Section Two Introduction: Claims, Claimants and Conflicts
Human Rights Dialogue: "Cultural Rights" (Spring 2005)
April 22, 2005
The legal scholar Martha Minow has noted that when “universal human rights” and “cultural difference” are seen to be at odds, we assume women’s rights to be caught in the crossfire. The discussion of the plight of Irish Traveller women by Niamh Reilly explicitly shows how perceived contradictions between cultural and women’s rights can be a false dichotomy. Here the fight for cultural rights is largely a women’s struggle, since it is women who shoulder the primary family responsibilities for shelter, education, and food. In other words, Irish Traveller women seek their cultural rights as women’s rights.
In her discussion of marriage rites, Alison Dundes Renteln demonstrates that the question of which universe of rights—for example, a U.S. court of law or Islamic jurisprudence— directly bears on how a marriage is recognized, if at all. If the legal definition of marriage in the United States is understood to be a heterosexual union between two individuals above a minimum age, this makes it difficult for courts to recognize marital bonds constituted in different cultural terms, such as those involving more than two people or not primarily defined as between “individuals.” Renteln’s essay is a reminder of how cultural values can become unhinged from cultural rights, as they inform particular standards of legal decision-making, a circumstance that too often leads to other rights violations. Underscoring the point that not all cultural rites can be construed as cultural rights, Renteln complements Reilly’s case by showing how non-recognition of divergent marriage customs can be both detrimental and necessary to the protection of women.
In her essay on the politics of cultural rights in China, Xiaorong Li addresses another scenario of contradiction: between cultural rights and individual civil and political rights. In China, the scenario is fueled by the government’s usurpation of cultural rights as the provenance of the nation itself, and as part of the Asian values debate. Yet the government’s selective representation of “Confucian” ideals as Chinese “national culture,” and against the “individualism” of civil and political rights, justifies repression of ethnic and religious minorities, like the Falun Gong. This treatment of cultural rights has led pro-democracy advocates in China to dismiss their importance. Li argues that for China the protection of civil and political rights is inseparable from that of cultural rights, which need to be understood not as the subject of national identity, but in terms of the country’s own intracultural diversity. If state sovereignty is not a human right, her essay clearly shows how the nation-state can also position itself as a cultural rights claimant, to the detriment of its own cultural minorities.
Turning to Europe, Kristen Ghodsee and Christian Filipov explore what happens when Bulgaria finds itself caught between allegiances and priorities, seeking membership both in the European Union and NATO. On the one hand, for entrance into the European Union the country must demonstrate a respect for minority Muslims as a new multicultural democracy that respects “religious freedoms.” On the other, membership in NATO requires unflinching support of the war on terror, which in practice includes limiting the cultural rights of Muslims. This is an almost impossible balance to maintain, with far-reaching consequences for the cultural identity of Bulgaria’s minority Pomaks. The contrary pressures upon the Bulgarian state have further exacerbated the issue of Pomak identity, provoking this historically Slavic and Muslim population to embrace fundamentalist Wahhabism as a means of clearly distinguishing themselves. Like Li’s essay on China, this case demonstrates the pushes and pulls on the identities of cultural minorities in response to the international politics of the state. In short, conflicts over cultural identity lie behind the struggles for cultural rights.
These essays remind us that cultural rights are an important means of
political representation that have material consequences. Given the stiff
resistance of states to recognize the legitimacy of the cultural identities of
their minority populations, and so to resist cultural rights claims, advancing
these rights requires significant social capital. As the advocacy for, and
conflicts over, claims make clear, traversing the space between cultural rights
claims and their potential recognition by states, intergovernmental bodies, or
international agreements is fundamentally to navigate the fog of