MODULE 17

CULTURAL RIGHTS
USING MODULE 17 IN A TRAINING PROGRAM

The Purpose of Module 17

The purpose of this module is to provide an overview of cultural rights and examine some dilemmas facing ESC rights activists.

The module

• discusses some of the difficulties activists face in addressing cultural rights issues;
• reviews the major international and regional legal provisions guaranteeing cultural rights;
• discusses the indivisibility and interdependence of cultural rights with other human rights; and highlights particularly problematic issues associated with cultural rights, including
  • "cultural specificity,”
  • indigenous peoples and cultural rights,
  • women’s rights and culture, and
  • scientific progress and culture.

Introduction

Cultural rights should take central place in the consideration of rights issues and the striving towards a more just world order.  Such an order would encompass not only distributive jus­tice, but also an inclu­sive vision that would take cognizance of the many varied expressions of culture as well as an understanding of the interdependence of cultural rights in tandem with other human rights. 

Yet cultural rights are the least understood and developed of the rights that have been guar­anteed under international law.  This seeming paradox is due to the complexity of the area and the fact that attention has been given only recently to ESC rights as a whole.  

One source of the complexity is the varying understandings of "culture.” Definitions in­clude: [1]  

• Acquaintance with and taste in fine arts, humanities, and broad aspects of science as dis­tinguished from vocational and technical skills

• The integrated pattern of human behavior that includes thought, speech, action, and arti­facts and depends upon man’s capacity for learning and transmitting knowledge to suc­ceeding generations

• The customary beliefs, social forms, and material traits of a racial, religious, or social group

Each of these definitions is reflected in different provisions of international human rights law.  While culture has been addressed in a number of ways in human rights activism-through concern for freedom of expression, freedom of information and the rights of minorities-it is principally culture as described in the second and third definitions that makes the issue of cultural rights complex and difficult.

Our involvement in culture, as a pattern of thought, speech and action, is largely uncon­scious.  From the moment each of us is born, we are raised within a culture.  Unless we are exposed in some significant way to other cultures, we rarely develop an awareness of many of the distinctive characteristics of our own culture.  They are, for us, simply "givens.” There is thus an inherent difficulty in cultural rights: To think about cultural rights, we need to treat consciously something that is largely unconscious for most of us.

Cultural anthropologists tell us that culture is transmitted through a highly complex pro­cess comprising a mixture of material and nonmaterial components.  Culture can be re­flected and expressed through the type of housing we choose to live in and the people with whom we share the housing; the type of food we grow or eat, and how we grow or eat it; the type of music we play or listen to, and how we play or listen to it; the religion we identify with; and the land­holding patterns in our society.  Culture is reflected in and expressed through our re­lationships with parents, children, relatives, friends and strangers as well as with other cul­tures and with the physical world around us. 

All of these material and nonmaterial aspects of a culture are infused with values that are transmitted to succeeding generations.  Addressing cultural rights can be contentious in part because cul­tural rights are intimately related to these values-to what we believe is important and what unimportant, what is good and what bad.  Furthermore, in order to understand cul­tural values in a specific context (and it is difficult to consider cultural values outside of a specific context), it is essential to understand the often subtle differences between cultural values and religious ideas.  There is often considerable confusion in determining if an abuse arises from an impingement on cultural rights or on religious rights; the lack of clarity often leads to problems in addressing specific issues.  

Cultural values are intimately related to our sense of identity.  Challenges to our culture thus become challenges to the integrity of each of us as a person and to the values that are closest to our hearts.  They threaten our understanding of ourselves and of our world.  As a result, challenges to cul­ture generate strong, emotionally charged, survival responses.

Issues of self-identity and self-understanding have traditionally fallen within the domain of the psychologist, sociologist or anthropologist.  Except when dealing with the psychological effects of torture or other trauma wrought by human rights abuses, human rights activists have seldom directly addressed problems that arise in this essential yet elusive area of self-identity and self-worth.  Ironically, it is this lack of familiarity with and understanding about what makes human beings "tick” that is one of the central reasons that activism on cultural rights is problematic. 

Finally, addressing cultural rights is complex be­cause culture has historically been bound up with questions of power.  Throughout human history, dominant cultures in all parts of the world have imposed or tried to impose their own pat­terns of thought, speech and action on the peo­ples they have encountered or on weaker members of their own societies.  As a result, issues of cul­ture and cultural rights are often associated with historical grievances arising from these impositions. 

International human rights law is caught in the co­nundrum of this history.  While the Univer­sal Dec­laration of Human Rights is a product of the United Nations, whose member nations represent a broad range of cultures, and most of the values represented in the UDHR are shared by cultures around the world, the pre­ponderant powers in the United Nations at the time of the drafting were the Western nations.  As a result, the UDHR to a large extent em­bodies the cultural values of those powers.  In discussing cultural rights, it thus is necessary to examine industrialization, coloni­za­tion and the liberation struggles in various parts of the world.  The extent to which spe­cific cultural values are the product of these historical cir­cumstances has to be kept in view. 

The more recent phenomenon of globalization has also had a deep impact on cultural values.  While some aspects of globalization, such as greater access to infor­mation, have had liber­ating effects, the con­sumption-oriented, mate­rialist pat­tern of de­velopment promoted by globalization has systematically eroded no­tions of equity.  Small communities and in­digenous groups have lost a great deal of their traditional knowledge and wealth in the on­slaught of a culture of materi­alism and lop­sided developmental priorities adopted by governments all over the world.  Globalization has had an adverse impact on the ESC rights of people, especially of the vast majority of the world’s poor. 

Key Legal Provisions on Cultural Rights

International legal provisions

The following legal provisions address culture in general terms; provisions relevant to spe­cific groups are detailed below.

Although later provisions in international law reflect a broader understanding, the direct ref­erences to cultural rights in the 1948 Universal Declaration of Human Rights are rather nar­row.  Article 27 says:

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.

Article 15 of the ICESCR, adopted in 1966, is not much more expansive.  It says in part: 

1.  The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2.  The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

Other relevant international principles or declarations include:

• The Convention on the Prevention and Punishment of the Crime of Genocide (art. 2), which has been interpreted to forbid the deliberate destruction of a people’s culture

• UNESCO Principles on International Cultural Co-operation (art.1)

1.   Each culture has a dignity and value which must be respected and preserved.

2.   Every people has the right and the duty to develop its culture.

3.   In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind. [2]

• The UN Declaration on the Right to Development (art. 1):

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. [3]

• The Mexico City Declaration on Cultural Policies (Principle 2), which states, "The assertion of cultural identity . . . contributes to the liberation of peoples. Conversely, any form of domination constitutes a denial or an impairment of that identity.” [4]

• The Vienna Declaration and Programme of Action, which in the context of addressing the duty of states to promote and protect human rights, states that "the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.” [5]   In addition, part II(3)(38), on the equal status and human rights of women, says:

the World Conference stresses 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 or customary practices, cultural prejudices and religious extremism . . .

Regional legal provisions

Article 17 of the African Charter on Human and Peoples’ Rights [6] guarantees the right of in­di­viduals to take part in the cultural life of their community.  It also provides that

the promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.

Article 22 provides for the right to cultural development of peoples and the equal enjoyment of the common heritage of mankind.

Article 13 of the American Declaration of the Rights and Duties of Man states:

Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, espe­cially scientific discoveries. [7]

Indivisibility and Interdependence

Because culture affects all aspects of human life, cultural rights illus­trate the indivisibility and interdependence of all rights in a more comprehensive fashion than do any other rights.  Indeed, it is difficult-perhaps even impossible-to examine cultural rights in isolation; cul­tural rights are often an inextricable part of other rights.  At the same time, cultural rights are often in a state of tension or conflict with other human rights.

Rights of minorities

Equality and nondiscrimination are fundamental human rights guarantees.  Ethnic, religious and other minorities often suffer from discrimination in a number of dimensions of their lives, and their culture is rarely accorded the respect and protection that is extended to the majority culture in a country.  Article 27 of the ICCPR makes reference to this problem:

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.

The 1993 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (art. 1) states:

1.   States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encour­age conditions for the promotion of that identity.

2.   States shall adopt appropriate legislative and other measures to achieve those ends.

Article 2 goes on to detail the arenas covered by this guarantee, including, notably, the right of minority groups to participate effectively in decisions that affect them. [8]

The 1982 Declaration on Race and Racial Prejudice makes specific reference to the culture of mi­norities:

Culture, as a product of all human beings and a common heritage of mankind, and education in its broadest sense, offer men and women increasingly effective means of adaptation, enabling them not only to affirm that they are born equal in dignity and rights, but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international contexts, it being understood that it rests with each group to

decide in complete freedom on the maintenance, and, if appropriate, the adaptation or enrichment of the values which it regards as essential to its identity. [9]

Self-determination

The 1975 Intergovernmental Conference on Cultural Policies in Africa stated:

Affirmation of cultural identity was considered as an act of liberation, a tool in the struggle for effective independence and the best way for the complete realization of the individual and the harmonious development of society . . . [10]

At the same time, the concept of self-determination, particularly internal (within a country) self-determination, is complex and controversial.11  To the extent that cultural rights issues are considered to be related to self-determination, they get caught up in this complexity and controversy.  This issue has been addressed in greatest depth in the discussions and debates around the rights of indigenous peoples (see below, and Module 6). 

Civil and political rights

Virtually all civil and political rights are integrally related and essential to the ability of indi­viduals and communities to learn about, live in, express and perpetuate their cultures, whether culture is understood in its broader or more narrow definition.  For example:

• The freedom to think within the particular framework or from the particular perspective of one’s culture is protected by provisions related to freedom of conscience and opinion.

• The freedom to believe in the concepts, read the texts and partake in the practices of one’s religion is protected by guarantees related to freedom of conscience and religion.

• The freedom to ensure that one’s culture can be expressed in the public sphere is protected by the right to political participation, and the guarantees to freedom of expression, assembly and association. 

These same civil and political rights provisions, however, can be experienced as being at odds with the preservation of one’s culture and related cultural rights.

Economic and social rights

Education: Whether formal or informal, family or community-based, education is essential for the perpetuation of a culture or culture.  However, the relationship of the right to education to cultural rights is not simple or straightforward.  Education is never value-free, and formal, state-sponsored education is designed to convey the content and perpetuate the values that are important to the state.  (See Module 20, p. 395.)  That content and those values may be at variance with the values that a minority culture seeks to perpetuate for itself.  Similarly, when seeking to further the culture of one group, education may convey values that are inimical to the rights of other groups-when, for example, the content promotes, explicitly or implicitly, the superiority of one ethnic or racial group over another.   

Housing: Housing, which varies from country to country, and often within coun­tries, typically reflects the inhabitants’ culture. In its General Comment 4, the CESCR says that adequate housing policies must allow for cultural identity, expression and diversity.15 As a result, for example, cases of forced eviction may raise issues not only of the right to housing but also of cultural rights.  The structure and grouping of the housing in the original location may have facilitated the perpetuation of specific cultural patterns within the commu­nity.  When the evicted community has not been consulted on the nature of housing made available in an alternative location, and the housing provided does not reflect these cultural patterns, violations of cultural rights may occur.  (See text of Gen­eral Comment 4 on pp. 256-61.) 

Food: The food a community or people grow and how they grow it, their choice of food, the way they prepare and eat it-all of these are imbued with cultural values.  General Comment 12 (included on pp. 235-42) states:

The Committee considers that the core content of the right to adequate food implies: The availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture.16

As a result, when a community’s food-growing capacity is undercut, when their access to food is threatened or their ability to secure foods that are traditionally part of their diet is curtailed, elements of their cul­ture may also be at risk.  Right to food issues may thus go hand in hand with cultural rights issues. 

Health: Health as the World Health Organization under­stands it-a state of complete physical, mental and social well-being-is integrally related to culture and to cultural practices.  At the same time, the relationships of cultural rights to the right to health are not simple.  A person’s place in his/her culture is an es­sential part of his/her self-iden­tity, so that if a culture is at risk, that person’s psychological and emotional health is also at risk.  Because of the thrust of urbani­zation and other developmental imperatives, for example, many traditional communities have been forced to trade in their life­styles and change their habitats and eating habits, with the result that they have found themselves impover­ished, and the health and well-being of their entire com­munity in jeopardy. 

Another intersection of health and cultural rights is in the area of traditional medicine.  Tradi­tional healing practices are an important aspect of many cul­tures, and in the 1978 Declaration of Alma-Ata, WHO recognized the importance of tradi­tional health practices as a component of primary health care.17

On the other hand, some traditional practices, such as female genital mutilation, are a grow­ing concern, because they endanger the physical and psychological health of individuals.  Under article 24(3) of the CRC, states must adopt measures to end those practices that affect children’s health.  Even though not explicitly mentioned in either the ICESCR or CEDAW, the respective committees both deal with the matter in their reporting practice.

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USING MODULE 17 IN A TRAINING PROGRAM

NOTES