Appendix 5
The international standards relevant to heritage protection
The relevant international human rights standards can be broadly identified as following:
- the right to self-determination,
- the right to protect indigenous heritage, including the right to manifest, practice, develop and teach indigenous heritage,
- the right of indigenous people to participate in matters effecting their heritage,
- the right to equality of treatment,
- the right to freedom of thought, conscience and religion.
The following instruments, declarations, principles and guidelines set out Australia's International human rights obligations with regard to cultural heritage protection.
International Covenant on Civil and Political Rights (ICCPR)(1)
Article 1
- All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
- All people may, of their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
- The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self Governing and Trust Territories, shall promote the realization of the right of determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
Article 18
- Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with other and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
International Commentary on Article 18
United Nations Human Rights Committee - General Comment 22
General Comment 22 of the Human Rights Committee provides guidance on the interpretation of the limitation clause, 18(3).
Limitations may be applied only for the purpose for which they are prescribed and must be directly related to and proportionate to the specific need on which they are predicated.
Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. The Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.(2)
Article 27
In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
International Commentary on Article 27
United Nations Human Rights Committee - General Comment 23
- General Comment 23(50) (art. 27) */, CCPR/C/21/Rev.1/Add.5, 26 April 1994.
3.2 The enjoyment of the rights to which Article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. .This may particularly be true of members of indigenous communities constituting a minority.
6.1 Although Article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a right and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and exercise of this rights are protected against their denial and violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.
6.2 Although the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language and religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with other members of the group. In this connection, it has been observed that such positive measures must respect the provisions of Articles 2(1) and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under Article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.
7. With regard to the exercise of the cultural rights protected under Article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land and resources, specially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. (3)
The International Convention on the Elimination of All Forms of Racial Discrimination
Article 1
1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purposeor effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
Article 2
2(1) State parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.
2(2) State Parties shall, when circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms...
Article 5
guarantees all people equality before the law and the enjoyment of specific rights without distinction as to race, colour or national or ethnic origin. The article includes:
5(d)(v) The right to own property alone as well as in association with others;.
5(d)(vii) the right to freedom of thought, conscience and religion (4)
International Commentary on CERD
CERD Committee - General Recommendation XIV
The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of Article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon the group distinguished by race, colour, descent, or national or ethnic origin.
CERD Committee - General Recommendation XXIII
4. The Committee calls in particular upon States parties to:.
(d) ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent. (emphasis added)
CERD Committee - General Recommendation XXI
10. In accordance with Article 2 of the International Convention of All Forms of Racial Discrimination and other relevant international documents, Governments should be sensitive towards the rights of persons belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the Government of the country in which they are citizens. Also, Governments should consider, within their respective constitutional frameworks, vesting persons belonging to linguistic groups comprised of their citizens, where appropriate, with the right to engage in activities which are particularly relevant to the preservation of the identity of such persons or groups.
Convention on the Rights of the Child (5)
Article 30
In those states in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.(6)
UNESCO Convention for the Protection of the World's Cultural and Natural Heritage
As a party to the Convention Australia has made a commitment to ensure that cultural and natural heritage of outstanding universal value in Australia is identified, protected, conserved, presented and transmitted to future generations.(7)
The World Heritage Properties Conservation Act is the Commonwealth's domestic implementation of the Convention. It provides for the protection of properties which are on the World Heritage list, nominated for listing or the subject of a Commonwealth Inquiry into whether they should be listed. While the Act only protects property falling within these categories, it specifically provides for the protection or conservation of artefacts or relics of particular significance to Aboriginal people where these exist on protected sites [Section 8(2)].
Convention on Biodiversity (8 )
Article 8(j)
Each Contracting Party shall, as far as possible and appropriate:
(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.
Commentary:
Article 8(j) gives explicit mention firstly to the Traditional knowledge, innovations and practices of Indigenous people and local communities while also speaking strongly for its protection, preservation and maintenance. Article 8(j) also provides that the use of Indigenous traditional knowledge, innovations and practices should only occur with the approval and involvement of the Indigenous or local community and that any benefits that arise from its use is to be shared with the people or community from which that knowledge originated.
Article 10
Sustainable Use of the Components of Biological Diversity
Each Contracting Party, shall as far as possible and appropriate:
(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements
Commentary:
Article 10(c) is also extremely important for the representation of Indigenous interests.This article is directly relevant to the hunting and gathering of biological resources by indigenous peoples and local communities and lays down a powerful obligation to parties in regards to the recognition of continued cultural maintenance through the ongoing use of biological resources. It also calls upon parties to "protect and maintain" these practices and in doing so recognises that the customary use of biological resources is as much a cultura practices as it is one of sustenance".(9)
Draft Declaration on the Rights of Indigenous Peoples
Article 12
Indigenous peoples have the right to practice and revitalise their cultural traditions and customs. This includes the right to maintain, 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, as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.
Article 13
Indigenous peoples have the right to manifest and practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access in their privacy to the their religious and cultural sites; the right to the use and control of ceremonial objects; and the right to repatriation of human remains. States shall take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected and protected.
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (10)
Article 1
Everyone shall have the right to freedom of thought, conscience and religion. This shall include the right to have a religion or whatever belief of his choice and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Article 6
- elaborates a number of particular freedoms protected by the Declaration including the freedoms:
(a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;...
(c) To make acquire and use to an adequate extent the necessary articles and material related to the rites or customs of a religion or belief;...
(e) To teach a religion or belief in places suitable for these purposes;...
Commentary:
The Draft Declaration is the pre-eminent statement of the rights of Indigenous peoples at the international level. Although it does not yet have any formal status in the United Nations system, it provides a guide for the rights which Governments should seek to recognise when drafting policies regarding Indigenous peoples.
Part III of the Draft Declaration is concerned with cultural rights.
UNESCO Declaration of the Principles of International Cultural Co-operation (11)
This declaration recognises that ignorance of the ways and customs of peoples still presents an obstacle to friendship amongst nations, peaceful co-operation and progress. It provides that:
Each culture has a dignity and value that must be respected and preserved.
Every people has the right and duty to develop its culture.
Article 1
In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind.
Article 2
Nations shall endeavour to develop the various branches of culture side by side, and... to establish a harmonious balance between technical progress and the intellectual and moral advancement of mankind.
1 In addition to the articles listed here, Articles 17.1 and 23.1 are also relevant to heritage issues. In Hopu and Bessert v France (543/93), an individual communication under the first optional protocol, the Human Rights Committee found that the construction of a hotel on an ancestral burial site of indigenous Tahitians was a violation of Covenant Articles 17, the right to privacy, and Article 23, the right to protection of the family.
2 Human Rights Committee General Comment 22, para 8.
3 See in particular Bernard Ominayak, Chief of the Lubicon Lake Band v Canada, Communication No 167/1984, CCPR/C/38/D/167/1984, 28 March 1990, 13.4.
4 The meaning of these principles has been considered in detail in previous Native Title reports: Acting Aboriginal and Social Justice Commissioner, Native Title Report 1998, op.cit., Chapter 2; Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1996- 97, HREOC, Sydney, 1997, Chapter 6; and in the HREOC CERD Submission, paras 92-126.
5 Ratified by Australia in 1990.
6 The CROC text adopts the formula used in Article 27 of the ICCPR, to apply a positive duty on states to prevent the enjoyment of rights. The application to children imports the rights enunciated in the draft Declaration on the Rights of Indigenous People and the UNESCO Convention for the Protection of the World's Cultural and Natural Heritage including protection of the right to maintain, practice, develop and transmit culture, religion and language.
7 The obligations imposed by this Convention are detailed in the Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Report by Hon Elizabeth Evatt AC, 21 June 1996 at p35.
8 This section is adapted from Henrietta Fourmile-Marrie and Glen Kelly The Convention on Biological Diversity and Indigenous People: Information concerning the implementation of decisions of the Conference of the Parties under the Convention on Biological Diversity, Centre for Indigenous History and the Arts, University of Western Sydney, 2000, pages 3-4.
10 The Declaration was proclaimed by the UN General Assembly in 1981, and is annexed to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
