20 Theories of Cultural Rights

Prof. Rehan Abeyratne

epgp books

 

 

Introduction

Cultural rights are widely protected in international, regional and domestic law. Yet, there remains great uncertainty on the definition, scope, and content of these rights. For instance, the term “culture” is not clearly defined and scholars disagree as to whether these rights inhere in individuals or in groups. There is also much debate in the academic literature as to whether and how courts should enforce cultural rights. Justiciability is a concern with economic and social rights as well. However, in the context of cultural rights, the fear is not that courts assume too much authority if they enforce these rights, but rather that definitional problems might lead to confusion in enforcement.

This chapter seeks to introduce students to debates on the definition and justiciability of cultural rights. It looks at academic literature from law and the social sciences to explain some of the theoretical issues surrounding these rights.

Learning Outcomes:

After completing this chapter, students should know and understand:

  • The definition of cultural rights
  • The challenge of cultural relativism
  • Justiciability concerns with cultural rights

The Definition of Cultural Rights

Cultural rights pose a paradox in international law. Though they are widely recognized and protected in the abstract, the concept of cultural rights, unlike economic and social rights, is under-examined and vaguely defined. Major international human rights instruments such as the Universal Declaration of Human Rights (UDHR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) protect cultural rights, but provide incomplete or conflicting definitions of the term. For instance, Article 27 of the UDHR recognizes the universal right of every individual to enjoy the cultural life of the community, art, and share the benefits of scientific advancement. However, in expressing cultural rights in such universal terms, the UDHR fails to recognize that someone might not want to participate in the majority group’s cultural life. As a result, the UDHR sidesteps the controversy in reconciling cultural rights with individual rights. The ICESCR exacerbates the issue by defining cultural rights in essentially the same terms as the UDHR in Article 15(1). Article 15 (2) requires state parties to take steps to ensure the full progressive realization of cultural rights. As Laura Reidel puts it, “By declaring that states should take those steps that are necessary to protect cultures, the [ICESCR]…does not exclude actions that could harm people inside the group, or other groups. It implies that cultural groups are of fundamental importance without elaborating on the definition of culture.”

By contrast, the International Covenant on Civil and Political Rights (ICCPR) places great emphasis on the protection minority cultures. Article 27 of the ICCPR provides that when there exist minority groups within a state, members of those groups cannot be denied the right to profess their own culture, religion, ethnicity, and language. This grants special protection to the cultural rights of individuals in minority groups, as opposed to the broad, universal protections in the UDHR and ICESCR. These varying expressions of cultural rights in international human rights law provide no definitional clarity.

In the academic literature, scholars are also divided with respect to the definition of “culture” and therefore of cultural rights. They main divide is between scholars who favor an individualistic approach to these rights and those that favor a community/group-based perspective. Anthropologist Clifford Geertz was influential in putting forth an individual-based account of culture as shared meanings. According to Geertz, culture is a structure that people create through their constant interaction. Additionally, he argued that culture is a context to which content can be attributed. That is, individual content like behavior, institutions, etc., do not constitute culture, but can be associated with a particular context, and that context is what we understand as culture. Bikhu Parekh also defines culture on the basis of shared meaning. According to Parekh, culture can be located through individuals’ beliefs about their lives, activities, and relationships. These beliefs eventually influence their practices and the way they regulate their individual and collective lives. In other words, individual members of cultural groups help shape the identity of these groups and maintain their relevance. This is possible because of the shared meaning between different individuals that shape the practices of a particular culture.

Building on this work, scholars like Laura Reidel have developed individual-based definitions of cultural rights. Her definition of culture, drawing from Geertz and Parekh, proceeds as follows: “A set of shared meanings, norms, and practices that form a comprehensive world view that serves to unite a group and contribute to the identity of its members.” Reidel argues that although culture is experienced at a group level, its value is derived from individual autonomy and human dignity. Thus, in her view, “Cultural rights, for the most part, are individual rights. The debate between those who emphasize individual rights or group rights is focused on a false dichotomy, because it is not true that individual rights must prioritize the individuals and group rights must prioritize groups above individuals.”

 

Other scholars have adopted a community/group-based definition of culture. The essence of their positions is that culture is derived from interactions among individuals and can therefore only arise out of dialogical relationships among individuals. Scholars that place the community as the basic unit of analysis fall under this approach. Charles Taylor, for instance, has advocated for a community-based perspective of culture. He has argued that a conversation is not a mere act between 2 people, but a more complex interaction whose value derives partly out of a dialogical interaction that can only occur within a group that shares common meanings, signs, and practices. As a result, he places greater value on the community than on its individual members.

 

However, this view is problematic for at least three reasons. First, if the group is indeed something more than the sum of its constituent parts, it does not consider how groups can evolve naturally and still remain relevant to its members. Second, it is not clear precisely what constitutes a “group” or “community”, which leads to uncertainty as to precisely which groups should be protected by law. Finally, the notion of group rights seems to conflict with the very core of international human rights law, which derives from the dignity inherent in individual human beings. The rights of individuals to dissent from the majority group and to refuse to participate in group/community culture are important aspects of cultural rights that are protected in Article 27 of the ICCPR. Moreover, it seems nonsensical to base all other human rights on human dignity, which are therefore interrelated and interdependent, while protecting a separate, community-derived set of cultural rights.

 

Overall, then, the individual approach to defining culture and cultural rights is preferable. As Reidel usefully explains, culture can be thought of as a set of shared views, meanings, norms and practices that unite a group and contribute to the identity of its members. Culture involves important elements such as shared history, identity, belief (religion), tradition, language, and practices, but there is no exhaustive list of elements that constitute a culture.

II. The Challenge of Cultural Relativism

Cultural relativism – the notion that individual beliefs and actions should be judged not by universal standards but by the standards of that individual’s culture – has proved a difficult challenge to overcome for international human rights law. In theory, international human rights apply universally. The UDHR and other human rights instruments protect the same scheme of rights for all human beings regardless of their nationality, religion, ethnicity, sex, etc. In practice, of course, there are great discrepancies among countries in the recognition and enforcement of rights. To some extent, human rights law tolerates variation in enforcement. The right to education, for instance, is a constitutionally protected right in India, but is not in the United States, which recognizes only a “constitutive commitment” to free public education, which is not explicitly protected either by the U.S. Constitution or by national legislation. Yet, this degree of variation is generally accepted. Both countries broadly comply with their international obligations on the right to education, but for reasons for historical circumstance and political culture, they have adopted different approaches to upholding this right.

Some international human rights instruments even explicitly permit a degree of relativism. Article 2 of the ICESCR sets forth the general obligations of each state party, which are very broad and leave room for differences in development and capacity. Article 2 (1) provides that every state party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” Thus, states are not required fulfill the economic, social and cultural rights of their citizens immediately. They are not even obligated to fulfill these rights in a specified amount of time. They must simply “undertake to take steps” towards fulfilling those rights in the future. This, of course, is not cultural relativism, but nonetheless shows that differences in rights protection among states is permitted in international human rights law.

In a slightly different vein, other human rights instruments recognize the right of minority groups to practice their own culture. For instance, Article 2 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities provides:

Persons belonging to national or ethnic, religious and linguistic minorities…have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.

Unlike the ICESCR, which makes accommodations for state resources and capacity, this provision permits a degree of cultural relativism. If every religious, ethnic, or linguistic group can freely practice its own culture without interference from the state, it will inevitably lead to discrepancies in the protection of other human rights. For instance, in a particularly conservative cultural group, the rights of women and children might be curtailed to some extent.

All of these sorts of relativism are tolerated, and in some cases explicitly provided for, in international human rights law. Cultural relativism becomes problematic when states declare that certain national or regional values that are antithetical to human rights take precedence over human rights norms. A good example is the “Asian Values” doctrine espoused by Singaporean Prime Minister Lee Kuan Yew and Malaysian Prime Minister Mahathir Mohamad in the 1990s. These leaders pushed forward a set of values based on the teachings of Confucius that preferred communal harmony and collective action to individual rights. In their view, individual rights-based systems, like international human rights laws, were created by and intended for Western democracies, but did not fit the cultural context of South East and East Asia. The “Asian Values” were codified in the Bangkok Declaration of 1993.

Article 4 of the Declaration makes clear the intention of Asian states to “Discourage any attempt to use human rights as a conditionality for extending development assistance.” Article 5 emphasizes that “the principles of respect for national sovereignty and territorial integrity as well as non-interference in the internal affairs of States, and the non-use of human rights as an instrument of political pressure.” Perhaps most controversially, Article 8 provides that “while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.” As academic commentators have noted, these “Asian Values” have, in practice, been used to justify authoritarian regimes in Asia, including in Malaysia and Singapore, and to pacify the rising middle-classes in these countries that might have demanded greater individual freedoms.

The challenge for international human rights law therefore is to remain universal in the values it promotes and protects, but to ensure some degree of relativism to allow for both cultural and developmental differences among countries. It is important to distinguish, however, between a tolerable level of relativism due to differences in circumstances and challenges to international human rights law itself in the form of doctrines like “Asian Values.”

Justiciability Concerns with Cultural Rights

Economic, social and cultural rights (ESCRs) have sometimes been referred to as non-binding or non-enforceable rights. In contrast, civil and political rights are generally considered to be binding and more straightforward to enforce. This is because ESCRs are often expressed in the aspirational language of progressive realization and do not require immediate enforcement. At the domestic level, ESCRs are similarly subject to limited enforcement. They are sometimes expressed as Directive Principles of State Policy (as in India) or, in case of the South African Constitution, enforceable to the extent reasonable and subject to available resources. There are two reasons usually proffered for limiting the enforcement of ESCRs. First, courts may not have the time or the resources to investigate ESCR cases in their full complexity and therefore will produce incomplete or simplistic judgments. Second, there is a concern that judicial enforcement of ESCRs will create separation of powers issues. If courts adjudicate on ESCRs, they will, in effect, act as legislators. ESCR cases require complex calculations of how the state should allocate resources, which means that courts must take into account policies on tax, trade, immigration, etc. Thus, by enforcing ESCRs, courts will engage in policymaking on issues usually decided by legislatures.

These justiciability concerns, however, apply more to economic and social rights than cultural rights. Take, for instance, the right to food. If courts were to enforce this right, they would have to make judgments on complicated policy questions such as food production, food distribution, and nutritional standards. This requires expertise, inter alia, in agriculture, infrastructure development, and biology, which courts simply do not possess. It also involves the judiciary in complex questions of resource allocation – how should state funds be utilized to combat chronic malnutrition? Would resources be more usefully allocated to increasing food production or to improving distributional capacity? The Indian Supreme Court’s judgment in PUCL v. Union of India demonstrates both these concerns. In that case, the Court expanded a case that originally pertained to a famine in Rajasthan to apply to all Indian states and has kept the litigation open for more than 10 years, issuing more than 50 interim orders in the process. These orders required the central and state governments to implement policies on a range of matters, not all of which relate directly to food production or distribution. Interim orders have dealt with issues such as urban poverty, the right to employment, and general issues of government accountability and transparency.

However, such justiciability concerns do not clearly apply to cultural rights. These rights do not implicate state resources and other areas of policymaking to the extent required by economic and social rights, like the rights to food and housing. Rather, the principal justiciability concern for cultural rights is definitional vagueness. As discussed above, there is significant dispute as to whether cultural rights are individual or group rights. Moreover, it is not clear precisely what characteristics of human society and interaction qualify as culture. Certain elements such as shared history, language, religion, etc., are agreed upon, but this is not an exclusive or exhaustive list. Unless this definitional confusion is clarified, cultural rights will remain very difficult for courts to enforce in a consistent manner.

Summary

Cultural rights receive broad protection under international, regional and domestic law, but the definition, scope and content of these rights remains disputed. Scholars are divided as to whether cultural rights should be thought of as individual rights or group rights. The individual-rights based view sees cultural rights as derived from human dignity and based on shared meanings among individuals in a community. The community/groups rights-based approach looks at cultural rights as the product of human interaction, which can only take place in the context of shared language, symbols, etc. Major international human rights instruments, like the UDHR, the ICCPR, and the ICESCR, reflect the unresolved tension between these approaches. While the UDHR and ICESCR define cultural rights in general, universal terms, recognizing the right to participate in (the majority) community’s cultural life, the ICCPR specifically protects the rights of minority cultures to profess their own culture, religion, ethnicity, and language.

The protection of cultural rights must also be weighed against the risk of cultural relativism. International human rights law permits some degree of relativism, taking into account differences in historical circumstances and political culture, state resources and capacity, and the need to protect minority groups. However, these modest accommodations must be distinguished from comprehensive doctrines that use cultural relativism to undermine international human rights law. The “Asian Values” doctrine, for instance, justifies authoritarian government structures and restrictions on civil liberties by invoking supposedly regional values of communal harmony.

With respect to justiciability, cultural rights do not pose the same concerns as economic and social rights. In enforcing cultural rights, courts need not make complex decisions involving resource allocation, nor assume a legislature’s policymaking role. The main justiciability concern with cultural rights is that they are not properly defined, which could lead to inconsistent judicial enforcement.

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Reference

  • Laura Reidel, “What are Cultural Rights? Protecting Groups with Individual Rights”, 9 Journal of Human Rights 65 (2010), at 67; Alison Dundes Renteln, “Reflections on the Theory and Practice of Cultural Rights”, 100 Proceedings of the Annual Meeting (American Society of International Law) 324 (2006).
  • Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973).
  • 1 Bikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge: Palgrave Macmillan, 2000).
  • Charles Taylor, Philosophical Arguments (Cambridge: Harvard University Press, 1995).
  • Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights (1993 [“Bangkok Declaration”], available at:http://www.hurights.or.jp/archives/other_documents/section1/1993/04/final-declaration-of-the-regional-meeting-for-asia-of-the-world-conference-on-human-rights.html.
  • Mark R. Thompson, “Pacific Asia after ‘Asian Values’: Authoritarianism, Democracy, and ‘Good Governance’”, 25(6) Third World Quarterly 1079 (2004), at 1085-86.