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cultural rights, indigenous peoples and the potential contributions of inter-American human rights protection

Elizabeth Salmon *

Mariana Chacón **

cultural rights are often described as "underdeveloped category" human rights. This suggests that, compared with other human rights-civil, political, economic and social-are the least developed regarding scope, legal content and ability to enforce them, although the existing list of cultural rights is relatively comprehensive. Even, it is customary to use the term "economic, social and cultural rights as an indivisible whole, when in fact, cultural rights receive much less attention than the first two.

This can be seen not only in doctrine but in practice state. It is difficult to find a national constitution, in listing the economic and social rights, contains a chapter dealing exclusively with cultural rights. It is possible to identify that, in general, limited to state constitutions the right to education.

There are some reasons for the reserve shown by the doctrine and state practice in relation to cultural rights, are scattered over a large number of instruments, both universal and regional, approved by the United Nations and specialized agencies; On the other hand, the lack of a general treaty or declaration coding leads to different ways of articulation and aggregation of such rights.

This lack of clarity is evident when cultural rights are presented as a single right, namely the right to culture or the right to participate in cultural life, while can also be listed in a more detailed and divided into nine groups: the right to property, education, education, higher education, identity, language, culture, media and sport.

The following lines are some concepts and analysis intended to help clarify some essential ideas of the topic and its inclusion is still incipient in the human rights system.

1. CULTURE DOES NOT COST?

not identify the current stage of international law a univocal concept of culture, but instead we are facing a multidimensional concept that has received regulatory consecration in its different facets:

(1) "Culture" in the classic sense-and elitist-a word that means the traditional canon art, literature, music, theater, architecture, etc.

is this sense of duty to the culture that reflects the Committee on Economic, Social and Cultural Rights (CESCR) in the Revised Guidelines on the Form and Content of Reports to be submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). They require, in the context of Article 15 of the ICESCR, States to provide information on measures taken "to promote popular participation in culture" through "cultural centers, museums, libraries, theaters, [and] theaters," the which corresponds to the approach that the drafters of the Covenant gives the term "culture." Moreover, popular participation in cultural life includes the right to enjoy work and cultural values, literature and art, but also to create this work and values.

(2) "Culture" in a more pluralistic, comprising all products and demonstrations of creative and expressive motivation. This definition includes not only the "high" culture, but also a phenomenon such as commercial television or radio, the popular press, popular music and contemporary crafts.

The original idea behind the first conception of culture was its "democratization", ie overcoming the default sort of canon of "great" works that had been previously reserved only for a lucky elite. Something not contemplated by the drafters of the ICESCR, however, was the "popularization" of culture, ie the right of all people to enjoy cultural activities and forms of expression that they had considered valuable.

In this regard, since 1968, the Organization of the United Nations Educational, Scientific and Cultural Organization (UNESCO) identified "progressive decline to define" culture "in elitist terms [and] a new appreciation for the diversity of cultural values, creations and shapes, even within the same state. " The adoption by UNESCO of an inclusive and egalitarian definition of "culture" was formalized when its General Conference held in the Recommendation on Participation Cultural Life in 1976, that culture is not merely an accumulation of work and knowledge produced, collected and kept by the elite to put it to everyone. On the contrary, that the concept of culture has expanded to include all forms of creativity and expression of groups and individuals.

This conception of cultural life is not restricted to products of human creativity, but includes other forms of self expression and social expression, such as sports, games and entertainment in general.

According to this new trend, the CESCR has adopted a less restrictive sense of the definition of cultural life promoted by UNESCO. This is evident in the Revised Guidelines released by the committee, describing the right under the provision as "the right of everyone to participate in cultural life that he or she deems appropriate, and express their own culture."

Finally, this sense is also collected as part of the System for the Protection of Human Rights, specifically by the Protocol of San Salvador, which in its Article 14.1, states that "[t] he States Parties in the (...) Protocol recognize the right of everyone to (...) to participate in cultural and artistic life of the community enjoy the benefits of scientific and technological progress, and benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which is the author. "

(3) "Culture" in the anthropological sense, that simply means the products of creativity or expression, but the common features that underlie a particular society-their "lifestyle" - and which emanate from the two previous events.

According to the two previous definitions of culture, the concept of "life Cultural "is external and observable product of society. By contrast, an anthropological definition sees culture as the internal frame of reference of a company, the "lifestyle" which emanate from the two previous conceptions. This means that it is "a world view that represents all the encounters between people and external forces that affect your life and your community." This has resulted in concern by the Committee for the rights of linguistic minorities, ethnic and religious communities within states, as well as the right to practice and develop their distinct cultural identity.

need note that this view of "culture" creates a major theoretical question. Is it an individual right, collective right, or both? According to its origin, Article 15 of ICESCR provides an individual right. The Committee will ensure that every citizen is entitled and is eligible to participate in cultural activities. However, when it requires States to preserve the "life forms, whether majorities or minorities, it seems closer to a collective or group rights.

According O'KEEFE, there is no legal reason why the right contained in Article 15 can not be characterized both as an individual right as a group right, depending on the context in which it is exercised. This is because, so far, the CESCR is not entitled to receive individual communications and because the Optional Protocol to the ICESCR in accordance with the current text provides for the possibility of individual and group communications. However, this statement would not be equally valid in the system for the protection of human rights, in which communications are individual only.

However, despite any institutional constraints that this option has, we believe that the so-called rights of minorities and indigenous peoples are strengthened with a broader conception of culture that respects all forms of life individually and collectively

2. CULTURAL DIVERSITY IS OUR HERITAGE AS PART OF HUMANITY

state perception has been rather reluctant to develop and enforce cultural rights on the understanding that strengthening of the various cultural identities that make up a state could encourage trends to secession endangering national unity. Thus, there was opposition to the introduction of cultural rights in the Charter of the United Nations, nor the cultural rights of persons belonging to minorities are mentioned in the Universal Declaration of Human Rights but is only recognized in Article 27 of International Covenant on Civil and Political Rights 1966.

During the World Conference on Cultural Policies (Mexico City, 1982), delegates stressed the growing awareness of cultural identity, pluralism, it is clear that the right to be different and mutual respect one culture by another, including minorities. Experience shows that rather it guarantees peace and stability and not, as feared by the states, secession and the erosion of national sovereignty.

3. THE RIGHTS OF INDIGENOUS AND NATIVE AMERICAN SYSTEM FOR THE PROTECTION OF HUMAN RIGHTS: A LONG WAY TO START TO BE TRAVELED.

currently inhabit the world between 300 and 350 million indigenous people, which are considered the 6% of world population. Of this percentage, about 37% reside in Latin America, and Peru is the second-highest indigenous population of the region.

To date, the rights of individuals and peoples have not had a specific regulation in the basic instruments governing the system American human rights. Neither the American Declaration of the Rights and Duties of Man, or the American Convention on Human Rights and its Additional Protocols and other inter-American human rights treaties contain provisions that specifically develop the rights of indigenous peoples.

All that exists now is a draft American Declaration on the Rights of Indigenous Peoples, which was approved by the Inter-American Commission on Human Rights (hereinafter "the Commission" or "Commission") of 27 February 1997 and submitted to the General Assembly of the OAS where it remains under evaluation to date.

interesting thing is that this orphan legislation has not limited the action of some bodies that have generated a series of statements that are building the pillars of its legal protection. We believe this is a fundamental contribution not only offsets, so starting indeed, the lack of regulatory treatment and opens doors to future developments, as in other cases, they will have to translate the institutional developments of the system.

COMMISSION ON HUMAN RIGHTS

The Commission received and processed a large number of requests on situations that afflict people and communities, primarily using the precepts of the American Declaration of the Rights and Duties of Man, 1948, and the American Convention on Human Rights 1969.

However, the Commission had to follow what was done in the universal system of human rights protection, as it approaches the subject from other rights such as the prohibition of discrimination. However, this approach proved very tenuous, since the prohibition of discrimination only appears in the Declaration and the American Convention in the field of the equality without discrimination based on race, color, language, religion, social status, etc.

Traditional treatment of their minority rights, including by means of the prohibition of discrimination is not sufficient, then ignores the nature and complexity of indigenous peoples, which have individual rights and collective nature closely linked. Indigenous peoples are shaped by history, culture, languages, ethnic, or religious cults, ancestral techniques, artistic traditions, its own institutions, legal systems and administration of justice, territories and habitat. All these elements can not be protected perpetually by rights not capture the true nature and needs of indigenous minorities.

In response to these requests, the Commission has issued resolutions, reports and recommendations to States and States requested urgent action to enforce rights that the inter-American human rights instruments recognize and which have forced respect and guarantee to all its inhabitants.

Such requests, in cases where victims are indigenous and indigenous communities, are referred in particular the right to life, liberty, integrity personal, property, dignity, due process and judicial guarantees, but also have implications for operation and collective rights as communities, societies and cultures and values \u200b\u200balive within each state.

AMERICAN COURT OF HUMAN RIGHTS (HR COURT OR COURT)

The Court exercises judicial functions mandatory to interpret and apply the provisions of the Convention in individual cases submitted to it by the Commission or the States, where they have recognized the jurisdiction of the Court to do so. The Commission has submitted to the Court a number of cases concerning violations of rights of individuals and indigenous communities. Additionally, the ICHR has an advisory role for the interpretation of human rights norms in force in the Americas and the Court's advisory opinions are legitimate interpretation of these rules. Therefore, the work done in relation to the rights of indigenous minorities is of paramount importance.

level of this organ, one of the most famous pronouncements on the rights of indigenous peoples is the case of the Mayagna (Sumo) Awas Tingni. Background In its ruling, dated August 31, 2001, the Court recognized the cultural dimension of the right of ownership over land, and the vital link between indigenous peoples and the territories they occupy. In paragraph 149 of the background statement details the following:

"(...) Among indigenous peoples there is a communitarian tradition regarding a communal form of collective ownership of land, the sense that ownership of land is not centered in one individual but in the group and community. (...) For the indigenous communities relating to land is not merely a matter of possession and production but a material and spiritual must fully enjoy, even to preserve his legacy cultural and transmit to future generations. "

addition, the concurring opinion of Judge Sergio García Ramírez states:

" The Judgement of the Inter-American Court of Human Rights in the Case of the Mayagna (Sumo) Awas Tingni contributes to the recognition of specific legal relationships which contribute to integrate the status characteristic of much of the American people increasingly well understood and recognized by national legislation and international instruments. The theme of this Judgement, and therefore herself is at a point between civil rights and economic, social y culturales; dicho de otra manera: se halla en el punto al que concurren el Derecho civil y el Derecho social. La Convención Americana, aplicada en los términos de la interpretación que ella misma autoriza, y que además figura en las reglas de la materia conforme al Derecho de los Tratados, debe significar y en efecto significa un sistema normativo de protección segura para los indígenas de nuestro Continente, no menos que para los otros pobladores de los países americanos a los que llega el sistema tutelar de la Convención Americana." .

Por otro lado, encontramos el caso de la Comunidad Indígena Yakye Axa c. Paraguay, de 17 de junio de 2005 , que recoge una denuncia por la omisión estatal to recognize the ownership of ancestral lands to indigenous communities. Are extremely important considerations of the Court over the right of the community to exercise their cultural customs.

135. The culture of the indigenous community members corresponds to a particular lifestyle of being, seeing and acting in the world, up from its close relationship with their traditional lands and resources found there, not only because these their main means of subsistence, but also because they constitute an integral part of their worldview, religion and, therefore, their cultural identity.

also related this particular way of life with the special relationship that the community had with their lands or territories:

136. This relates to what was stated in Article 13 of Convention No. 169 of the ILO, in the sense that states must respect "the special importance for the cultures and spiritual values \u200b\u200bof the peoples concerned of their relationship to land or territories, or both, as appropriate, to occupy or otherwise, and in particular the collective aspects of this relationship. "

addition, the Court even linked the guarantee of cultural rights of the community with recognition a legal person, other than the people who make it:

68. The Court considers that granting legal status to operationalize the existing rights of indigenous communities, which historically has been practicing and not from its birth as legal persons. Their own political, social, economic, cultural and religious rights and that this rigging, as the appointment of their own leaders and the right to reclaim their traditional lands are recognized not a legal person must sign to comply with legal formalism, but the community itself to itself Paraguayan Constitution recognizes the State as preexisting.

Finally, in the case of c. Sawhoyamaxa Paraguay, the Court detailing the special consideration due to different "lifestyles" and "see the world", to provide special content to the right to property enshrined in Article 21 of the American Convention on Human Rights:

120. The Court also considers that the concepts of ownership and possession in indigenous communities may have a collective, meaning that ownership of the land "does not focus on one individual but in the group and its community" . This notion of dominance and possession of land does not necessarily correspond to the classical conception of property, but they deserve equal protection under Article 21 of the Convention. Not knowing the specific versions of the right to use and enjoyment of property, given by the culture, customs and beliefs of each people, tantamount to holding that there is only one way to use and dispose of assets, which in turn means make illusory the protection of Article 21 of the Convention for millions of people.

Thus, not only recognizes the cultural rights of indigenous American system protection of human rights, despite not having a specific statement of the matter, but that special consideration of culture as "lifestyle" has acquired a different, broader content, including the rights and the American Convention on Human Rights.

RAPPORTEUR ON RIGHTS OF INDIGENOUS PEOPLES (RAPPORTEUR)

The Commission created the Special Rapporteur in order to promote, organize, strengthen and consolidate the activities that it had been developing in this area. In this sense, it has taken to achieve a better understanding of the system inter-American human rights protection in general and of the Commission and the IACHR in particular by facilitating the access of indigenous peoples to the system.

This has contributed, in part, that in recent years, the jurisprudence of human rights system has known cases and made significant progress in the area of \u200b\u200bindigenous peoples' rights. This both the Commission, reflected in the friendly settlement process, decisions in individual cases and precautionary measures, such as decisions and judgments of the Court. As part of its work, has made a series of visits to indigenous communities, held meetings and established partnerships with agencies (governmental and nongovernmental) responsible for ensuring the rights of indigenous peoples and has participated in seminars on the American System and the Rights of Indigenous Peoples, in various Member States of the OAS.

Among the main tasks of the Special Rapporteur is the ongoing collaboration to provide the Working Group of the OAS Permanent Council to Prepare the Draft American Declaration on the Rights of Indigenous Peoples. "

Currently, the Office is preparing a thematic study on the scope of the right to consultation and link to the right over land, territory and access to natural resources.

FINAL COMMENT:

Cultural rights figure prominently in either theoretical or practical development of human rights. From the same understanding of "culture" as a step to identify the rights of those who wish to exercise their "cultural rights" or their "right to culture" to concrete manifestations of the exercise.

However, the evolution is positive since the idea has evolved from a rigid, elitist, content the ICESCR, to a somewhat more inclusive, provided by UNESCO, finally, the anthropological sense, inclusive result of a work of broad interpretation of the law that has allowed empower linguistic, cultural and religious.

This was achieved largely due to the work of the organs that make up the system for the protection of human rights. In fact, although there is no legal instrument that directly addresses the rights of indigenous peoples as such, both the Inter-American Court and have used existing instruments - the American Declaration of Rights and Duties of Man and the American Convention on Human Rights, "to protect the rights of indigenous peoples indirectly.

is therefore a task that must not be delayed pending since our region has on indigenous peoples an essential pillar of our historical identity. _________________

* Senior Lecturer at the Catholic University of Peru, Academic Director of the Institute for Democracy and Human Rights (IDEHPUCP) and Coordinator of the MA in Human Rights at the same university.

** Academic Assistant Masters in Human Rights at the Pontificia Universidad Catolica del Peru.