Human Rights Dialogue (1994–2005): Series 2 No. 11 (Spring 2004): Environmental Rights: SECTION 2 THE CONFLICT BETWEEN RIGHTS AND ENVIRONMENTALISM: Environmental Rights vs. Cultural Rights

Apr 23, 2004

Environmental rights and cultural rights have a complex interrelationship that is reflected in many concrete policy debates. Sometimes these rights are compatible, and there is only minimal controversy. In other cases, however — notably those involving issues of endangered species — there is often conflict, which plays out in legislative and judicial contexts in the United States and elsewhere.

Cultural rights, as guaranteed in Article 27 of the International Covenant on Civil and Political Rights (ICCPR), are crucial for the maintenance of social identities, and are invoked primarily when governments take steps that threaten to undermine the way of life of whole groups. Although some analysts have proposed that the right to culture involves nothing more than noninterference, the Human Rights Committee — the United Nations treaty body that enforces the ICCPR — has explicitly stated that cultural rights are “positive” and not “negative,” meaning that governments must take affirmative steps to ensure their protection.

Often, the cultural argument reinforces the demand for environmental protection. For example, indigenous people have challenged the desecration of sacred sites, arguing that harm to the environment will also undermine the way of life of a people. In the Yanomami case (1985), the Inter-American Commission on Human Rights held that failure of the Brazilian government to prevent development that destroyed the Yanomami way of life constituted “ethnicide.” In cases such as this, environmental rights and cultural rights coincide, revealing a confluence of rights claims.

Yet in many other contexts, environmental rights claims conflict with cultural rights claims, as with endangered species policies. At the crux of many of these cases are cultural differences concerning the use of particular endangered species by indigenous peoples or by other communities whose traditions require the use of animal parts. Despite the existence of such international treaties as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), designed to prevent the killing of animals thought to be near extinction, in some countries these animals are considered necessary for cultural and religious practices among some segments of the population. Animal parts may be used for medicinal purposes, as aphrodisiacs, or they may be regarded as having supernatural powers.

On one side of the debate, animal rights activists and environmentalists contend that the creatures deserve protection for their own sake and to preserve biodiversity. On the other side, some cultures maintain that they are entitled to use the animals for what they regard as legitimate reasons despite international criticism. In such disputes, the affected groups invoke the right to culture and the right to religious freedom to justify their policy position. Although religious liberty may be construed as an aspect of culture, to prevail in court the claims must be framed as an issue of religious freedom rather than the right to culture, given that national constitutions usually protect the former but not the latter.

For the most part, the international community has not recognized arguments of cultural rights when they have clashed with environmental rights in the context of endangered species policy. For example, when the international community concluded that Taiwan had failed to enforce CITES adequately because it allowed the sale of tiger and rhinoceros parts, the Clinton administration in 1994 imposed economic sanctions that prohibited the American import of Taiwanese products made from wild species — over $20 million in trade annually.

Nor are such cases restricted to foreign nations. Within the United States there have been prosecutions of individuals engaged in the sale of endangered species parts contrary to domestic and international laws. The federal government has sponsored raids of Asian medicine shops in San Francisco’s Chinatown and elsewhere, and has conducted “sting” operations such as Operation Chameleon. In that 1998 operation, the Justice Department and U.S. Fish and Wildlife Service arrested “Anson” — Keng Liang Wong, allegedly the largest illegal reptile dealer in the world.

In one U.S. case, Kei Tomono v. U.S., a Japanese man who ran an import-export business was caught with turtles and snakes in his suitcase as he was entering the United States. Although the defendant agreed to plead guilty, he argued that the court should take his cultural background into account in determining his sentence. It was his contention that reptiles occupy a unique place in Japanese culture, that the creatures are not regarded as endangered in Japan, and that he was unaware that exporting the animals was illegal. The appellate court ultimately rejected the request for a sentence less than that allowed by federal sentencing guidelines. Although the validity of the arguments might not be convincing in Tomono’s case, as he was college-educated and had been involved in the reptile business for several years, it is conceivable that these same claims might have merit in another case. For the most part, however, this attempt at a “cultural defense” has generally not succeeded in cases of this sort.

However, in a different but related case, the International Whaling Commission did see fit to grant an exemption to certain indigenous groups from the international prohibition on whale hunting. The aboriginal subsistence accommodation, which permits certain indigenous groups to take a limited number of whales to ensure the survival of the group, demonstrates the possibility of finding a compromise policy that accommodates both environmental rights and cultural rights. If indigenous groups agree to take only a few whales, then this will not risk endangering the species further.

Despite the favored treatment granted under the exemption, some indigenous people criticize the exemption policy as ethnocentric, in part because they regard the need to request exemptions as paternalistic. The policy has also provoked objections from non-indigenous cultural communities who object to it on the ground that to make an exception for indigenous peoples and not for them violates the norm of equal protection of law. Japanese and Norwegian whaling communities, whose way of life also depends on the taking of whales, have advanced this argument, holding that policies intended to stop whaling constitute a form of “cultural imperialism.” It has also been argued that if indigenous groups are to benefit from such an exemption, they should be allowed to take animals only in a “traditional” manner. This line of argument has led to debate over the “authenticity” of the cultural traditions of hunting, but in my view “culture” is not static, and this objection lacks force. Indigenous groups may now prefer to use electric harpoon guns to spears, but cultural rights arguments ought not to depend on the method of killing.

While the manner of killing should not matter, hunting itself may be considered a key part of the tradition. Native Americans prosecuted for hunting eagles in the United States sometimes contend that doing so is vital because the feathers are necessary for use in religious ceremonies. In 1994, President Clinton established a National Eagle Repository to gather feathers from eagle carcasses. Although this was a well-intentioned policy to prevent Native Americans from hunting eagles for this purpose, it did not reflect an understanding that hunting the eagle was an essential part of the ritual. In any event, there were too few feathers to meet demand, and distribution was inefficient. As a lawyer for the Native Americans explained (quoted in the New York Times): “There are initiation rites or death rites where feathers are needed on short notice. Imagine having to order a Bible from a federal bureaucracy — and then waiting three years.”

In this context, cultural communities find insulting the assumption that they would hunt or fish any species to the point of extinction. It is, after all, colonial powers that have depleted natural resources to such an extent. Some argue that ethnic minority and indigenous groups should be granted the freedom to choose their own path to sustainability on the grounds that indigenous groups can most effectively achieve the environmental goals of the international community and of national governments. However, this may be yet another form of eco-colonialism inasmuch as there is a pretense of delegating the rights to groups but only if they interpret and enforce policies in a manner consistent with national and international standards.

In the final analysis, minority groups and indigenous people will only have the benefit of diverse species, for whatever purpose, if they are not extinct. This logic would seem to suggest that environmental rights, despite being recognized later in time, trump the claims of cultural rights.

Research for this essay was done in collaboration with Margaret Scully Granzeier.

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