On Cultural Rights

Evolving from the human social life, culture is the most basic desirability, and contains the key element of a certain human spirit. Nowadays is the era of right, human rights and the rule of law. Rights and human rights are the most important means, which the mankind uses forms of reasonable, abstract, non-personification law to regular the basic desirability interests of life. So, the human society fixes the culture interests, one of the desirability produced from human life through the form of the international human rights stipulations, and names it"cultural rights". Cultural rights have prerequisite, basic meaning for ensuring and realizing the human objective interests, objective demand.This text divides into three parts:"summary","intension of cultural rights"and"the cultural rights in China".First part is the summary about cultural rights. This part is made up of two questions:"formation and development of cultural rights"and"cultural rights in the stipulations of human rights".First of all, this text summarizes the formation and development of the cultural rights briefly mainly from two levels. The first is launched from the level of international law system and international regulatory file, differing the personal cultural rights from the collective cultural rights, and these two frames are going through all the text; The second is launched from the level of the theory of cultural rights, and analyzed, from the two frames of the personal cultural rights and the collective cultural rights, th e dispute produced in the academic community, which is about the human rights attribute of cultural rights and dispute of human rights attribute of collective cultural rights. The author agrees it and set out form the"theory of differing the ownership of rights from the exercise of rights", which is the view of the new Thomas main representative figure Maritain, and try to refute and comment on the view which totally repudiates cultural rights'as human rights attribution, hold that though the enforcement of cultural rights may be restricted and limited by all sorts of factors of reality, but human should not be limited the ownership of cultural rights. And stated the objective authenticity and necessity of the collective cultural rights exists as human rights from history of human rights development.Secondly, in the part of"cultural rights in stipulations of human rights", the text is launched from individual cultural rights and the collective cultural rights in the stipulations of human rights and regulatory file separately. First, the individual cultural rights mainly concludes: the right of participating in culture life, the welfare right of enjoying progressive science, the right of individual creation and creator enjoyed benefits, the right of receiving education and the right of enjoying world material cultural heritage. The cultural rights in this category are the individual cultural rights that everybody should enjoy, who survives and wants to live better in the world. Second, the collective cultural rights in the stipulations of human rights includes mainly: cultural approve right, the right to enjoy non-material cultural heritage and cultural cooperation right. The collective cultural rights are the rights that the cultural group enjoys as a whole and the right that members of the cultural group enjoy correspondingly. On this basis, the focal point of this text is put on clearing various kinds of concrete cultural central rights'right and obligation, the main purpose lies in that the subject of obligation cultural rights (conclude various treaty parties mainly), has the obligation to realize the right content from respect, protect and realize three level, to draw lessons to perfect the cultural rights and obligation in domestic legal system.Second part analyzes about the intension of the cultural rights. Seeing that cultural rights formed by two morphemes of"culture"and"right", this text can be divided into two parts: intension of"culture"of the cultural rights and attribute of"right"of the cultural rights.First of all, starting with the train of thought of theoretical research of"culture"concept, this text has analyzed the transition course of the intension of"culture"from anthropology to sociology, summed up the research of scholars, holding that the understanding of the scholars to the cultural rights still goes on in terms of anthropology and sociology. Agreeing to professor R. Stavenhagen's, the text has carried on the efforts to limit intension of culture in terms of human rights, questioning whether culture can become the cultural rights. This is different from anthropologist and social scholar's culture understood, and all the culture does not have a qualification to become"rights"from three respects, questioned the justification of"culture". Draw the conclusion:"culture"of cultural rights should be: it can make human become"human", make the equality of human constantly, make human develop constantly, make human's dignity be respected constantly, make personality improved constantly, and make human march toward civilization constantly. Analyzed from three angles of human's existence, human's development and survival and development of the cultural group, the text finally described the extension of"culture"in the cultural rights, include mainly: education, cultural heritage, course of art and science, language and religion, morals and custom, and the practice of language and religion, morals and custom. Secondly, the"right"attribute of the cultural rights, the main content is: first of all, the author proves"human rights"attribute of cultural rights from the positive side. This text proceeds from two angles of freedom and equality and proves the"human rights"attribute of the cultural rights. Human rights is the right that the human become"human". With the angle of pursuing freedom and from analyzing freedom, this text explains that the cultural rights are the basic elements of making human become"human", the cultural right has to be the important component of the human rights. From the angle of pursuing equality, the cultural rights plays remarkable role to maintaining equality, the cultural rights makes human's dignity getting more and widely realized and satisfied, and make people not only surviving but also living as"human".Secondly, the text explains how the cultural rights become the right, and explains the right attribute of the cultural rights. Through distribution of right and obligation in law, the flow and instable cultural interests could be fixed. Only receiving the recognition of the law (domestic law and convention that has the legal engagement in the world), could cultural interests have"legitimacy"and win the stability from the guarantee of law, thus have universality and equality. Then this text distinguished the cultural rights of human rights from the right of general meaning, and explains the special attribute of the cultural rights from two levels: the separation of the subjects of obligation and right of cultural rights, the absolution of the content of cultural rights.The third part"cultural rights in China"emphasizes on summary of the protection of cultural rights in China, existing problem of current situation and how to perfect.First of all, the summary part mainly expresses the progress of People's Republic of China in the legal system and practice since the foundation of the state, especially since the reform and opening-up: on the level of legal system, this text explain the stipulations of the cultural rights in our constitution, the basic law, the administrative statues and the regulations; on the level of practice, the guarantee to citizen's cultural rights of our country is mainly from the administrative aspect at present: the adoption and implementation in administrative measure and plan, etc. it is final goal and ideal of Marxism, namely human's perfection, development and liberation in contemporary China.Secondly, in the existing problem part, the text has pointed out three respects of defects that our country exists in the legal system and practice at present: lacking clear cultural rights consciousness and the human rights consciousness of the cultural rights, lacking the corresponding mechanism seriously of infringement of the equality of cultural rights, the constitution, laws and regulationsFinally, directing against the question that our country exists at present, this text provides the author's own answer, and point out that we should perfect the legislation, strengthen the judicial guarantee; and through taking the administrative measure such as cultural policy of the country, accepting international monitoring, applying and receiving international support, etc. to realize the obligation of our country and government in"convention"and improve the protection state to the cultural rights of our country, promote citizen's cultural rights'realization day by day.