CYIL vol. 11 (2020)

IVAN RYŠKA CYIL 11 (2020) Comment does not use the term ‘cultural heritage’, however the majority of elements mentioned in the definition of culture would fall under this notion. It also clearly recognizes the link between culture and human rights and explains the expression ‘take part in cultural life’ as participation in, access to, and contribution to cultural life. 8 Focusing on the issues of cultural heritage, the approach presented in the Comment deeply influenced the attitude of UNESCO. Although the earlier UNESCO documents usually used some human rights based wording in their preamble, the text did not explicitly consider human rights protection. 9 That has changed in the last decades. Human rights based approach brought a new understanding of cultural heritage protection and this new attitude is reflected in the relevant documents. New Approach to Cultural Rights and Cultural Heritage The most representative example of an inclusion of cultural rights protection into an international document is the United Nations Declaration on the Rights of Indigenous People. Although one can argue that indigenous people represent a special part of society and so the mentioned rights can not be applied universally, it is still valuable to see a clear identification of cultural rights related to a certain group of people. Rights relevant to the issue of cultural heritage are mentioned in several articles of the Declaration. In the Article 11 it states: Indigenous peoples have the right to practise and revitalize their cultural traditions and customs.This includes the right tomaintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 10 That is coupled by the provisions of the Article 12 which states: Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 11 Those two articles are an essential expression of the right to ‘access and enjoy’, which is closely related to culture or more precisely cultural life as mentioned in the ICESCR. The articles enumerate various forms of cultural expression that constitute people’s cultural heritage. The understanding of cultural heritage in the document is holistic – it includes both tangible and intangible heritage, which are inseparably connected. 12 In such perspective, the term ‘cultural heritage’ is in fact wider than defined in the preceding documents. 13

Ibid. Art. 15.

8

9 See e.g. preamble of Convention for the Safeguarding of the Intangible Cultural Heritage. 10 United Nations Declaration on the Rights of Indigenous People. Art. 11. 11 Ibid. Art. 12. 12 Convention for the Safeguarding of the Intangible Cultural Heritage, preamble. 13 Compare to art. 1 of Convention Concerning the Protection of the World Cultural and Natural Heritage.

330