CYIL vol. 11 (2020)

CYIL 11 (2020) CULTURAL RIGHTS RELATED TO CULTURAL HERITAGE AND THEIR PROTECTION … Furthermore, the document does not limit the understanding of cultural heritage to man- made objects, it also includes natural heritage, which is stated in the Article 25: Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. 14 The notion of cultural heritage has to be holistic to cover all the elements that constitute the lives of indigenous people. This obviously includes people’s natural habitat, which determines their lifestyle and cannot be separated from other elements. Older definitions of cultural heritage usually treated the distinct forms of heritage separately. Nevertheless, that has changed with the human rights based approach to cultural heritage. One definition that reflects this shift has been proposed by an independent expert in the field of cultural rights, Farida Shaheed . The definition is general and not limited to heritage of indigenous people. She sees cultural heritage as: … tangible heritage (e.g. sites, structures and remains of archaeological, historical, religious, cultural or aesthetic value), intangible heritage (e.g. traditions, customs and practices, aesthetic and spiritual beliefs; vernacular or other languages; artistic expressions, folklore) and natural heritage (e.g. protected natural reserves; other protected biologically diverse areas; historic parks and gardens and cultural landscapes). 15 Such understanding of cultural heritage removes the boundaries between its forms. Cultural heritage constitutes one large complex unit, forming the environment where the people live. This idea is not new, it is one of the reasons why the term ‘cultural property’ (which had been used in earlier documents) was replaced by the term ‘cultural heritage’, as explained by Prott and O’Keefe. 16 Cultural heritage represents a dynamic concept, which is gradually developing and links the past with the future. 17 From its very nature cultural heritage reflects the real life, and as such it cannot be limited to only some of its components. To explore the concept of cultural rights, we begin with the definition provided by the Special Rapporteur in the field of cultural rights. It is based on the General Comment No. 21 to the ICESCR and states: Cultural rights protect the rights for each person, individually and in community with others, as well as groups of people, to develop and express their humanity, their world view and the meanings they give to their existence and their development through, inter alia, values, beliefs, convictions, languages, knowledge and the arts, institutions and ways of life. They may also be considered as protecting access to cultural heritage and resources that allow such identification and development processes to take place. 18 14 United Nations Declaration on the Rights of Indigenous People. Art. 25. 15 Report of the independent expert in the field of cultural rights, Farida Shaheed. UN Docs. A/HRC/17/38 Art. 4. 16 PROTT, Lyndel, O´KEEFE, Patrick. ‚Cultural Heritage‘ or ‚Cultural Property‘? International Journal of Cultural Property. 1992, Vol. 1, No. 2. pp 307-320. 17 Report of the independent expert in the field of cultural rights, Farida Shaheed. UN Docs. A/HRC/17/38 Art. 5. 18 Report of the independent expert in the field of cultural rights. UN Docs. A/HRC/31/59 Art. 7.

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