CULTURAL RIGHTS
The family is the natural and fundamental group unit of society. Indigenous peoples have the right to preserve, maintain, and promote their own family systems. States shall recognize, respect, and protect the various indigenous forms of family, in particular, the extended family, as well as their forms of matrimonial union, filiation, descent, and family name. In all cases, gender and generational equity shall be recognized and respected.
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: [...]The right to marriage and choice of spouse
1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.
The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life;
J.T., J.P.V. and P.M.V et al v Finland (CESCR)
Yaku Sacha Perez Guartambel v Ecuador (CERD)
Cultural rights are protected across a range of UN human rights treaties. In Yaku Sacha Perez Guartambel v Ecuador (2022),101 before the Committee on the Elimination of Racial Discrimination (CERD), the petitioner was a member of the Escaleras Indigenous community who argued that the failure to recognize the traditional Indigenous authorities who officiated his marriage violated ICERD. The marriage ceremony was conducted ‘in accordance with Indigenous culture and customs for millennia, before the construction of the State’, with the marriage recorded in the ancestral marriage register of the Escaleras Indigenous community and an ancestral marriage certificate issued.102 Thus, the communication related to the right of Indigenous peoples to ‘self-determination and autonomy in matters of their own age-old institutions, such as marriage, which predates the State and is made up of rites, allegories, ceremonies and formalities that are specific to Indigenous peoples and are based on their cultural and spiritual world views.’103 The context for the case was the arrest and later deportation of the petitioner’s wife, who was a non-national, during a march in defence of the rights of Indigenous peoples. The petitioner considered that denying him a family reunification visa and recommending that his marriage be officiated by an ordinary civil authority amounted to forced assimilation into the State institution of civil marriage.104The State Party argued that Indigenous marriages are not banned in Ecuador, and that the refusal to register the ancestral marriage in this case did not stem from an institutional stance against any particular racial group or ethnicity.105 Officiation and registration of civil marriages in Ecuador is the exclusive competence of civil registry officials and the petitioner should have been married by the competent State authority.
CERD cited a range of relevant international sources, including ILO Convention 169 (which Ecuador had ratified) and UNDRIP, which set out rights of Indigenous peoples to self-determination, autonomy, to maintain their distinct social and cultural institutions, and to practise and revitalize their cultural traditions and customs including ceremonies. It recalled the American Declaration on the Rights of Indigenous Peoples, in particular its Article XVII(1) which establishes that ‘States must recognize, respect and protect the various Indigenous forms of matrimonial union.’ It noted also at the domestic level the provisions of the Constitution of Ecuador as an intercultural and plurinational State, which implies that ‘different systems of government and social regulation, based on cultural, political or historical aspects, coexist through various authorities, such as the ordinary jurisdiction and the Indigenous jurisdiction’.106 The Committee then examined the marriage ceremony in detail, highlighting that ‘the traditional authorities of the Escaleras ancestral community who drew up the marriage certificate in accordance with their ancient customs verified the identity of the spouses, their age, their prior civil status, their address, the voluntary nature of their union and the date and place of the marriage - all in the presence of two witnesses.’107 Article 5(d)(iv) ICERD prohibits racial discrimination in ‘the right to marriage and choice of spouse’. CERD held that in order to comply with this provision:
‘not only must the State party refrain from prohibiting the celebration of Indigenous marriages (para 2.3) and the issuance by traditional Indigenous authorities of registration certificates for marriages officiated in their territories, but it must also take all necessary steps, in cooperation with the traditional Indigenous authorities, to record such marriages in the civil register where they are not contrary to other international human rights obligations or to requirements under national law for the celebration of marriages.108
It upheld a violation of Article 5(d)(iv), its first finding under this provision. It required the State party to record the petitioner’s marriage in the civil register so that they may apply for a family reunification visa; provide appropriate compensation to the petitioner for the harm caused; apologize to the petitioner for the violation of his rights; amend its legislation to provide for the recognition and registration of marriages officiated by traditional Indigenous authorities in accordance with their customs and customary law that are not contrary to other international human rights obligations; and establish a training programme for civil registry officials and the judiciary and other court personnel regarding the validity and recognition of Indigenous marriages officiated by traditional authorities.109 These recommendations capture a range of specific and general remedies increasingly evident in CERD jurisprudence as it relates to minority and Indigenous rights.
A recent decision of the Committee on Economic, Social and Cultural Rights (CESCR), J.T., J.P.V. and P.M.V et al v Finland (2024),110 is the first individual communication by CESCR which engages cultural rights. The decision related to the granting of mineral exploration permits which generated the M.E.V., S.E.V. and B.I.V. v Finland case before CRC. The authors were Indigenous Sami people who practice traditional Sami reindeer herding. They submitted that by granting a mineral exploration permit and an area reservation on their traditional territory without proper impact assessment and without a process of consultations aimed at obtaining the free, prior and informed consent, Finland violated a number of their ICESCR rights including the right to take part in the cultural life of a community (Article 15). Climate change formed a context to the claim:
‘The regions where the Sami live are warming more than three times faster than the global average. Frozen and moulting pastures and extreme snow conditions pose challenges for reindeer and reindeer herders, threatening the Sami’s ability to continue reindeer herding as a main source of income. This has a detrimental effect on the culture, languages and traditional knowledge of the Sami, as it disrupts the practice of traditional livelihoods, which is central to maintaining and transmitting their culture.’111
The Committee’s decision noted first that a lack of FPIC pertains also to the admissibility stage of the proceedings. Finland argued, as it did before CRC, that the authors’ claims were of an actio popularis and premature nature, and thus they lacked victim status and were inadmissible. CESCR noted that the authors presented information in their communications alleging that the State party failed to obtain FPIC or undertake good faith efforts to obtain it when granting the exploration permit in the authors’ traditional territory, and that ‘this allegedly constitutes a violation of their own rights, irrespective of future development’.112 The Committee affirmed that a failure to obtain FPIC is in and of itself an actionable violation of ICESCR whether or not it results in further rights violations, satisfying the standing requirements for the purposes of admissibility.
The merits of the decision is notable for its detail on cultural rights under Article 15(1)(a), as interpreted in accordance with CESCR General Comment 21.113 GC 21 provides an emphasis on the need to protect the cultural rights of minority and Indigenous groups.114 We see these themes emerge consistently in concluding observations by CESCR. For example in a recent session it raised the protection of the cultural heritage of minorities in Iraq: ‘The Committee is concerned about reports that sites of religious and cultural importance for religious and ethnic minorities destroyed by Da’esh and/or in armed conflict have not yet been fully restored, and that perpetrators have not been held accountable.’115 It recommended that Mauritania ‘create conditions that will enable minorities to preserve, develop, express and disseminate their identity, history, languages, culture, traditions and customs’, specifically recommending that the State party ‘strengthen the teaching and use of the Pulaar, Soninke and Wolof languages, including in official documents.’116 It recommended that Sweden adopt measures for returning cultural heritage items including objects and human remains to the Sami people. This involved ‘measures to identify and encourage voluntary repatriation of objects held in private collections that are of cultural significance to national minorities’.117
This focus on cultural rights is evident in the decision in J.T., J.P.V. and P.M.V et al v Finland. CESCR affirmed that the ‘communal dimension of Indigenous Peoples’ cultural life, including traditional activities, is closely linked to their traditional lands, territories and resources, and is “indispensable to their existence, well-being and full development”.’118 It noted that the recognition of Indigenous Peoples’ right to land as an indispensable part of their right to take part in cultural life is in line with international human rights jurisprudence in this area, citing decisions of CERD and the HRC.119 It cited also decisions of the Inter-American Court of Human Rights, quoting its finding in Xakmok Kasek v Paraguay that the culture of the members of Indigenous Peoples: ‘corresponds to a specific way of life, of being, seeing and acting in the world, constituted on the basis of their close relationship with their traditional lands and natural resources, not only because these are their main means of subsistence, but also because they are an integral element of their cosmology, their spirituality and, consequently, their cultural identity’.120 Cultural rights were noted to have an intergenerational aspect, which is fundamental to the cultural identity, survival, and viability of Indigenous peoples. As a result, Article 15(1)(a) requires States parties to take measures to recognize and protect the rights of Indigenous peoples to own, develop, control and use their communal lands, territories and resources. It follows that States Parties must ensure the effective participation of Indigenous peoples in decision-making processes that may affect their way of life, particularly their right to land, based on the principle of FPIC, so as not to endanger the very survival of the community and its members.121
The decision elaborated on the meaning of ‘an adequate and effective process’ of FPIC when the rights of Indigenous Peoples may be affected by projects carried out in their traditional territories, which must include ‘not only the sharing of information and the reception of comments from the affected community, but also an interactive and continuous dialogue through Indigenous Peoples’ own representative institutions, from the outset and through culturally appropriate procedures, respecting the right of Indigenous Peoples to influence the outcome of decision-making processes affecting them.’122 The process of granting the exploration permit at issue in the communication did not meet this standard, and Finland was held to be in violation of Article 15(1)(a) ICESCR. This was the first finding of a violation of Article 15(1)(a) by CESCR, and the first time FPIC was read into this provision in an individual communication. It is clearly a milestone decision, and one that marks out the potential of CESCR as an important treaty body in the protection of Indigenous and minority rights.
101 UN Doc. CERD/C/106/D/61/2017 (2022).
102 Ibid paras 4.2 and 1.2.
103 Ibid.
104 Ibid.
105 Ibid para 4.2.
106 Ibid para 4.6.
107] Ibid para 4.10.
108 Ibid para 4.13.
109 Ibid para 6.
110 J.T., J.P.V. and P.M.V et al v Finland UN Doc. E/C.12/76/D/251/2022 (2024).
111 Ibid para 2.3. There are a number of other references to climate change, including that ‘violations of the Covenant must be assessed in the context of the cumulative effects of earlier interventions in their lands, aggravated by ongoing climate change’ (at para 3.3). Finland countered that the authors had not exhausted domestic remedies on the issue of climate change (at para 4.5). The Committee ultimately noted that the issue of climate change did not present ‘a separate claim’ and that available remedies in relation to the substantive rights invoked in the communication had been exhausted (at para 10.5).
112 Ibid para 10.3.
113 CESCR General Comment 21, ‘Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc. E/C.12/GC/21 (2009).
114 Ibid paras 3, 7, 16(a) and (e), 27, 32, 33, 36, 37, 49(d), 50(c), 52(a), (c) and (f), 53, 55(e) and 73, referring to minorities and/or indigenous peoples.
115 UN Doc. E/C.12/IRQ/CO/5 (2024) para 54.
116 UN Doc. E/C.12/MRT/CO/2 (2024) paras 56-57.
117 UN Doc. E/C.12/SWE/CO/7 (2024) para 39.
118 Ibid para 14.2.
119 Ibid para 14.3.
120 Ibid citing Xakmok Kasek v Paraguay (Merits, Reparations, Costs, IACtHR 2010) Series C No 214 2010, para. 174.
121 Ibid para 14.5.
122 Ibid para 14.6.
