Furthermore, while the Brazilian Constitution mentions participation in heritage-related processes for members of indigenous peoples (although quite timidly if compared to the fundamental norms of other Latin American countries [61]) this right is not at all enforced in practice [62]. The UN Declaration on the Rights of Indigenous Peoples (Undrip) and the ILO Convention 169 the right to consultation and free prior and informed consent (FPIC) [63].

The Federal Supreme Court further recognised that these instruments were incorporated into Brazilian legislation as “supralegal” norms, thus possessing immediate applicability [64]. However, Brazil has constantly failed to implement the right to consultation and the Fpic of indigenous peoples, to the detriment of their effective participation in decision-making processes. In response, indigenous peoples have sought to devise their own protocols for consultation, resistance, and survival [65].

In hindsight, considering the right of access to and enjoyment of cultural heritage as a fundamental right protected by the Brazilian legal framework is compatible with the latter. Despite the constant violations in practice of the right to cultural heritage of vulnerable communities, specifically indigenous people, the importance of the tools provided by the Brazilian system to advance claims towards cultural heritage through collective actions should not be understated. This stands in stark contrast with other systems, such as Italy, where the longstanding diffidence towards collective actions poses a substantial hurdle to expanding the legitimacy to act to protect goods and practices deemed important by individuals and communities.

4. The Raech in Switzerland

Switzerland presents an interesting legal regime, in particular with regard to participation in cultural heritage-related matters [66].

Switzerland is a federal State, with powers shared between the central government (the Federal Council) and a number of sub-national entities, namely the cantons, cities and municipalities. The 1999 Swiss Federal Constitution attributes the competence on culture, including the protection of tangible and safeguard of intangible cultural heritage, to the cantons [67].

The Confederation, for its part, has a general competence on promotion in the following domains: cultural heritage; artistic and cultural creation; artistic and cultural mediation; exchanges between the cultural and linguistic communities of Switzerland and cultural exchanges with foreign countries. This competence is exercised within the limits of the principle of subsidiarity [68].

At the central level, the Federal Office of Culture (Ofc) is the body in charge of the design and implementation of cultural policies, including on the protection and safeguarding of cultural heritage [69], while the cantons possess specialised services dealing with the conservation of monuments, archaeology, the protection of built heritage and the safeguarding of intangible cultural heritage. The different levels of government (cities and municipalities, cantons and the Confederation) work together in the framework of a platform termed the National Dialogue on Culture.

The 2009 Federal Law on the encouragement of culture, which is the main normative reference at the federal level with regard to the cultural sector, states that the Confederation promotes culture with the aim to, inter alia, facilitate the access to it by the population. However, neither the Federal constitution nor the Federal legislation expressly enshrine the right to participate in cultural life or the Raech. Due mainly to this reason, the domestic jurisprudence has never dealt with the right to cultural heritage as a human right, with most of the case law relating to cultural heritage concerning controversies on territorial planning, namely the concession of construction permits (permis de construire), or the inclusion of a certain (tangible) cultural heritage element in an inventory or registry [70].

With regard to international instruments, Switzerland ratified the Icescr in 1992 and has signed, although never ratified, the Op-Icescr. During the Universal Periodic Review (Upr) process, the Cescr repeatedly criticized Switzerland for not allowing individuals to invoke the guarantees contained in the Icescr before the national authorities and the courts. Switzerland explicitly dismissed such recommendations [71].

On another note, the Federal Government has emphasised in the explanatory report accompanying its ratification of the Faro Convention that the instrument is compatible with the Swiss regime of cultural heritage management, for the reason that Switzerland has for a long time understood the importance of participation in cultural heritage matters, insofar as preservation, creation, interpretation and study are concerned [72].

The explanatory report also specified that Article 6 (c) of the Convention does not create any enforceable right [73] and that the State Parties are required to implement this provision through their own legislation. According to the Government, the Federal and cantonal legislation already in force has provided the necessary guarantees with regard to access to culture and its promotion [74]. However, none of the instruments cited by the government recognise the “rights to cultural heritage” mentioned by the Faro Convention [75].

4.1. The centrality of the concept of cultural participation in the Swiss system

The Swiss system places significant emphasis on a key concept of the Faro Convention: cultural participation. In line with the principle of subsidiarity, its implementation is a shared responsibility of the Confederation, cantons, cities and municipalities. Cultural participation is guaranteed in the first instance by the abovementioned Federal Law on the encouragement of culture, which promotes the participation of the population in cultural life. In terms of policies, every 4-5 years the Swiss Government publishes its Message on Culture (Message culture) to outline the cultural policy roadmap for the Confederation. The latest Message, issued in 2016, designates cultural participation as a priority [76].Additionally, the Orders of the Federal Department of Home Affairs of 2015 and 2020 set forth a scheme to raise awareness among State organs and the public regarding the importance of fostering cultural participation [77].

Regarding cultural participation, the activities of the Cultural Participation Working Group of the National Dialogue on Culture holds particular significance. The Working Group has conveyed its comprehensive insights on cultural participation through an extensive report [78]. Successively, the National Dialogue on Culture has developed a Handbook on cultural participation, with the objective of delving into discussions on cultural participation and its role in contributing to a democratic society [79]. Notably, this examination of participation explicitly considers a human rights perspective and addresses its various aspects thoroughly. Importantly, the report establishes a connection between participation and the right to “cultural heritages” in several instances [80].

The documents mentioned above are undeniably valuable for mainstreaming cultural participation across various policy domains at both national and cantonal levels, serving as best practices that could potentially be tailored to suit other country contexts. However, it is essential to note that these are non-binding guidelines primarily focused on participation in cultural life, rather than specifically addressing the involvement of individuals and communities in decision-making processes related to cultural heritage.

With regard to the latter aspect, the Swiss system recognizes the importance of consulting institutionalized heritage communities, which are typically organized entities such as associations, for decisions and agenda-setting related to heritage matters. These communities are consulted, for example, during the formulation of the Message Culture. In this context, the Federal Council initiates a consultation process not only with cultural institutions but also with associations involved in the cultural domain. The extensive list of associations participating in the consultation process for the 2021-2024 Message [81] can be seen as emphasising the Confederation's commitment to facilitating the involvement of established organizations operating in the cultural sphere.

4.2. Community participation in decision-making processes related to intangible cultural heritage

The Swiss system enables community participation in decision-making processes related to intangible cultural heritage through two mechanisms [82]: a) the inscription of the Swiss living traditions into the Listes des traditions vivantes [83], which are drafted at both the national and cantonal levels; and b) the preparation of the Periodic Reports on the implementation of the 2003 UNESCO Convention. These two procedures are ultimately interconnected, as the elements contained in the Listes des traditions vivantes can be submitted to the Committee responsible for evaluating the inscriptions on the list of the UNESCO 2003 Convention.

With regard to the first process, the Federal Office of Culture produced a document that offers guidance to the cantons on the involvement of communities and provides a common methodology for the establishment of the lists [84]. The bearers of the practices can participate in decision-making relating to cultural heritage either by submitting a candidate or by giving their consent for the purposes of the inclusion of their tradition on the Listes des traditions vivantes [85]. The guidelines consider the free and informed consent of the cultural bearers as a conditio sine qua non for the inscription of a practice on the list.

However, it is important to acknowledge that not all cantons adhere consistently to a bottom-up approach. Graezer Bideau has observed the implementation of three distinct methodologies. The majority of the cantons follow the choice indicated by experts nominated by the cantons themselves, without actively consulting the civil society. Only in two cases (Neuchâtel and Aargau-Solothurn) are the lists based on proposals from grassroots organisations. Lastly, cantons such as Vaud or Valais adopt a mixed approach: a group of experts regularly convenes to propose traditions to be identified and documented in their territory; simultaneously, cultural associations of the municipalities, local museums, or regional organizations are invited to gather information from the structures that have close contact with the “cultural carriers” of the living traditions. In many instances, the balance between these two approaches is unsatisfactory and the quality of the collected information is uneven, causing experts to perceive the proposed traditions as unrepresentative or supported by incomplete data. This often results in a preference for a top-down approach.

At the Federal level, the traditions proposed for inclusion in the national Liste des traditions vivantes undergo a screening by a steering group (groupe de pilotage), which is comprised of experts and representatives of the Federal Office of Culture and the cantons. This steering group ultimately decides on the inclusion of the proposed elements in the List [86]. This process echoes the concerns related to the “expertisation” of cultural heritage, where experts nominated by State organs hold the ultimate authority in determining what qualifies as heritage [87].

Additionally, with regard to the safeguarding and preservation of intangible cultural heritage, it is worth noting that the Confederation places significant emphasis on ensuring access to and the enjoyment of languages, which are protected in relation to a number of national minorities [88]. Representative organizations, including those representing national linguistic minorities [89] and minority or regional languages [90], actively participate in the consultative processes, with their involvement encompassing the evaluation of the impact of national measures on the areas of linguistic policy or the protection of minorities, such as in the joint report on the implementation of the Council of Europe’s Convention on National Minorities and the Charter on Regional and Minority Languages [91].

Again, in relation to intangible cultural heritage, it is important to underscore that access to the travelling lifestyle (“mode de vie itinerant”) of certain cultural communities - which are, like Sinti/Manouches and Yéniches, also national minorities in the sense of the Council of Europe’s Convention on National Minorities [92] - is specifically promoted through initiatives at both the Federal and cantonal levels [93]. The nomadic culture of the Sinti/Manouches and Yéniches has been included in the Swiss list of living traditions since 2018 [94].

4.3. Participation in decision-making processes related to tangible heritage

Concerning participation in decision-making processes related to tangible heritage, the primary legislative frameworks are the Federal Law on the Protection of Nature and Cultural Heritage of 1966 and the Federal Act on International Transfer of Cultural Property of 2003. Article 5 of the 1966 Federal Law states that the Federal Council establishes inventories of items of national importance after having consulted the cantons [95]. The Federal Office of Culture is the entity responsible for creating these inventories; it can base its decisions on inventories already drawn up by State institutions or organizations working for the conservation of historical monuments. The evaluative process is carried out by a specialized commission; while cantons can express their opinions, the ultimate decision regarding the inclusion of an element in the inventory rests solely with the Federal Council [96].

Furthermore, members of communities, in particular of those organized as entities, have a valuable tool at their disposal by which to voice their concerns regarding decisions affecting built heritage. In fact, they can either present an opposition against a building permit or other decision affecting cultural heritage, or appeal a decision taken by public authorities in this concern (“droit de recours des organisations”) [97]. The difference between the two procedures is that, while the opposition contains objections to the authorisation procedure before the competent authorities could express their opinion on the matter, the recours allows organisations, at the level of the Confederation and of the majority of the cantons, to appeal the decisions of courts and authorities in order to verify their conformity with the legislation [98]. Crucially, an appeal does not empower organizations to halt a project, but serves to secure a review of its compliance with existing laws and regulations.

Organisations like Ligue Suisse du Patrimoine National, or Fondation suisse pour la protection et l’aménagement du paysage are qualified to file an opposition or a complaint through the droit de recours. Particularly interesting in this concern is the action of Patrimoine Suisse, which periodically drafts a Red List (Liste Rouge) of endangered tangible heritage [99], similar to those produced by various international organisations [100].

The rationale behind the droit de recours is to protect the general interest of the entire community [101] and not individuals or specific communities’ rights to access and enjoy cultural heritage. Organizations like Patrimoine Suisse may be considered heritage communities under the broad definition provided by the Faro Convention. While these organizations act on behalf of a public interest defined by law, identified in Swiss legal scholarship as a “recours corporatif abstrait” or “recours idéal” (as opposed to the “recours corporatif égoïste”) [102], since the complaint must be filed by the local section of the organisations they could be regarded as representative of the local communities, and, consequently, of a specific heritage community. When evaluating these complaints, the public administration - that is the judge handling the recours - is tasked with considering the community’s interests in cultural heritage.

For instance, in the canton of Geneva, this process unfolds as follows: the building permit application filed by the builder or the owner is published in the Official Notice Sheet, allowing anyone to learn about the project and submit their comments within a 30-day period. After having gathered all the necessary information, the Building Permits Office either approves or rejects the project. If the approved project is deemed to be unsatisfactory from the point of view of heritage protection, organizations like those mentioned above can appeal to the Commission of Appeal for Buildings within 30 days, initiating a legal procedure before an Appeals Commission [103].

Upon closer examination, the droit de recours serves not only as a remedy but, to a certain extent, as an institutionalized means for members of heritage communities to participate in decision-making processes concerning cultural heritage [104]. However, it differs from a dedicated forum wherein inclusive consultations with individuals and communities on cultural heritage values are conducted, and decisions are made considering their varying degrees of relation to cultural heritage. Moreover, the droit de recours can only be activated by established organizations that meet specific requirements; for instance, in the canton of Geneva, an association presenting a complaint must have existed for at least three years before filing.

In any case, the mechanism activated through the droit de recours entails an evaluation and balancing by public powers of the different interests of individuals and communities in cultural heritage, notably during the proceedings in front of the Appeals Commission. If extended to heritage communities beyond established associations, such as local committees for the protection of heritage, the droit de recours could be a valuable tool for expressing concerns regarding decisions affecting heritage. Additionally, this mechanism could potentially be applied to decisions affecting elements of intangible cultural heritage included in the Listes des traditions vivantes.

There are other instances in which the Swiss public authorities took the interests of a heritage community into account in the context of a conflict over cultural heritage. One such example involved the Swiss Confederation mediating a dispute between two cantons (St. Gallen and Zurich) regarding the ownership of ancient manuscripts. Zurich explicitly recognized the cultural property as having significant identity value for the Canton of St. Gallen. As stated by Renold, “(t)his recognition can have more than a symbolic side: it is thus that, in certain cases, the museums which preserve cultural goods accept that they can be used in the context of ritual use by the community from which they come from” [105].

In hindsight, while participation has gained prominence in Swiss cultural policy, the legislative provisions for participation in heritage-related decision-making processes are only specifically codified at the cantonal level and in the context of intangible cultural heritage. As written by Marx and Mbarek, when it comes to participation, “the link is (...) not established (...) between the cultural participation of citizens and cultural democracy, to the more ‘political’ sense of participation in governance, (...) which are seen as two fundamentally distinct questions. This raises (...) the question of a new model of governance that would place the citizen at the heart of the cultural project (...)” [106]. As observed, heritage communities, when organized as associations, have avenues for participating in decision-making processes through institutionalized fora (for intangible cultural heritage) or by filing a complaint (for tangible heritage). While this system does not cater to cases involving less institutionalized communities, it provides substantial avenues for members of certain heritage communities to contest decisions of the public administration negatively affecting cultural heritage.

5. Conclusions: the three systems, with an eye on Italy’s potential for reform

Given Aedon's focus on the Italian legal system, reflecting on Raech, remedies and participation through a comparative lens helps to identify areas where the Italian framework might evolve or improve.

Some legal regimes, while not explicitly mentioning the Raech or a more general right to cultural heritage in their Constitution, embrace a human rights-based approach to cultural heritage protection. This is the case of Portugal, whose legal system easily accommodates the concepts of access to and the enjoyment of cultural heritage, as well as that of participation in heritage-related decision-making processes.

In addition, the Portuguese regime provides specific legal avenues of redress through collective actions. Lastly, the right of participation guaranteed by the Portuguese Constitution serves as a means to substantiate the interests of heritage communities and apply a truly human rights-centred approach to cultural heritage protection. As a consequence, a right of access to and enjoyment of cultural heritage could be very easily recognised as existing and enforced by the Portuguese judges. However, judicial evidence lacks until now in this regard.

An Italian judge, despite possessing fewer constitutional and legal foundations, could pursue this route, in particular by basing her arguments on the concept of fruizione (akin to that of fruição), which is at the centre of the Italian system of protection of cultural heritage [107]. More arduous is the parallel with the advanced Portuguese system enabling participation in heritage-related matters or the system of remedies in the event of a violation of a right to heritage: while the Italian system has introduced new categories of actions - namely the public and the new class actions - it is much more restrictive in comparison to the Portuguese framework. In addition, in Italy there is no system like the Ombudsman, whose role is, as seen in Chapter 2, central for the protection of access to and enjoyment of cultural heritage in Portugal.

The second legal system which has been examined is the Brazilian one. Even if the categorisation of the right to cultural heritage as a fundamental right remains uncertain, the Brazilian legal regime provides for two important avenues for the protection of access to and enjoyment of cultural heritage.

Firstly, a popular action can be initiated to seek a declaration of annulment or nullity of allegedly harmful legal acts towards cultural heritage. This action can be used both preventively - before the production of harmful effects - or repressively - when the filing seeks compensation for the damage already caused. Crucially, the legislation governing popular action does not require that the heritage object of the dispute be previously recognized as having cultural value. This is a key aspect for individuals and members of communities, as it enables them to participate in the identification and protection process of cultural heritage without prior validation by public authorities.

Secondly, public civil action allows certain legitimate entities, such as heritage defence associations, to act in the prevention and/or reparation of the damage incurred. While an effective instrument for the protection of cultural heritage, it does not enable the filing of the action by citizens, who instead can only do so through the legitimate entities. The popular action assists in this regard, as it can be filed by any citizen to obtain the annulment of the decisions affecting heritage and subsequently claim damages. Thus, popular action and public civil action can be complementary instruments, also in consideration of the fact that one can be filed without prejudice to the other.

The existence of these two actions represents a marked difference from Italy, where a historical diffidence towards collective actions appears to impede the expansion of the legitimacy to act in order to protect those goods or practices deemed to be important by members of heritage communities. However, the development of the concept of individual homogenous rights in the Italian system - something which is well established in Brazil - and the consequent enlargement of the range of actors possessing legitimacy to act in favor of cultural heritage protection, could be an important development in this regard.

The last legal regime to have been analysed was the Swiss one, where right to participate in cultural life or the Raech are not expressly enshrined in the Federal Constitution or Federal legislation. Due mainly to this reason, the domestic jurisprudence has never dealt with the right to cultural heritage as a human right. However, the 2009 Federal Law on the encouragement of culture - the main normative reference at the federal level with regard to the cultural sector - states that the Confederation promotes culture with the aim to, inter alia, facilitate access to it by the population.

The Swiss system is noteworthy for our analysis because it places significant emphasis on cultural participation. In particular, members of communities, when organised as associations, can engage in decision-making processes through institutionalised fora (for intangible cultural heritage) or by lodging complaints at the administrative level (for tangible heritage).

In general, while cultural participation holds prominence in Swiss cultural policies, the connection between the cultural participation of citizens and cultural democracy in the more “political” sense of participative governance, is not firmly established, as it is, for instance, in Portugal. While the Swiss system does not address instances of less formalised communities, it offers institutionalised ones considerable leeway to challenge the actions of public administration, especially when compared to other legal systems such as that of Italy.

Ultimately, Italy could derive insights from Switzerland's measures for ensuring a higher degree of participation by individuals and communities in heritage-related decision-making processes, in particular for the safeguarding of intangible cultural heritage at local level (e.g. Listes des traditions vivantes).

Note

[*] Michele D’Addetta, Dottore di ricerca (Ph.D) presso il Centro di Diritto dell’Arte dell’Università di Ginevra - Uni Mail, Facoltà di Diritto, Boulevard du Pont d’Arve 40, 1211 Ginevra 4, Svizzera, michele.daddetta@etu.unige.ch, micheledaddetta@hotmail.it.

The information and views set out in this article are those of the author and do not necessarily reflect the official opinion of the European Commission and ERCEA.

[1] Un Independent Expert in the field of Cultural Rights (now Special Rapporteur in the Field of Cultural Rights), Report on the Right of Access to Cultural Heritage, Un Doc. A/HRC/17/38 (hereinafter UN SRCR, 2011 Report), Paragraph 78.

[2] Council of Europe, Faro Convention, Article 1 (a). On the Raech in international law texts and practice see M. D’Addetta, The right of access to and enjoyment of cultural heritage: normative content, enforcement and monitoring in the framework of international human rights law, Open Archives of the University of Geneva, 2025, available at: https://archive-ouverte.unige.ch/unige:183186.

[3] Un Srcr, 2011 Report, Paragraph 58.

[4] Council of Europe, Faro Convention, Articles 5, 11 and 12.

[5] Ibidem, Article 7 (b).

[6] Cescr, General Comment No. 21, The Right of everyone to take part in cultural life (Article 15, Paragraph 1.a ICESCR), U.N. doc. E/C.12/GC/21, 21 December 2009, (hereinafter CESCR, GC 21), Paragraph 55 (e).

[7] See, inter alia, Iacthr, Saramaka People v. Suriname, Judgment of November 28, 2007, Preliminary Objections, Merits, Reparations, and Costs; Iacthcr Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012, Merits and Reparation.

[8] Ccpr, Poma Poma v. Peru, Communication No. 1457/2006, Un. Doc. CCPR/C/95/D/1457/2006, Special Rapporteur on Minority Issues, 2010 Report, U.N. Doc. A/HRC/13/23/Add.1; CCPR, Un. Doc. CCPR/C/TZA/CO/4, letter r).; Cerd, Un Doc. CERD/C/MNG/CO/23-24, Paragraph 25.

[9] Apart from indigenous peoples, in some reports the CESCR considered the rights of the general population or of other heritage communities (e.g. local ones). In the case of Argentina, for instance, the Committee expressed its concerns “about the population’s lack of involvement in the management of World Cultural Heritage sites in the State party” (...) and recommended that “the State party strengthen the policy and institutional framework for the management of World Cultural Heritage sites, including by providing for full participation by the population”. (CESCR, U.N. Doc. E/C.12/ARG/CO/4, paragraph 63).

[10] See, inter alia, country report on Botswana, where the Srcr provided specific recommendations for participation in decision-making (UN SRCR, UN Doc. A/HRC/31/59/Add.1, Paragraph 84) and allegation letters to Tanzania (UN SRCR, TZA 3/2021) and Uzbekistan (UN SRCR, UZB 3/2019).

[11] Portuguese Constitution, Article 9 lett. e). Cultural heritage, for the effects of the Lei de Bases do Património Cultural (lbPc) - which is the main normative framework governing cultural heritage - consists of the “set of all goods that, being testimonials with civilization or cultural value and bearers of relevant cultural interest, should be the object of special protection and valorization” (Article 2, Paragraph 1). Paragraph 2 of the same provision indicates that the cultural interest may vary — for instance the historical, artistic and technical one — and reflect one or more “values ??of memory, antiquity, authenticity, rarity, uniqueness or exemplarity.” Other constitutional provisions on cultural heritage are Article 165 (1) (g): “cultural heritage is a matter of relative reserve of competence of the Assembly of the Republic”; and Article 227 (b) that recognises “the competence of the autonomous regions to legislate with regard to cultural heritage”.

[12] Portuguese Constitution, Article 78 (2) (c).

[13] Idem, Article 73 (3).

[14] Idem, Article 73 (1): “Everyone has the right to education and culture”.

[15] “Everyone has the right to fruition and to cultural creation, as well as the duty to preserve, defend and enhance cultural heritage”: Article 78, Paragraph 1.

[16] Nabais affirms that the principle of universal fruition of cultural heritage has both an objective and a subjective dimension. The objective dimension consists of the possibility to enjoy/use cultural heritage as a means of conservation/valorisation and, at the same time, the creation of conditions for such enjoyment. On the other hand, the subjective dimension involves opening up the use/enjoyment of heritage to an indeterminate number of people, much larger than the owners or holders of the asset. Nabais, Reflexões sobre os princípios gerais do direito do património cultural, Revista CEDOUA, 32, 2013, pag. 19.

[17] Portuguese Constitution, Article 78 (2) (a).

[18] Portugal ratified the ICESCR in 1978 and the OP-ICESCR in 2013.

[19] Portuguese Constitution, Article 73 (3).

[20] Article 71 i) and j) of Law No. 83/95.

[21] Portugal ratified the Faro Convention in 2009.

[22] Lei de Bases do Património Cultural, Article 9 (2).

[23] Law No. 83/95, Lei do direito de Participação Procedimental e de Ação Popular.

[24] The Un Srcr 2011 Report referred to this possibility at its Paragraph 47.