19 Cultural Rights in Comparative Perspective

Prof. Rehan Abeyratne

Introduction

Cultural rights are widely recognized and broadly protected under international human rights law and in regional human rights treaties. At the domestic level, cultural rights receive constitutional protection in many countries, particularly in those countries that have adopted constitutions in the past thirty years. The 1996 Constitution of South Africa, for instance, explicitly enumerates cultural rights in Sections 30 and 31 within a broad scheme of fundamental rights that can be enforced in court.

This chapter seeks to introduce students to the approaches of three jurisdictions in enforcing cultural rights. It looks at cases from the Inter-American Court of Human Rights, the European Court of Human Rights, and the South African Constitutional Court.

Learning Outcomes:

After completing this module, students should know and understand:

• The Inter-American approach to cultural rights. The European approach to cultural rights.
• The South African approach to cultural rights.

The Inter-American Approach to Cultural Rights

In the Inter-American system, many cultural rights cases involve the rights of indigenous communities. These cases often involve similar facts. As developing countries, particularly in South America, seek to acquire land for economic purposes, they interfere with the property rights of indigenous people and their traditional ways of living. The Inter-American Court of Human Rights has been asked to adjudicate on a number of cases pitting national governments against indigenous communities and has generally ruled in favor of the latter.

In Xákmok Kásek Indigenous Community v. Paraguay, the issue before the Inter-American Court of Human Rights was whether an indigenous community in Paraguay had a right to reclaim their traditional lands. The Xákmok Kásek community sought to regain 10,700 hectares of land that had been acquired by the Paraguayan government. The community’s livelihood was based on hunting, fishing, and gathering. This livelihood was threatened when they were dispossessed of their ancestral land. The Paraguayan government designated a protected area for this community to live and forced many of its members to work on private farms. The Inter-American Commission on Human Rights found that the Xákmok Kásek farm laborers did not receive their due benefits under the Paraguayan Labor Code and were often paid below the minimum wage. The community also faced issues of subsistence, health care, and sanitation.

The case eventually reached the Inter-American Court, which held in favor of the Xákmok Kásek community. The Court held that Paraguay violated several of the community’s rights under the American Convention on Human Rights. These include: the right to life (Article 4), property (Article 21), humane treatment (Article 5), legal access and protection (Articles 8 and 25), and juridical personality (Article 3). The Court further held that the rights of the child (Article 19) and the right to non-discrimination (Article 1) had been violated. It ordered Paraguay to return the 10,700 hectares claimed by the Xákmok Kásek or to identify another suitable site within the group’s traditional lands if the government was unable to return the specific land claimed. In addition, community leaders were to be identified and granted restitution. Paraguay was also asked to hold a public ceremony to recognize the community’s suffering. The Court instructed Paraguay to safeguard the community’s economic, social and cultural rights by creating a development fund to provide access to medical services, clean water, food, etc., and by streamlining its legal/administrative procedures to handle indigenous rights claims more efficiently in the future.

In Pueblo Indígena Kichwa de Sarayaku v. Ecuador, the Inter-American Court of Human Rights had to determine if the state of Ecuador had violated the rights of the Sarayaku indigenous community by entering and exploring its lands without permission. The Ecuadorian government had also allowed an Argentinian oil company to begin seismic exploration without consent from the Sarayaku. The Sarayaku community numbered approximately 1,300 and formed one of the oldest settlements in the Ecuadorian Amazon. In 1996, Ecuador signed a contract with both local oil companies and CGC – an Argentinian subsidiary of Chevron that permitted these companies to explore Sarayaku lands. Between 2002 and 2003, CGC entered Sarayaku lands without their consent and placed approximately 1.5 tons of explosives in the forest. This exploration was aided by the Ecuadorian military and led to the destruction of sites that were sacred to the Sarayaku community. This exploration also resulted in several confrontations between the Sarayaku community and the unauthorized entrants, leading to threats of violence against Sarayaku leaders.

The Inter-American Court of Human Rights found that Ecuador violated the rights of the Sarayaku community to prior and informed consultation and also jeopardized community property rights and cultural identity. Ecuador was also held responsibility for failing to uphold the right to fair trials and judicial protection of the Sarayaku. The Court held that consultations should be undertaken in good faith to reach an agreement on the basis of prior, culturally informed consent. It ordered the state to publicly acknowledged its responsibility for the violations and pay compensation of $ 90,000 in material damages and $ 1,250,000 in non-material damages.

The European Approach to Cultural Rights

The principal human rights instrument in Europe, the European Convention on Human Rights (ECHR) does not explicitly recognise cultural rights. However, the European Court of Human Rights (EctHR) has come to recognize a range of cultural rights through its interpretation of other provisions in the Convention. Unlike in the Inter-American system, the cases on cultural rights in Europe tend not to focus on the rights of indigenous communities. Instead, they often concern the rights of minority groups to preserve their cultural heritage as they are integrated into the broader society.

Chapman v. United Kingdom concerned the rights of gypsies in the U.K. to practice their traditional ways of living. Sally Chapman, a gypsy woman, purchased a plot of land and intended to live on this land in a caravan. The local District Council refused to allow her to reside in this manner and gave her 15 months to vacate the property. Chapman alleged that this violated her rights under the ECHR, including the right to repect for private and family life in Article 8(1) and the prohibition on discrimination in Article 14.

By a vote of 10 to 7, the ECtHR rejected Chapman’s arguments. The Court acknowledged that Chapman’s “occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle.” It further recognized that the “vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle.” However, according to the Court, even though there was interference with Chapman’s Article 8(1) right to respect for family and private life, the British authorities were justified in their decision to evict her from the property. The Court relied on Article 8 (2), which grants an exception to Article 8(1) for laws necessary in a democratic society in the interests of, inter alia, national security, public order or the country’s economic well-being. In this case, Chapman’s land was subject to environmental protection and the Court granted British authorities broad discretion in determining policies of such national importance. The Court further held that Chapman’s Article 14 right against discrimination had not been violated because the relevant law had legitimate aims and any discrimination she faced was proportionate to those aims and had a reasonable and objective justification. Thus, while the Court broadly recognized the importance of cultural rights in this case, it nonetheless ruled in favor of the state.

In a more recent case, however, the ECHR upheld the cultural rights of a minority family against the state. In Khurshid Mustafa and Tarzibachi v. Sweden, the applicants, a married couple of Iraqi origin living in Sweden (they were Swedish nationals), installed a satellite dish that allowed them to receive television programmes in Arabic and Farsi from Iraq. They were evicted from their property by local authorities for refusing to remove the dish. The applicants alleged that this violated their right to to repect for private and family life under Article 8(1) and their right to receive information under the right to free expression in Article 10 of the ECHR.

The ECtHR held that applicants’ Article 10 rights had been violated in this case. It noted that the satellite dish enabled the applicants to receive television programming from the Middle East that was particularly important to them. This included political and social news that allowed them to remain connected to their culture and language. The Court found that the applicants had no other means to receive such news and the domestic courts had concluded that the satellite installation posed no security risk. In light of these facts, the Court held that the applicants’ eviction was disproportionate to the aim pursued, which was the landlord’s interest in upholding order and good custom. The Court further held that it need not reach the applicants’ Article 8 claim. The applicants were awarded 6,500 euros in pecuniary damages, 5,000 euros in non-pecuniary damages, and 10,000 euros for costs and expenses.

The South African Approach to Cultural Rights

The 1996 Constitution of South Africa explicitly enumerates cultural rights. Section 30 (“Language and Culture”) provides, “Everyone has the right to use the language and to participate in the cultural life of their choice.” Section 31, entitled “Cultural Rights”, establishes that persons belonging to particular cultural, religious or linguistic communities may not be denied their right, along with other members of their community, to enjoy their culture, practice their religion or use their language, or to form and maintain associations along any of those lines. The 1996 Constitution aims to be a transformational document that redresses the injustices of the Apartheid era in South Africa and advances greater equality and human dignity for all its citizens. The South African Constitutional Court has therefore been reluctant to uphold religious or cultural rights claims that conflict with these broader values.

In Christian Education South Africa v. Minister of Education, the appellant was an umbrella body of 196 independent Christian schools whose purpose was “to promote evangelical Christian education” in South Africa. These schools practiced corporal punishment, which they claimed was an important component of their learning environment. The appellant challenged a South African law that prohibited corporal punishment on the grounds that it violated various constitutional rights, including the freedom of religion under Sections 15 and 31. Section 15 provides, “Everyone has the right to freedom of conscience, religion, thought, belief and opinion”, while Section 31 protects the right to practice religion as a component of cultural rights. For its part, the state advanced two important interests furthered by the law banning corporal punishment. First, it argued that this law would uphold the right to equality by ensuring all children are treated equally. Second, it stated that this law would protect students from degradation and indignity and therefore uphold the core value of human dignity in the South African Constitution.

The South African Constitutional Court ruled in favor of the government and dismissed the Applicant’s appeal. Justice Sachs, writing for the majority, acknowledged that the Applicant’s religion beliefs were genuine and that Sections 15 and 31 of the Constitution “affirm the right of people to be who they are without being forced to subordinate themselves to the cultural and religious norms of others.” However, Justice Sachs also made clear that Section 31 “cannot be used to shield practices which offend the Bill of Rights.” In particular, he warned against situations where constitutional violations could occur in a privatized space without state regulation and where certain members of religious or cultural groups could violate the rights of other members. Given these competing rights claims, Justice Sachs engaged in proportionality analysis to determine if the state law is justified in a democratic society. Given that the law was of general application and that “Parliament wanted to make a radical break with an authoritarian past”, the Court held that the law is constitutional as generally applied and that the applicant’s claim for an exemption could not be granted. As Justice Sachs put it:

Just as it is not unduly burdensome to oblige [religious schools]… to accommodate themselves as schools to secular norms regarding health and safety, payment of rates and taxes, planning permissions and fair labour practices, and just as they are obliged to respect national examination standards, so is it not unreasonable to expect them to make suitable adaptations to non-discriminatory laws that impact on their codes of discipline.

In Minister of Home Affairs v. Fourie (2005), appellants, a same-sex couple, contended that by not allowing them to marry, the South African Marriage Act excluded them from publically celebrating their happiness in violation of Articles 9(1) and 9(3) of the South African Constitution. Article 9 (1) guarantees equal protection of the law to all citizens, while Article 9(3) prohibits discrimination, inter alia, on the grounds of sexual orientation. This exclusion arose from the common law definition of marriage in South Africa, which was restricted to unions between one man and one woman. Two amici curaie, however, intervened in support of the law. The Marriage Alliance, with the support of Cardinal Napier, contended that the Marriage Act upholds an essential aspect of marriage – its potential for procreation. They contended that the Court would overturn centuries of traditional practices if they were to change that understanding of marriage. They further claimed that the institution of marriage could not sustain same-sex couples and that all these radical changes would violate religious freedoms under the Constitutiun.

Writing for a unanimous court, Justice Sachs held that the definition of marriage in the Marriage Act, limited to one man and one woman, ostracized homosexual couples and violated their rights under Articles 9(1) and 9(3). With reference to religious freedom, Justice Sachs noted that state accomodation of religion under the Marriage Act extends quite far. It states, “Certain marriage officers may refuse to solemnize certain marriages.—Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organization to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organization.” In other words, religious persons or organizations would not be required to recognize or administer same-sex marriages if they objected to such unions. However, Justice Sachs was unwilling to extend religious accomodation further than this. He wrote, “It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others.”

Overall, much as in the Christian Education case, the South African Constitutional Court recognized the importance of cultural rights, particularly with respect to freedom of religious practice and belief, but was unwilling to allow religious doctrine to compromise core constitutional values such as equality and human dignity. In each instance, when confronted with religious objections, the constitutional values prevailed.

Summary

Cultural rights are broadly protected human rights at the international, regional and domestic levels. However, the type of legal claims brought to enforce cultural rights various significantly by region. In the Inter-American region, many cultural rights cases focus on the rights of indigenous peoples to their ancestral lands and traditional means of livelihood. The Inter-American Court of Human Rights has generally held in favor of indigenous groups and has ordered states not only to recognize their property rights, but to formally take responsibility for legal violations and to provide monetary compensation to victims.

The European Convention on Human Rights (ECHR) does not explicitly recognize cultural rights, but the European Court of Human Rigths (ECtHR) has read certain cultural rights into other provisions of the Convention. Unlike the Inter-American Court, cases before the EctHR generally concern the rights of minority groups to preserve their cultural heritage as they are integrated into the broader society. The Court has not consistently favored either minority groups or the state, but has instead decided cases through careful, fact-based analysis.

The South African Constitution protects cultural rights explicitly in Sections 30 and 31. Given the transformative aspirations of the Constitution – it seeks to redress the injustices of Apartheid and move the country past that troubled era – the Constitutional Court has not sustained cultural or religious objections when they conflict with core constiuttional values such as human dignity and equality.

Reference

• Xákmok Kásek Indigenous Community. v. Paraguay, Judgment, Inter-Am. Ct. H.R. (August 24, 2010).
• This case draws from Carson Osberg, “Inter-American Court Rules in Favor of Paraguayan Indigenous Group in Land Rights Case”, Human Rights Brief, Nov. 7, 2010, available at: http://hrbrief.org/2010/11/inter-american-court-rules-in-favor-of-paraguayan-indigenous-group-in-land-rights-case/.
• This case description draws from “Pueblo Indígena Kichwa de Sarayaku vs. Ecuador”, ESCR Net, available at: http://www.escr-net.org/node/364959.
• Pueblo Indigená Kichwa de Sarayaku vs. Ecuador [Sarayaku Indigenous People v. Ecuador], Judgment, Inter-Am. Ct. H.R. (June 27, 2012).
• European Court of Human Rights, Appl. No. 27238/95 (2001).
• This case description draws from “Chapman v. The United Kingdom (Application no. 27238/95)”,
• ESCR Net, available at: http://www.escr-net.org/docs/i/673056.
• European Court of Human Rights, Appl. No. 23883/06 (2008).
• This case description draws from “Khurshid Mustafa and Tarzibachi v. Sweden: Summary”, Netherlands Institute of Human Rights, available at: http://sim.law.uu.nl/SIM/CaseLaw/Hof.nsf/2422ec00f1ace923c1256681002b47f1/7675556e524d986 9c125753e004c5d61?OpenDocument.
• 2006 (1) SA 524 (CC). This case description draws from Rehan Abeyratne & Nilesh Sinha, “Insular and Inconsistent: India’s Naz Foundation Judgment in Comparative Perspective”, 39 Yale Journal of International Law Online 74 (2014), and from the summary on the website of the South African Legal information Institute, available at http://www.saflii.org/za/cases/ZACC/2005/19.html.