Cultural rights in the Convention on the Diversity of Cultural Expressions: included or ignored?

In 2001, the Universal Declaration on Cultural Diversity was adopted by the Member States of UNESCO. In this Declaration, cultural human rights were commended as an enabling environment for cultural diversity. After the Declaration, the Member States wished to adopt a legally binding instrument on cultural diversity. One of the options discussed was a new instrument on cultural rights. The Member States, however, opted for an instrument on cultural expressions and on 20 October 2005, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (hereafter the 2005 Convention) was adopted. Support for the 2005 Convention was widespread: 148 States voted in favor, only 2 States voted against (the United States of America (USA) and Israel) and 4 States abstained (Australia, Honduras, Liberia and Nicaragua). The 2005 Convention entered into force in March 2007 and currently has 80 States Parties.
The link between cultural diversity and human rights is clearly established in the 2005 Convention. In article 2(1) it is stated that "…cultural diversity can be protected and promoted only if human rights and fundamental freedoms…are guaranteed". It is interesting to note that the Convention speaks of human rights in general, not of cultural rights. What happened to the important role of cultural rights as ‘enabling environment’ for cultural diversity? What is the place of cultural rights in the Convention, if any at all?
This contribution will explore the role of cultural rights in the 2005 Convention. It will first briefly outline what is meant by cultural rights, which is quite a discussion in itself. Then several UNESCO instruments will be discussed to shed some light on the evolution of the debate on cultural rights in UNESCO. Finally, the drafting and adoption of the 2005 Convention will be discussed in relation to the promotion and protection of cultural rights.