Section Three Introduction: Institutionalization and Standardization

Human Rights Dialogue: "Cultural Rights" (Spring 2005)

April 22, 2005

In this section we look at some of the latest efforts to recognize and institutionalize cultural rights, with essays that illustrate the problems encountered in setting clearly defined and judiciable standards for cultural rights claims. Perhaps most difficult is the requirement of legal fixity, where “culture” must be defined as a discrete, static, and distinctive set of traditional beliefs and practices—a view of culture that is ill-suited to recognize the ways that cultural identity is a socially negotiated process. The challenge of finding both flexible and accountable legal standards for cultural rights becomes simultaneously one of determining cultural boundaries and to whom a given judgment should apply.

Avigail Eisenberg’s discussion of Canadian jurisprudence offers an account of cultural rights from the state’s eye view. It also serves a comparative purpose, adding its weight to the cases of Bolivia, Australia, China, Ireland, and Bulgaria, all of which nuance our understanding of the different approaches to cultural rights of nation-states. In Canada, a country that has given extensive consideration to its own multicultural identity, the courts have begun using a “distinctive cultural test” in decisions concerning potential restrictions upon cultural practices. The test requires courts to determine how integral a disputed practice is to an indigenous group’s cultural identity by whether the practice in question existed “prior to contact” with Europeans. But proofs of the continuity of cultural identity from “pre-contact” to “post-contact” run counter to another requirement to balance native claims against Canada’s existing legal system. In effect, the test mixes standards—of non-historical continuity and of a post-contact status quo—and rolls them into one. Eisenberg’s essay shows that setting standards can involve controversial assumptions, but she nonetheless lauds the effort to do so as an important first step.

Will Kymlicka’s account of Europe’s new High Commissioner on National Minorities (of the Organization for Security and Co-operation in Europe) explores the challenges of reaching consensus on cultural rights legislation as a part of the ongoing evolution of new forms of regional-level cooperation. Like Latin America’s Organization of American States and its consideration of indigenous peoples’ rights through the Inter-American Human Rights Court, the European Union has turned its attention to the problem of national ethnic minorities as a human rights concern. Kymlicka points to the difficulty of “internationalizing” the question of ethnic minorities by developing “European standards” for minority rights, since countries differ significantly in how they both define and accord rights to different minorities. In other words, in a time of rapid regional transformation, lurking behind the problem of what minority cultural rights in Europe should be is the problem of what a “European union” is in the first place.

The remaining essays in this section explore how cultural rights have become a part of international efforts to institutionalize standards of global cooperation for markets and states. Dinah Shelton explains why the UN Human Rights Committee has ended up rejecting almost every cultural rights claim it has heard. On the one hand, the Committee lacks any enforceable standards for whether particular state governments act “in good faith.” On the other hand, it sets very high standards for apparent violations of available cultural rights instruments, such as Article 27 of the ICCPR. The upshot amounts to a de facto validation of the state as representative of a majority “democratic” decision at the expense of claims of cultural minorities. The record of the Committee suggests that intergovernmental approaches to cultural rights can fall prey to these same governments, since recognition of alternative forms of cultural autonomy, beyond the “sovereignty and territorial integrity of states,” is rarely forthcoming.

Such a discussion of alternatives is taking place in another corner of the UN system as part of the World Intellectual Property Organization’s effort to reach out to “new beneficiaries.” As Rosemary Coombe tells us, the goal of cultural protection—including collective ownership by indigenous groups—is often met by calls for “fair use,” individual “freedom of speech,” and a wide open “public domain.” The rising heat of intellectual property debates is reflected in UNESCO’s current effort to draft a binding cultural diversity convention. This effort aims to bring better balance to the rapidly globalizing system of rights of invention, access, use, and appropriation regulated by the World Trade Organization and using the language of patent, copyright, and trademark. If this system is to avoid setting one-sided standards (as in Shelton’s account) favoring the “free trade” of economic globalization, it must first reconcile with existing cultural rights standards. To do so requires recognizing forms of protection for traditional sources of cultural creativity that support collective cultural distinctiveness.

This section offers a picture of emerging standard-setting at the multiple levels of the state, the region, intergovernmental institutions, and the global system of trade regulation through which cultural rights claims will be considered for the near future. Taken together, the cases show how legislative efforts themselves help to create the form of “culture” in cultural rights.

--The Editors