CYIL vol. 11 (2020)

IVAN RYŠKA CYIL 11 (2020) While keeping in mind the holistic definition of cultural heritage, the right to ‘access’ cultural heritage mentioned in the definition of cultural rights can acquire various forms. To be precise, we speak about the right to ‘access and enjoy’ cultural heritage. 19 Access and enjoyment are two interdependent concepts. They include ability to know, understand, enter, visit, use, maintain, exchange, and develop cultural heritage. 20 Four forms of access to cultural heritage are recognized in practice: (a) physical access to cultural heritage, which may be complemented by access through information technologies; (b) economic access, which means that access should be affordable to all; (c) information access, which refers to the right to seek, receive and impart information on cultural heritage, without borders; and (d) access to decision making and monitoring procedures, including administrative and judicial procedures and remedies. 21 Right holders are both individuals and groups, which means that this human right is both individual and collective. However, the main shift in understanding lies in the fact that we do not speak about protection of cultural heritage per se anymore. The concept of fundamental relation between cultural rights and cultural heritage clarifies, that the underlying issue is protection of rights of individuals or communities connected to such cultural heritage. The most significant feature is the link between heritage and an individual or community, such link reinterprets the cultural heritage as a precondition to exercise certain cultural rights, however the existence of the link is not guaranteed. Some objects meet definition of cultural heritage but bear no significance to any specific individual or community. In such case, we speak about ‘common heritage of mankind’ as presented in the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage. This kind of heritage has a global importance – it represents an important stage of human development or provides evidence about ancient civilizations. Nevertheless, protection of such heritage does not fall under the protection of cultural rights of an individual or community. The Special Rapporteur explains that cultural rights (and the subsumed protection of cultural heritage) in fact constitute protection of several groups of rights: (a) human creativity in all its diversity and the conditions for it to be exercised, developed and made accessible; (b) the free choice, expression and development of identities, which includes the right to choose not to be a part of particular collectives, as well as the right to change one’s mind or exit a collective, and indeed to take part on an equal basis in the process of defining it; (c) the rights of individuals and groups to participate – or not to participate – in the cultural life of their choice and to conduct their own cultural practices; (d) their right to interact and exchange, regardless of group affiliation and of frontiers; (e) their rights to enjoy and have access to the arts, to knowledge, including scientific knowledge, and to their own cultural heritage, as well as that of others; and (e) their rights to participate in the interpretation, 19 Report of the independent expert in the field of cultural rights, Farida Shaheed. UN Docs. A/HRC/17/38. Art. 58. 20 Ibid. 21 Ibid. Access forms part of the so-called 4A scheme, composed of four elements: availability, accessibility, acceptability and adaptability. This scheme was elaborated by the late Professor Katarina Tomasevski, Special Rapporteur on the Right to Education, in E/CN.4/1999/49.

332