Cultural Rights And Culture Defense Research Paper

Cultural rights are significant because culture is an intrinsic part of individual and group identities. Not only does culture exert a crucial influence on the formation of the identity of individuals, but it also helps perpetuate ethnic groups. It is important to appreciate the status of cultural rights in law and politics.

1. The Term ‘Culture’

In order to interpret cultural rights, it is first necessary to define the term culture. There are many different notions of culture including ‘high culture’ which refers to museums, operas, and the like, ‘popular’ or ‘mass’ culture which means comic books, films, pulp fiction, and ‘traditional’ culture, which can be construed as a way of life. While some commentators who analyze cultural rights have in mind ‘high culture,’ most of the discussion focuses on so-called ‘traditional culture.’ Of the multitude of definitions of culture, a particularly useful one was devised by the Canadian Commission for UNESCO, the United Nations agency responsible for the protection of culture:

Culture is a dynamic value system of learned elements, with assumptions, conventions, beliefs and rules permitting members of a group to relate to each other and to the world, to communicate and to develop their creative potential (1997).

Culture differs from society inasmuch as culture is an abstraction, whereas society is the collection of individuals in the community.

When culture is analyzed in the context of cultural rights, it is usually used as a synonym for a way of life. Culture encompasses many aspects of life including attire, child rearing practices, diet, marriage customs, politics, religion, death rituals, and so on. In short, culture is constituted of the many and diverse folkways of ethnic groups. One attempt to delineate the many facets of culture is found in the Human Relations Area Files compiled at Yale University. Although some contend that projects which aim at documenting cultural practices risk ‘freezing’ them in a particular moment in time, cultural theorists invariably acknowledge that cultures are dynamic systems.

2. Cultural Rights

A major question has been whether cultural rights should be conceptualized as individual rights or group rights. Theorists, many of whom come from individual rights traditions, associate group rights with utilitarianism and worry that recognizing group rights may lead to the denial of individual rights. In reality, however, rights which have historically been considered bona fide individual rights such as religious freedom require the existence of a group. While this issue has generated much debate, there is no reason why the right to culture cannot be conceived of both as an individual and as a group right. Insofar as cultural rights include rights to language and religion, it would be difficult to deny the essential group nature of such rights. Moreover, even if the right to culture were an individual right, it could still come into conflict with other individual rights.

Ordinarily, individuals and peoples exist in cultures without having to think self-consciously about the protection of their traditions, most of which are not controversial. It is only when their way of life is threatened by a dominant political system that ethnic minorities are compelled to assert a ‘right to’ culture. In this sense cultural rights represent a legal means by which minorities can shield themselves from intervention by the dominant political apparatus, which is normally the state. Governmental intrusion is a manifestation of cultural hegemony, or the imposition of the dominant culture by elites on ethnic minority groups.

Intervention by governments is not an infrequent occurrence as there is a widespread presumption that cultural minorities should become assimilated. When the folkways of a minority group clash with the standards of the dominant system, the expectation is that the members of the minority group should discard their customs. This is sometimes expressed in the form of a proverb: ‘When in Rome, do as the Romans do.’ However, shedding their folkways may not be a simple matter as individuals are often strongly motivated to follow their cultural traditions. Sometimes they may face a dilemma as failure to comply with the folk law can lead to divine retribution or social ostracism. These individuals either violate the state law and face the consequences in the official legal system or else comply with state law and face dire consequences within their customary law systems.

3. The Cultural Defense

If individuals do, in fact, have cultural rights, this implies that there is a duty on the part of governments to allow their cultural practices. This obligation is not an absolute one, though, and cultural rights will be allowed unless a more important, countervailing reason requires that they not be protected. The challenge, naturally, is to distinguish which are valid reasons for overriding traditions and which are not.

Most of the time governments decide that cultural traditions are not permissible because they threaten public health, safety, or morals. If individuals refuse to discontinue the practices, asserting that they have a right to follow their traditions, they may face criminal prosecution. In these circumstances, ethnic minority defendants may invoke what has been called the ‘cultural defense.’ Such a defense, while not formally recognized by any legal system, sometimes operates to acquit or to mitigate punishment. The core idea behind the defense is that individuals who act under cultural imperatives should be considered less culpable under the law than those who act in the absence of such an imperative. In order for judges to evaluate the extent to which a defendant’s cultural background affected his or her behavior, they must consider cultural evidence relating to the offense. The chief difficulty in many cases is the tendency of courts to exclude cultural evidence as irrelevant.

Supporters of the cultural defense favor its adoption in order to ensure the consideration of evidence and to demonstrate genuine commitment to cultural plural-ism. The cultural defense would also guarantee more equal treatment for cultural minorities in a legal system whose standards are based on the values of the dominant culture. Advocates contend that the cultural defense would result in condign punishment for ethnic minorities.

Opponents worry that if culturally motivated offenses go unpunished, this will undermine the deterrent function of the law. They often contend that anarchy will reign supreme if each individual can decide with which particular laws he or she will comply. The defense is criticized for giving special rights to minorities. This puts the victims of culturally motivated crimes at a disadvantage, and is therefore unjust.

The presentation of cultural evidence does not commit the court to accepting the argument. The evidence might not establish the existence of the tradition, that the ethnic group had this tradition, or that the defendant was influenced by the tradition when violating the law. The defense merely ensures that the information is treated as admissible in court. To the extent that cultural rights are guaranteed as part of human rights, the argument is that individuals should be entitled, at the very least, to present evidence about their cultural background in a court of law.

4. Scholarship On Cultural Rights

The early scholarship on cultural rights was sponsored by UNESCO through symposia designed to clarify the meaning of culture and cultural rights. In 1950 UNESCO published Freedom and Culture which was its first attempt to develop the idea of cultural rights. In 1970 UNESCO sponsored a meeting of experts on cultural rights in Paris to discuss the government responsibilities for sacred places, monuments of cultural significance, and language preservation pro-grams. As a great deal of emphasis was placed on cultural property, the meeting dealt with the relation-ship between individuals and cultural objects.

The Interdisciplinary Institute of Ethics and Human Right at the University of Fribourg, Switzerland held a colloquium on cultural rights in 1991. The Council of Europe held the Eighth International Colloquy on the European Convention on Human Rights in Buda-pest in 1995 on the theme ‘Cultural rights: universal, individual, and legally enforceable individual rights.’ In 1998 the International Conference on Cultural Policies of Development met in Stockholm, Sweden to evaluate governmental programs designed to ensure that individuals in all communities can exercise the rights guaranteed by Article 27.

In academic circles two parallel scholarly literatures emerged on the subject of cultural rights, one in political theory, and the other in international law. Political theorists in the Western tradition analyzed the question of whether cultural rights are compatible with liberalism. For the most part political philosophers worry that the acceptance of cultural rights will lead to ‘balkanization,’ thereby undermining the unity of the state. The leading proponent of the view that cultural rights can be reconciled with liberalism is Will Kymlicka, a Canadian scholar. His writings under-score the importance that belonging to a community represents to most individuals.

Despite the fact that his work is generally considered to offer the staunchest support for cultural rights, his defense of cultural rights has been criticized for being too limited. First, Kymlicka advocates the protection of cultural rights only in societies which are said to be structured along liberal lines. His theory does not provide cultural rights for immigrants who have chosen to move and thereby give up their culture; only minorities long residing in a state and indigenous peoples can legitimately make claims to cultural rights. His interpretation of cultural rights concentrates mainly on language rights and representation rights. Critics such as Chandran Kukathas have noted that his theory provides minimal protection for cultural rights.

Other leading theorists such as Bhikhu Parekh have attempted to create theories which afford greater protection to cultural rights. In his elaborate scheme advocating ‘a principle of dialogical consensus,’ Parekh proposes having a minority spokesman who will engage in a dialog with representatives of the majority about cultural practices which clash with ‘operative societal values.’ It is the duty of the spokesperson to explain how the tradition is authoritative, central to the way of life of the ethnic minority group, and in general, desirable. If it is not feasible to persuade the majority representatives of the value of the tradition under debate and it offends an ‘operative societal value,’ the ethnic minority must give it up.

Many feminist theorists reject the proposition that cultural rights deserve legal protection because of their concern that protecting these rights will undermine gender equality. Although their work is often framed as a critique of multiculturalism, e.g., Ayelet Shachar, these analysts are essentially denying the validity of the notion of cultural rights.

Generally speaking, most of the commentary on cultural rights in Western political theory is concerned with ways to limit the scope of application of the rights. When cultures do not imprison those who seek to exit, particularly women wishing to flee from oppressive customs, there appear to be fewer objections to the protection of cultural rights. Their objections do not appear to apply to the numerous traditions which have no connection to gender.

In the field of international law, James Anaya has provided a comprehensive analysis of the cultural rights of indigenous peoples. A more general theoretical treatment is that of the late Sebastian Poulter whose brilliant scholarship is extraordinarily import-ant. In Poulter’s view, a cultural tradition which violates human rights should not be permitted. Ac-cording to Poulter, however, if a government, by prohibiting a tradition, is violating human rights, then that tradition should be permitted. His framework has been criticized for presuming the validity of inter-national human rights standards as a basis for deter-mining the validity of traditions and for evading the question of when cultural rights, which are human rights, are superseded by other rights.

5. Formal Guarantees In Legal Systems

Few national legal systems officially guarantee a right to culture. The extent to which cultural rights are protected depends on whether or not general principles of law such as religious freedom, equal protection, and freedom of association are interpreted to encompass cultural traditions. Because lawmakers are elites from the dominant culture, they tend not to construe abstract principles in such as way as to benefit ethnic minorities. One sign of the preference for mono-culturalism is the widespread preference for single official language policies in many countries.

From time to time, minorities challenge public policies which they regard as unwarranted intrusions into their way of life. For example, in France the Muslim community objected strenuously to the ban against wearing the hijab or headscarf in French public schools. The national controversy was known as L’Affaire des Foulards. The policy was justified because it ensured the separation of church and state, the integration of foreigners into French society, and gender equality. Some women’s groups in France thought the Muslim religious garb, the scarf, symbolized the subordination of women. Eventually, after litigation, the Education Minister relented, allowing the children to wear their religious attire to school.

In the United States indigenous peoples have challenged development projects which would under-mine their way of life. In Lyng s. Northwest Territory 1987, tribes argued that the construction of a highway through Chimney Rock would desecrate sacred sites. As part of an environment impact study, the government hired an expert who advised against building the road because of its devastating effect on the tribes. Despite the admonition, the government proceeded with the project, undeterred. The US Supreme Court ruled that the burden on the religion was incidental, not the purpose of the development, and that religious minorities have to accept some burdens.

Difficulties in domestic litigation generally have to do with the question of what counts as the ‘authentic’ culture or whether a specific practice is ‘traditional.’ In order to determine the authenticity of cultural traditions, there is the related issue of who is the legitimate representative of the group. Sometimes, indigenous people find offensive the practice of consulting ‘experts’ or scholars rather than leaders of their com-munities. Even when the groups themselves are the source of information, it is not always obvious which person from within the group speaks for the group. Two examples show the practical difficulties in litigating cultural rights claims.

In France the government made an exception to its animal slaughter law to permit Orthodox Jews to slaughter animals in accordance with religious law so that they could consume the meat. France empowered the Central Rabbinical Committee to handle the implementation of the policy. However, one group of Orthodox Jews, concerned that the method employed for the ritual slaughter of animals was not guaranteeing that the meat was sufficiently pure or glatt, sued France, challenging its delegation of authority to the Central Rabbinical Committee. After French courts ruled against the group, it appealed to the European Court of Human Rights, where it lost as well.

The Hindmarsh Bridge Island litigation in Australia also shows the dynamics of intragroup tension. A group of aboriginal women objected to a proposed bridge between the Australian mainland and Hindmarsh Island because they claimed it would jeopardize their way of life. The island was ostensibly used for secret women’s business, and their customary law supposedly prevented them from divulging in-formation about the nature of the business. During the litigation another group of aboriginal women held a press conference denying the veracity of this claim, saying there was no such ‘secret women’s business.’

In contrast to domestic litigation which relies on abstract principles interpreted to apply to culture, in international law explicit protections for culture can be found. Among them are the International Covenant on Economic, Social, and Cultural Rights, particularly Article 15, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities (1992), the Framework Convention for the Protection of National Minorities (1995), and the European Charter for Regional or Minority Languages (1992). In addition, there are related documents such as the Draft Declaration on the Rights of Indigenous Peoples and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981). Cultural rights are covered not only by human rights treaties, but also by instruments concerned with safeguarding cultural heritage such as Convention Concerning the Protection of the World Cultural and Natural Heritage (1972).

To date, the most important cultural rights provision is Article 27 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by virtually all countries in the world. This provision is not subject to any reservation (except for France’s), which enables a government to avoid obligations under the article. Article 27 provides:

In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

However, Article 27 cannot serve as a guide to determine the substantive meaning of cultural rights under international law because it has been interpreted in only a few situations. As of 2001, the provision has been applied mainly to protect sacred land, the right to hunt animals, and language rights.

Although it is widely referred to as a ‘minority’ rights provision, it is often invoked in cases involving indigenous peoples, many of whom do not consider themselves to be minorities, subordinate to a state. Some members of indigenous groups object to its application in their cases. Article 27 has also been criticized for being formulated as an individual right and as a negative right. These criticisms may be unwarranted: first, the provision can be invoked by individuals or groups; second, if communities only need to invoke a juridical right to culture when governments threaten to halt their practices, it makes sense that the provision was expressed in negative terms: ‘governments shall not deny … .’ Moreover, because there was some question about the nature of government obligations for the protection of cultural rights, the Human Rights Committee, which enforces the ICCPR, issued a policy statement interpreting Article 27, known as General Comment 23(5), stipulating that governments take affirmative steps to enforce cultural rights.

One of the best-known disputes in international law in which cultural rights were invoked was the celebrated Lovelace decision which was based on Article 27 of the ICCPR. Sandra Lovelace was a Maliseet Indian who married outside the tribe, thereby losing her tribal status (if a male Maliseet Indian married someone not belonging to the tribe, he would not lose his status). After her divorce, she was unable to rejoin the band as a fully-fledged member. She sued unsuccessfully in the Canadian courts and subsequently filed a complaint with the Human Rights Committee. Although she challenged the sexist membership rule, alleging that it violated human rights law and the tribe defended itself by invoking the right to self-determination (Article 1 of the ICCPR), the Human Rights Committee decided that she had been denied the right to enjoy her culture in her community. Interestingly, this case stands for the proposition that women also have a right to culture!

In the final analysis, the main challenge in inter-national human rights jurisprudence is how to evaluate the relative importance of cultural rights vis-a-vis other human rights. This is known as the hierarchy problem. There are rights conflicts between treaty regimes, for instance between Article 27 and provisions of the Convention on the Elimination of All Forms of Discrimination Against Women which require governments to abolish all traditions that interfere with gender equality. The UN appointed Mrs Halima Embarek Warzazi as Special Rapporteur on Traditional Practices Affecting the Health of Women and Children. Her studies recommend the elimination of traditions with adverse consequences for women and children. For the most part, fundamental rights conflicts within the United Nations system have not been resolved to date.

6. Theoretical Issues

Regardless of whether or not domestic and inter-national legal systems afford adequate protection to cultural rights, the right to culture may be important because abstract principles require it. Appeal can be made to many principles to justify the recognition of cultural rights; among these are identity, freedom, and tolerance.

If culture is intrinsically linked to the formation of identity, then any general notion of individual or group rights requires that culture be protected. To the extent that democratic systems are committed to the principle of noninterference by the government, intervention in the absence of a serious threat would be illegitimate. The notion of freedom would appear to compel the acceptance of cultural rights. Finally, the idea of tolerance is widely considered an important one in liberal democracies. Although tolerance has somewhat pejorative connotations, i.e., ‘putting up’ with practices with which one disagrees, allowing the flourishing of diverse cultural traditions is consonant with this principle.

Even if the right to culture is established as a fundamental right, it remains to be seen how much importance it has vis-a-vis other human rights. The hierarchy question is likely to occupy the attention of scholars interested in the nature and scope of cultural rights.

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