Ratification of 2005 UNESCO Convention on the Protection & Promotion of the Diversity of Cultural Expressions

Australian Human Rights Commission

Submission to the Department of Environment, Water, Heritage and the Arts

5 November 2008


Human Rights and Equal Opportunity Commission
Level 8, 133 Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600

Table of Contents

1 Introduction

  1. The Australian Human Rights and Commission (the Commission) makes this submission to the Department of Environment, Water, Heritage and the Arts (DEWHA) in its inquiry into the ratification of the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

  2. This submission is written in response to an e-mailed invitation from Jane Carter from DEWHA, and received on 30 September 2008, in which the Commission was invited to submit comments on policy, resourcing, infrastructure and opportunities associated with Australia’s proposed ratification of the 2005 UNESCO Convention.

  3. The Commission wishes to acknowledge the expert advice of Professor Amareswar Galla, UNESCO Chair in Museums and Sustainable Heritage Development at the University of Queensland, and Professor Gary Bouma, UNESCO Chair in Interreligious and Intercultural Relations - Asia Pacific, in preparing this submission.

  4. The Commission acknowledges that Australia provides significant leadership for international instruments dealing with the cultural domain, both ‘hard law’ (treaties and conventions) and ‘soft law’ (resolutions, recommendations, charters and declarations).

  5. The Commission notes that there are seven binding UNESCO conventions relating to culture. This includes The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), and its two protocols and related instruments such as Protocol 1 to the Geneva Convention and contemporary tribunals which enforce them.

  6. The Commission notes there are seven binding UNESCO conventions relating to culture, but the most significant - the “three pillars” as described by UNESCO itself (http://unesdoc.unesco.org/images/0014/001495/149502E.pdf) – which protect and promote cultural diversity, are:

    • the Convention Concerning the Protection of the World Cultural and Natural Heritage (1972)

    • the Convention Safeguarding Intangible Cultural Heritage (2003), and

    • the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).

    Australia has ratified the first four of these seven conventions, but has not ratified the Convention on the Protection of Underwater Cultural Heritage (2001).

  7. At the time of lodging this submission, the Commission understands the Government is still considering whether it should ratify the intangible cultural heritage convention; it is also considering whether it will ratify the Declaration on the Rights of Indigenous Peoples – another important international treaty –

    and has signalled its intention to ratify the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).

  8. The Australian Human Rights Commission sent a submission to DEWHA on 24 September 2008 strongly endorsing that Australia does ratify the 2003 convention dealing with intangible cultural heritage. The Commission is of the view that if Australia is to have a consistent approach to culture and heritage, it must ratify all seven of the relevant UNESCO conventions.

  9. In anticipation of the Government ratifying the 2003 and 2005 conventions, the Commission would like to acknowledge the importance of this decision, particularly at a time when the international financial system is under severe stress. This crisis highlights the global inter-connectedness of human activities and reminds us that such inter-reliance, generally, is not just a weakness but can be a strength. Commitment to the principles contained in the cultural diversity conventions will have the effect of harnessing the opportunities of globalisation as well as assisting the achievement of UNESCO’s goal of a world that is simultaneously harmonised, yet diverse.

2 Recommendation

  1. As argued below, the Australian Human Rights Commission supports:

  • the ratification of the 2005 UNESCO Convention;

  • the language used in the draft reservations associated with articles 16 and 20, as included in Jane Carter’s email to the Commission; and

  • that the Commission be integral to the policy, planning, legislation and monitoring associated with ratification of this, and the other United Nations treaties, currently being considered by government.

3 Significance of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions

  1. The Australian Human Rights Commission, through its charter, aspires to ensure that Australians of all cultural backgrounds (irrespective of linguistic, racial, ethnic, religious or cultural diversity) enjoy certain basic rights. While the Commission supports ratification of the Convention with respect to all Australians, it notes that the Convention is intended to particularly address issues for minorities and indigenous peoples.

  2. The Australian Human Rights Commission also notes that this Convention is framed clearly as a human rights treaty. This is significant for a number of reasons. It:

    • places rights to cultural practice and preservation as a human right, but one that is also linked to sustainable development

    • links support for domestic and international cultural activities as both a human right and a human development issue, hence associating this with international co-operation and foreign aid. It also establishes an integrated approach to these issues, helping to contribute towards a global culture of peace (which has implications for national and international security)

    • has wider implications for how Australia deals with its own:

      • cultural diversity

      • support and maintenance of multicultural policies and programs

      • funding of its public broadcasters (the Special Broadcasting Service and the Australian Broadcasting Corporation), and

      • national cultural institutions and how they reflect the diversity of cultural expressions in their acquisitions, public access, collections, curation, exhibition, design, education, communications, community engagement and policies.

  3. The Commission wishes to emphasise that, in many regards, the 2005 UNESCO Convention complements the 2003 intangible cultural heritage convention with the two designed to work in tandem. Again, it notes the importance of also ratifying this other treaty which pertains to culture, and to develop a whole-of-cultural suite-of-conventions approach, to ensure maximum public access, as well as to ensure there are economies of scale in their implementation.

  4. The Commission notes with concern the lack of cooperation and coordination at the implementation level when dealing with international cultural instruments, especially when working with Indigenous and culturally and linguistically diverse communities in Australia.

4 The Commission and its understanding of the human rights dimensions of the 2005 UNESCO Convention

  1. The Convention clearly articulates that it is a human rights instrument in a number of articles, including:

  • the preamble, which states “Celebrating the importance of cultural diversity for the full realisation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognised instruments... (and)... the importance and vitality of cultures, including for persons belonging to minorities and indigenous peoples, as manifested in their freedoms to create, disseminate and distribute their traditional cultural expressions and to have access thereto, so as to benefit them for their own development.”

  • Article 2 (Guiding Principles) emphasises (1) the principle of respect for human rights and fundamental freedoms. The Convention states that cultural diversity can only be protected and promoted if those human rights such as freedom of expression, information and communication, as well the ability to choose cultural expressions, are guaranteed. At (3) the

  • Convention states that it presupposes the equal dignity of, and respect for, all cultures, including those of minorities and indigenous peoples. Elsewhere under this article (for example, Article 5) other human rights, such as economic and cultural rights are referenced.

  • Article 5 (General rule regarding rights and obligations) states that the parties to the Convention “... in conformity with the Charter of the United Nations, the principles of international law and universally recognised human rights instruments...” will work to achieve the purposes of the Convention.

  1. These three references set the overall context for the Convention, therefore, making it clear that it is a human rights treaty.

  2. The “protection and promotion of the diversity of cultural expressions” is:

    • understood to mean all cultural expressions (tangible, intangible, moveable and immoveable) and the relationships between culture, trade and economics. In particular, it refers to those most at risk, particularly those of minorities and Indigenous peoples. As explained by UNESCO, ‘protection’ refers to the preservation, safeguarding and enhancement of culture, and ‘promotion’ refers to the need to “keep alive cultural expressions imperilled by the quickening pace of globalisation” (see: http://unesdoc.unesco.org/images/0014/001495/149502E.pdf)

    • of significance to Australia because of its particular set of cultural heritages: First Nations, diaspora, and colonial (many of which are in need of protection and promotion), as well as mainstream, and the consequent social, economic and cultural implications

    • of importance to international cultural, human development, human rights, inter-cultural and inter-religious dialogue, and security issues because of its emphasis on cultural diversity as a means of “humanising globalisation” and promoting a culture of peace.

  3. As noted in the UNESCO Universal Declaration of Cultural Diversity (2001), culture is the shared heritage of all humanity; it is the mainspring and a guarantee for continuing human creativity; and, it must be understood as inextricably linked to ecological sustainability, economic development as a process of human development, and human rights.

  4. At a time, therefore, of international concern about the effects of human-made climate change; of the (so-called) ‘clash of civilizations’; the negative impacts of globalisation and various international trading and financing agreements (which have often negatively impacted upon developing nations and their cultural and ecological heritages most severely), this Convention is an important international treaty that will assist Australia to combat challenges to human survival, as well as threats to its own economic integrity and cultural assets.

  5. While the larger matrix of ecological, social, technological, economic and political relationships is too complex, too multi-faceted and nuanced to be

    reduced to the simple formula of the Convention, the Commission recognises that the diversity of cultural expressions is under threat from a number of fronts, including:

    • the accelerated pace of globalisation in all its facets

    • cultural homogenisation, colonisation and mono-culturalism

    • the impacts of technological change

    • climate change

    • (particularly in Australia) the lack, in recent years, of the policies, funding and leadership required by governments and national cultural institutions to protect and promote cultural diversity, and

    • lack appropriate strategies to build capacity to safeguard cultural diversity.

  6. For these reasons, let alone the important human rights factors, the Commission believes this Convention is critical and the Australian government should be commended for agreeing to its ratification.

  7. The Commission also notes that as of early October 2008 there were 91 state parties to the Convention including Canada, New Zealand, the United Kingdom and Ireland, most countries of the European Union, China and India. Others (such as Belgium) are also in the process of preparing for ratification.

  8. The Commission would like to underline the significance of this ratification of the 2005 UNESCO Convention by these countries, many of which are the source countries for Australian immigrant populations and their descendants. There are transplanted and transformed cultural expressions from these sources that are unique and should be considered for safeguarding as part of the cultural diversity of diaspora populations.

5 Benefits to Australia of ratification

  1. Ratification of the Convention will provide an important international statement about Australia’s commitment to the arts, Indigenous Australians, its immigrant communities, cultural diversity and human rights, foreign aid and international co-operation. It will be an historically progressive legacy of the Rudd government. Additional benefits are outlined below.

5.1 Protecting and promoting the diversity of cultural expressions as an essential human right

  1. Australian ratification of the Convention will help to both preserve our varied and significant cultural heritage, and protect new and emerging cultural industries, but will also do so as a cultural, and therefore, human right. The Universal Declaration of Human Rights of 1948 (article 27) first articulates this basic right, which is then elaborated in more detail in later treaties such as the International Covenant on Economic, Social and Cultural Rights (which came into force on 3 January 1976).

  2. Subsequently, other treaties have recognised that various ethnic or other minorities within states have not adequately enjoyed their rights, and that rights to cultural practice and maintenance are particularly important. The International Covenant on Civil and Political Rights (which came into force in 23 March 1976) and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1993), for example, emphasize the importance of cultural practice and maintenance as basic human rights.

  3. Australia’s commitment to the diversity of cultural expressions will also have impacts in the region, especially given its important links to foreign aid (see especially articles 12 through to 17 of the 2005 Convention). In many developing countries cultural heritage is under threat but is essential to the human development of its people, and can also be linked to environmental protection and economic growth. By funding programs related to culture, human rights and development, Australia will enhance its reputation internationally.

5.2 Supporting the Australian economy

  1. Maintaining the diversity of Australia’s cultural heritage, in all its many forms, has a human capital as well as an economic capital dividend. Respecting, nurturing and supporting cultural heritage and arts industries has clear social benefits - happy, better functioning, more vibrant communities - as well as health benefits (freedom of cultural expression and to practice aspects of traditional life builds social and emotional well-being, which directly improves population-level health outcomes: an important economic saving to the health system).

  2. As well, the protection and promotion of the diversity of cultural expressions will have significant benefits of enriching Australian cultural life and, consequently, supporting cultural industries and heritage tourism by helping to keep them sustainable. As stated in the Commission’s submission on the Convention Safeguarding Intangible Cultural Heritage, inter alia, the Bureau of Tourism Research and the Australia Council for the Arts, have noted that cultural tourism provides significant economic benefit to Australia.

  3. Whatever costs are associated with those tasks necessary to bring the Convention into effect in Australia, they will only represent a fraction of the financial benefits which accrued from maintaining Australia’s heritage from cultural, tourism, arts and other industries. As noted above, there are also likely cost savings, especially in the health and other social policy areas, from preserving cultural identities of Australia citizens.

  4. On the cost side, the Commission believes these activities will include:

    • establishing a body to co-ordinate/ administer the Convention

    • properly supporting the Convention through research and benchmarking (for example, through the development of cultural indicators and auditing cultural institutions)

    • additional policy and program development, and

    • ensuring that the human rights dimension of the Convention are adhered to (please note 36-42 and 47-49, below).

5.3 Assisting the government’s social inclusion agenda

  1. A socially inclusive community is one in which the diversity of cultural expressions, ethnicities, faiths, traditions and mores are freely practiced and respected by members of that community. All governments are committed to maintaining social cohesion, harmony, security and commitment to Australia. This is partly achieved through education, citizenship and multicultural programs. However, it is best achieved by nurturing a national civic culture where all members of society feel that they are respected, they can freely enjoy their own languages, heritage and related cultural practices, and that these cultures are respectfully and adequately reflected in the activities of the nation’s principle cultural institutions and in the media.

  2. As part of a wider process of cross-cultural communication to maintain social harmony, cohesion and help build a national, regional and global culture of peace, ratification of the Convention in Australia would complement other UN statements, such as the UNESCO Universal Declaration on Cultural Diversity, the United Nations Declaration on the Rights of Indigenous Peoples, and associated activities such as developing cultural indicators for human development.

6 Responses to the reservations to Convention articles

  1. The Australian Human Rights Commission understands that the recommended reservation associated with Article 16 is intended only to protect Australian rights (as a state party) to maintain policy and legislative consistency with, and to determine who, will be granted a visa or immigration rights to Australia. The Commission does not object to this reservation.

  2. The Australian Human Rights Commission understands that the recommended reservation associated with Article 20 is intended only to ensure that Australia can continue to freely negotiate in relation to rights, especially regarding trade rights, under future treaty negotiations. The Commission does not object to this reservation.

7 The Convention and its impact upon the Australian Human Rights Commission

  1. Ratification of the 2005 UNESCO Convention on the diversity of cultural expressions will enhance the capacity of the Commission to safeguard the human rights of all Australians, but, only if it is given the capacity to fulfil this important function.

  2. For example, the rights of Indigenous Australians, in relation to culture, would be better protected and promoted, especially in relation to the 2007 United Nations Declaration on the Rights of Indigenous Peoples, which emphasizes, in several places, the importance of indigenous heritage in all aspects, and the importance of living heritage for the continuity of cultures. Australia is at present considering its recognition of this Declaration, being only one of four nations which did not last year. In tandem with the Convention for the Protection and Promotion of the Diversity of Cultural Expressions, this will have significant monitoring and reporting responsibilities for the Commission.

  3. The Commission is also concerned with inter-faith dialogue and the right to free religious practice for all Australians; it is involved with monitoring rights regarding this religious diversity. For example, the Commission is currently undertaking a major report into freedom of religion and belief that should be completed by early 2010. The diversity of cultural expressions clearly informs this religious diversity and, at present, the lack of appropriate research, understanding and legislative protection is a concern. This is not solely for cultural purposes but also for community harmony, social inclusion, and security. Australia, by becoming a state party to the Convention, would assist in many ways the roles of responsibilities of the Commission in addressing religious diversity.

  4. Religious diversity, religious vilification and religious freedom are all relevant and connected. The existing legislation focuses on ‘race’, but this is a contentious term and the concept of the ‘ethno-religious’ category (previously applied solely to Jews) is contested, especially with the rise of what is now described as ‘Islamophobia’. Increasingly, therefore, the cultural heritage aspects of, and intersections with faith, will require protecting and should fall under the mandate of the Commission

  5. The Commission administers Commonwealth laws relating to discrimination, in particular race discrimination (the central prohibition against racial discrimination is contained in s9(1) of the Race Discrimination Act, 1975,) this covers “...any act involving a 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 any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

  6. This, inevitably, means that what the Convention for the Protection and Promotion of the Diversity of Cultural Expressions describes as “minorities and indigenous peoples” are clearly those who may be discriminated against on the grounds of race.

  7. The intention of the Convention is to ensure the human rights of cultural minorities are respected and protected. This means the Commonwealth has specific responsibilities to monitor whether such groups can fully enjoy their human rights relating to (inter alia) culture, religion and belief, the arts, and freedom of expression.

  8. The Convention may have implications for protecting the intellectual and cultural property rights of Australian artists and communities (for example issues associated with free trade agreements) although the explanatory UNESCO literature (referenced above) states that the Convention will “neither change or modify the rights and obligations deriving from other legal instruments... including trade agreements”.

  9. In several ways, Australia’s ratification of the Convention would facilitate the Commission’s role to bring together the carriers of cultural heritage, individuals and communities and the relevant research agencies, cultural institutions and government authorities in ensuring the safeguarding of Australia’s unique and highly diverse intangible cultural heritage.

  10. It should also be noted that many countries from where immigrant Australians come from are already state parties to the Convention. Australia, by ratifying the Convention could add a significant dimension to the way we safeguard the cultural diversity of our immigrant heritage.

  11. The Convention, if properly implemented in Australia, should involve a number of activities. These include:

    • developing benchmark cultural indicators and applying them to all national cultural institutions

    • auditing national cultural institutions and related industries

    • applying existing frameworks to ensure that access and equity standards are being met (for example, adherence to the Charter of Public Service in a Culturally and Linguistically Diverse Australia).

8 Resource implications of ratification on the Commission

  1. In the Commission’s earlier submission to DEWHA it noted that approximately two full time equivalent staff would be required to adequately monitor implementation of the Convention Safeguarding Intangible Cultural Heritage. Given this, and other important treaties pertaining to culture that the government is considering ratifying, it is critical that the Commission either establish a specific unit, or supplement teams within the existing units, to monitor the important human rights implications of ratifying these conventions so as to oversight (inter alia) Australian commitments, relevant laws, quality control pertaining to rights, and the auditing of human and cultural rights issues.

  2. The Australian Human Rights Commission is not a cultural heritage institution, however, it has an active concern with the culture and heritage of all Australians from a human rights perspective, given that the rights to practice or use languages, traditions, cultures and religions must be permitted and freely enjoyed unless they involve coercion or harm. When Australia ratifies the Convention, the Commission is the appropriate agency able to monitor national adherence to the operation directives, and the only agency able to monitor the overall impact from the many human rights perspectives.

  3. If the Declaration of the Rights of Indigenous Peoples, the Convention Safeguarding Intangible Cultural Heritage, and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions are all ratified in coming months (as has been indicated is likely to occur), as three, significant human rights treaties with monitoring and reporting components, the Australian Human Rights Commission would require six FTE staff (approximately $0.8m per annum) to undertake this work to a minimum standard. Specific details regarding responsibilities and roles can be provided at a later date.