DISCUSSION QUESTIONS: "Cultural Rights"
Human Rights Dialogue: "Cultural Rights" (Spring 2005)
August 2, 2005
- The articles in Section One discuss the struggles of three indigenous peoples for cultural survival. They examine how the Yiakku of Kenya, the Guaraní of Bolivia and the Aboriginal people of Australia are defending their rights to land and natural resources, language, and the transmission of culture across generations, respectively. To what extent are the situations of these three groups comparable? Are land, language, and generational transmission of equal importance in considering such cultural rights claims? To what extent are nation-states such as Kenya, Bolivia, and Australia responsible for insuring the identity of their cultural minorities?
- David Nersessian's essay explains that exclusion of cultural genocide from the 1948 Genocide Convention was supported by the belief that cultural genocide is analytically distinct from, and of less import than, other types of genocide. To what extent is this view justifiable? What are some of the difficulties in defining and prosecuting instances of cultural genocide? How would the recognition of cultural genocide change the international status of cultural rights?
- Women's rights and cultural rights are typically seen as being at odds. Yet, Niamh Reilly's article on the Traveller women in Ireland demonstrates that these two types of rights can also reinforce each other. When are cultural struggles an appropriate platform to pursue women's rights? In what situations are women's rights and cultural rights closely associated and when are they at odds?
- Xiaorong Li's article argues that the protection of civil and political rights is a precondition for the meaningful exercise of cultural rights. Does such a statement support a view that cultural rights are secondary to civil and political rights? What other conditions are necessary for the full realization of cultural rights? Are there certain types of cultural rights without which civil and political rights would be weakened or rendered meaningless?
- Nation-states play a central role in human rights cases, not just as violators and protectors of rights, but also in interpreting "universal" human rights. How do states like China and the United States, in particular, influence how cultural rights are understood and received in these countries?
- As the cases from Ireland, China, and Bulgaria suggest, cultural rights have become an increasingly widespread means for cultural and religious minorities to frame their grievances to the state and in the international community. As Kristen Ghodsee and Christian Filipov demonstrate, recent historical events, such as the "war on terror," also have a great impact upon the ways human rights cases are addressed. In what other ways have political events in Bulgaria and elsewhere shaped the ways in which cultural rights claims are advanced or discouraged?
- Alison Dundes Renteln's article on marriage policy in the United States raises important questions about the reception of cultural rights in countries with distinct traditions of jurisprudence. What are the criteria under which cultural rights can be extended or limited? Should these criteria be the same for each case or vary according to needs?
- Avigail Eisenberg argues that state attempts to design criteria for the legal recognition of minority cultures can significantly diverge from that culture's own terms of self-representation and reveal the biases inherent in state institutions. What issues do courts need to consider in disputes over culture? What should be done when efforts to create standards for the legal recognition of cultural rights fail to resemble a group's own cultural claims?
- What are some of the main obstacles in recent efforts to create a pan-European minority rights regime? Will Kymlicka argues that the inclusion of immigrants under pre-existing norms of minority protection, while progressive in some respects, could harm the efforts to elaborate norms addressed specifically at the historic/territorial claims of national minorities. How can nation-states, especially ones with large immigrant populations, ensure the equal protection of immigrant community rights or non-territorial minority rights?
- Kymlicka identifies internal self-determination, a general recognition of the right to culture, and effective participation as three types of response to the territorial claims of ethno-national minorities. How effective are these different possible solutions in easing the potential for ethnic conflict?
- As Dinah Shelton demonstrates, with regularity the UN Human Rights Committee has rejected the petitions of cultural minorities brought before it. This suggests either that cultural rights petitions are poorly formulated or that intergovernmental institutions such as the UN are not likely to recognize claims to cultural rights for other reasons. What are these reasons? In what ways does the intergovernmental character of the UN potentially limit its effectiveness in the recognition of cultural rights? How can the claims of minority cultural rights be reconciled with a respect for state sovereignty?
- Today cultural rights claims are increasingly made in the context of a global economy and global information flows. Rosemary Coombe shows how indigenous peoples are beginning to understand their culture as a collective property and resource to be protected and defended from possible exploitation by outsiders. What are the costs and benefits for indigenous peoples of conceptualizing their cultural resources as intellectual property? Under what terms should cultural resources be publicly available?
- In all of the essays, we saw claims of cultural minorities pose challenges to reigning assumptions about the nation-state's proprietary and sovereign interests. Is there a recognizable pattern discernable in how different post-colonial nation-states changed their national narratives, forms of political participation, and minority policies to accommodate the histories and claims of their indigenous and minority populations?