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September 23, 2004
Introduction
JOANNE BAUER: Welcome.
This is the first in the Council's new program series on The Ethics of
Preserving Cultural and Natural Heritages.
This series dovetails with our emphasis this year in the Council's Human
Rights Initiative on cultural rights, an arena of human rights that has received
scant attention from either the scholar or advocacy communities. This evening's
seminar also marks the opening of a workshop, which will continue through
tomorrow, where about 25 scholars and advocates will meet to develop better
clarity on the case for cultural rights.
There is something very intriguing about the fact that we have had cultural
rights as part of international law for nearly four decades—I am referring to
Article 27 of the International Covenant of Civil and Political Rights and
Article 15 of the International Covenant on Economic, Social and Cultural Rights
both of which were adopted by the General Assembly in 1966—and yet as a category
of rights they have failed to gain much traction. If you try googling "cultural rights" you will see that almost all the
references that come up are to "Economic, Social and Cultural Rights" but that
in fact the sites deal almost exclusively with economic and social rights and
not with cultural rights. An Amazon search similarly turns up very few books that actually
deal with cultural rights. Among the exceptions are some publications by UNESCO, the UN agency that has the promotion of culture as one
of its mandates. But even this agency has shied away from grappling directly
with cultural rights.
And yet recently there have been new calls for attention to cultural rights,
marked by a number of initiatives, which many of the participants to our
workshop, who are here with us in this room, represent: the NGO Cultural Survival, new initiatives
within Amnesty
International, The
Center on Eco-tourism and Sustainable Development, the Rockefeller Foundation,
the UNDP's
Human Development Report, the World Bank and so on.
We felt it would be fitting, therefore, to begin the program year by
considering why cultural rights now? Why is this issue slowly coming to the fore
now and why is it significant? And we believe there is no better person to help
us do this than Elsa Stamatopoulou.
Dr. Stamatopoulou is the Chief of the Secretariat of the Permanent Forum on
Indigenous Issues, which is part of the Department of Economic and Social
Affairs, Division for Social Policy and Development at the UN. She has worked
for over 21 years with the UN, having held many human rights related posts
including, deputy director of the New York Office of the United Nations High
Commissioner for Human Rights and Chief of the UN Center for Human Rights in New
York. In 2002 she took a sabbatical leave to conduct a study of cultural rights
as a visiting scholar at Columbia University's Human Rights Institute, the
result of which is a book, Cultural Rights in International Law, which
will be published next year. Dr. Stamatopoulou has also served as the UN High
Commissioner's representative to the UN Development Group, and as the Chair of
the group's ad hoc committees on the right to development and working group on
human rights. As the Secretary of the United Nations Working Groups of the
Commission on Human Rights and its Sub-Commission and of the General Assembly,
she has participated in the drafting of the following international human rights
instruments: the draft declaration on the rights of indigenous peoples; the
Convention against Torture and Other Degrading Treatment or Punishment; the
Convention on the Rights of Migrant Workers and Members of Their Families; the
Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or
Linguistic Minorities, and the Declaration on the Rights of Persons who are not
Citizens in the Country in which they Live.
That her vast experience with human rights at the UN brought her to take a
passionate interest in the arena of cultural rights speaks volumes. Clearly
there is no more qualified person to speak on this subject and we are delighted
to have her here.
Remarks
ELSA STAMATOPOULOU: I would like first of all to congratulate and
thank the Human Rights Initiative of the Carnegie Council for creating the space
for all of us who care about ethics in international affairs to think and act on
cultural rights, an issue so neglected for decades.
The complexity of cultural rights is many-fold and one of its aspects is that
it has to do with people's sense of who they are, their self-determination and
how they can express it and fulfill it in the public sphere.
It is significant that this year's Human Development
Report of the UN Development Program (UNDP) is entitled "Cultural Liberty in
Today's Diverse World" (and I highly recommend it). The report gives figures
that show the richness of the human tapestry, the human mobility, but also the
destructive trends facing them. The world's nearly 200 countries are home to
some 5000 ethnic groups. More than 150 countries have significant religious or
ethnic minorities. Some 370 million indigenous peoples live in more than 70
countries representing more than 4000 languages. Out of the estimated 6000 plus
languages spoken today, 90% may have become extinct or face extinction in the
next 100 years (we can easily see what a great percentage indigenous languages,
and therefore cultures, this may represent). About 518 million people face
restrictions on religion, language, ceremonies and appearance. There are about
175 million migrants in the world, and asylum seekers represent only 9% of all
migrants, or 16 million. In sub-Saharan Africa, only 13% of children in primary
school receive instruction in their mother tongue.
The newspapers daily tell stories that are loud and clear about the need to
protect and promote cultural rights. The destruction of monuments that represent
a culture is one type of story, such as the majestic Buddhist sculptures at Bamiyan, Afghanistan, destroyed by the
Taliban or the House of the Bab in Shiraz Iran center of pilgrimage of the
Baha'is of the world. The prevention of cultural expression of migrants and
indigenous peoples is another type of story. For example, I recently read yet
another article on the delay in building an Islamic Cultural Center in Athens,
that would include a mosque, for the numerous Muslim migrants who live and work
in my native city. Although the government has decided to go ahead with the
building, there are continuing protests from the church and local authorities.
The prohibition of teaching the Navajo language to Navajo children living in
Navajo land, a prohibition arrived at through a referendum of the non-indigenous majority in Arizona two years
ago, is another story I recently became familiar with.
I would like to start with the element that may have triggered for many an
interest in cultural rights. Issues of conflict catch the human imagination.
From a human rights point of view, it is painful to have to evoke the dangers of
ethnic conflict, so that policy makers pay attention to cultural rights.
Ideally, we should care about the respect, protection and fulfillment of
cultural rights because of their profound significance for human dignity. It is
of course true that respect for minority and indigenous peoples' and other
ethnic groups' cultural rights is also linked to conflict and peace. But
whatever the motivation for paying attention to this neglected part of human
rights, it is now welcome and long overdue.
From the Basques of Spain and the Russians of the Baltic Republics to the
Kurds of Turkey and the indigenous peoples of Ecuador, defending cultural
uniqueness is a profound demand and political rallying point. How can we forget
the Albanians' demands of many years for education in their own language in
Kosovo and in the Former Yugoslav Republic of Macedonia before conflict broke
out in the 1990s? A serious public policy response to demands for cultural
rights may not address all the issues raised by indigenous peoples and
minorities, but it will go a long way towards solving long-standing disputes
that have often led to numerous conflicts around the world.
But why are cultural rights as part of the human rights regime important in
responding to so many issues today? Let me make the case for cultural rights as
part of human rights: First of all, cultural rights, are enshrined in some of
the most-broadly ratified or accepted international human rights instruments,
especially the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, as well as the International
Covenant on Civil and Political Rights, the Convention on
the Elimination of All Forms of Racial Discrimination, the Convention on
the Rights of the Child, the Declaration
on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic
Minorities. Other treaties, global or regional, also proclaim cultural
rights.
States are therefore obliged under treaty commitments they have voluntarily
made to respect, protect and fulfill cultural rights. They must take specific
measures, legislative, administrative, judicial and other. This in turn means
that the international human rights mechanisms of the UN or of regional
organizations can monitor how governments implement their treaty obligations and
can adopt statements and recommendations for respecting these rights. And it
also means that the non-governmental organizations and other parts of civil
society can cooperate with the international human rights bodies in the
monitoring and promotion of cultural rights. The human rights regime, in other
words, gives a concrete legal and policy framework to cultural rights as well as
mechanisms of monitoring and of possible international cooperation and
assistance.
In this my presentation today, I will do three things: First, I will briefly
outline the content of cultural rights—what they are, their normative
elements—so as to make even more vividly felt their political and ethical
relevance. In this context, I will explain why cultural rights are especially
crucial for the survival of indigenous and tribal peoples and for minorities.
Second, I will try to explain the reasons for the neglect of cultural rights
over decades, many of which represent challenges still today. And third, I will
give an overview of the political context and recent developments that are
particularly relevant in terms of cultural rights.
THE CONTENT OF CULTURAL RIGHTS
Need for definition in order to ensure legal enforceability
Let me state from the beginning that there have been various vectors of
interest in cultural rights, vectors that have often collided. They have
collided over what entity should be the proper bearer of cultural rights. One
vector assigns cultural rights to individuals, who need to be protected from
abuses of the state, non-state actors, the group or sub-group. The other assigns
cultural rights to groups, indigenous peoples and minorities, seeking to defend
them against the states—against large as well as small states—within which they
are located. And the third assigns cultural rights to states, seeking thereby to
protect small or less powerful states from larger and more powerful ones.
Legally there is of course no basis in international law for assigning human
rights, including cultural rights, to states, but politically the motives are
understandable.
In this discussion I am dealing with cultural rights of individuals and of
indigenous peoples and minorities. Under international law, five human rights
are generally understood as cultural rights:
1. The right to education;
2. The right to participate in cultural life;
3. The right to enjoy the benefits of scientific progress and its
applications;
4. The right to benefit from the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which the person is the author, and
5. The freedom for scientific research and creative activity.
Considerable analytical work has already been done on the right to education,
intellectual property rights, and the other cultural rights mentioned above
except the right to participate in cultural life. I should also add that, while
intellectual property rights have been richly legislated internationally by now,
they are viewed more within the context of international trade law.
Unfortunately the latter has not managed to accommodate the protection of
traditional knowledge and cultural heritage of indigenous peoples. The immense
financial interests involved are considered to be a major reason.
While cultural rights are fundamental for every human being, why are they
particularly important for indigenous peoples and minorities? These populations
are often discriminated and marginalized and rendered vulnerable by the dominant
society. In the midst of the economic, political, social and other adversities
that they face, their culture becomes a source of pride and strength that allows
them to continue struggling for a better life. The philosophy behind the human
rights regime is to protect the most vulnerable, and this includes indigenous
peoples and minorities, who have been rendered vulnerable by society. But
cultural rights are also of great importance for other vulnerable groups, such
as migrants, children, the poor, the gay community, persons with disabilities
and others.
Finally, the individual, as the smallest unit and subject of cultural
relations, may interact with all surrounding cultures or sub-cultures, may
develop multiple identities, may be the ultimate contester of her or his
surroundings and may also conflict with other individuals or groups. Respect for
each human being's dignity in terms of his or her identity and cultural
self-definition and autonomy puts society and the state to the test. It is
obvious that this intricate nexus of cultural relations can stir—and reality
shows that it does stir—profound emotions that can have far-reaching political,
economic and social reverberations as well as an impact on peace within a state
and among states.
But before I proceed to analyze the normative content of the right to
participate in cultural life, I must first discuss the complexity of the content
and concept of culture, which has contributed the greatest difficulties in
defining cultural rights.
The context and concept of culture
Cultural rights can only be understood within the context of culture and
therefore the definition, or at least an understanding, of culture must be in
place before we proceed to define cultural rights as human rights. Culture is
inseparable from the quality of being human, from the sense of self-respect.
Culture is therefore about human relations and thus constant cross-influencing,
cross-fertilization, conflict and change are part of culture. In today's
interlinked world, economic globalization, revolution in communications, massive
people's migrations and other phenomena result in ever-increasing cultural
contacts as well.
There are numerous definitions of culture. A definition or, more precisely,
an understanding of culture that surfaces from the examination of literature and
the work of the UN bodies and that is useful for examining cultural rights is at
three levels.
a) culture in its material sense, as product, as the accumulated
material heritage of mankind, either as a whole or part of particular human
groups, including but not limited to monuments and artifacts;
b) culture as process of artistic or scientific creation, i.e. the
emphasis being placed on the process and on the creator(s) of culture;
and
c) culture in its anthropological sense, i.e. culture as a way of life
or, in UNESCO's words, the "set of distinctive spiritual, material, intellectual
and emotional features of society or a social group"; it encompasses "in
addition to art and literature, lifestyles, ways of living together, value
systems, traditions and beliefs."
Normative elements of cultural rights of the individual
The vagueness of the right to participate in cultural life has been one
obstacle in attributing responsibility and accountability to the state. My
analysis draws from six sources: the texts of international human rights
instruments, the authoritative interpretation of relevant treaty provisions by
the human rights treaty bodies in their General Comments, the case law of
international courts, regional courts and of the Human Rights
Committee, the practice of international human rights bodies and mechanisms,
state practice and relevant academic literature. I have no time here to analyze
but only to flag and list the normative elements of cultural rights, and I'm
afraid you will have to believe me.
I also want to pay tribute here to the contribution of the late Cor Konate,
the Senegalese member of the Committee on
Economic, Social and Cultural Rights during its early years, who had a
passion for cultural rights and whose work in the early 1990s is still little
known and whose premature death has considerably delayed the Committee's focus
on cultural rights.
Let me for now list the six plus normative elements of cultural rights that
one can bring out by studying them:
1. Non-discrimination and equality.
2. Freedom from interference with the enjoyment of cultural life. Freedom to
create and contribute to culture.
3. Freedom to choose in what culture(s) and cultural life to participate.
4. Freedom of dissemination.
5. Freedom to cooperate internationally.
6. The right to participate in the definition, preparation and implementation
of policies on culture.
7. Other elements connected to the right to participate in cultural life
(inter-dependence of human rights: freedom of expression, freedom of movement,
the right to work, freedom of religion, the right to an adequate standard of
living).
International human rights instruments and bodies have identified special
characteristics of cultural rights pertaining to minorities and indigenous
peoples in addition to those I mention above for individuals.
Special characteristics of cultural rights pertaining to minorities and
indigenous peoples
These special characteristics of cultural rights pertaining to minorities and
indigenous peoples and the corresponding state obligations can be described as
follows:
Seven main special characteristics:
1. The state and its agents have the obligation to respect the freedom of
persons belonging to minorities and minority groups to freely participate in
cultural life, to assert their cultural identity and to express themselves
culturally in the way they choose; that is, the authorities must not interfere
with this freedom unless conditions under (b) below are present. The state,
within the purview of the regular discharge of its police and justice functions
must also protect such free participation in cultural life from others, i.e.
prevent their violation by third parties, whether they are individuals, groups,
corporations, or economic interests, domestic or foreign. The principles of
non-discrimination and equality must guide the state's actions. The state must
establish laws and policies regarding non-discrimination in the enjoyment of
cultural rights. Equality will not amount to forced assimilation. Special
positive measures by the state to secure advancement of minorities, i.e.
affirmative action, are allowed. The positive actions of the state for the
fulfillment of cultural rights, i.e. in terms of the provision of resources,
subsidies etc., will be guided by the principle of non-discrimination. If the
state does not have adequate resources to respond to its obligation to fulfill,
it should explore the possibility of international assistance.
2. International norms prohibit the exercise of cultural practices that
contravene internationally proclaimed human rights. Minority and indigenous
rights are part of the human rights regime. States should thus adopt preventive
and corrective policies and measures and promote awareness of such problems so
that such practices can stop.
3. Individuals living within groups are free to participate or not to
participate in the cultural practices of the group and no negative consequences
may ensue because of their choice. In other words, the cultural autonomy of the
individual is recognized.
4. The cultural rights of minorities as proclaimed in international
instruments consist of: the right to education; the right to use their language
in private life and various aspects of public life, such as before judicial
authorities, and to use their language to identify themselves as well as place
names; the right to establish their own schools; access to mother tongue
education to every extent possible; access to the means of dissemination of
culture, such as the media, museums, theatres etc., on the basis of
non-discrimination; the right to practice their religion; the freedom to
maintain relations with their kin beyond national borders and the right to
participate in decisions affecting them through their own institutions. These
rights are also applicable to indigenous peoples. In the case of indigenous
peoples, special cultural rights also include, in addition to those applicable
for minorities, the right to continue certain economic activities linked to the
traditional use of land and natural resources; special measures must target the
preservation of sacred sites, works of art and scientific knowledge (especially
knowledge about nature), oral tradition, human remains, i.e. both the tangible
and the intangible objects that comprise indigenous cultural heritage.
5. Minorities and indigenous peoples have the right to pursue their cultural
development through their own institutions and via those they have the right to
participate in the definition, preparation and implementation of cultural
policies that concern them. The state must consult the groups concerned through
democratic and transparent processes.
6. The education of the larger society about cultural diversity and minority
and indigenous cultures must be pursued by the state. The media and other
institutions should play a special role in promoting such knowledge.
7. Although cultural rights are not pronounced as collective rights by
international instruments, there are enough elements of collective rights in
today's international law to guarantee that individuals belonging to national,
ethnic, religious or linguistic minorities and indigenous peoples will enjoy
their cultural rights, not only individually, but in community with other
members of their group.
In closing this analysis, I suggest that cultural rights offer in fact an
alternative and a very often underutilized foundation for defending and
extending group aspects of human rights and in particular a ground for possible
resolution of conflicts over indigenous or minority rights that cannot be
resolved in terms of the right to self-determination. In other words, through
cultural rights a good portion of the goals can be achieved that people seek in
the right to self-determination, but without being perceived as threatening to
states. Cultural rights are of profound significance both because they have to
do with identity and because they are a means of attaining economic and
political objectives that cannot be attained more directly. The implementation
of minority and indigenous cultural rights, far from being a soft agenda, can
achieve, if taken seriously, transfer of resources to them from the dominant
society and thus mend age-old injustice and discriminatory practices.
WHY HAVE CULTURAL RIGHTS BEEN NEGLECTED?
Although the text of international human rights instruments covers cultural
rights, scant attention has been given to cultural rights by international
bodies, including human rights bodies, with a few exceptions of course,
especially the excellent work done by the Human Rights Committee (under Article
27 of the ICCPR). Comprehensive research that we conducted in the last three
years of the work of the human rights treaty bodies, the mechanisms of the Commission on Human
Rights, the General
Assembly, the Security
Council, select UN field operations, demonstrates just that. Even the
Commission on Human Rights adopted its first ever resolution on cultural rights
in 2002, with little progress since, and one could say that generally the thrust
of the resolution is more on interstate relations than the protection and
fulfillment of cultural rights. How can the neglect for cultural rights be
explained?
The prevalent attitude among many human rights experts, including
international law specialists, has been to avoid discussion of cultural rights
lest the lurking issue of cultural relativism appear, implicitly or explicitly,
to undermine the delicate and fragile universality concept that has been
painstakingly woven over the last five decades. Therefore, many feel it is
better not to talk about cultural rights, but rather to take a low profile
approach in order not to "provoke" the cultural relativists. It is generally
easier for human rights jurists to put the issue aside and only invoke the legal
principle of pacta sunt servanda—in other words, demand of governments to
implement cultural rights as part of international agreements and expect good
monitoring and promotion of the same by international bodies. But this
formalistic and non-proactive approach is not enough either to dissipate
cultural relativism or to promote implementation of cultural rights, which
instead must be taken seriously and be discussed and analyzed as fully as the
other human rights categories.
Another difficulty lies in the definition of cultural rights since they are
obviously tied to the concept of culture, which is fluid and changing. UNESCO's
definition of culture, which has followed the anthropological paradigm (namely
culture as "a way of life"), while extremely useful within the context of
UNESCO's work, is viewed by some as too vague to base actual rights and
obligations on. Moreover, anything called a "human right" should not be
frivolous, but of obvious fundamental value. The challenge of grappling with the
definition of cultural rights has partially prevented promotion of these
rights.
Cultural rights may even be considered by some as a "luxury," as something
that comes after "bread and water," as an item only for societies at a certain
stage of development. Nobody could deny, by looking at human history throughout
the centuries, that economic development generally goes with cultural
development, culture represents the soul, the moral edifice, the self-definition
and self-esteem of a person or a community without which life loses context and
meaning. In that sense, cultural development is not a luxury but a tool for
obtaining "bread and water".
Political difficulties at the international level are also part of the reason
for silence. In an international diplomatic context, governments that are
members of UN bodies may not necessarily want to speak of cultural rights in
their own or other states unless they are ready to also talk of cultural wrongs,
i.e. those customs and prejudices that in fact violate internationally
proclaimed human rights. This is an issue approached cautiously by states. For
example, it took from the 1950s to the late 1970s to get UN bodies to see that
female genital mutilation is not only a health issue, but a human rights issue
as well.
One of the most significant difficulties in dealing with cultural rights is
that these rights have evoked, for some governments, the scary spectrum of group
identities and group rights that they fear could threaten the "nation" state and
territorial integrity. The drafting
history of Article 27 of the Universal Declaration of Human Rights is
telling. Official state support of cultural rights has often taken the form of
promoting for example, seemingly innocent folklore while remaining silent or
hostile to the promotion of minority languages in the education systems and the
media. The other side of this coin is that governments may be wary of the threat
that majorities may feel from the promotion of minority cultures which may lead
to claims for collective rights. Taking a holistic approach to cultural rights,
in accordance with their normative elements as they have been developed to date,
will give plenty of policy responses to governments, if the political will is
present.
Even as individual rights, cultural rights can be perceived as threatening to
the state or the community. One person's artistic creation outside the norm,
outside the traditional culture of the community of which he or she is a member,
borrowing elements of other cultures, can be seen as a threat that needs to be
suppressed in various ways. New trends are often started by one person and this
does not escape the traditional mainstream. Violent crimes against gay people,
for example, are only one way in which gay culture is sometimes mocked and
rejected by communities.
WHY CULTURAL RIGHTS NOW?
Globalization and polarization, the North-South tension, the culturalization
of political life and rhetoric, migration and racism, cultural relativism and
identity politics, peace and security, the huge economic interests invested in
current international intellectual property regimes and the "dialogue among
civilizations", the World Conference against Racism, Racial Discrimination,
Xenophobia and related Intolerance and the post-September 11 era and the impact
of terrorism on human rights, constitute the political chessboard on which
cultural rights are played or neglected today.
This is taking place at a time of the most unprecedented mass movement of
migrants and refugees around the globe, which together with new technologies and
communications bring cultures in contact at a speed that is tremendously
challenging for people and societies to absorb without profound ramifications,
sometimes in the form of racism, xenophobia and intolerance, limitations to
human rights and outright conflict. These tensions have been exacerbated after
the tragic events of September 11, 2001. From the varied reactions that followed
September 11 in developing and developed countries it became clear that despite
all else that unites a "globalized" world, in reality there is in many senses a
communication dead-end at the level of the masses, one that is not only
sustained by the poverty divide, but also often fueled by religious
fundamentalism and exploited by political opportunism. At this dangerous
crossroads, respect for cultural freedom, identities and pluralism within a
context of a democratic polity is more urgent than ever. To recognize cultural
rights as legal rights is a bold statement and key to state action.
The World Conference Against
Racism, Racial Discrimination, Xenophobia and Related Intolerance that took
place in Durban, South Africa in 2001 gave a new impetus to the challenges of
diversity of our time. The anti-racism agenda has become even more important
after September 11, especially as it provides a balance to the anti-terrorism
agenda and is forward-looking and long-term. It is clear that now more than
before the international community and especially the UN need to promote respect
for cultural pluralism and it will be wise to do so in a visible way. Cultural
rights are an indispensable component of policies of tolerance, diversity and
pluralism. What is more, the international community and especially the UN must
show leadership and be visible in doing so in the international arena,
advocating respect for cultural rights as human rights.
There is another reason for paying attention to cultural rights today and
this is the culturalization of political life and rhetoric. Identity politics
have been on the rise within states as well as internationally. This emerging"
battle of the cultures", as some may see it, is part of a more fundamental
struggle—the struggle for identity, both personal and political. One reason for
this increased assertiveness of identity is that globalization has accentuated
local awareness, consciousness, sensitivity, sentiment and passion. We have seen
a very clear sign of this at human rights debates at the UN after the end of the
Cold War, especially in the form of cultural relativism. One of the challenges
in contemporary law and politics is how to ensure that the politicization of
culture is a positive and not a negative development and that it results in the
respect and not the denial of human rights.
The drafting history of Article 27 of the Universal Declaration of Human
Rights and of Article 15 of the International Covenant on Economic, Social and
Cultural Rights
The drafting history of the Universal Declaration of Human Rights is
revealing of the difficulties we still face today in dealing with cultural
rights. It is indeed impressive that the core debate on whether, apart from
individual rights, the Declaration should also recognize group rights and
minority rights in particular, took place within the context of article 27 of
the Declaration dealing with cultural rights. This discussion was in turn
connected with fierce controversy, as to whether the Convention on the
Prevention and Punishment of the Crime of Genocide which was being prepared
simultaneously to the Universal Declaration, should also address "cultural
genocide" besides "physical" or "biological" genocide.
Article 27 of the Universal Declaration states:
"1. Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its
benefits.
2. Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author."
Yet Article 27 does not present a commitment to the respect of diversity and
pluralism, since it assumes somehow that cultural participation will take place
in the "one" culture of the "nation-state". The question about the inclusion of
rights for persons belonging to minorities did arise, as was to be expected, in
the very First Session of the Commission on Human Rights in 1948. In the mind of
the drafters of the UDHR "protection of minorities" would normally "include both
protection from discrimination and protection against assimilation" and in
particular protection of ethnicity and language—since other elements of
minorities were covered by other articles of the Declaration.
The text originally debated provided for the right of persons belonging to
such ethnic, linguistic or religious minorities to establish and maintain
schools and cultural and religious institutions and to use their own language in
the press, in public assembly and before the courts and other authorities of the
state.
The United States presented the sole strong opposition to the
minority-related article, claiming that minorities were a European issue and
there was no reason to reflect the matter in the Universal Declaration.
Roosevelt was supported by Latin American countries and Canada in this position,
while Australia declared it had opted for the principle of assimilation of all
groups as being in the best interest of all in the long run.
In the other camp, in favour of minority rights, were the USSR, Yugoslavia
and other Eastern European countries as well as Lebanon and India. Belgium,
although hesitating occasionally, was one of the supporters. When the debate
came to a crunch, the USSR, hoping to get developing countries on its side,
accused the colonial powers of denying the cultural rights of the people in the
colonies and engaged in Cold War rhetoric, but this strategy did not have the
desired effect and the idea of an article on minorities was rejected.
The drama of the debate on cultural rights, which encompassed the debate on
minority rights, had another angle as well. It was connected with the Convention
on the Prevention and Punishment of the Crime of Genocide which was being
drafted by the General Assembly Sixth Committee simultaneously with the
Universal Declaration of Human Rights being drafted by the Third Committee.
There was a proposal during the preparation of the Anti-Genocide Convention to
include in the definition of genocide the intent to destroy, in whole or in
part, cultural groups, along side "national, ethnical, racial or religious"
groups, in other words to include "cultural genocide" along with "physical or
biological" genocide. The proposed article 3 in the Genocide Convention read as
follows:
"In this Convention, genocide also means any deliberate act committed with
the intent to destroy the language, religion or culture of a national, racial or
religious group on grounds of national or racial origin or religious belief such
as: 1. Prohibiting the use of the language of the group in daily intercourse or
in schools, or the printing and circulation of publications in the language of
the group; 2. Destroying, or preventing the use of, libraries, museums, schools,
historical monuments, places of worship or other cultural institutions and
objects of the groups".
The proposal on cultural genocide in the context of drafting the Genocide
Convention at the Sixth Committee of the General Assembly was finally put aside.
The final wording adopted by the General Assembly for Article 27 includes the
prescriptive word the in the phrase "the right freely to participate in the
cultural life of the community", thus giving out a signal of limitation to this
freedom and an assumption of a homogenous instead of a multicultural society.
The International Covenant on Economic, Social and Cultural Rights improved on
the wording by recognizing, in Article 15, " the right of everyone to take part
in cultural life". The International Covenant on Civil and Political Rights
adopted eight years later, in 1966, is the most broadly ratified international
instrument with binding nature to recognize, in Article 27, that persons
belonging to ethnic, religious or linguistic minorities "shall not be denied the
right, in community with other members of their group, to enjoy their own
culture, to profess and practice their own religion, or to use their own
language
The tumultuous history of Article 27 may well explain much of the silence on
cultural rights over the decades, to the extent that the original reasons for
resisting them for minorities and indigenous peoples still remain. But in
today's interconnected world of greater openness to democracy, avoiding the
respect of cultural rights can only lead to frustrations in society and the
instigation of conflict.
Let me now turn to the link between cultural rights, culture and cultural
relativism. Every culture produces values that are specific to that culture.
Several of these values coincide among many cultures. Others do not. In their
deontological expressions some values are made into laws by various societies,
laws defining rights and wrongs within each state. Sometimes these nationally
defined rights and wrongs may not coincide, may in fact clash, with
international human rights as defined by the international human rights
instruments which have been created through international consultation and
consensus over decades. At the same time, international human rights, including
cultural rights, need to be contextualized within the culture, within the
reality of each society, in order to be understood and implemented.
What if a specific cultural context prompts values and practices which
contradict international human rights norms? Do these culturally specific values
create rights, including cultural rights that override international human
rights? It will perhaps be a surprise to some that this question has been
answered by the international law that states have created as well as by
intergovernmental bodies through their practice in favor of internationally
proclaimed human rights.
During the Cold War the main political controversy between East and West in
human rights debates was about which "family of rights", economic and social or
civil and political, are more important—cultural rights were given virtually no
attention; the East was emphasizing economic and social rights and the West
civil and political rights. The North/South tension in human rights debates
since then has been mainly characterized by a debate around culture.
This debate repeated itself dramatically in the years that followed the end
of the Cold War and as the UN was preparing for the World Conference
on Human Rights in 1993. The controversy threatened to destroy the consensus
at the World Conference and resulted in a text on the universality of human
rights which both sides to this argument read to their advantage. The Vienna Declaration and Programme of Action, adopted by
consensus, stated that all human rights are universal, indivisible,
interdependent and interrelated, that the promotion and protection of human
rights is a legitimate concern of the international community, and that the
right to development is a universal and inalienable right and an integral part
of fundamental human rights.
The Vienna Declaration stated that while the significance of national and
regional particularities and various historical, cultural and religious
backgrounds must be born in mind, it is the duty of states, regardless of their
political, economic and cultural systems, to promote and protect all human
rights and fundamental freedoms. In other words, states are not allowed to pick
and choose which among the international human rights they will respect, since,
the Conference declared, civil, political, economic, social and cultural rights
are indivisible, interdependent and interrelated. The contribution of
non-governmental organizations, especially from the regions where governments
were taking a more culturally relativist stand, was crucial during this process
of negotiation.
The consensus at the Vienna Conference was characterized
by some as a soft consensus, but every consensus in the adoption of
intergovernmental proclamations is as good as it lasts. And in fact this one has
lasted until now, as shown by subsequent texts adopted by the UN that have
repeated the Vienna Declaration and Programme of Action (VDPA) language. And
yet, we cannot of course pretend that the often formalistic falling back on the
VDPA at UN fora solves the problem either of cultural rights or of the tension
between cultures and internationally-proclaimed human rights. Well-meaning or
not, we cannot dispel skepticism over human rights simply by saying that this is
a cover for violator governments to avoid international criticism, even if in
many, probably most, cases this is true. We need to respond to good faith
skepticism.
The most recent international instrument that made a
pronouncement on this issue is the UNESCO Universal Declaration on Cultural Diversity [PDF],
adopted in November 2001. In Article 4 entitled "human rights as guarantees of
cultural diversity", it states that no one may invoke cultural diversity to
infringe upon human rights guaranteed by international law, nor to limit their
scope.
Important international human rights instruments prepared after
the Universal Declaration of Human Rights in the last fifty years, some of which
have become the most widely ratified treaties, have explicitly addressed this
tension and included provisions with checks and balances between culture and
human rights. Their normative pronouncements are in favour of internationally
proclaimed human rights. There is no time within the context of this talk to go
into detail.
Women's human rights have always been the site of the most virulent
expressions of cultural relativism. At the international level, at UN debates,
state representatives and others have been giving the impression that the way
their societies treat "their" women is somehow off limits, as if such treatment
were an essential part of the self-definition, the innermost soul of those
societies, a core that should not be touched by the international public sphere.
The extraordinary advocacy of women in preparation of and at the World
Conference on Human Rights in 1993 made it possible for the UN to address
directly the matter of cultural relativism as far as it concerns women. The
Vienna Declaration and Programme of Action, adopted by consensus, states that
the human rights of women must be part of the international human rights regime
in all their aspects and that violence against women, whether in the private or
in the public sphere, is a human rights issue. The Conference stressed the
importance of working towards the eradication of any conflicts which may arise
between the rights of women and the harmful effects of certain traditional
practices, cultural practices and religious extremism. The latter statement was
indeed a breakthrough in international relations.
Radhika Coomaraswamy, the first Special Rapporteur on Violence Against Women, grappled with
the issue of culture and women's human rights from the beginning. In one of her
speeches she recalled telling her students that anthropology is a "reality
check" on law, denying law its generalized and essentialist understanding of the
world based on a Kantian metaphysics and the universality principle, but law is
also a "reality check" on anthropology. "Can it be true that there are no moral
standards by which we can judge cultures or events?" Coomaraswamy has pointed
out that women's rights are the "soft" area of international human rights law,
the area over which there is debate, discussion and sometimes frivolity.
I believe that this frivolity, certainly present until 1993, has subsided
considerably thanks to the momentum of women's international movements, the
legal scholarship that ensued and the changing and supportive position of
international human rights bodies and mechanisms. Yet, we are reminded too often
at the political international debates how fragile these achievements still are.
This anti-climax after the breakthroughs on women's rights at the Vienna and Beijing
Conferences make it obvious that the strategies of approaching human rights
and cultural relativism have to be carefully planned and must be multi-pronged.
International human rights law has proven to be a powerful emancipating
discourse. It has fed voices of resistance. At the same time experience has
shown that profound change cannot be achieved without what Coomaraswamy calls
"re-engaging the local".
On the question of the clash between cultural or traditional practices and
human rights the Committee on Economic, Social and Cultural Rights, the Human
Rights Committee, the Committee on the Elimination of All Forms of Discrimination
against Women have been advocates for the human rights of women and have
clearly identified practices or legal provisions that violate women's human
rights. Time again does not allow me here to go into this long list of such
proclamations of these human rights bodies.
This impressive body of international law and practice on culture and human
rights has nevertheless not put this debate to rest. It is clear by studying the
practice of human rights bodies that they have not hesitated to underline
governments' obligations to take measures and abolish practices and customs that
violate human rights, and women's human rights in particular.
The World Conference Against Racism, Racial Discrimination, Xenophobia and
Related Intolerance
Cultural diversity and cultural rights are concepts that run throughout the
final document of the World Conference Against Racism, Racial Discrimination,
Xenophobia and Related Intolerance, both in the Declaration and the Programme of
Action adopted on 8 September 2001. In a sense, one could say that the World
Conference compensated for the overall marginalization of cultural rights by UN
bodies until now. The Declaration and Programme of Action pose new challenges to
policy makers at the governmental, intergovernmental and non-governmental level
as well as to the private sector.
The document pays particular attention to special groups, namely women and
children, as well as minorities, indigenous peoples, Afro descendants, people of
Asian descent, the Roma/Gypsy/Sinti/Travellers and migrants. Above all, the
World Conference projected the vision of multiracial and multi-cultural
societies living together in harmony , of societies that would reshape their
modern identities in light of the new intercultural realities and reach into the
future driven by the principles of non-discrimination and human rights.
Dialogue Among Civilizations
In the last few years the cultural debate at the UN has resulted in the
inscription by Iran of a separate item on the agenda of the Plenary of the
General Assembly, entitled "Dialogue Among Civilizations", as well as the UN proclamation
of 2001 as International Year of Dialogue Among Civilizations. Although its
launch in1998 caused some trepidation from the point of view of human rights
advocates, the debate in 2001 and the resolution adopted showed that the
Dialogue Among Civilizations has in fact given the opportunity for an open
dialogue, where countries could declare their respect for cultural diversity and
human rights. Many statements of developing and developed countries alike saw
guarantees for cultural pluralism within the context of the overall human rights
legal regime, despite degrees of emphasis. There was no rallying for cultural
relativism versus human rights at the debates. The term "civilization" was used
as a synonym of "culture" and dialogue was advocated not only among
civilizations but also within civilizations.
The General Assembly recognized that dialogue among civilizations contributes
to the promotion and protection of human rights. The Programme of Action in the
resolution contains many of the elements of the normative contents of cultural
rights that I have already mentioned, including facilitating and encouraging
interaction and exchange among intellectuals, thinkers and artists of various
societies and civilizations; sponsorship of conferences, symposiums to enhance
mutual understanding, tolerance and dialogue among civilizations; planning
sports competitions and scientific competitions; promotion of historical and
cultural tourism; incorporation of programs to study various cultures and
civilizations in education curriculums; provision of equitable opportunities for
participation in the dissemination of information; utilizing the existence of
migrants in various societies in bridging the gap of understanding between
cultures; and, very significantly, consultation to articulate effective
mechanisms to protect the rights of all people to maintain their cultural
identity, while facilitating their integration into their social
environment.
Conclusion
The international human rights instruments and the practice of international
human rights bodies in terms of cultural rights may be elliptic, non-systematic,
unclear and occasionally contradictory; but a careful examination of these
places the elements of cultural rights in relief.
In its intermittent attention to cultural rights, the UN human rights system
has been striving to realize the double aspiration of combining rootedness with
freedom. Far from being a soft agenda, cultural rights have a real-world
political strength. They make material claims and claims that have a reasonable
chance of being satisfied. They stake out a zone in which it is possible for
some quantity of power to change hands and for age-old injustices to be
mended.
For the sake of peaceful societies and peaceful relations among states, the
vision of public policies should be away from sustaining, encouraging or
creating myths of a cultural or "blood" purity of society, but rather focus on
the re-shaping of national identities to include today's multicultural
realities. Since we are now promoting awareness for preventive measures, it is
likely that sooner rather than later politicians will have to deal with this
issue boldly, and hopefully international organizations will be able to assist
in those processes. Similarly, human sustainable development will be possible in
a culturally respectful and relevant policy environment that addresses people's
cultural rights. At the same time, crucial as cultural rights are in the
preservation or building of peace and for development, they should not be viewed
only in terms of their functionality vis a vis peace and development, but also
for their value as human rights.
Questions and Answers
QUESTION: I agree with you that one of the most important issues is
the problem of defining culture. Unlike core human rights—such as the right to
life, for example—culture is amorphous.
With every right that we provide, we are enhancing the capacity of the state
to determine various hierarchies of cultural order in society. I am not saying
that is necessarily always wrong—indigenous people in particular have had
historically such a small voice in shaping their destiny that perhaps they ought
to be given an affirmative sphere that has been denied to them. But then you
have the problem of what isn't indigenous. Coming at it from the direction of a
post-modern, anthropological view of a multicultural model, my question is
whether you have to recognize that it has self-canceling features—that they
actually eliminate certain human rights; that the kind of cultural rights we're
talking about exist in inverse relation to the rights that we have fought so
hard for half a century.
STAMATOPOULOU: Thank you very much for your question. It's a
definitional issue, but it's not always a definitional issue. I want to be
pragmatic for the sake of argument. If we look at the legal text and the
practice, and we carefully collect all that, you see these elements. So there is
already some acceptance of these elements.
But I feel that it's more a political obstinance to cultural rights that I
see. Sometimes it's a resource issue and I will address it in a minute. But I
mentioned the Navajo example as something that boldly impressed me. Because here
we are speaking about why they won't allow the teaching of Navajo language to
Navajo kids in the reservations on their lands. One cannot fathom why. So there
is an obstinance, there is a fear: governments are afraid that if they give
rights to a minority or to an indigenous group, that the majority might feel
threatened. So there is this psychological (and political) element there.
But I don't want us to get stuck collectively on the definitional
thing—because we can spend another twenty years on that. What I'm saying by this
research that I did, and what I'm saying now, is that the world really needs us
to do something about this. And to pin down the human rights aspects of culture
that we need to help people with, keeping the balance between the freedom and
the rootedness—I want to say that my skepticism about getting tacked-on
definitions, is because at the UN, other terms don't have official definitions,
and yet we are doing a lot about them.
I'll give you an example: the term "peoples" has not been defined at the
United Nations, and yet the right of peoples to self-determination is one of the
most important rights recognized. Or "minority": the term has not been defined,
and yet we have proclaimed the rights of minorities. And similarly with
"indigenous."
But I will tell you an even more concrete example that I saw recently: the UN
does a cross-reading of censuses from around the world, and the censuses are
done every ten years. The statistics division of the UN did this, and I thought
I would read it because data desegregation is crucial for indigenous people and
for the Permanent Forum on Indigenous Issues. We read this document
and we found nothing on indigenous peoples-except in the footnotes! If you read
the footnotes, they were full of the following citations: "Except tribal and
mountain people." "Except indigenous populations." "Except rainforest dwellers."
So, they must have a definition how they exclude them! And in the UN, we have
also been used to the argument that the countries that are sometimes the most
difficult on indigenous issues will say, "If we don't have a definition we can't
do anything." But of course they know what it means.
It is difficult, but we need to grapple with it. If we look deeper into
it—and I hope the Carnegie Council will look more into it—we can discover these
elements and pin accountability on states, and in a good way. I want to answer
what you said in terms of putting the state in the position of regulator. I
agree with you that there is such a danger; except all these things one has to
interpret within the context of broader human rights. You cannot put the state
in the situation of regulator that it will stifle a group in the name of the
state's own concept of culture, et cetera. There is enough balance, even in the
elements that I have found, that will be able to guide us.
QUESTION: I would like you to address the differences I see within the
UN spectrum of the recognition of cultural rights. Say a sub-Saharan indigenous
people would like to reclaim their cultural heritage in tangible terms—we're
talking about cultural artifacts: masks, et cetera. They would need to raise
that claim to UNESCO. They can only do that according to international protocol,
through their government, because UNESCO only recognizes state entities.
Say the same group were to raise a claim in intangible cultural property.
They could actually raise that with WIPO in Geneva, and they would be granted a status there to be
heard and promote their claim. And say the same group were to raise a claim to
their land, using the ILO.
In these three different cultural rights—land, tangible, intangible, which
are all defined as cultural rights—I see a very uneven access to claim rights,
again within the UN,UNESCO, ILO, and WIPO. Could you address these discrepancies
or differences?
STAMATOPOULOU: You didn't mention the human rights system of the UN.
We have to add it as another avenue. In fact, indigenous people have gone to the
human rights bodies of the UN, in particular the Human Rights Committee. They
have raised cases under the civil and political rights covenant, Article 27.
Also, there is very interesting case law in the Inter-American
Court of Human Rights on this. I will give an example quickly, and I like it
because it is the only tribunal judgment that is of direct relevance to cultural
rights and survival of indigenous peoples. In the Inter-American Court of Human
Rights case, Awas Tingni v. Nicaragua, the court said that the issue of
access of indigenous peoples to their land and resources is part of their
survival as cultures. Because Nicaragua had allowed a foreign company to come in
and prospect without the agreement of the indigenous community, the court found
that this was a wrongful action and ordered Nicaragua to make amends. Here, we
have a court's recognition of the fact that land and natural resources of
indigenous peoples, and their capacity to continue with their traditional means
of livelihood, is part of their culture. Without this, their culture will die.
If we go back and remember the draft history of Article 27 regarding genocide
and whether we should include ethnocide in the elements, we understand that this
is something that sounds very serious for states today, and that is why I
consider this court decision quite amazing. But we also have other case law in
the human rights system that is very useful.
You asked about the different hands of the international system-UNESCO, ILO,
WIPO. I think that indigenous peoples pursue different interests. Tactically,
you choose where to place their time and resources, in terms of all these
international tools that we have. Coming from the human rights system, I think
that the human rights system is very good. If you read the jurisprudence of the
human rights committee on the Sami case and their access to their forest, it is
quite amazing. With the WIPO agenda, you will not get your right as a community
as such—it's not a case law thing. The WIPO agenda is different. Indigenous
peoples are trying to promote policies at the international level that will
protect their traditional knowledge, and there are of course huge economic
interests involved. As for UNESCO and its efficiency, I am skeptical about its
efficiency. This is my frank opinion. ILO Convention 169 is quite good on
cultural rights aspects, but it is not the global body that has the clout that a
UN global body would have.
To recap, indigenous peoples will pick and choose depending on their tactics,
to which body they will go.
Response (The RESPONSE is
the transcript of a Cultural Rights workshop at which Richard Wilson remarked on
Dr. Stamatopoulou's paper, followed by a discussion.)
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