Over the last 20 years, the question as to whether a right to cultural identity should be developed has been the subject of considerable debate. Although the incorporation of cultural identity as a concept in human rights instruments is not entirely new, and the protection of cultural identity has been included in several, mainly soft law, instruments, no separate right to cultural identity has been adopted. Supporters of adopting such a separate right argue that the existing human rights system, with its individual character and underdevelopment of cultural rights, does not meet the claims of individuals and communities for the recognition and protection of their cultural identity. However, the development of a separate right to cultural identity also encounters critics who argue that the concept of cultural identity is too vague to be transformed into a right, and that such a right might cause tension within society and could lead to the approval of intolerable cultural practices. Hence, more clarity is needed on the nature, scope and content of a right to cultural identity. Consequently, the aim of this research was to examine to what extent a right to cultural identity should be further developed as a separate right within the framework of international human rights law, and what the nature, scope and content of this right could be.
The first chapters include a theoretical analysis of the background, nature, scope and content of a right to cultural identity. The concept of cultural identity is clarified from a social science perspective, after which the category of cultural rights and collective rights are analysed from a social sciences, political sciences and legal perspective. The subsequent chapters contain a study of existing human rights provisions in international instruments that explicitly or implicitly refer to the protection of cultural identity or aspects of cultural identity. This study starts with the role of UNESCO in developing cultural rights, after which several human rights provisions, such as the right to participate in cultural life and rights related to minorities and indigenous peoples, are analysed. Attention is also paid to regional human rights instruments in Europe and the Americas, including an analysis of case law. Finally, an illustration is given of an indigenous people and its cultural identity, namely, the Sami in the Nordic countries, which provides further clarification of a right to cultural identity from a more practical perspective.
The conclusion of this study is that no separate right to cultural identity should be developed, because it is neither desirable nor necessary. It is not desirable because translating the vague and general concept of cultural identity into a right would risk abuse or suppression of individual rights and freedoms within a cultural context. It is not necessary because existing cultural rights in the broad sense already offer possibilities to protect cultural identity.
Chapter I. General Introduction (p. 1)
Chapter II. Culture and Cultural Identity in Social Sciences: A Survey (p. 23)
Chapter III. Cultural Rights and Collective Rights in Political Sciences (p. 49)
Chapter IV. Cultural Rights and Collective Rights in a Human Rights Framework (p. 65)
Chapter V. UNESCO and a Right to Cultural Identity (p. 107)
Chapter VI. The Right to Participate in Cultural Life (p. 139)
Chapter VII. Cultural Identity and Minorities (p. 163)
Chapter VIII. Cultural Identity and Indigenous Peoples (p. 203)
Chapter IX. Cultural Identity and the Organisation of American States (p. 227)
Chapter X. Cultural Identity and the Council of Europe (p. 247)
Chapter XI. A Right to Cultural Identity and the Sami in Norway, Sweden and Finland (p. 301)
Chapter XII. Conclusion: Towards a Right to Cultural Identity? (p. 327)
Nederlandse Samenvatting (p. 347)
Bibliography (p. 361)
Selected Documents of the United Nations, UNESCO, the Organisation of American States and the Council of Europe (p. 375)
Table of Cases (p. 387)
List of International Treaties and Declarations (p. 391)
Index (p. 393)
Curriculum Vitae (p. 402)
School of Human Rights Research Series (p. 403)
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