Convention on the protection of national minorities in 1999. In the
context of EU accession talks particularly in the 2000‟s, it put signature to various reforms
in the country on human rights and fundamental freedoms.
In the light of the issues mentioned, this report approaches the issue of fundamental
rights and freedoms in 2014. In the report; an objective assessment is aimed with the titles
of Overview of the country, Political Rights and Freedoms, Economic Rights and
Freedoms, Organization Rights and Freedoms, Cultural Rights and Freedoms, Educational
Rights and Freedoms, Religious Rights and Freedoms, as well as has tried to make an
objective assessment scanning, and by scanning the media in the country.
As known, Bulgaria is demographically diverse. We aimed to determine the
progrees made by Bulgaria, having problems regarding humans rights, in particular, the
Muslim Turkish minority in the international arena Prior to 1989, on the 25th anniversary
of the over throw of the Zhivkov regime. The current status of the issue has been
investigated in Bulgaria, who became a member of the leading organisations on human
rights such as the EU, the EC, the UN and the OSCE during the intervening 25 years.

TABLE OF CONTENTS:
1. Tanja Kohvakka, THE ROLE OF HISTORY TEACHERS IN QUESTIONING
THE DOMINANT WAY OF HISTORY TEACHING IN BOSNIA-HERZEGOVINA
2. Ángela Campos Fernandez, BREAD AND ROSES: THE ROLE OF ART IN POST-CONFLICT SOCIETIES, RECONCILIATION PROCESSES AND HUMAN RIGHTS PROMOTION: THE CASE OF BOSNIA AND HERZEGOVINA
3. Esma Latić, PARADISE LIES UNDER THE FEET OF MOTHERS: A CRITICAL ANALYSIS OF DISCOURSE ON AND BY MUSLIM WOMEN IN BOSNIA AND HERZEGOVINA AND SERBIA
4. Giovanni Agostini, PROTECTION OF CULTURAL RIGHTS AND IDENTITIES OF NATIONAL MINORITIES: THE CASE OF BOSNIA AND HERZEGOVINA

Este trabajo de doctorado busca retratar y analizar algunas de las primeras cartoneras mexicanas y sus maneras de trabajar, para averiguar de qué manera y hasta qué grado pueden estas editoriales alternativas contribuir al desarrollo de un acceso más democrático a los libros como bienes culturales y a la producción de la cultura.

Esta investigación interdisciplinaria busca complementar el conocimiento científico ya existente sobre las cartoneras, así como ampliarlo y aportar nuevas opciones de contextualizaciones teóricas que puedan llevar a una comprensión más profunda de estos actores culturales y su impacto dentro del campo cultural, para futuros estudios de la temática en distintas disciplinas.

Con base en tres amplios marcos de comprensión del museo (el efecto rizoma, el síndrome de Babel y la era relacional), el presente estudio analiza su nivel de protección en la legislación de cinco países de Iberoamérica: Argentina, Brasil, Colombia, España y México. En la mayoría de los casos, el museo no está protegido en cuanto sistema, sino en sus componentes patrimoniales materiales (las colecciones y los edificios), con énfasis en su preservación y el apoyo a la educación formal y al turismo. En el contexto de los derechos culturales surge el derecho al museo, junto con su dimensión social desde los derechos humanos. La propuesta final de elementos centrales para una futura ley marco, incluye promover su reconocimiento internacional como un "espacio cultural de carácter especial".

Advisory Opinion/Legal Report commissioned by the Panhellenic Lawyers' Association (Π.Ε.Δ., Πανελλήνια Ένωση Δικηγόρων)
In the present advisory opinion/legal report the status of the Elgin marbles under the norms and principles of Public International Law is revisited upon the following grounds: (a) The existence and legality of the authorizing unilateral acts of the ottoman officials; (b) The international legal regime regarding the protection of cultural property during the time of removal; (c) The legal deficits of the original title (if any) and their opposability vis-à-vis the British government and her instrumentalities, including the British Museum; (d) Whether the current dispute is properly classified as a dispute of Public International Law, regulated by the provisions, both conventional and customary, of the latter; (e) Whether under the current Public International Law regime, there exist norms or legal concepts, some of them even of peremptory status, which may be deemed applicable; (f) Finally, whether the modern practice of international dispute resolution offers diplomatic and/or judicial fora, suitable for the attainment of a final and mutually beneficial settlement.

Seis ensaios que cobrem desde as fontes dos direitos culturais no direito internacional (ONU, sistema interamericano de direitos humanos, União Europeia, Constituições brasileiras) até um enquadramento da cultura na sociologia contemporânea e na perspectiva da filosofia política e das teorias da justiça. Ao debate entre liberalismo e comunitarismo é proposta uma saída de experimentalismo democrático. Diante do panorama dos direitos indígenas na América Ibérica e no Brasil, são desenhados parâmetros para direitos de autonomia que reconheçam um pluralismo jurídico qualificado. Analisa-se o embate entre direitos culturais, propriedade intelectual e comércio internacional. Propõem-se critérios para o tratamento igualitário de pretensões envolvendo demandas de reconhecimento multicultural.
SOBRE O AUTOR: Lucas Fucci Amato é pós-doutorando, doutor e bacharel pela Faculdade de Direito da USP (Universidade de São Paulo), com estágio doutoral como pesquisador visitante da Harvard Law School.

Six essays that cover from the sources of cultural rights in international law (UN, inter-American system of human rights, European Union, Brazilian constitutions) until a frame of culture within contemporary sociology and under the lens of political philosophy and theories of justice. Democratic experimentalism is pointed out as a way out of the debate between liberalism and communitarianism. In face of an overview of indigenous rights in Latin America and Brazil, there were designed parameters for autonomy rights that recognize a qualified legal pluralism. The clash among cultural rights, intellectual property and international trade is analyzed. Criteria for the equal treatment of claims involving multicultural recognition are provided.

This paper examines the protection of indigenous peoples’ intangible heritage at the international level. It addresses the problem of appropriation and commodification of traditional and artistic cultural expressions (‘TCEs’) through the multiplicity of existing international legal regimes. These include general and indigenous-specific human rights rules, UNESCO conventions and guidelines, as well as international norms of general application such as those pertaining to Intellectual Property (‘IP’). The paper adopts a sceptical approach towards the suitability of international norms and processes to address the question of indigenous heritage. Drawing upon the efforts of regional bodies and national paradigms from Australia, New Zealand, Canada and the U.S., it argues that priority in legal planning and decision-making be given to the “localization” of indigenous claims and peoples’ local empowerment.

The author reviews the most significant activities, research, analyses and recommendations concerning the activities of the National Councils of National minorities in the Republic of Serbia in the field of culture, starting with
the enactment of the Law on National Councils of National Minorities in 2009.
The author recognizes that, despite their importance, the Councils have not been the focus of attention of the scientific community, since there have been very few papers focused particularly on the Councils. Prior to their establishment, and only due to public expectations, have the Councils been included in scientific research papers. Following their establishment, the Councils have had the attention of NGOs and the Ombudsman institution. Their expert analysis indicates that there are many problems in the legislation practice when it comes to the influence of political parties on the Council, the organizational structure of the Council, the transfer of management and founding rights, compliance with other laws, determining the criteria for declaring an institution of special importance for conservation, and the improvement and development of the distinctive national identity of a national minority.

Recently, the UN Special Rapporteur in the field of cultural rights has stated that the intentional destruction of cultural heritage is a violation of cultural rights. The Rapporteur examines a timely issue but bases her statement on narrow understandings ‘heritage’ as irreplaceable and ‘destruction’ as ideologically motivated and aggressive. This reinforces hegemonic ideas about heritage and what constitutes its destruction. In this article, I discuss the case of Bagan in Myanmar to illustrate the limitations of the Rapporteur’s statement. In Bagan, whether and how ‘heritage’ should be protected has been the topic of controversy. By implication what is – or is not – considered intentional destruction is contested. Ambiguity about the meaning of cultural rights, the dissonant nature of heritage, the subjectivity of destruction, and complex multi-layered motivations behind ‘destructive’ practices make overarching statement about the destruction of cultural heritage and cultural rights violations too bold and call for more nuance and contextualised research.

The present work consists of examining the legality of the public exhibition of a film, without authorization or payment to the right holders, on the basis that its exhibition is a fundamental right of access to culture. Accordingly it is necessary to verify the contents and identify the effects of the cultural rights, both in regard to public cultural policy and in the context of inter-private relationships. Preliminary, the concepts of cultures and its applications to the understanding of contemporary society will be explored. Next, the normative sources of cultural rights at the national and international levels are considered. Thus, the limits of the exercise of author’s economic rights are questioned particularly when the constitutional basis of these fundamental rights point to the extensiveness of the interpretation of the limitations of the copyright legislation. In so doing the thesis seeks to integrate social data with the examination of case-law and critical discussions of the doctrine. Complementarily, it uses the hypothetical-deductive and inductive methods of approach, and the functionalist method of procedure. The balance between the right of access to culture and the exercise of author’s economic rights is required to resolve the apparent conflict between these rights. The fundamental right of access to culture can only be restricted in situations that do not conflict with its purposes. The limitations to copyright should be consistent with the ‘three steps rule'. The findings, which are the result of the balance between author’s patrimonial rights and the cultural right of access, point to the existence of conditions that allow for equilibrium between these legal positions, while at the same time preserving its core content. Thus, it concludes that the feature films, in accordance with Brazilian legal system, may be publicly displayed without prior authorization or remuneration, provided that their public exhibition is on a non-patrimonial basis and for the primary purpose of applying the fundamental right of access to culture.

From the Liberation to the begining of the 1980's, jail libraries are managed by the penitentiary administration and are organised according to penal reasoning. Handled by penitentiary staff, social workers, educators or convict-librarians, they receive very few help from public libraries. In spite of that – and particularly thanks to the penitentiary administration's central service for libraries –, they rationalise their organisation and get more and more similar to other libraries' fonctionning.

Version before final proofreading.
The author offers a gender sensitive critique of UNESCO’s program on intangible cultural heritage following the few feminist anthropologists who have pointed out its “blindness” for a frequent opposition between the idea of gender equality and the reality of traditional cultures. It has already been observed that the Convention for the Safeguarding of the Intangible Cultural Heritage bears ambiguities as regards its ultimate outcomes and its capacity to accommodate various identity positions and social groupings. The author suggests that politics of intervention, be it in the name of the most humanistic ideals, such as the case with UNESCO’s example, cannot solve tensions between affirmation and antidiscrimination, human and cultural rights, cultural diversity and intercultural dialogue, intellectual property and common good, speech in the name of pluralizing and work in essentializing of culture. Focusing on the example of the Bistritsa Babi, a well-known group of elderly women singers from Bistritsa in western Bulgaria, the author tries to illustrate the still unresolved ambiguity of whether heritage programs are basically empowering for women or if they confine women within traditional, usually basically patriarchal social arrangements. She also describes gender structure of the Croatian national list of intangible cultural heritage and the international Representative List, and comments on UNESCO’s latest emphasis given to the gender aspect of safeguarding as an attempt to overcome tensions between human and cultural rights

The tightening interrelation of cultural property and international security—cultural security—creates a need for the collection and analysis of specialized intelligence. “Cultural intelligence” enables assessments of the tactical and strategic significance of antiquities, fine art, and cultural heritage sites to national and regional security. This paper defines a framework for the collection of cultural intelligence as a fundamental asset in countering threats to cultural security. Looting of antiquities as a tactic in campaigns of cultural cleansing, trafficking in antiquities as a source of funding for insurgents, and targeting of historic structures and religious monuments in political violence represent distinct threats to regional security. A critical initial step in countering the threats includes marshalling appropriate sources of information. Publications that report on the art market and cultural property globally and players in the antiquities trade offer opportunities as sources of cultural intelligence. Ultimately, the development of tactical and strategic cultural intelligence can reveal trafficking networks and assess risks to cultural heritage sites. As a starting point, this paper indentifies viable sources of cultural intelligence. Conflicts in Afghanistan (2001) and Iraq (2003) provide examples in retrospect, while volatility in Mali presents an opportunity in the context of an emerging security risk. In conclusion, the paper speculates on the applications of cultural intelligence in regional security.

国連人権理事会(UNHRC)は、国際的な人権擁護のための措置として設置しているThematic Special Procedureの一部として、人権の観点から見る「文化の権利」について特別専門家を置いている。現在までに「文化の権利」について３０カ国以上で現地調査が行われているが、2019年3月にマレーシア・クアラルンプールにおいて開催された国際アーツカウンシル連盟による総会で、2017年に実施された調査結果がシンポジウムの一部として取り上げられた大きな話題となった。本研究は、同特別専門家による2017年の調査報告書の分析と、2019年にクアラルンプールで開催されたシンポジウムによる現地の反応の分析を元に構成される。宗教や、民族的アイデンティティに関わる伝統芸能、LGBTやマイノリティの文化的権利が、多様な文化・宗教・民族が共存するマレーシアという国においてどのように守られ、あるいは迫害されているのか、国連特別専門家の報告を元に検討する。

Lake Turkana Wind Power, situated on the eastern shores of Lake Turkana in northern Kenya, is currently the largest wind-power project in Africa and the biggest private investment in Kenyan history. While this project enjoys strong support from the Kenyan government, at the local level it has unfolded amid considerable controversy and has been accompanied by accusations of land-grabbing, corporate negligence and infringement of indigenous and customary land rights. This article examines the local effects of the Lake Turkana Wind Power’s construction. It explores how the value of land has been transformed by the wind farm and the effects this has had on local social relationships, territoriality and connections to place. The large-scale, rapid privatization of land and infrastructure development has produced a variety of apparently contradictory effects; local people simultaneously seek to access ‘benefits’ from the project and experience new forms of exclusion. This is particularly clear in disputes over the distribution of employment and corporate social investment. A notable consequence has been increasingly exclusive claims to land and interpretations of local history, as new values ascribed to the land have generated new feelings of entitlement and raised expectations of ‘development’. These contestations reveal that the value of land is about more than the material resource itself. It rests on what other privileges can be accessed through claims to place and belonging.

The first Culture/Justice protocol was co-signed on the 25 th of July 1986 by Jack Lang and Robert Badinter.
Following the first international symposium about culture in prison (May-June 1985), this text formalised the
interdepartmental cultural policy in prison which had been in place since the beginning of the 1980's.
However, cultural activities have existed in French penal institutions since the Liberation. From choirs to
theatre groups including concerts, these were often categorised as educational, socio-cultural, recreational and
cultural activities. Initially organised by social assistants, they were then mostly led by prison educators. The
latter had been created as part of the Amor reform in 1946. Only a few penal institutions were affected by
these activites which were supposed to educate, observe and reform the prisoners. In the 1970's, because of
the prison crisis, a new reform was implemented which turned the cultural activities into a means of
rehabilitation and reintegration. In the early 1980's, this approach was transformed because of the intervention
of Minister Lang. New initiatives appeared ; for example, audio-visual technology. From then on, these were led
by artists, associations, and institutions from the world of creativity. The perspective of these new operators
was then to guarantee the right to culture for the detained individuals. Prison educators then had to convert
into coordinators. Consequently, activities depended on the local cultural fabric. Therefore, the penitentiary
administration had to reorganise in order to take on board these new operations
activities ; film club ;
reading club ; choir ; music ; drama ; télévision ; radio ; fine arts, audiovisual ; newspaper ; ;

The Universal Declaration of Human Rights, the International Co¬venant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights provide some articles protecting cultural rights. Nevertheless at the time of their adoption this category of rights was extremely underdeveloped compared to others human rights. Over the years the concept of cultural rights has known a significant evolu¬tion due to studies of some important scholars, such as the members of the Fribourg Group. The interpretation of the right to take part in cultural life, recognized in Article 15, para. 1(a), of the International Covenant on Economic, Social and Cultural Rights, is emblematic. During its Travaux préparatoires culture was approached from a materialistic and narrow vi¬sion which was focused on art, literature, music. From the 90’s the International Committee on Economic, Social and Cultural Rights started adopting an anthropologic concept of culture emphasising the link between culture and human identity. The General Comment 21 of the Committee completely adopted this perspective opening some new important ways for the protection of cultural rights. In this occasion the right to cultural identity and others cultural rights, broadly understood, are identified as components of the right to take part to cultural life.

http://www.sioi.org/media/Rivista%20/3ferri.pdf

En este trabajo se expone de qué maneras las editoriales cartoneras mexicanas funcionan como editoriales subalternas que se articulan "desde el pueblo" en un proceso de hazlo-tú-mismo. Se señala tanto al potencial como a las problemáticas de estas editoriales alternativas de contribuir al proceso de una democratización de la cultura al brindar un acceso más equitativo a los libros como bienes culturales, y a la producción de los mismos.

Translated in the 1940s by a Basque patriot sailing away form the wreckage of war-devastated Europe for exile in Venezuela, Shakespeare's classic play was rendered into Basque with incredible care and with a political subtext brought about by events four hundred years after its composition, but that still contained similar meaning in a world turned upside down following the victory of Franco and the defeat of the Basque nationalist cause. With a full detailed English introduction by Xabier Irujo, this masterpiece as you've never seen it before.