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.
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.
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.)