Yvonne Donders

Towards a Right to Cultural Identity? Yes, Indeed!

  • Abstract

Informations and abstract

Keywords: Cultural Identity; Cultural Life; Cultural Rights; Collective Rights; Human Rights; Indigenous Peoples; Land Rights; Minorities.

The aim of this contribution is to ascertain whether a right to cultural identity can be considered as existing in the context of international human rights law. In the past two decades the recognition of such a right in relevant practice has in fact progressively grown, to the point that it has attained huge consideration among human rights experts and practitioners. Is the said practice sufficient to support the position that a right to cultural identity actually exists as a 'self-standing' right? The answer should be no if 'exist' means that it is a rule incorporated in positive law. So far States have not incorporated cultural identity as a substantive right in an international treaty or other legal instrument. The lack of common State practice and "opinio juris", reflected in the limited amount of and specialized caselaw, makes that the right to cultural identity can probably not be considered a rule of international customary law. However, the answer is instead yes if one looks beyond a strict rule and sees the right to cultural identity as an important emerging norm. This norm can be part of other existing human rights, but it is increasingly becoming a self-standing norm developed by caselaw and other interpretative documents.

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