The cultural dimension of economic activities in international human rights jurisprudence

Abstract

Cultural diversity and human rights are mutually linked: human rights protect and promote cultural diversity while cultural diversity also forms an important aspect of the enjoyment of human rights. Cultural diversity and the economy are also increasingly connected, for example through cultural industries, trade in cultural goods, but also the protection of cultural heritage. The relationship between the three - human rights, cultural diversity and the economy - is, however, not fully clear. For instance, while cultural expressions such as paintings, books and films, fall within the scope of the right to freedom of expression, the trade in these products is not necessarily part of this human right. While the right to access to cultural heritage is considered part of the right to take part in cultural life, the economic issues related to the management of cultural heritage are not necessarily part of the human rights dimension. One of the areas in international human rights law where the link between human rights, culture and economy has been recognised and elaborated is the protection of rights of indigenous peoples against state-authorized economic activities, such as mining and logging operations. Several states have authorised (semi-) private companies to carry out economic activities on land where indigenous peoples live and where those peoples carry out their own economic activities. Precisely because these economic activities of indigenous peoples have a strong cultural dimension, they may fall within the realm of the protection of international human rights law. The uses to which such land is put by indigenous peoples, for example fishing, hunting or herding and breeding activities, have an economic dimension in that they provide labour, income and trade possibilities, but the way these economic activities are carried out has a strong cultural dimension. The use of the land and the ways animals are kept, killed and used, are firmly connected to the cultural identity of the community concerned, which triggers human rights protection. These rights of indigenous peoples have to be balanced against the interest of the state to promote economic development. This chapter explores how international supervisory bodies have dealt with this balance and which criteria they have set down to assess the interference by states with the rights of indigenous peoples to the protection of their economic activities. Section 1 examines the concept of economic activities with a cultural dimension. Section 2 scrutinizes the jurisprudence of the UN Human Rights Committee. Section 3 critically assesses the jurisprudence of the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights. The conclusion summarizes the findings and sums up the various criteria.