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Multiculturalism paper - Annexure 3

Annexure 3

INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS

Annexure 3 is a summary of the relevant, key
principles outlined in the numerous United Nations Declarations and Conventions
that promote respect for cultural diversity and international cultural
cooperation and the protection of cultural rights.

 


The
United Nations International Convention on Civil and Political Rights
1979

The intent of this Convention is in accordance with the
principles outlined in the Charter of the United Nations and the Universal Declaration of Human Rights.



Article 2 states
that:

1. Each State Party to the present Covenant undertakes to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction
of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures,
each State Party to the present Covenant undertakes to take the necessary steps,
in accordance with its constitutional processes and with the provisions of the
present Covenant, to adopt such laws or other measures as may be necessary to
give effect to the rights recognized in the present Covenant.

Article 5 states that:

1. Nothing in the present Covenant may be
interpreted as implying for any State, group or person any right to engage in
any activity or perform any act aimed at the destruction of any of the rights
and freedoms recognized herein or at their limitation to a greater extent than
is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the
fundamental human rights recognized or existing in any State Party to the
present Covenant pursuant to law, conventions, regulations or custom on the
pretext that the present Covenant does not recognize such rights or that it
recognizes them to a lesser extent.

Article 18 states that:

1. 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
others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have
or to adopt a religion or belief of his choice.

3. 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.

4. The States Parties to the present Covenant undertake to have respect for
the liberty of parents and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions.

Article 19 states that:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be subject
to certain restrictions, but these shall only be such as are provided by law and
are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order, or of public
health or morals.

Article 26 states that:

“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status”.

Article 27 states:

“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 the other members of their group, to enjoy their own culture, to
profess and practise their own religion, or to use their own
language.”

http://www.unhchr.ch/html/menu3/b/a_ccpr.htm


Declaration on the Rights of Persons belonging to National or
Ethnic, Religious and Linguistic Minorities 1992

The Declaration considers the protection of the rights of ethnic,
religious and linguistic minorities as contributing to the political and social
stability of the States in which they live. It positions the realization of
these rights as an important part of the development of any society.

Article 1(1) states that:

“States shall protect the existence and the national or ethnic,
cultural, religious and linguistic identity of minorities within their
respective territories and shall encourage conditions for the promotion of that
identity”.



Article 2 provides that cultural pluralism is a core aspect of a
democratic framework. Subsection (1) further states that:



“persons belonging to [...] minorities have the right to enjoy
their own culture [...] in private and in public, freely and without
interference or any form of discrimination.”

Article 4 (2) explicitly provides that:



“States shall take measures to create favourable conditions to
enable persons belonging to minorities to express their characteristics and to
develop their culture, language, religion, traditions and customs, except where
specific practices are in violation of national law and contrary to
international standards.”

http://www.unhchr.ch/html/menu3/b/d_minori.htm






UNESCO Declaration on Cultural Diversity 2001



The UNESCO Declaration sets out common rules and principles for cultural
diversity at a global level. The Declaration characterises cultural diversity
as necessary for human kind, as a living treasure and a source of exchange,
innovation and creativity. The Declaration makes a significant contribution to
recognising the role and legitimacy of public policy in its protection and
promotion of cultural diversity.

Article 2 states that:



“policies for the inclusion and participation of all citizens are
guarantees of social cohesion, the vitality of civil society and
peace.”

It then goes on to state:



“Indissociable from a democratic framework, cultural pluralism is
conducive to cultural exchange and to the flourishing of creative capacities
that sustain public life.”

Article 4 identifies human rights as a guarantee of cultural diversity. It
states:



“The defence of cultural diversity is an ethical imperative,
inseparable from respect for human dignity. It implies a commitment to human
rights and fundamental freedoms, in particular the rights of persons belonging
to minorities and those of indigenous peoples.”

It further states that:



“No one may invoke cultural diversity to infringe upon human rights
guaranteed by international law, nor to limit their scope.”



Article 5 frames cultural rights as an enabling environment for human
rights and is linked to Article 27 of the Universal Declaration of Human
Rights
and Articles 13 and 15 of the International Covenant on Economic,
Social and Cultural Rights
. It states:

“All persons have
therefore the right to express themselves and to create and disseminate their
work in the language of their choice, an particularly in their mother tongue;
all persons are entitled to quality education and training that fully respect
their cultural identity; and all persons have the right to participate in the
cultural life of their choice and conduct their own cultural practices, subject
to respect for human rights and fundamental freedoms.”



Article 6 relates to the right for cultures to express themselves and
make themselves known. It states:

“Freedom of expression, media
pluralism, multilingualism, equal access to art and to scientific and
technological knowledge, including in digital form, and the possibility for all
cultures to have access to the means of expression and dissemination are the
guarantees of cultural diversity.”

http://unesdoc.unesco.org/images/0012/001271/127160m.pdf








Promotion of the enjoyment of the cultural rights of
everyone and respect for different cultural
identities




Human Rights Resolution 2005/20



This resolution characterises cultural diversity as an asset and
permanent feature for the advancement, welfare and enrichment of society. It
expresses a specific interest in preventing and mitigating cultural
homogenization in the context of a globalized world, through increased
international cultural interchange and the promotion and protection of cultural
diversity.



Article 4 states that:

“each culture has a
dignity and value which must be respected and preserved and that every people
has the right and the duty to develop its culture.”

Article 5 recognizes that:



“States have the primary responsibility for the promotion of the
full enjoyment of cultural rights by everyone and for the enhancement of respect
for different cultural identities”.

Article 7 further recognizes that:



“the promotion and protection of the full enjoyment of cultural
rights by everyone and the respect for different cultural identities are vital
elements for the protection of cultural diversity in the context of the ongoing
process of globalization”.

Article 8 states that:



“all peoples have the right of self-determination, by virtue of
which they freely determine their political status and freely pursue their
economic, social and cultural development.”

Article 13 further recognizes that:



“the promotion of the cultural rights of everyone, of respect for
the distinct cultural identities of peoples and of protection of the cultural
diversity of humanity advances the implementation and enjoyment of human rights
by all.”



http://www.unifr.ch/iiedh/droits-culturels/odc-documentation/odc-doc-synthese/DS6-eng.pdf






Draft United Nations Declaration on the Rights of Indigenous
Peoples

The draft Declaration affirms that all peoples and
cultures contribute to the richness and diversity of civilizations and societies
and reaffirms that indigenous peoples’ should be free from discrimination.
The Declaration’s key principles are linked to those outlined in the
Charter of the United Nations, the Universal Declaration of Human Rights and in
international human rights law.



Article 2 states
that:

“Indigenous individuals and peoples are free and equal to all
other individuals and peoples and dignity and rights, and have the right to be
free from any kind of adverse discrimination, in particular that based on their
indigenous origin or identity.”

Article 3 States
that:

“Indigenous peoples have the right of self-determination. By
virtue of that night they freely determine their political status and freely
pursue their economic, social and cultural development.”

Article 4 states that:

“Indigenous peoples have the right
to maintain their distinct political, economic, social and cultural
characteristics, as well as their legal systems, while retaining their rights to
participate fully, if they so choose, in the political, economic, social and
cultural life of the State.”

Article 8 states
that:

“Indigenous peoples have the collective and individual right
to maintain and develop their distinct identities and characteristics, including
the right to identify themselves as indigenous and to be recognized as
such.”

Article 16 refers specifically refers to the role of States and stipulates
that:

“States shall take effective measures, in consultation with
indigenous peoples concerned, to eliminate prejudice and discrimination and to
promote tolerance, understanding and good relations among indigenous peoples and
all segments of society.”

http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1994.45.En






Declaration on the Elimination of
All Forms of Intolerance and of Discrimination Based on Religion or Belief
1981

Article 1 states that:

Everyone shall have the right to
freedom of thought, conscience and religion. This right shall include freedom 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.

2. No one shall be subject to coercion which would impair his freedom to have
a religion or belief of his choice.

3. Freedom to manifest one's religion or belief 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.

Article 2 states that:

1. No one shall be subject to
discrimination by any State, institution, group of persons, or person on the
grounds of religion or other belief.

2. For the purposes of the present Declaration, the expression "intolerance
and discrimination based on religion or belief" means any distinction,
exclusion, restriction or preference based on religion or belief and having as
its purpose or as its effect nullification or impairment of the recognition,
enjoyment or exercise of human rights and fundamental freedoms on an equal
basis.

Article 3 states that:

Discrimination between human being on the
grounds of religion or belief constitutes an affront to human dignity and a
disavowal of the principles of the Charter of the United Nations, and shall be
condemned as a violation of the human rights and fundamental freedoms proclaimed
in the Universal Declaration of Human Rights and enunciated in detail in the
International Covenants on Human Rights, and as an obstacle to friendly and
peaceful relations between nations.

Article 4 states that:

1. All
States shall take effective measures to prevent and eliminate discrimination on
the grounds of religion or belief in the recognition, exercise and enjoyment of
human rights and fundamental freedoms in all fields of civil, economic,
political, social and cultural life.

2. All States shall make all efforts to enact or rescind legislation where
necessary to prohibit any such discrimination, and to take all appropriate
measures to combat intolerance on the grounds of religion or other beliefs in
this matter.

http://www.unhchr.ch/html/menu3/b/d_intole.htm


International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) 1969

Article 1(1) of the Convention defines racial discrimination as:



“Any distinction, exclusion, restriction or preference based on
race, colour, descent or national or ethnic origin which has the purpose or
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.”

Article 1(4) of the Convention states
that:

“Special measures may be taken for the sole purpose of
advancing a particular racial or ethnic group or individuals who require such
protections as may be necessary to ensure that such groups/individuals have an
equal enjoyment or exercise of their human rights. These special measures do
not constitute racial discrimination provided that they do not lead to the
maintenance of separate rights for different racial groups and that they are
discontinued once their objectives have been achieved”.

Article 2(1) provides that:

“Each States Party should 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, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial
discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and
local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial
discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental,
national and local policies and to amend, rescind or nullify any laws and
regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial discrimination
by any persons, group or organization; and

(e) Each State Party undertakes to encourage, where appropriate,
integrationist multiracial organizations and movements and other means of
eliminating barriers between races, and to discourage anything which tends to
strengthen racial division”.

Article 2 (2) of ICERD states that:

“State Parties shall, when the circumstances so warrant, take, in
the social, economic, cultural and other fields, special and concrete measures
to ensure the adequate development and protection of certain racial groups of
individuals belonging to them, for the purpose of guaranteeing them the full and
equal enjoyment of human rights and fundamental freedoms. These measures shall
in no case entail as a consequence the maintenance of unequal or separate rights
for different racial groups after the objectives for which they were taken have
been achieved”.

http://www.ohchr.org/english/law/pdf/cerd.pdf


General Recommendation 23 – ICERD
1997

General Recommendation 23 states
that:

1. In the practice of the Committee on the
Elimination of Racial Discrimination, in particular in the examination of
reports of States parties under article 9 of the International Convention on the
Elimination of All Forms of Racial Discrimination, the situation of indigenous
peoples has always been a matter of close attention and concern. In this
respect, the Committee has consistently affirmed that discrimination against
indigenous peoples falls under the scope of the Convention and that all
appropriate means must be taken to combat and eliminate such
discrimination.

2. The Committee, noting that the General Assembly
proclaimed the International Decade of the World's Indigenous Peoples commencing
on 10 December 1994, reaffirms that the provisions of the International
Convention on the Elimination of All Forms of Racial Discrimination apply to
indigenous peoples.

3. The Committee is conscious of the fact that in many
regions of the world indigenous peoples have been, and are still being,
discriminated against and deprived of their human rights and fundamental
freedoms and in particular that they have lost their land and resources to
colonists, commercial companies and State enterprises. Consequently, the
preservation of their culture and their historical identity has been and still
is jeopardized.

4. The Committee calls in particular upon States
parties to:

(a) Recognize and respect indigenous distinct culture,
history, language and way of life as an enrichment of the State's cultural
identity and to promote its preservation;

(b) Ensure that members of indigenous peoples are free
and equal in dignity and rights and free from any discrimination, in particular
that based on indigenous origin or identity;

(c) Provide indigenous peoples with conditions
allowing for a sustainable economic and social development compatible with their
cultural characteristics;

(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;

(e) Ensure that indigenous communities can exercise
their rights to practise and revitalize their cultural traditions and customs
and to preserve and to practise their languages.

5. The Committee especially calls upon States parties
to recognize and protect the rights of indigenous peoples to own, develop,
control and use their communal lands, territories and resources and, where they
have been deprived of their lands and territories traditionally owned or
otherwise inhabited or used without their free and informed consent, to take
steps to return those lands and territories. Only when this is for factual
reasons not possible, the right to restitution should be substituted by the
right to just, fair and prompt compensation. Such compensation should as far as
possible take the form of lands and territories.




6. The Committee
further calls upon States parties with indigenous peoples in their territories
to include in their periodic reports full information on the situation of such
peoples, taking into account all relevant provisions of the
Convention.

http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument