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dialogue ABOUT Series 2 Number 12 • Spring 2005 Human Rights Dialogue EDITORS: Robert Albro, Joanne Bauer MANAGING EDITOR: Ryan Dempsey CONTRIBUTING EDITOR: Morgan Stoffregen Human Rights Dialogue promotes a global discussion of TEXT EDITOR: John Tessitore human rights ideas and practices by presenting firsthand DESIGN: Mim Adkins, Bryn Smith accounts of human rights issues as they arise within spe- WEB DESIGN: Eric Hreha cific real-life contexts. In so doing, the publication helps SPECIAL ADVISOR: Alison Dundes Renteln to clarify the significant and ongoing evolution that is tak- INTERNS: Adam Jed, Zornitsa Stoyanova-Yerburgh ing place within the human rights movement to make the human rights framework more relevant and effective in addressing the social, economic, and political challenges of the twenty-first century. HUMAN RIGHTS INITIATIVE Series One (1993–1998) of Dialogue examined all ADVISORY BOARD sides of the Asian values debate—the argument that Asian Peter R. Baehr cultural values imply different human rights standards Carlos Basombrío and priorities from those in the West. In Series Two Ann Blyberg (2000–2005), Dialogue addresses the problem of the Catharin E. Dalpino “human rights box”—the constraints that have enabled Clarence J. Dias Peter H. Juviler the human rights framework to gain currency among Benedict Kingsbury elites while limiting its advance among the most vulnera- Stephen P. Marks ble. Specifically, the essays aim to locate the barriers to Chidi Anselm Odinkalu greater public legitimacy of human rights and to demon- Dimitrina Petrova D. J. Ravindran strate how those barriers can be overcome. Edwin Rekosh Founded in 1914 by Andrew Carnegie, the Carnegie Loretta J. Ross Council is an independent, nonpartisan, nonprofit organiza- Mohammed El Sayed Said tion dedicated to research and education at the intersection of William F. Schulz ethics and international affairs. The essays published within Human Rights Dialogue reflect the opinions of the authors CARNEGIE COUNCIL ON ETHICS and not necessarily those of the Carnegie Council. AND INTERNATIONAL AFFAIRS

PRESIDENT: Joel H. Rosenthal VICE PRESIDENT FOR FINANCE AND ADMINISTRATION: Eva Becker PAST ISSUES OF HUMAN RIGHTS DIALOGUE DIRECTOR OF STUDIES: Joanne Bauer CIRCULATION: Deborah Carroll • Environmental Rights Copyright © 2005 Carnegie Council on Ethics • Violence Against Women and International Affairs, a publicly supported • organization of the type described under section • Public Security 509(a)(1) and 170(b)(1)(A)(vi) of the Internal Revenue Code. • Peace Work Please direct requests for permission • Health Rights to reprint or otherwise reproduce articles to • Humanitarian Intervention [email protected]. Current and past issues of • Women’s Human Rights Human Rights Dialogue are available in downloadable format on our Web site at • Human Rights Litigation www.carnegiecouncil.org. Downloading for class- • Workplace Codes of Conduct room or event use also requires permission. • Human Rights Legitimacy Bulk orders of Human Rights Dialogue for • Asian Values Series classroom or event use are available at a discount.

For more information, contact Deborah Carroll at Cover photo: [email protected]. Toppenish, Washington, United States. Two police officers in front of a mural on the Yakama Nation Editorial and Business Offices: Reservation. In the 19th century, Toppenish was a critical site for 170 East 64th St., New York, NY 10021-7496 Native Americans to hunt, fish, and gather roots. tel: (212) 838-4120 fax: (212) 752-2432 Photo by Peter Frischmuth/Peter Arnold, Inc. Web: www.carnegiecouncil.org All issues are available in PDF format at www.carnegiecouncil.org

ISBN: 0-87641-055-7 THIS ISSUE Cultural Rights

SECTION 1 THE CASE FOR CULTURAL RIGHTS 20 CULTURAL RIGHTS IN THE AGE OF THE WAR ON TERROR Kristen Ghodsee and Christian Filipov demonstrate the 7 RETHINKING effects of tensions introduced into national Bulgarian poli- UNDER INTERNATIONAL LAW tics by the requirements of participation in the European David Nersessian argues for the need to restore to Union and of cooperation with the U.S. war on terror current international law the criminality of cultural upon the cultural rights of Slavic Muslim Pomaks. genocide, as envisioned by Raphael Lemkin’s original 1944 formulation of “genocide.” 22 WHEN RITES ARE RIGHTS: CULTURAL CHALLENGES TO MARRIAGE LAWS 9 “THIS FOREST IS OURS” Alison Dundes Renteln explores the role of in Drawing on his firsthand experience with the Yiaaku the legal recognition of marriage in the United States people in the Mukogodo forest of Kenya, Muthee and elsewhere, demonstrating how legal definitions of Thuku describes how their survival as a distinct marriage often make it difficult to recognize marital people depends upon their intimate relationship with bonds for minority . the forest.

11 LANGUAGE RIGHTS AND GUARANI SECTION 3 INSTITUTIONALIZATION AND STANDARDIZATION RENAISSANCE IN BOLIVIA Bret Gustafson describes the struggles of Bolivia’s 26 THE DISTINCTIVE CULTURE TEST indigenous Guarani, both as members of a distinct Avigail Eisenberg explains that the application of group and as equal members of a pluralistic society, a “distinctive cultural test” in Canadian jurispru- to claim their right to speak their own language as a dence, beginning with the ruling of R. v. Van der basic cultural right. Peet, fails to meet fair standards in assessing cultural distinctiveness. 13 THE STOLEN GENERATION: ABORIGINAL CHILDREN IN AUSTRALIA 28 A EUROPEAN EXPERIMENT IN PROTECTING The Australian government’s policy of forcibly removing CULTURAL RIGHTS Aboriginal children from their families, Danielle Will Kymlicka argues that as Europe continues to Celermajer shows, constitutes a clear-cut violation of institutionalize its union the cultural rights approach Aboriginal cultural rights. it has adopted falls short of comprehensively address- ing the variable circumstances of minorities across different states. SECTION 2 CLAIMS, CLAIMANTS, AND CONFLICT

31 THE U.N. HUMAN RIGHTS COMMITTEE’S 16 WOMEN’S RIGHTS AS CULTURAL RIGHTS: DECISIONS THE CASE OF THE IRISH TRAVELLERS Over the past twenty-five years virtually every time a Women’s rights and cultural rights are widely seen to be cultural minority has petitioned the Human Rights at odds. Yet as Niamh Reilly explains, Traveller women Committee under Article 27 of the ICCPR, it has failed. in Ireland are at the forefront of efforts to promote the Dinah Shelton explains why. cultural rights of their people, and so to battle the social and economic discrimination of the Irish government. 34 CULTURAL RIGHTS AND INTELLECTUAL PROPERTY DEBATES 18 A CHINESE LESSON ON CULTURAL RIGHTS Drawing upon the case of the appropriation of the Xiaorong Li argues that while the Chinese government music of Taiwan’s Ami people by the band Enigma, may claim to protect the cultural rights of its people, Rosemary Coombe explores how best to protect the its record suggests otherwise, and represents a failure rights of cultural minorities amid debates about the to recognize the indivisibility of human rights. ownership of intellectual property. INTRODUCTION

Together these essays describe the role that cultural rights can play in inscribing a right to cultural difference as a fundamental factor of human identity.

This issue of Human Rights Dialogue—the final issue in political status is, she insists, “identical with expulsion Series Two—focuses upon the evolving concept of cultural from humanity altogether.” As our pro- rights. It explores its potential effectiveness in advancing the vides us that “place in the world,” to negate it is to deny full human rights claims of ethnic minorities, , membership in the human community. and other cultural communities. In doing so it aims to show Nevertheless, there are many who regard “culture” as a set that cultural rights are fundamental to the protection of all of archaic beliefs and practices stubbornly standing in the way other human rights. of universal human rights. In this view, globalization is a pos- In recent years the complex issue of cultural rights as a itive process that can dismantle all remaining strongholds— dimension of human rights has come to the fore of global con- especially the Middle East, Asia, and Africa—still resistant to cern. As the United Nations Development Program’s 2004 human rights. Yet such a neo-evolutionist view fails to recog- Human Development Report asserts, “managing cultural nize the extent to which the fact of cultural identity has diversity is one of the central challenges of our time.” In the become more, not less, important at the present moment in Origins of Totalitarianism (1951), Hannah Arendt famously history. anticipated the reasons why: While globalization itself is not new, its current effects are more various, disjunctive, intense, and extensive than ever The fundamental deprivation of human rights is manifested before. Today globalization is characterized by the reconstruc- first and above all in the deprivation of a place in the world…. tion of established nation-states and the emergence of new We became aware of the existence of a right to have rights (and ones brought on by the end of the Cold War, the consolidation that means to live in a framework where one is judged by one’s of the European Union, the movement from authoritarian to actions and opinion) and a right to belong to some kind of democratic systems of government in Latin America and Asia, organized community, only when millions of people emerged and the further expansion of the free market. The resultant who had lost and could not regain these rights because of the explosive ethnic violence and religious conflicts have trained a new global political situation. The trouble is that this calamity spotlight on the predicaments of cultural and religious minori- arose not from any lack of , backwardness or mere ties, new challenges of political representation amid the inter- tyranny, but on the contrary, that it could not be repaired, nal diversity of states, and the very question of what we mean because there was no longer any “uncivilized” spot on earth, by “nation-state.” because whether we like it or not we have really started to live The present round of nation-building is unprecedented in in One World. Only with a completely organized humanity the pressures it places upon states—both international and could the loss of home and political status become identical domestic—to better account for the undeniable fact of their with expulsion from humanity altogether. internal . In some cases, states have respond- ed to these pressures with the suppression of “internal dis- Arendt identifies the homogenizing impact of globalization sent”; in others, the pressures have compelled states to enter as posing a new risk for humanity—the loss of a “place in the uncharted waters of wholesale multicultural reform. the world.” And the concomitant loss of one’s home and In this environment, cultural rights claims are slowly

The former president of Bolivia mobilizes the Guarani; Ami children in Taiwan; and participants of the “Defining the Way Ahead for European ” conference at the Council of Europe. Photos courtesy of Bret Gustafson, Tony Coolidge/ATAYAL, and the Council of Europe.

2 Spring 2005 human rights dialogue being recognized as an important means for the recuperation communities is an assault on the fundamental rights of both of identity and as an essential basis for advancing claims of groups and individuals. Section two presents an array of cases social justice. Yet to understand the potential power of cultur- that represent the range of cultural rights claims and claimants al rights we also need to understand why they have historical- as well as conflicts and contradictions that emerge in pressing ly been neglected, despite the fact that they have been these claims. Finally, the essays in section three examine the enshrined in international law since 1966 with the adoption of innovative work being carried out at the national, regional, the U.N. International Covenant on Civil and Political Rights and international levels to establish standards for the imple- (Article 27) and the International Covenant on Economic, mentation of cultural rights. Social and Cultural Rights (Article 15). Together these essays describe the role that cultural There are many reasons for the weak political commit- rights can play in inscribing a right to cultural difference as a ment to cultural rights. First, not just governments but major- fundamental factor of our human identity. In so doing they ity populations tend to view cultural rights movements that interrogate the very meaning of universal human rights in a have their basis in claims to self-determination as threatening multicultural world. With international priority historically to the state-based model of sovereignty. Second, as nation- accorded to individual civil and political rights, cultural rights states around the world face conflicts over language, religion, have been left vaguely defined as a right of participation in the and ethnicity—if not always in the same terms—these dis- cultural life of “the community” (ICCPR, Article 27). Given putes often provoke the fear of “balkanization.” This fear the central importance of cultural identity to human well reinforces the resistance of nation-states to recognizing being, we need to pay better attention to exactly who these culturally-based collective grievances. Third, in the global communities are. marketplace it is in the interest of transnational corporations — The Editors to ignore cultural rights, a fact that has become apparent in disputes between corporations and traditional peoples over the relation of to cultural property. Fourth, CULTURAL RIGHTS AS FORMULATED IN within the human rights movement itself, advocates recognize THE INTERNATIONAL BILL OF HUMAN RIGHTS cultural rights to be in direct conflict with other human rights, particularly the rights of women. Finally, on a conceptual • Universal Declaration of Human Rights (1948), Article 22: level, there is the problem of clearly defining cultural rights Everyone… is entitled to the realization, through national effort and claims so that they might become an effective basis for legal international co-operation…, of the economic, social and cultural action. One aspect of this problem is the difficulty in defining rights indispensable for his dignity and the free development of his personality. “culture.” The other is the inconsistent way in which states have applied standards of cultural rights at state and interna- tional levels. Thus, cultural rights arguments have their • Universal Declaration of Human Rights (1948), Article 27: detractors across the political spectrum. Even when defended, 1. Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and cultural rights are perceived to be a challenging arena for its benefits. advocacy. 2. Everyone has the right to the protection of the moral and material When critics dismiss cultural rights as secondary to ques- interests resulting from any scientific, literary or artistic production tions of physical survival, they in fact dismiss the fundamental of which he is the author. condition of cultural identity (to return to Arendt) as part of how we make ourselves “at home” in the world. Cultural recog- • International Covenant on Economic, Social and Cultural Rights (1966), nition is a matter of both dignity and social justice, but it also Article 15: carries with it certain material obligations. These obligations 1. The States Parties to the present Covenant recognize the right of everyone: include recognizing cultural minorities’ legitimate claims to (a) To take part in cultural life; redress of the long-standing political and economic inequities (b) To enjoy the benefits of scientific progress and its applications; that stem from their cultural marginalization. They also (c) To benefit from the protection of the moral and material interests include the hard work of crafting agendas that move a reluctant resulting from any scientific, literary or artistic production of international community to recognize cultural rights as posi- which he is the author. tive rights, where states must act proactively to prevent social and economic discrimination as a result of cultural identity. • International Covenant on Civil and Political Rights (1966), Article 27 The essays that follow are written by researchers, activists, In those States in which ethnic, religious or linguistic minorities exist and policy practitioners with firsthand knowledge of cultural persons belonging to such minorities shall not be denied the right, in rights claims and/or cultural rights abuses as well as the community with the other members of their group, to enjoy their own actions being taken to address them. We have grouped these culture, to profess and practice their own religion, or to use their essays into three sections. The first section explores the case own language. for cultural rights, demonstrating that the assault on cultural Source: Janusz Symonides, 1998

CULTURAL RIGHTS human rights dialogue Spring 2005 3 AT THE TABLE

DANIELLE CELERMAJER was formerly KRISTEN GHODSEE, an assistant profes- head of policy in the Office of the Abo- sor of Gender and Women’s Studies at riginal and Torres Strait Islander Social Bowdoin College, has been studying Bul- Justice Commissioner at the Australian garian culture and society since 1998. She Human Rights and Equal Opportunity began ethnographic research on the Commission. She has written extensively Pomaks in 2004, and will be returning to on the forced removal of Aboriginal chil- Bulgaria for fourteen months of fieldwork dren and the apology movement that grew in the Rhodope region beginning in out of the belated exposure of this prac- August 2005. She is the author of The Red tice. Celermajer’s current research focuses Riviera: Gender, Class and Tourism in on the relationship between religion and human rights. Southeastern Europe (forthcoming). Her articles on Bulgaria have also appeared in Signs: Journal of Women in Culture and ROSEMARY J. COOMBE, a Tier One Society, Women’s Studies Quarterly, and the International Jour- Canada Research Chair in Law, Communi- nal of Politics, Culture and Society. cation, and Culture at York University, has published numerous books and articles BRET GUSTAFSON, an assistant profes- exploring the cultural implications of sor of anthropology at Washington Uni- intellectual property law and its globaliza- versity in St. Louis, Missouri, is a fluent tion as a field of material and rhetorical speaker of Guarani and has done power. Among these is The Cultural Life of research and collaborative work on Intellectual Properties: Authorship, Guarani language education with the Appropriation and the Law (1998). Assembly of the Guarani people of Bolivia. He has helped produce texts for AVIGAIL EISENBERG is a political local usage in both Guarani and Spanish scientist and faculty associate in Indige- and is completing a book on indigenous nous Governance at the University of movements and education reform in Bolivia. Victoria, British Columbia, specializing in democratic theory, , WILL KYMLICKA is the Canada Research and Aboriginal rights. Her recent publi- Chair in Political Philosophy at Queen's cations include a co-edited University, Kingston, Ontario, and visit- entitled Minorities within Minorities: ing professor in the Nationalism Studies Equalities, Rights and Diversity (2005). program at the Central European Univer- Eisenberg is currently at work on a sity in Budapest. He is the author and book that focuses on the reasoning used by public institu- editor of numerous volumes, including tions in determining when to recognize group rights. Multicultural Citizenship (1995), Finding Our Way: Rethinking Ethnocultural CHRISTIAN FILIPOV is an attorney, a Relations in Canada (1998), and Politics member of the Sofia Bar Association, and a in the Vernacular: Nationalism, Multiculturalism, Citizenship consultant on European Law with Pierce (2001), and his works have been translated into thirty lan- Atwood, LLP in Portland, Maine. Filipov guages. He is co-editor of the forthcoming volume Multicul- has served as an advisor on administrative turalism in Asia. and judicial reform with the World Bank office in Sofia, Bulgaria, and as a private XIAORONG LI is a researcher at the Institute for Philosophy lawyer dealing primarily with large privati- and Public Policy, University of Maryland, focusing on human zation transactions. His current work rights theories and the ethics of culture, with a regional focus focuses on legal harmonization in prepara- on Asia. Li has written on a wide range of subjects including tion for Bulgaria’s accession to the European Union in 2007, specif- human rights, international justice, , ically the emerging conflicts between utility deregulation and the women's rights, and multiculturalism. She is the author of the social and economic rights of Bulgarian consumers in rural areas. forthcoming book, Taking Rights and Culture Seriously.

4 Spring 2005 human rights dialogue DAVID NERSESSIAN is a Boston-based MUTHEE THUKU, an ethno-botanist and researcher for the lawyer, an adjunct member of the facul- African Initiative for Alternative Peace and Development ty at Boston University School of Law, (AFRIPAD), specializes in the relationship between traditional and a visiting researcher at Harvard African cultures and their natural environment. Thuku has Law School. He is currently completing worked with several ethnic minorities in Kenya, including the a Ph.D. in Law at Oxford University, Yiaaku people, to develop projects that preserve their tradi- where he has concentrated on public tional way of life and enable them to achieve economic self- international law, with a particular sufficiency. focus on international offenses and the crime of genocide. Nersessian was appointed a U.S. Supreme Court Fellow for 2005-2006. The Editors

NIAMH REILLY is a post-doctoral fellow ROBERT ALBRO, visiting assistant pro- in Women’s Studies and Politics at the fessor of Anthropology and Interna- University of Limerick in Ireland, where tional Affairs at George Washington she is engaged in a number of projects University, is a Rockefeller Humanities focused on human rights, feminist Fellow at the Smithsonian’s Center for activism, and global governance. She is a Folklife and Cultural Heritage and a co-founder and advisory board member of Carnegie Council Fellow (2004-2005). the Women’s Human Rights Alliance, an Albro’s current project compares NGO coalition that works closely with indigenous activism in Ecuador and the National Traveller Women’s Forum. Bolivia around cultural rights. His Reilly has worked with the Traveller rights group, Pavee Point, recent writing includes the chapter, “UNESCO’s Heritage: and with the Center for Women’s Global Leadership at Rutgers Concept and Complications of Cultural Belonging,” in Safe- University. guarding Intangible Cultural Heritage: Challenges and Approaches (forthcoming). ALISON DUNDES RENTELN is profes- sor of political science and anthropolo- JOANNE BAUER is founding editor of gy at the University of Southern Cali- Human Rights Dialogue and director of fornia where she teaches Law and Public the human rights program and the envi- Policy. An expert on cultural rights, she ronmental values program at the is the author most recently of The Cul- Carnegie Council. She is co-editor of The tural Defense (2004), which provides an East Asian Challenge for Human Rights overview of the debate surrounding the (1999), and editor of a forthcoming vol- admissibility of cultural evidence in the ume, Forging Environmentalism: Explo- courtroom. Her other publications rations of Justice, Livelihood and Con- include International Human Rights: Universalism Versus tested Environments in Four Countries. Relativism (1990) and, with Alan Dundes, Folk Law: Essays in the Theory and Practice of Lex Non Scripta (1994).

DINAH SHELTON is the Patricia Roberts Harris Professor of Law at George Washington University Law School, where she teaches international law. She has been a consultant on human rights to the United Nations, the Council of Europe, and the European Community. Shelton serves on the board of several nongovernmental organizations concerned with human rights, including the rights of indigenous peoples, and is the editor of the Encyclopedia of Genocide and Crimes Against Humanity (2004).

CULTURAL RIGHTS human rights dialogue Spring 2005 5 SECTION 1 THE CASE FOR CULTURAL RIGHTS The Editors

This section serves as an introduction to the application of cul- damental to their livelihood, but to their very identity as a tural rights and addresses the question of why the concept of people. A relationship to the Mukogodo forest is intrinsic to cultural rights is a necessary part of a human rights approach. the Yiaaku concept of life, spirituality, language, economy, and One goal is to illustrate how cultural rights are an integral part of ancestral heritage. Already reduced to just under 1000 people, the international human rights framework. Another is to provide the displacement of the Yiaaku from the forest would literally relatively clear and straightforward examples of the application mean their collective disappearance. For the Guarani of of cultural rights as well as the social costs of withholding their Bolivia, the historical imposition of the Spanish language was recognition. a negation of Guarani personhood and of their right to exist as Article 6 of the 1948 Universal Declaration of Human Rights culturally distinct from the Bolivian nation. As Bret Gustafson enshrines a “right to recognition everywhere as a person before argues, for the Guarani, and many others, speaking their own the law.” The Universal Declaration further asserts that full language is a crucial symbolic resource for cultural member- recognition includes cultural rights considered “indispensable” ship in a particular group. The case of the “stolen generation” for the maintenance of “dignity” and development of one’s “per- of Australia’s aboriginal people, described by Danielle sonality” (Article 22), a minimum condition for which is a right Celermajer, drives home the point that recognition of cultural to participate in “the cultural life of the community” (Article 27). identity requires its transmission across generations. If there is This assertion remains the baseline for subsequent statements of no “one-size-fits-all” approach to cultural rights, defense of a cultural rights concerned with determining the extent and kind of right to territory, language, and generational continuity are participation in cultural life necessary to ensure the fullest defini- each important means for advancing cultural rights claims. tion of “personhood” as the rightful subject to which human With the exception of David Nersessian’s essay, all of the rights should apply. cases in this section—of the Yiaaku, Guarani, and Aboriginal This argument for the necessity of cultural rights is more Australians—represent cultural survival of so-called “first peo- recently reflected in the American Anthropological Association’s ples.” This is not accidental. Indigenous peoples pose the issue Declaration on Human Rights of 1999, which understands the of collective cultural rights in a uniquely compelling way. “capacity for culture” to be “tantamount to the capacity for humanity.” Historically they have been the most dramatic casualties of the These statements convey the fundamental belief that to disregard global consolidation of the nation-state, the groups most clearly the cultural context of a person’s life amounts to a denial of one’s set apart by their distinctiveness, and the first groups to begin to full personhood, regardless of differences among specific cultures. advance cultural claims in human rights terms, a process under- The recognition of “cultural identity” is thus a necessary precondi- way in earnest by the late 1980s. These three cases demonstrate tion for the exercise of human rights. As Danielle Celermajer stress- how cultural rights claims are largely negotiated between specif- es in her essay in this section, culture is not something to be tacked ic groups and particular nation-states. They also show how the on to an otherwise complete range of human rights, but is in fact policies of nation-states—particularly such assimilationist goals “the organizing network within which those rights are held.” If as, in the words of one of our authors, the “unification of one globally diverse in its expression, culture is a universally present people occupying one territory and speaking one language”— matrix shaping the range and kinds of choices people make. Any have historically posed an immediate threat to the survival of failure to recognize cultural experience as intrinsic in this way diverse peoples. amounts to a limit upon individual freedoms. Cultural rights as At the same time, these cases provide a basis for comparison individual freedoms are thus also collective rights. of how states are now confronting the fact of their own internal David Nersessian’s discussion of “cultural genocide” helps diversity using the legal tool of cultural rights. An emphasis on to frame the other cases in this section. Nersessian calls for the culture as a means of political representation and citizenship is restoration of Raphael Lemkin’s concept of genocide, which seen, for example, with greater recognition given to customary originally encompassed cultural genocide and was subsequently law through revised national law. To use Latin America as one reduced to physical or biological genocide in the 1948 bell weather, starting with Colombia’s 1991 Constitution, 16 Convention on the Prevention and Punishment of the Crime of countries have now officially recognized their “multiethnic and Genocide. The other cases document the struggle for cultural sur- pluricultural” character. Gustafson’s discussion of Bolivia’s bilin- vival and identify the conditions necessary for that survival gual intercultural education reform of 1994 is one chapter in this through a defense of cultural experiences or institutions central hemispheric development. A clear lesson derived from these cases to the social reproduction of the collective cultural group. is that cultural rights are not incompatible with the sovereignty of For the Yiaaku people of Kenya as Muthee Thuku states so much as they prompt a redefinition of the exclusivity of explains, guardianship of their ancestral forest is not just fun- the state’s proprietary and sovereign interests. hr

6 Spring 2005 human rights dialogue Rethinking Cultural Genocide under International Law David L. Nersessian

The concept of cultural genocide must be restored to international law, as it was in Raphael Lemkin’s original formulation in 1944.

“Genocide” is an amalgam of the Greek genos (race or ) and the Latin cide (killing), speaking literally to the destruction of a group. The term was conceived in 1944 by Raphael Lemkin, a Polish law professor who narrowly escaped Nazi occupation of his home- land. In Axis Rule in Occupied Europe, a seminal text on Nazi race policy, Lemkin noted that genocide signifies:

a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the indi- viduals belonging to such groups. Genocide is directed against the nation- al group as an entity, and the actions involved are directed against individu- Bosnia National Library, Sarajevo, 1996. als, not in their individual capacity, but Biological genocide consists of imposing Elements of cultural genocide are mani- as members of the national group. measures calculated to decrease the fested when artistic, literary, and cultur- reproductive capacity of the group, such al activities are restricted or outlawed Lemkin described eight dimensions of as involuntary sterilization or forced seg- and when national treasures, libraries, genocide—political, social, cultural, eco- regation of the sexes. archives, museums, artifacts, and art nomic, biological, physical, religious, Cultural genocide extends beyond galleries are destroyed or confiscated. and moral—each targeting a different attacks upon the physical and/or biolog- The 1948 Convention on the aspect of a group’s existence. Of these, ical elements of a group and seeks to Prevention and Punishment of the

s the most commonly recognized are phys- eliminate its wider institutions. This is Crime of Genocide prohibits physical d r a ical, biological, and cultural. Physical done in a variety of ways, and often and biological genocide but makes no h c i

R genocide is the tangible annihilation includes the abolition of a group’s lan- mention of cultural genocide. This .

M of the group by killing and maiming guage, restrictions upon its traditional omission was deliberate. Early drafts of r e g its members, either directly or through practices and ways, the destruction of the Genocide Convention directly pro- o R

y what the International Criminal Tribunal religious institutions and objects, the hibited cultural genocide. As the treaty b o t for Rwanda recognized as “slow death” persecution of clergy members, and was finalized, however, a debate o h

P techniques such as concentration camps. attacks on academics and intellectuals. emerged over its proper scope. Many

CULTURAL RIGHTS human rights dialogue Spring 2005 7 state representatives drafting the treaty as a group’s social, historical, and lin- to participate in any voluntary human understood cultural genocide to be ana- guistic characteristics, help to determine rights scheme. lytically distinct, with one arguing force- whether a given group of people is pro- Human rights jurisprudence lacks fully that it defied both logic and pro- tected under the Convention. sufficient flexibility to properly redress portion “to include in the same Cultural genocide thus plays a sub- cultural genocide, which differs from convention both mass murders in gas sidiary role in our present understanding other infringements upon cultural rights chambers and the closing of libraries.” of genocide and group destruction. But in both scope and substance. The existing Others agreed with Lemkin’s broader this is a product of the political realities of human rights scheme redresses the inten- initial conception that a group could be treaty negotiation between states rather tional and systematic eradication of a effectively destroyed by an attack on its than any limitation inherent in the con- group’s cultural existence (for example, cultural institutions, even without the cept. The Convention’s drafters acknowl- destroying original historical texts or pro- physical/biological obliteration of its edged the legitimacy of cultural genocide, hibiting all use of a language) with the members. and indicated that it might be addressed same mechanisms as it would consider the redaction of an art textbook. But cul- tural genocide is far more sinister. In such The present understanding of genocide cases, fundamental aspects of a group’s preserves the body of the group but allows unique cultural existence are attacked with the aim of destroying the group, its soul to be destroyed. thereby rendering the group itself (apart from its members) an equal object and Cultural genocide ultimately was through other international instruments. victim of the attack. The existing rubric excluded from the final Convention, Indeed, an individual right to cultural of human rights law fails to recognize and except for a limited prohibition on the existence was recognized in the 1948 account for these important differences. forcible transfer of a group’s children. The Universal Declaration of Human Rights Collective identity is not self-evident drafters acknowledged that the removal of and subsequently affirmed in the but derives from the numerous, inter- children was physically and biologically International Covenant on Economic, dependent aspects of a group’s existence. destructive but further recognized that Social and Cultural Rights. And to accom- Lemkin’s original conception of geno- indoctrinating children into the customs, modate the erosion of traditional geo- cide expressly recognized that a group language, and values of a foreign group graphic and economic boundaries, more could be destroyed by attacking any of was “tantamount to the destruction of the recent treaties such as the Charter of the these unique aspects. By limiting geno- [child’s] group, whose future depended on European Union and the Council of cide to its physical and biological mani- that next generation.” Europe’s Framework Convention for the festations, a group can be kept physical- Despite the limited definition of the Protection of National Minorities contain ly and biologically intact even as its offense itself, broader cultural considera- anti-assimilation language and create collective identity suffers in a fundamen- tions do still play two important roles in express obligations to respect cultural tal and irremediable manner. Put anoth- prosecuting genocide under the diversity. Culture also is protected through er way, the present understanding of Convention. First, acts of cultural geno- such specific-purpose instruments as the genocide preserves the body of the group cide—conduct violating what the European Cultural Convention and the but allows its very soul to be destroyed. International Criminal Tribunal for the Convention for the Protection of Cultural This is hardly a satisfactory situa- Former Yugoslavia (ICTY) referred to as Property in the Event of Armed Conflict. tion, and it is time to revisit the issue put the “very foundation of the group”— Without denigrating the importance aside by the Convention’s drafters tend to establish the genocidist’s specific of such developments, it nevertheless is through a new treaty dealing specifically intent to destroy the protected group. important to recognize their limitations. with cultural genocide. These efforts The ICTY, for example, held that Serbian Human rights treaties (and their con- should be preceded by a comprehensive destruction of Muslim libraries and comitant compliance and adjudicatory analysis of state practice and opinio juris mosques and attacks on cultural leaders mechanisms) depend upon the voluntary to ascertain the current status of cultural established genocidal intent against and good faith participation of states genocide under customary international Muslims in the former Yugoslavia. party to the instruments themselves. law. The need is patent. Cultural geno- Second, cultural characteristics are Adjudicated violations (including those cide is a unique wrong that should be rec- used to help define the contours of the amounting to cultural genocide) create ognized independently and that rises to protected groups enumerated in the at most an obligation to desist from the the level of meriting individual criminal Convention. Since there are no universal- offending practice and to pay compensa- responsibility. After all, if indeed the ly accepted definitions of racial, ethnic, tion. The responsible parties are states, highest values of a society are expressed religious, or national groups, each must and there is no recognition of individual through its criminal laws, what message be assessed on a case-by-case basis in civil or criminal responsibility for the is being conveyed by not labeling acts of light of unique historical and contextual conduct at issue. Those most likely to cultural genocide as criminal? Perhaps a considerations. Cultural concerns, such commit cultural genocide are least likely message better left unsent. hr

8 Spring 2005 human rights dialogue “This Forest Is Ours” Muthee Thuku

The cultural survival of the Yiaaku people in the Mukogodo forest of Kenya depends upon preserving their intimate relationship with the forest.

When Yiaaku people gather, or a father blesses his family, the prayers uttered are full of symbolism and poetic beauty.

Entropilo*

May the land of our fathers and mothers embrace you May you grow as huge as a Loimugo tree May you smell as sweet as the Songoyo tree Be as straight as the Itarokwa tree Be as studious as Ol Donyo Keri mountain And as cool as the forests of Mukogodo

When a Yiaaku person has been scorched An indigenous forest, like the Mukogodo, in the Aberdare mountains of Kenya. by the hot sun beating on the plains, he faces the direction of Mukogodo forest selves as Yiaaku. They speak the Maa ry brought unprecedented tribulations and cries, “How I long for the forest of language, which they adopted from their to the Yiaaku. Game hunting was my father and mother!” populous Maasai neighbors through banned and the colonial government Since time immemorial the Yiaaku many years of assimilation. Maasai are attempted to settle the Yiaaku outside have been a part of the Mukogodo forest of Nilotic origin while Yiaaku are their forest in order to “civilize” them. in the central Kenya highlands, living as Cushitic. According to UNESCO’s Red Coupled with a high rate of assimilation cave dwellers and practicing a hunter- Book of Endangered Languages, Yiaaku into Maasai culture, such external gatherer lifestyle. Today, however, they is officially extinct. Fewer than ten onslaughts left the Yiaaku weakened and are settled in six villages located in a speakers remain of their original mother disoriented, both culturally and socially. wide area around the forest where they tongue. But perhaps the worst that befell them supplement their traditional beekeeping Because they were initially cave was when in 1937 the government desig- with the raising of cattle and goats. Still, dwellers and without livestock, the nated the Mukogodo a protected forest, . c it is the Mukogodo that gives meaning to Maasai branded the Yiaaku as which in turn led to their eventual relo- n I

, their concept of life and spirituality, and “ontorobo,” meaning “poor people”—a cation into villages and their transition d l o n they continue to hold a deep attachment name that stuck for centuries, deeply toward a more pastoral lifestyle similar r A r to the trees, hills, animals, and caves that affecting the psyche and pride of the to the Maasai. Since that time the e t e

P comprise their natural environment and Yiaaku. “We were never a poor people,” Yiaaku community has been undergoing / e their cultural heritage. counters Jennifer Koinante, a Yiaaku by an identity crisis amounting to a slow g e h

T A dwindling ethnic minority, fewer birth and the Director of Yiaaku Peoples death. It has only been in recent years, e t t than a thousand people identify them- Association, a recently formed organiza- following education and the passing of a o l r a

h tion championing Yiaaku rights. “The generation, that the Yiaaku have redis-

C * Entropilo, meaning “fragrant breath,” is the opening y resources of our forest have always been covered a deep pride in their unique eth- b word for all prayers in Maa. It is a form of blessing and o t a wish for ceremonial cleanness uttered by the elder abundant.” nic and cultural identity. o h

P saying the prayers. Colonialism in the nineteenth centu- Although the Mukogodo is now

CULTURAL RIGHTS human rights dialogue Spring 2005 9 “Cultural rights are human rights,” she The Yiaaku community has been asserts. undergoing an identity crisis amounting That is why we are articulating our to a slow death. claims from a human rights perspec- tive. The Kenyan constitution guaran- tees the right to culture, and so does protected by official forest guards, the Indeed, Yiaaku guardianship and the Universal Declaration of Human small number of remaining Yiaaku con- occupation of the forest ensures their Rights. We are entitled to Mukogodo tinue to have direct and unrestricted unity and the continuity of their ances- forest as our cultural abode and to a access to the forest and its resources— tral domains. The vital connection full recognition as a complete and liv- for the moment. However, it is known between the people and the forest is ing . We are ready to that several years ago forest guards reflected in their language, , tra- defend our claims in Kenyan and inter- spoke to locals about government plans ditions, and indigenous knowledge in national courts of law. of eviction. Such threats have resulted in such areas as beekeeping, ethno ecology, forced evictions for other forest dwellers, and herbal medicine. As Koinante Lobbying for support of their cause such as the Ogiek group of the neigh- explains: is in high gear. The Yiaaku Peoples boring Nakuru District, and the warning Association is an active member of local has left the Yiaaku alarmed and unsure Our language is one of the forest. It and national human rights networks, of their future. describes our flora and fauna heritage and the Yiaaku are a member of the “We have been the silent guardians in ways only we can understand. It’s a Indigenous Peoples of Africa and keepers of Mukogodo forest for cen- language of trees, wild animals, bees, Coordinating Committee (IPACC). Over turies,” explains Koinante. “When other and caves. Without the forest, our lan- the past year the Association has held forests across Kenya are being destroyed, guage becomes obsolete and ceases to awareness forums for elders, women, ours is still intact. We protect it because exist. To remove us from the forest is to and youth aimed at mobilizing commu- it is our only heritage on this planet. ask us to develop a new language. It’s nity resources and strengthening the How can a law passed in a far-away city unimaginable. struggle through collective decisions. To decide that our forest is now public promote community management of property? Does the law consider us as In short, to deny the Yiaaku their ances- forest resources, the Association has set part of the wildlife?” tral right to the forest is a form of ethno- up a community honey refinery and Whereas the government views the cide. marketing center in Dol Dol Township, Mukogodo as a strategic national What the Yiaaku want is for the sta- on the fringes of the forest. The proceeds resource worthy of protection, the tus of the Mukogodo forest to be go to joint community development Yiaaku view the Mukogodo as a cultural changed from a protected forest to a activities spearheaded by the heritage and as inseparable from Yiaaku Trust Forest in their name. That change Association. The Association also life. Yiaaku refer to the forest as loip (the of status should come with the relevant intends to build a in shade) and as gorgola (the armpit): The legal documentation, demarcation of Mukogodo forest, which will serve as a shade protects them from severe boundaries, and a Title Deed. A Title documentation and education facility; droughts, the armpit shields them from Deed would legally allow the Yiaaku and among its activities it will teach the enemies and other potential harm. In the Forest Department joint management of Yiaaku dialect to young children and traditional Yiaaku land tenure system, Mukogodo. The Yiaaku consider these compile a Yiaaku-Maasai dictionary. different clans own the various hills of measures the only way to herald a new “We know we are going to win in the Mukogodo forest. It is within these hills beginning for their threatened ethnic and end,” says Koinante. “To take the Yiaaku that clan members hang their beehives. cultural identity. It would also set a out of their forest is like asking fish As Koinante explains, “When children of precedent for other forest-dwelling eth- to live out of water. Mukogodo forest is pastoralists inherit cattle, the sons of nic minorities of Kenya. At this time our culture and identity. We are not bar- Yiaaku inherit trees with beehives…We when Kenya is drawing up a new consti- gaining with anyone. This forest is know every type of tree and the flowers tution and a comprehensive land policy, ours.” hr that yield nectar.” Yiaaku also invoke Yiaaku people hope that the demands of their ancestral attachments to the forest dwellers will be taken into account For more on the conflict between Mukogodo forest. “Our ancestors sleep and given legitimacy. To them, the new government conservation policies and in this forest,” asserts Koinante. “This is concepts of nation-state and globaliza- in Kenya see “When where all umbilical cords of our commu- tion should embrace, respect, and pre- Parks and People Collide,” by Peter G. nity lie. Our attachment to this forest is serve cultural diversity and not suffocate Veit and Catherine Benson in the maternal. To ask us to leave is to sever all it in the quest for a homogenous society. environmental rights issue of Human Rights our links with the past generations. We Koinante clearly sees the claim to Dialogue, available online at will be without history.” the forest as a struggle for human rights. http://www.carnegiecouncil.org.

10 Spring 2005 human rights dialogue Language Rights and Guarani Renaissance in Bolivia Bret Gustafson

The Guarani are claiming their right to speak their own language in Bolivia as a basic cultural right.

tized native language use and promoted . Most Guarani remember their two or three years of schooling as a time of violence, fear, and silence. Today a bilingual teacher recalls trembling at the sight of white teachers. An elder recalls that “speaking out, especially in Guarani, would bring the stick.” The imposition of Spanish was thus not just about the acquisition of a national language as a useful instrument, but about the negation of the indigenous right to exist as cultural- ly distinct peoples. Beginning in the late 1980s, Guarani speakers began to question this national policy and to consider the With limited resources, Guarani students paper a village school’s adobe walls with writing in option of bilingualism. Such an option Guarani and Spanish. would use both indigenous languages and Spanish in the public schools, and In much of Latin America the idea that today. As Guarani land bases are reduced would incorporate indigenous cultures Indian languages are fit for any modern and communities are fragmented by and histories in curricular models— purpose is seen as absurd, even subver- migration and poverty, Guarani lan- resulting in both a better education and sive. The 60,000 Bolivian Guarani, like guage has given way to Spanish, mirror- native language survival. Bolivia and the most other indigenous peoples through- out Latin America, have been fighting this prejudice as part of a wider struggle Guarani language has given way to Spanish, mirroring in for political equality. In Bolivia, state some ways the fate of the people themselves. reforms defined by “” hold some promise for indigenous peo- ples. However, the quest for robust cul- ing in some ways the fate of the people Guarani are not alone in this matter. tural rights is ongoing, and the history themselves. From Mexico to southern Chile, indige- of native languages is particularly illus- In Bolivia, elites long shared the nous demands for political participation trative of that quest in Latin America. Western idea that the path to modern and territorial control are accompanied The Guarani language flourished for nationhood required the unification of by demands for bilingual education as a several thousand years across South one people occupying one territory and distinctly cultural right. America and survived five hundred years speaking one language. With the expan- Bilingual education is based on an n o s f of violent colonialism. With speakers in sion of public schooling after 1955, the empirically demonstrable fact: Children a t s u Bolivia, Paraguay, Brazil, and Argentina, country pursued this monolithic vision learn better if taught in their first lan- G t e Guarani is still one of the largest indige- for fifty years, seeking to eradicate guage, and these learning skills can be r B

y nous language groups in South America. native languages and to impose Spanish transferred to master second or third b o t However, the language and its speakers in their stead. Reinforcing racist ideas languages more effectively. For educators o h

P find themselves increasingly displaced about “Indian-ness,” the effort stigma- (and for multi-lingual people around the

CULTURAL RIGHTS human rights dialogue Spring 2005 11 world) the notion is common-sensical, engage in a pluralistic society as equals. —those whose words demonstrate mas- not to mention that rights to language This entails recognizing that languages tery of Guarani knowledge (arakuaa). are guaranteed in a number of interna- are social practices through which peo- As another leader argued at the language tional covenants. ple give meanings to their social mem- congress, “those who have no power to speak can only create bitterness.” During Spanish colonialism and Bolivian nation-building, missionaries charged with schooling the so-called “savages” seized on the power of lan- guage. New meanings were imposed for words like yemboe that sought to cause a break with the past. Yemboe was appro- priated first to refer to catechism, and later extended to refer to Spanish school learning of all kinds. For missionaries, and eventually for Guarani themselves, yemboe came to refer to a process through which Guarani personhood was to be erased, catechized, made literate, and “made to speak” Spanish—the only language seen fit for fully human beings. This rupture is reflected today, as Guarani distinguish two words that were Guarani school children line up to sing the Bolivian national anthem at a rural village school. once closely linked: arakuaa (Guarani knowledge) and yemboe (school-learn- One would be hard-pressed to iden- bership in a particular group, and ing, like the whites). The more one expe- tify any subversive motives in the quest through which they create meaningful riences the latter, the less one retains the for bilingual schooling. The vast majori- relations between distinct groups. former. ty of indigenous people agree that learn- In Guarani, words such as yemboe This manipulation of yemboe illus- ing Spanish, Bolivia’s national language, encapsulate this view of language as a trates two dimensions of language: as a is important and that the state has the capacity to act as a social being. Yemboe practice of becoming an effective mem- obligation to educate its citizens, among means “to make oneself be made to ber of a social group, and/or as a prac- whom they count themselves. Yet speak.” Yemboe comes from the root tice through which one gives meaning to Guarani calls for language rights do [-e], “to speak,” combined with the pre- one’s relation to other groups. To recog- entail a recognition that their survival as fix [–mbo–] (to make someone do some- nize a group’s right to language requires a people depends upon their control over thing) and [ye–] (to have that action not simply to recognize their right to both material (territorial) and symbolic come back onto the subject). It refers to have their language, but to have toler- (language, history, etc.) resources. As everyday practices such as adults coax- ance for people who act and speak dif- one Guarani leader expressed it, having ing small children to speak to others, ferently within a culturally plural society. accommodated themselves to foreign giving them lines to say, often to comic This means transforming powerful invaders over the past 500 years, they do effect. Children are taught to speak as metaphors of “nation” and “modernity” not now want “to be treated as foreign- social beings, not merely to possess lan- that view languages such as Guarani (and ers in their own lands.” guage as an abstract thing. In the spiritu- their speakers) as somehow inferior. According to a Guarani elder speak- al realm, Guarani traditionally “make A robust notion of language as a ing at a Guarani language congress in themselves speak” through singing and cultural right guarantees a social envi- Bolivia in 1997, dancing aimed at transcending earthly ronment in which all people can act, mortality. On the hunt, Guarani “make speak, and create as equal members of a No longer will we be ashamed to speak themselves speak” in formal dialogues in society. But for such equality to exist, our language in the streets of the white the forest, exchanging words of respect these rights must be guaranteed where man’s town. No longer will we be beat- and a bit of tobacco with tutelary spirits the negotiation of social norms takes en for speaking our language in the who release game to hunters. Curers use place, such as in public schools. In the n o s

schools. We will speak out loudly, [say- songs that they are “made to speak” by Latin American context, indigenous f a t s

ing] that we are Guarani. spirits, who are the source of knowledge. peoples seek these opportunities for u G t

These words heal the sick, shape the intercultural dialogue and exchange e r B

Guarani thus claim the right to weather, prepare one for love or conflict, both with and within the nation-state— y b o

native language schooling not just to and so on. Guarani those who are in its markets, schools, political institu- t o h reproduce their distinct identity, but to skilled at using these powers of language (con’t on page 36) P

12 Spring 2005 human rights dialogue Photo by Loui Seselja/ Courtesy of the National Library of Australia Aboriginal ChildreninAustralia The StolenGeneration: CUL in pith dif or humanrightsinstitutionsmay findit theacademy Those sittinginthehallsof to cultur post-colonial A Having beenbrutallyviolatedby the A ly Aboriginaladultscurrent- thousands of w Inquiry: “I gottoldmyAboriginality come tobekno the “stoleng mother. AsoneAboriginalwoman of and donotkno songs tell theirpeople’s storiesorsingtheir w spaces where cultural identity hasbeen ing of time IgottoldmyAboriginality.” Abo “Y’know, Icanremember we usedto ustr hen Igotwhipped andthey’d say, ‘You alk ficult todefine“therightculture” Children from theirFamilies.” Aboriginal andTorres Strait Islander intotheSeparation“National Inquiry of Australian HumanRightsCommission’s placed atUmew forcibly removed from herparents and anAboriginalwoman —Testimony of knew.” wiped outallourlanguagethatwe langua We hadtositdown sorta withBible they’d wash ourmouthswithsoap. guage, thatit’s devil’s language.And used totellusnottalkthatlan- just talklingo. [IntheHome]they TURAL RIGHT li We canbegintocapture themean- , ed o ving inA a The Australiangovernment’s policytoeradicateAboriginalcultureconstitutes alians kno , y cannot speaktheirnative tongue, a ou nig clear-cut violationofthegroup’s culturalrights. v g y e right tocultur er theirancestr e is nog all thetime.Soitsorta terms, but indigenous S eneration” (astheyhave g ustr er.’ That was theonly w ustralia who have not w wn) toldtheNational arra Mission,from the what itisalltoowell. the faceof alian state,theright r eat myster e al lands, cannot b y tr their o acing the y to the wn one intenAboriginal children were mak Aboriginal c most powerfully the bodiesof on thebodiesof a tural eradication didnotexist assome 1910 to1970betw Commission’s reportindicatesthat from While records are imprecise, the shor comm the connectionbetween parents (and acr a recognizedcounterparts, thatthelife of w blood inAustralia willlive like other sons of course of means wrote intheearly 1950s:“Assimilation Affairs, when summarizedthepolicy he most infamousMinisterfor Native government policy. Paul Hasluck, the known as“assimilation,”was Australian Aboriginal culture, more benignly the twentieth century, eradicating a systematicstate-sponsored ground of anhistoricalback- their fightagainst r media, andtheeconomicmarketplace to anddomesticlaw, international the of who today are deftlyusingtheresources hollowed out.AboriginalAustralians, which humanrightsareheld. Culture istheorganizingnetworkwithin eg bstr buse. For thefirstseventy-plus years of hite A cultur oss g ain theircultural rights, conduct Lik ers test r c e fideasbut was played out act setof , unities) andchildren was the , e ustralians do.” in practical terms,that,inthe a e ener cultur lik boriginal [sic]b time, itisexpected thatallper- oute tokillingtheircultur depends onitstransmission e ations hildren. Australian policy their U e itself Aboriginal people,and een oneinthr . As suc , .S this polic . and Canadian lood ormixed h, breaking y ee and of cul e. - par tions, orwithwhite foster oradoptive placed instateorchurch runinstitu- acrossported thevast continent,and forcibly taken from theirfamilies, trans- derision. Asonewoman recalled: contact was refused), was theobjectof relatives seekingthemout (but withwhom their own bodiesorastheysaw itinthe even toldthattheywere Aboriginal. in theirmothertongue.Mostw punished for speaking withtheirsiblings ilies was forbidden, and theywere often young girlknownasJenniferW Australia over40yearsagobythe W “Missing Person.Stolenfr Australia. Text reads: A trying tofindyou.” trying and wantstomeetyou.Y ter ofEileenWingfield. Your motherisstillalive missing person’ ents Aboriginality, eitherastheylived itin . h Contact withtheiroriginalfam- u ma n Danielle Celermajer r i g s h notice postedinCanber ts d ia l our sisterDor o om IronKnobinSouth g u e ingfield Spr ing 2005 elfar othy is , ere not daugh- e, a ra, 13 Australian policymakers recognized that the life of a culture depends on its transmission across generations.

We were playing in the schoolyard and the damage to Aboriginal cultures (lan- this old black man came to the fence. I guages, kinships, social relations, land could hear him singing out to me and rights, etc.) was the unavoidable collater- my sister. I said: ‘Don’t go. There’s a al damage caused by the populations of black man’. And we took off. It was two colonial and post-colonial states simply years ago I found out that was my exercising their cultural preferences, rep- grandfather. He came looking for us. I resents a failure to recognize the cultural don’t know when I ever stopped being implications of assertions of sovereignty. frightened of Aboriginal people. I don’t Like the denial of land rights, the know when I realized I was Aboriginal. removal of children and all that went It’s been a long hard fight for me. with it was one means of securing the untrammeled political, legal, and eco- That long hard fight, which until nomic claims of the post-colonial recently almost all members of the Australian state. stolen generation have waged alone, Here one can clearly see the intrinsic A member of the stolen generation addresses marks the attempt of the Aboriginal connection between cultural rights and protestors at the Call to Consultation Aboriginal people to recapture their connection the full range of other human rights— Protest March in Canberra, December 2001. with their cultural identity. Aware now civil, political, social, and economic—as of the world into which they were born, affirmed at the 1993 World Conference lives. This is the other side of this story: that their own life had been a node in an on Human Rights in Vienna. Culture is the cultural renaissance that Aboriginal intricate kinship among people, land, peoples are creating for themselves, and animals, plants, celestial bodies, and their reinvigorated claims for political ancestral beings, this loss cannot be Aboriginal peoples are and economic rights. Just as the removal repaired. And because culture only exists of children and the decimation of com- through the lived experience of actual creating for themselves a munities atomized Aboriginal peoples people, Aboriginal culture has itself cultural renaissance with and undermined their capacity to make been the victim of this process of more comprehensive claims, so too their removal. reinvigorated claims for reconnection to community and to the Of course, this was the whole point web of culture provides the ground for of the policy. The Australian state, estab- rights.... It is as if history is pressing forward with such claims. In lished as an independent federation in being played in reverse. both domestic and international forums, 1901, was constituted on the ground of indigenous peoples are making a new

other preexisting indigenous nations, type of human rights claim—one that a i l a r which mapped the land with their own not a set of optional practices tacked goes beyond the dominant view that cul- t s u

systems of governance, laws, and other onto a set of individuals who would oth- ture is a less important right than other A f forms of social organization. In order to erwise enjoy the full range of human rights. Instead, their cultural rights o y r a claim political and legal legitimacy, the rights. It is the organizing network with- claim is closely tied into the more sub- r b i L post-colonial Australian state had to in which those rights are held. For those stantive rights to land and material l a n o

adopt the pretence that none of this of us whose cultures have not been sys- resources, and of course the right that i t a

existed—that the continent was, to use tematically undermined, this intimate provokes the greatest hostility from N e h the legal term, terra nullius, empty land. link is invisible, or taken for granted. It nation states: self determination. It is as t f When Aboriginal people spoke their lan- comes into relief only when the culture, though history is being played in reverse: o y s e t

guages, passed their land rights down the sovereign claims, the economic Asserting the right to indigenous cul- r u o

the generations according to indigenous resources, and the legal rights of a group tures is now paving the road to the rein- C / law, or dealt out legal remedies for are simultaneously and inter-dependently tegration of viable political and econom- a j l e s

breaches of customary law, they were violated. ic communities, and training the eyes e S i

giving testament to the fiction of the This cultural integrity is of course of the international community on the u o L

modern state’s claim to absolute sover- something that Aboriginal peoples know Aboriginal worlds that lie beneath the y b o

eignty. from the inside—and not only through map that colonial powers pasted over t o h

In this sense, the common view that violation, but also in the fabric of their the globe. hr P

14 Spring 2005 human rights dialogue SECTION 2 CLAIMS, CLAIMANTS, AND CONFLICTS The Editors

While the first section presented relatively clear-cut cases of itself, and as part of the Asian values debate. Yet the govern- cultural rights violations, in this section we focus on the polit- ment’s selective representation of “Confucian” ideals as ical contexts within which cultural rights claims are asserted. Chinese “national culture,” and against the “individualism” In particular, the essays explore how these contexts affect the of civil and political rights, justifies repression of ethnic and articulation of cultural rights with regard to other human religious minorities, like the Falun Gong. This treatment of rights, including women’s rights, individual civil and political cultural rights has led pro-democracy advocates in China to rights, freedoms of religious expression, and marriage rights. dismiss their importance. Li argues that for China the protec- This process is complicated by competing human rights claims tion of civil and political rights is inseparable from that of cul- and the realpolitik of particular states and international tural rights, which need to be understood not as the subject of alliances, against which the recognition of cultural rights often national identity, but in terms of the country’s own intra-cul- falls victim. tural diversity. If state sovereignty is not a human right, her The legal scholar Martha Minow has noted that when essay clearly shows how the nation-state can also position “universal human rights” and “cultural difference” are seen to itself as a cultural rights claimant, to the detriment of its own be at odds, we assume women’s rights to be caught in the cultural minorities. cross-fire. The discussion of the plight of Irish Traveller Turning to Europe, Kristen Ghodsee and Christian Filipov women by Niamh Reilly explicitly shows how perceived con- explore what happens when Bulgaria finds itself caught tradictions between cultural and women’s rights can be a false between allegiances and priorities, seeking membership both dichotomy. Here the fight for cultural rights is largely a in the European Union and NATO. On the one hand, for women’s struggle, since it is women who shoulder the primary entrance into the European Union the country must demon- family responsibilities for shelter, education, and food. In strate a respect for minority Muslims as a new multicultural other words, Irish Traveller women seek their cultural rights as democracy that respects “religious freedoms.” On the other, women’s rights. membership in NATO requires unflinching support of the war In her discussion of marriage rites, Alison Dundes Renteln on terror, which in practice includes limiting the cultural rights demonstrates that the question of which universe of rights—for of Muslims. This is an almost impossible balance to maintain, example, a U.S. court of law or Islamic jurisprudence— direct- with far-reaching consequences for the cultural identity of ly bears on how a marriage is recognized, if at all. If the legal Bulgaria’s minority Pomaks. The contrary pressures upon the definition of marriage in the United States is understood to be Bulgarian state have further exacerbated the issue of Pomak a heterosexual union between two individuals above a minimum identity, provoking this historically Slavic and Muslim popula- age, this makes it difficult for courts to recognize marital bonds tion to embrace fundamentalist Wahhabism as a means of constituted in different cultural terms, such as those involving clearly distinguishing themselves. Like Li’s essay on China, this more than two people or not primarily defined as between case demonstrates the pushes and pulls on the identities of cul- “individuals.” Renteln’s essay is a reminder of how cultural val- tural minorities in response to the international politics of the ues can become unhinged from cultural rights, as they inform state. In short, conflicts over cultural identity lie behind the particular standards of legal decision-making, a circumstance struggles for cultural rights. that too often leads to other rights violations. Underscoring the These essays remind us that cultural rights are an impor- point that not all cultural rites can be construed as cultural tant means of political representation that have material con- rights, Renteln complements Reilly’s case by showing how non- sequences. Given the stiff resistance of states to recognize the recognition of divergent marriage customs can be both detri- legitimacy of the cultural identities of their minority popula- mental and necessary to the protection of women. tions, and so to resist cultural rights claims, advancing these In her essay on the politics of cultural rights in China, rights requires significant social capital. As the advocacy for, Xiaorong Li addresses another scenario of contradiction: and conflicts over, claims make clear, traversing the space between cultural rights and individual civil and political between cultural rights claims and their potential recognition rights. In China, the scenario is fueled by the government’s by states, intergovernmental bodies, or international agree- usurpation of cultural rights as the provenance of the nation ments is fundamentally to navigate the fog of politics. hr

CULTURAL RIGHTS human rights dialogue Spring 2005 15 Women’s Rights as Cultural Rights: The Case of the Irish Travellers Niamh Reilly

Traveller women in Ireland are at the forefront of efforts to promote the cultural rights of their people.

birth and infant mortality rates and low life expectancy: Over 40 percent of Travellers are under 15, while only 5 per- cent are aged 50 or more. More than a fifth of Traveller families live on tempo- rary roadside sites, where dangerous and unsanitary conditions mean that sur- vival is a constant struggle. In the early 1980s an Irish Travellers’ movement emerged that explicitly framed Travellers’ rights as human rights. Founded by the Travellers’ rights group Pavee Point, a fundamental claim of the movement is that “Travellers...have a right to assert and celebrate their distinct ethnic identity.” Importantly, Pavee Point ties these cul- tural rights to the group’s human right to “resources which enable them to meet basic human needs, to reach a socially acceptable standard of living, and to live with dignity in society.” In other words, the struggle for basic needs is built upon the claim that Travellers are a minority Access to a Traveller community is blocked as a result of the “Anti-Trespass” legislation passed by the Irish government in 2002. group with culturally specific needs, which must be met if Travellers are to In a nation of approximately four mil- Traveller culture even today. In his survive as a culturally distinct group. lion, Irish Travellers are an ethnic minor- account of Irish Traveller culture, Culturally appropriate accommodation ity of some 24,000 people. Their ethnic Traveller activist Michael McDonagh for Travellers means providing adequate, distinction is socio-cultural, based upon cites one Traveller who put it this way, safe, and properly serviced halting sites a shared history, an oral tradition, a “Travellers remain Travellers even when around the country as well as giving p

unique language (variously referred to as they are not travelling.” Travellers the choice of living in perma- u o r

Cant, Gammon, or Shelta), and most Travellers are marginalized in Irish nent houses. Culturally appropriate edu- G y t i l notably a nomadic way of life. society and subjected to discrimination cation would acknowledge that Traveller i b i s Historically, Irish Travellers were com- within the majority population. children may have particular difficulties i V r e l

mercial nomads who engaged in tin- Demographic statistics attest to the sec- attending settled schools, where most l e v

smithing, seasonal farm work, and pro- ond-class status of the group. Despite students live in one place and where a r T

viding entertainment such as singing and living in one of the wealthiest European parental literacy is assumed. e h t f

fortune-telling. The modernization of nations, most Travellers live in extreme The rights of Traveller women in o y s

the Irish economy significantly eroded poverty, suffer poor health, and experi- particular are at stake. In a May 2004 e t r u

the economic niche once filled by ence many obstacles in accessing appro- interview, Ronnie Fay, director of Pavee o c o

Travellers, but nomadism continues to priate accommodation, education, train- Point, explained that there are “no t o h

be a deeply valued expression of ing, and employment. They have high Travellers’ rights without Traveller P

16 Spring 2005 human rights dialogue women’s rights.” Fay pointed out that must interface between the settled popu- (2003). The report asserted that “Irish Traveller women face “triple discrimina- lation and their own community: Travellers do not constitute a distinct tion—as Travellers, as women, and as group...in terms of race, color, descent, Traveller women.” While Traveller The women are also the ones most in or national or ethnic origin,” thereby women “experience patriarchy in the contact with settled people…. [We] undermining Travellers’ claims to cultur- ways that all women do...they also expe- are often the ones who face racism al distinctness and related measures to rience particular forms of abuse as directly and who must broker on protect Travellers’ human rights. Traveller women, when they are bru- behalf of our families…. [But if we] The 1990s global campaign for talised by descriptions in the media.” say anything that seems to go against women’s human rights is most closely In July 2004 a newspaper columnist the community…[we] can be blamed associated with achieving international for The Sunday Independent used the by other Travellers…. recognition of violence against women words “cunning” and “devious” to as a human rights issue. The campaign describe a Traveller woman who regular- Joyce’s account underscores the impera- has generally side-stepped the issue of ly visited her mother’s home seeking tive of recognizing the cultural rights of cultural rights, except to sound a note of assistance. The journalist asserted that, Travellers as an ethnic group in building caution that cultural rights are often “Travellers have no self-control and no the case for culturally appropriate serv- invoked at the expense of women’s civic responsibility because their disre- ice provision and easing the hardships human rights. The efforts of Irish spect for civil society has been Traveller women face. Recognition of Traveller women to define and secure indulged...as an element of their ‘spe- Traveller cultural identity is also vital to their human rights offers an important cial’ identity.” Back in 1996 a column reducing the widespread hostility counter-example that underscores the appearing in the same paper described toward Traveller women in their daily complex ways in which cultural rights Travellers as following “a life of appetite lives. claims and women’s human rights claims ungoverned by intellect...worse than the Over the past decade the Irish often intersect. Their plight “as life of beasts….” Around that time a Traveller’s movement has achieved some Travellers, as women, and as Traveller member of the Irish parliament had pub- success in contesting anti-Traveller dis- women” calls attention to the multifac- licly advocated that the number of crimination and in gaining cultural eted nature of their struggle and the need Travellers should be limited through the recognition as an ethnic minority. Yet the for a multifaceted response. hr use of birth control. Travellers’ struggle is ongoing. In fact, In the face of such hostility, the the Irish Government struck a blow to For more on women’s rights as human National Traveller Women’s Forum was years of Traveller activism by contesting rights see the “Violence against Women” founded in 1995 with the aim of advanc- their official minority status in its first issue and the “Women’s Rights” issue of ing “Traveller women’s rights [as] human report under the Convention on the Human Rights Dialogue, available online at rights, equality, cultural recognition, sol- Elimination of Racial Discrimination http://www.carnegiecouncil.org. idarity, liberation, collective action, anti- sexism, anti-racism [and] self-determi- nation.” In 1997 Catherine Joyce, then a community worker with Pavee Point and an active member of the National Traveller Women’s Forum, addressed in writing what it means for Traveller women to negotiate life for their families who have no choice but to live on tempo- rary, unserviced road-side sites:

We have the responsibility of the p u home…and children…. [I]f there is no o r

G water and no toilets it [affects women y t i l i and men differently]…. We are the b i s i ones...making sure [children] attend V r e l school and do their homework and l e v

a that they are clean…. If Travellers are r T

e evicted children may miss school or h t f hospital appointments and the settled o y s people blame the mothers.... e t r u o c o

t Joyce also drew attention to the particu- o h

P lar pressures on Traveller women as they A Traveller woman is evicted from her home.

CULTURAL RIGHTS human rights dialogue Spring 2005 17 A Chinese Lesson on Cultural Rights Xiaorong Li

While the Chinese government may claim to protect the cultural rights of its people, its record of violations of individual civil and political rights suggests otherwise.

Unlike many other nations, China tural communities” and does not recog- authentic cultural tradition. has formally recognized cultural rights, nize their practitioners as possessing cul- The government’s particular reading having ratified the International tural rights. of Confucianism, supported by some Covenant on Economic, Social, and Besides limiting the scope within scholars, emphasizes the family and soci- Cultural Rights. The government also which ethnic and religious culture can be ety’s collective interests over the interests claims to protect dozens of ethnic enjoyed, the government also tries to of the individual, which are associated minorities and, since the end of the control the definition of the majority with social instability, disorder, and the Cultural Revolution in the late 1970s, “Chinese culture”—a definition that it undermining of collective national pur- has gradually allowed Taoists, has changed over time. Initially the suits. This construction of “Chinese cul- Confucians, Buddhists, Muslims, and Communist regime rejected all “feudal ture” rejects “individualistic” civil and Christians to resume worship within residues,” including Confucianism. The political liberties. (Conspicuously, the limits. As a December 2004 article in the Chinese Government has yet to ratify the government-run Beijing Review International Covenant on Civil and explains, such limits prohibit “endan- Political Rights.) In this way, by deter- gering state or public security” and The systematic infringement mining what counts as “Chinese cul- “obstructing the administration of pub- ture,” the government promotes a nar- lic order or encroaching upon public or of civil and political rowly circumscribed and politically private property.” This, however, is the rights undercuts any self-serving application of collective same pretense under which the govern- “cultural rights.” Despite its professed ment has long crushed pro-democracy protection of cultural rights. concern for cultural rights, the govern- movements and imprisoned dissidents. ment’s actions make clear that it is not While China’s Marxist-Leninist legacy interested in promoting the country’s promises a gentler treatment of ethnic internal cultural diversity, which it casts minorities than of religious believers, anti-Confucian campaign reached a cli- as socially and politically dangerous. both groups have been considered a max during the Cultural Revolution In fact, however, the official rehabil- threat to the state, particularly in the when Mao denounced those threatening itation of Confucianism has inadvertent- cases of Tibetan Buddhists and Hui his power as “Confucian dogs.” The tide ly revitalized other religious traditions— Muslims in Xinjiang and other turned during the 1980s and 1990s, how- a process facilitated by China’s increased Autonomous Regions. ever. In defiance of international criti- engagement with economic globaliza- In practice, then, China’s acknowl- cism about the region’s anti-democratic tion. Chinese authoritarian leaders have edgment of cultural rights is at best practices and poor human rights record, responded by jailing Tibetan Buddhists, selective. The government actively sup- South-East Asian governments laid claim driving unofficial Christian churches presses distinct cultural activities it to distinctively “Asian values” as legit- underground, and actively persecuting deems to be “evil cultish” or “sepa- imizing a different approach to human practitioners of the Falun Gong. They ratist,” and it censures the practices of rights. In the face of international scruti- violate the rights of individual members Tibetan Buddhists loyal to the Dalai ny for its rights violations, particularly of these groups through torture, secret Lama and of members of the Falun during the 1989 Tiananmen Square mas- trials, and arbitrary detention. They Gong, a quasi-Buddhist sect, because sacre and its aftermath, the Chinese gov- heavily police the Internet, forbid public they are viewed as a threat to the gov- ernment eagerly joined the bandwagon. gatherings to express dissent or to prac- ernment’s hold on power. It pointedly The Confucian tradition was officially tice a banned religion, and punish sympa- avoids describing these groups as “cul- “rehabilitated,” and declared China’s thetic intellectuals, writers, and journal-

18 Spring 2005 human rights dialogue Morning Falun Dafa practice on the site of Jie Tai, an ancient temple in Beijing, China. November 2, 1996. Since the government’s crackdown on Falun Gong, such large gatherings are no longer permitted.

ists. Together these actions amount to a granting “exclusive” immunities or priv- reformers and liberal intellectuals are systematic infringement of civil and ileges, if necessary, to members of dis- suspicious of cultural claims, which has political rights. This infringement, in tinct cultural communities. Exclusive left them working with only a partial pic- turn, undercuts any protection of their immunities might mean allowing time ture of the extent of the problem. They cultural rights. off from work to pray, facilitating teach- find evocations of “cultural traditions” But the government’s oppressive ing of local languages, permitting the suffocating, and blame the country’s lack actions have a silver lining. Government practice of alternative medicine, or tol- of democratic progress on the long dom- persecution and suppression have turned erating public expression of beliefs such inance of old traditions. (And many of many Tibetan Buddhists, Christian as the Falun Gong practice of mind- their counterparts in the West agree.) churchgoers, and members of the Falun body exercises. Institutional safe- Others worry that tolerating diverse reli- Gong into sympathizers and supporters guards—including protections for free- gious expressions is tantamount to of China’s human rights and pro-democ- dom of religion, expression, assembly, endorsing particular faiths or visions of “salvation.” In this way, like the govern- ment, these reformers have failed to appreciate the indivisible relationship If safeguards are not put in place,the between demands for cultural rights by members of traditional cultural commu- survival of China’s distinct religious and nities and demands for protection of civil . r liberties and political freedom.

e cultural communities will be threatened. t n

e Political suppression, as China’s C

n own recent bloody history vividly o i t a racy movement. In fact, Falun Gong and association—are necessary to pro- demonstrates, can no more rid people of m r o

f members have organized the most effec- tect exclusive privileges to engage in dis- cultural identities and faiths than it can n I

a tive and sustained campaigns against tinct cultural practices, to express alter- aid healthy debates in the marketplace of f a

D torture and arbitrary detention seen in native (non-official or unpopular) ideas and beliefs. In part because the lan- n u l PRC history. cultural identities, to creatively develop guage of cultural rights has been usurped a F

e These groups seem to understand culture, and to benefit from the unique by the state, a unified struggle for h t f that the protection of civil and political products of one’s culture. If these safe- greater tolerance and better protection o y s rights is a precondition for the meaning- guards are not put in place, the survival of civil-political liberties, which includes e t r u ful exercise of cultural rights. Promoting of China’s distinct religious and cultural religious-ethnic groups and liberal o c o

t the “right to culture” and protecting a communities will remain threatened. reformers, has yet to materialize in o h

P society’s intra-cultural diversity involves Some Chinese pro-democracy China. hr

CULTURAL RIGHTS human rights dialogue Spring 2005 19 Cultural Rights in the Kristen Ghodsee Age of the War on Terror and Christian Filipov

In Bulgaria the tensions introduced into national politics by the requirements of participation in the European Union and of cooperation with the war on terror have affected recognition of .

In the wake of the September 11, 2001, Ottoman Empire. Over the last century Consequently, there was little economic terrorist attacks on the United States Bulgaria’s democratic and totalitarian investment in these regions in terms of and the subsequent increased global pre- governments have made attempts to industry, cooperative agriculture, or even occupation with terrorism and Islamic forcibly assimilate the Pomaks into the basic infrastructure. Today the Pomak fundamentalism, a small Slavic Muslim “true” Bulgarian culture, either region is among the poorest in the coun- group in Bulgaria, known as Pomaks, Orthodox Christianity or secular try with some of the highest rates of has become the subject of a national Marxism. These attempts were met with unemployment. controversy. At issue is the identity of a sustained resistance by the Pomaks, rein- In the immediate post-socialist peri- people who have historically remained forced by their geographic isolation. od, religious and cultural freedoms in separate from the country’s majority During communism the Bulgarian state Bulgaria were celebrated, and the Pomak Slavic Orthodox Christian population as well as from the vast majority of its 12 percent Muslim minority, who are of Pomaks have been eager to create Turkish origin. The Pomak population lives in the a separate and distinct identity. Western part of the Rhodope Mountains near the border with Greece. Although redrew its border with Greece many population was largely left in peace. In scholars contest the history of the kilometers inward from the actual geo- 1992, Bulgaria ratified the European Pomaks, popular opinion claims they graphic border, leaving most Pomak vil- Convention on Human Rights (ECHR), were Slavs forced to convert to Islam lages either within this artificial border which provided protection for ethnic and during Bulgaria’s occupation by the zone or in remote mountain locations. religious minorities. In preparation for Bulgaria’s expected accession to the European Union, the Council of Europe urged Bulgaria to transpose its commit- ments under the ECHR into national law. Bulgaria did so in the form of the 2002 law called the “Confessions Act,” which explicitly outlined eleven religious g r o

rights, including the right to establish . y r e l

and maintain connections with religious l a g persons and communities in other coun- - o t o

tries and the right to receive religious h p - l

education in any language. During this e v a r t

time religious and foreign language edu- . w

cation was also permitted under the Law w w /

on Education, adopted in 1991. So long v o l

as religious secondary schools teach the e g n

approved national curriculum they are A n a i

permitted to operate; and public schools l u J

impose no restrictions on wearing head- y b o

scarves or other religious dress and sym- t o h

Pomak women, dressed in traditional costume, at a festival in Bulgaria. bols. Bulgaria’s Muslim minority also P

20 Spring 2005 human rights dialogue had political representation through its the poor Pomak villages, many Pomaks Wahhabism, and the growing number of own political party, the Movements for still regard the ability to practice their calls for a return to the “true” Muslim Rights and Freedom (MRF), an impor- Muslim faith—in whatever form that faith among Pomaks. Since the MRF is tant coalition partner to almost every practice takes—as an important cultural popularly associated with Bulgaria’s government since 1989. and religious right. The government, Turkish minority, some Pomaks believe Traditionally, Pomaks have pro- however, considers radical Islam and that their interests are not adequately fessed a moderate, almost secular, ver- Arabic as alien to Bulgarian Pomak cul- represented in parliament. sion of Islam. However, as the region’s ture, and therefore not defensible as a In the post-socialist period, Pomaks economic situation deteriorated follow- “cultural right.” Article 7 of the have been eager to create a separate and ing the collapse of communism in 1989, Confessions Act allows the government distinct identity for themselves. Many proponents of a more fundamentalist to suspend religious rights if they are Pomaks fear that they are once again Islam secured international aid to build “directed against the national security.” being forced to assimilate—but this time new mosques, provide job training, and it is the Muslim Turks rather than the create schools. Dozens of shimmering Christian Slavs who are interested in new mosques were erected with money Pomak political support, and who want from abroad, and today their bright sil- the Pomaks to accept Turkish leadership ver domes and spires shine across the in Bulgaria. Wahhabism (or Salafism, as otherwise dilapidated landscape of the it is also known) offers the Pomaks who Western Rhodopes. Foreign trained fun- embrace its teachings a clear way to dis- damentalist Islamic clerics have been tinguish themselves from Bulgarian streaming into Bulgaria and are allegedly Turks. By rejecting the very moderate targeting young unemployed Pomak men version of Islam practiced by the and women. Turkish Muslims—who eat pork, drink In 2003 the former Chief Mufti of alcohol, rarely fast for Ramadan, and all Bulgarian Muslims, Nedim read the Koran in Turkish or Gendzhev, accused his successor of Bulgarian—Pomaks are carving out a accepting bribes from foreign clerics to unique cultural niche. allow them to operate illegal Islamic The contested cultural identity of fundamentalist schools in Bulgaria. the Pomaks has placed the Bulgarian Gendzhev singled out the Western Government in an increasingly awkward Rhodopes as the most vulnerable region, position. On the one hand, as a rather claiming that Wahhabi fundamentalists A Pomak woman farms in the Rhodope region young post-socialist democracy in the were trying to recruit future “terrorists.” of Bulgaria. EU, Bulgaria must uphold and respect the The story was picked up in the national religious and cultural rights of its minor- and international media, and has stoked This provision has been much criticized ity populations. On the other hand, as a domestic fears that Western countries in that it gives the government sole dis- new member of NATO and a participant might accuse Bulgaria of harboring ter- cretion over the definition of “national in the “coalition of the willing” in the rorists. In particular, the Bulgarian press security,” and the government can there- war in Iraq, Bulgaria also wants to be reacted strongly to the discovery in late fore suspend religious rights at will. It is seen as a reliable ally in the international 2004 that at least six insurgents fighting this provision that the Bulgarian state war on terror. In the aftermath of 9/11, in Iraq had Bulgarian passports. In early can use against the more radical Pomak security concerns are slowly overtaking 2005, Gendzhev was reinstated as Chief Muslims. public opinion. For example, the Mufti, and continued to claim that his The issue of Pomak cultural identity Bulgarian Government decision in 2003 g r o rivals were dangerous Muslim radicals. is at the heart of this controversy. While to close down Islamic centers in the south . y r e l Gendzhev’s rivals, on the other hand, most Pomaks believe that they are for- of the country has met with little opposi- l a g - tion. This is in stark contrast to a situa- o t o

h tion in 2000 when outraged domestic and p

- The issue of Pomak identity lies l e international human rights organizations v a r t . at the heart of the controversy. loudly protested the deportation of a w w Jordanian-born radical Islamic cleric by w

/ accuse him of having been a member of merly Christian Slavs who converted (or Bulgaria’s pro-Western, “democratic” v o l e Bulgaria’s state security services under were forced to convert) to Islam during government. g n

A communism, and of possibly being the Ottoman occupation of Bulgaria, Bulgaria’s majority Christian popu- n a i involved in the assimilation campaigns other Pomaks insist that they are ethni- lation still views the Pomaks as a painful l u J

y against Bulgarian minorities in the 1980s. cally Turkic, Aryan, or Arab. The possi- reminder of Bulgaria’s 500 years of b o

t While this new influx of foreign bility of an ethnic Arab Pomak identity oppression by the Ottoman Empire. o h

P financial resources has been welcome in forms the basis for the rising influence of (con’t on page 36)

CULTURAL RIGHTS human rights dialogue Spring 2005 21 When Rites are Rights: Cultural Challenges to Marriage Laws Alison Dundes Renteln

The legal definition of marriage can make it difficult to recognize marital bonds for minority cultures.

Marriage is a social institution designed their prohibition by the state. Yet United States along with the United to regulate sexual relations, preserve beyond the high-profile issue of same- Kingdom added a new requirement: family ties, and protect the offspring of sex marriages there are other, quieter Individuals have to have reached a mini- legal unions, depending on the cultural debates that take place in this country mum age (that varies by state)—presum- context. While many think of marriage and elsewhere around the world— ably to be able to consent to marriage, as an individual choice motivated by debates that raise questions about the although those under that age could romantic love, in many cultures mar- arbitrariness of legal definitions of marry with parental consent. Finally, in riage is conceptualized differently, such marriage insofar as they rely on a set of addition to issues of law there is a social as a way to forge alliances between moral assumptions that may not be expectation in the United States that groups. Whatever the reasons for enter- shared by members of certain minority marriage should last for a reasonable ing into marriages, in most societies the groups. Consequently, when state law period of time, because too brief a mar- legal protection afforded marital rela- has denied the possibility of marriage riage trivializes the matrimonial enter- tionships is important to individuals according to a different standard, and prise. because it guarantees that they can enjoy thus has prohibited individuals from Given the remarkable variety of intimacy free from governmental inter- engaging in cultural practices, there have marriage practices documented in ference. For most individuals nothing is been legal challenges that are both Edward Westermarck’s extraordinary more central to a way of life than the implicitly and explicitly based upon three-volume work, The History of ability to interact with those whom they claims of cultural rights. Human Marriage published in 1922, it is consider significant in their lives. In Man and Wife in America: A unsurprising that some of them clash The controversy over same-sex mar- History (2002), Henrik Hartog has with these public policies. Polygamy, for riage in the United States, which gained examined the meaning that Americans example, has proven to be among the prominence during the 2004 presidential have historically assigned to marriage. most controversial forms of marriage in the United States and elsewhere. When Muslim families migrate to the United For most individuals nothing is more central States, immigration officers inform to a way of life than the ability to interact Muslim husbands that they may bring only one wife into the country, requiring with those who are central to their lives. that any other wives and children be left behind. Thus, the intention of govern- campaign, did much to identify the As Hartog notes, marriage has long ment officials to protect the rights of American concept of marriage—how it meant “the legal union of man and women by refusing to recognize is popularly conceived and what role the woman, as husband and wife, for life.” polygamy may actually work to the state plays in its definition. Although a In addition, a person may marry only detriment of women in some situations. majority of Americans are willing to one person at a time; multiple marriages Sometimes the issue is not simply classify same-sex relationships as are permissible only if they are sequen- that a man has more than one wife but domestic partnerships or civil unions, tial. U.S. law also prohibits marriages that a wife accompanying him across thereby conferring upon them many of considered incestuous: A husband and a borders is “under age,”—under the min- the same benefits that married couples wife cannot be near relatives, although imum age for marriage established by receive, a significant number of these cousins, and occasionally even uncles the state in question. In the Ezeonu case same people balk at the idea of calling and nieces, can marry in some jurisdic- (1992), a doctor from Nigeria was pros- such unions “marriages” and support tions. In the twentieth century the ecuted in a New York court for rape

22 Spring 2005 human rights dialogue after he took his second “junior” wife to the cultural rights claim as a free exercise cases, limits on cultural rights claims are a clinic to obtain a birth control device. claim because jurists are largely unfamil- clearly necessary. Yet not all arranged Although there was no question that this iar with the jurisprudence of cultural marriages are forced marriages as par- was a valid marriage according to rights. By contrast, the American legal ents often consult their daughters in the Nigerian law, the judge rejected the well- community accepts the free exercise doc- process of negotiating such marriages. established doctrine of “valid where con- trine as an established legal principle. Furthermore, judges can release women summated,” which requires the recogni- In addition to legal debates about from such marriages if there is sufficient tion of marriages properly contracted in who is entitled to marry, there is also the evidence of duress. Therefore each case other countries, on the ground that question of whether the right to culture must be scrutinized on its own merits polygamy was deemed to be against pub- protects the ways in which couples before determining whether limits on lic policy. Ezeonu’s attempt to raise a marry. Protecting traditional marriage cultural practices are warranted. defense of marriage to a charge of rape rites may be in tension with women’s The refusal of U.S. courts to proved unsuccessful, and he was convict- rights, as in the many documented cases acknowledge different types of marriages ed of rape. of forced marriage involving the kidnap- can also be harmful to women. There are Unfortunately, for litigants whose customary law authorizes different Legal limits on marriage rely on moral assumptions forms of marriage, the “against public policy” standard is a vague, ill-defined that may not be shared by certain minority groups. one. Nor are immigrants the only ones whose polygamous relationships are pro- ping and abuse of girls. More extreme cases in both the United States and hibited based on similar reasoning. examples are cases of “honor killings,” Canada in which the judge has been Members of the Church of the Latter which occur when a girl has failed to asked to recognize temporary marriages Day Saints (CLDS, also known as observe socially prescribed limits of known as mut’a under Sharia law; such a Mormons) have also argued that they behavior and thereby has jeopardized marriage can be contracted from minutes should have the right to marry in accor- her eligibility for marriage. In such to years. While the mut’a has been con- dance with their religious tenets. At the end of the nineteenth century, the U.S. Supreme Court rejected the notion that Mormons should be allowed to have polygamous marriages by drawing a sharp distinction between beliefs that are absolutely protected under the free exercise clause of the First Amendment and conduct that is not. Religiously motivated conduct, for example, marry- ing multiple wives, donning religious symbols, and sacrificing animals, is not afforded protection by invoking the prin- ciple of religious liberty. To allow each person to decide with which laws he will comply would lead to anarchy, the Court concluded. As it happened, the CLDS subsequently disavowed the requirement of polygamy. However, fundamentalist sects operating outside the auspices of the official Church are still known to have polygamous relationships. In Utah the American Union has argued that this practice should be afforded protection under the principle m

a of religious liberty. h g n Claims of religious freedom clearly i n n

u represent one form of cultural rights C

e claims. Although the United States is u S

y legally obligated to protect cultural b o

t rights, under which religious freedom is The lifetime union of a man and a woman of a certain age is what marriage means to most o h

P subsumed, litigants have opted to frame Americans—but not all.

CULTURAL RIGHTS human rights dialogue Spring 2005 23 Polygamists who left Utah in the early twentieth century were later prosecuted by the Arizona government. Short Creek, Arizona, 1953. troversial, in Islamic jurisprudence there claim, as here when the husband conve- There is also a question of the prop- is no question that a woman in a mut’a niently denies it, effectively undermines er limitations that must be placed on the relationship has legal rights that she women’s rights. exercise of cultural rights when they lacks without it and that the children While all nations are under an obli- conflict with other human rights. Even if produced in the relationship are consid- gation to protect cultural rights, not all a rite can be defended as a cultural right, ered legitimate in the eyes of the law. The rites should be protected as cultural other more fundamental rights, like judiciary had to grapple with the inter- rights. Sometimes customs are better those of women, children, and other vul-

Traditional marriage rites may be in tension with women’s rights ... but court refusal to acknowledge different types of marriages can also be harmful to women. pretation of mut’a under California law protected by means of other legal princi- nerable groups, may outweigh the right in In Re. Marriage of Vryonis. According ples. Although one could interpret cul- to culture. In general, the right to culture . d

to Fereshteh Vryonis, an Iranian citizen tural rights to cover same-sex marriage, should be protected so long as the cus- e v r and a visiting professor at the University for example, it is unclear whether gays toms are innocuous. In the absence of e s e r

of California, Los Angeles, she and and lesbians have a truly distinct culture any demonstrable harm, individuals and s t h g

Speros Vryonis, Jr., the Director of the and even if they do, whether marriage is groups should be entitled to follow tra- i r l l

Near Eastern Studies Center, entered into an integral part of that culture. While ditions that are important to their way a , y t

a temporary marriage. When the rela- there may be many good reasons to per- of life, free of any governmental inter- e i c tionship disintegrated, she filed for disso- mit same-sex marriage, equal protection vention. hr o S l a

lution, attorney’s fees, spousal support, or privacy rights may provide a stronger c i r o and a determination of property rights. basis for this form of marriage than the t

For a discussion of honor killings, see Leylâ s i Speros denied that a marriage existed. cultural rights of sexual minorities. To Pervizat’s article, “In the Name of Honor,” H e t a Although Fereshteh prevailed in the trial determine whether to allow or disallow as well as Zehra F. Arat’s response, “A t S h court, the appellate court reversed the particular cultural traditions, the right a

Struggle on Two Fronts,” in the “Violence t U

decision, declining to recognize the mut’a to culture is only one of several norma- against Women” issue of Human Rights y b o marriage in the context of divorce. tive bases of the argument, and not nec- Dialogue, available online at t o h

Failure to recognize the cultural rights essarily the most compelling. http://www.carnegiecouncil.org. P

24 Spring 2005 human rights dialogue SECTION 3 INSTITUTIONALIZATION AND STANDARDIZATION The Editors

In this section we look at some of the latest efforts to recog- ties. In other words, in a time of rapid regional transforma- nize and institutionalize cultural rights, with essays that illus- tion, lurking behind the problem of what minority cultural trate the problems encountered in setting clearly defined and rights in Europe should be is the problem of what a “European judiciable standards for cultural rights claims. Perhaps most union” is in the first place. difficult is the requirement of legal fixity, where “culture” The remaining essays in this section explore how cultural must be defined as a discrete, static, and distinctive set of tra- rights have become a part of international efforts to institution- ditional beliefs and practices—a view of culture that is ill-suit- alize standards of global cooperation for markets and states. ed to recognize the ways that cultural identity is a socially Dinah Shelton explains why the UN Human Rights negotiated process. The challenge of finding both flexible and Committee has ended up rejecting almost every cultural rights accountable legal standards for cultural rights becomes simul- claim it has heard. On the one hand, the Committee lacks any taneously one of determining cultural boundaries and to enforceable standards for whether particular state govern- whom a given judgment should apply. ments act “in good faith.” On the other hand, it sets very high Avigail Eisenberg’s discussion of Canadian jurisprudence standards for apparent violations of available cultural rights offers an account of cultural rights from the state’s eye view. It instruments, such as Article 27 of the ICCPR. The upshot also serves a comparative purpose, adding its weight to the cases amounts to a de facto validation of the state as representative of Bolivia, Australia, China, Ireland, and Bulgaria, all of which of a majority “democratic” decision at the expense of claims nuance our understanding of the different approaches to cultur- of cultural minorities. The record of the Committee suggests al rights of nation-states. In Canada, a country that has given that intergovernmental approaches to cultural rights can fall extensive consideration to its own multicultural identity, the prey to these same governments, since recognition of alterna- courts have begun using a “distinctive cultural test” in decisions tive forms of cultural autonomy, beyond the “sovereignty and concerning potential restrictions upon cultural practices. The territorial integrity of states,” is rarely forthcoming. test requires courts to determine how integral a disputed practice Such a discussion of alternatives is taking place in another is to an indigenous group’s cultural identity by whether the prac- corner of the UN system as part of the World Intellectual tice in question existed “prior to contact” with Europeans. But Property Organization’s effort to reach out to “new beneficiar- proofs of the continuity of cultural identity from “pre-contact” ies.” As Rosemary Coombe tells us, the goal of cultural protec- to “post-contact” run counter to another requirement to balance tion—including collective ownership by indigenous groups—is native claims against Canada’s existing legal system. In effect, often met by calls for “fair use,” individual “freedom of speech,” the test mixes standards—of non-historical continuity and of a and a wide open “public domain.” The rising heat of intellectu- post-contact status quo—and rolls them into one. Eisenberg’s al property debates is reflected in UNESCO’s current effort to essay shows that setting standards can involve controversial draft a binding cultural diversity convention. This effort aims to assumptions, but she nonetheless lauds the effort to do so as an bring better balance to the rapidly globalizing system of rights important first step. of invention, access, use, and appropriation regulated by the Will Kymlicka’s account of Europe’s new High World Trade Organization and using the language of patent, Commissioner on National Minorities (of the Organization copyright, and trademark. If this system is to avoid setting one- for Security and Co-operation in Europe) explores the chal- sided standards (as in Shelton’s account) favoring the “free lenges of reaching consensus on cultural rights legislation as a trade” of economic globalization, it must first reconcile with part of the ongoing evolution of new forms of regional-level existing cultural rights standards. To do so requires recognizing cooperation. Like Latin America’s Organization of American forms of protection for traditional sources of cultural creativity States and its consideration of indigenous peoples’ rights that support collective cultural distinctiveness. through the Inter-American Human Rights Court, the This section offers a picture of emerging standard-setting European Union has turned its attention to the problem of at the multiple levels of the state, the region, intergovernmen- national ethnic minorities as a human rights concern. tal institutions, and the global system of trade regulation Kymlicka points to the difficulty of “internationalizing” the through which cultural rights claims will be considered for the question of ethnic minorities by developing “European stan- near future. Taken together, the cases show how legislative dards” for minority rights, since countries differ significantly efforts themselves help to create the form of “culture” in cul- in how they both define and accord rights to different minori- tural rights. hr

CULTURAL RIGHTS human rights dialogue Spring 2005 25 The Distinctive Culture Test Avigail Eisenberg

In Canada, the application of a “distinctive culture test,” beginning with the ruling of R. v. Van der Peet fails to meet standards in assessing cultural distinctiveness.

In diverse societies, especially those and consuming salmon) did not count as understanding Sto:lo culture than the shaped by colonialism and discrimina- a protected Aboriginal right. difficulty the Court encountered in tion, many people find they must defend According to the Court, in order for designing and applying fair criteria to themselves against public laws and regu- a practice to receive constitutional pro- assess what is distinctive about Sto:lo lations that threaten practices they view tection it must pass a two-stage “distinc- culture. To some extent any verdict was as crucial to their cultural or religious tive culture test.” In the first stage, the doomed from the start given that many identity. Oftentimes political and legal plaintiff must show that the disputed Aboriginal peoples in Canada view the institutions are called upon to broker practice is integral to the pre-contact courts as institutions of the colonizing these conflicts, and in some cases they indigenous culture of the community in state, and therefore particularly lacking have developed methods to guide that question. In other words, to be protected the political legitimacy to define the process. Very little attention has been practices must be central, not incidental, nature and meaning of Aboriginal cul- devoted to these methods, but they are a to the culture, and only those practices tures. Moreover, whereas Aboriginal growing part of how public institutions that existed before Aboriginal-European people seek ways of enhancing their respond to claims of protecting cultural contact are eligible for constitutional autonomy, the distinctive culture test identity. protection. In the second stage, the prac- applied by the Court offers at best the

Only Aboriginal practices that developed pre-European contact are eligible to be exempt from Canadian laws.

In this context, R. v. Van der Peet tice must be balanced with the legal sys- state’s accommodation and protection of (1996) of the Canadian Supreme Court tem with which it conflicts—in this case their distinctive practices and activities. is instructive because it shows what hap- Canadian common law. The Court’s job Beyond these obstacles, the test itself pens when public institutions try to is to render Aboriginal perspectives “cog- is ethnocentric. Although the decision design a set of criteria for determining nizable to the non-Aboriginal legal sys- putatively aims at “reconciliation”—a when a should be tem” through a reconciliation process word used several times in the judg- exempt from state law. Dorothy Van der that places equal weight on each perspec- ment—the court focuses only on what Peet, as a member of the Sto:lo First tive. In Van der Peet the Court was con- reconciliation requires of Aboriginal Nation, claimed exemption from regula- vinced that, even though salmon was peoples, not of both peoples. The dis- tions restricting individual fishers from central to Sto:lo culture, trade in salmon tinctive culture test states that only selling salmon without a license. Van der did not pre-date contact with Europeans. Aboriginal practices that developed pre- Peet argued that her right to trade in Trade in salmon was “incidental and contact are eligible to be exempt from salmon derived from her membership in occasional” at best and no established Canadian laws. It does not stipulate, nor a native Aboriginal nation whose cultur- market system existed until well into the does the Court seem aware of the ironic al identity is intimately tied to salmon nineteenth century. Since the practice did implication, that if equitably applied the fishing, and thereby protected by section not pass the first stage of the test, the test would similarly insist that only 35 of Canada’s Constitution. The need to determine whether it would pass European cultural practices that devel- majority of the Court justices found the second stage did not arise. oped pre-contact are eligible for exemp- against Van der Peet and argued that What makes this case so important tion. The irony here is that a conflict trade in salmon (as opposed to fishing is less its success or failure at accurately between contemporary European-based

26 Spring 2005 human rights dialogue cultural practices and Canadian law regard courts as the legitimate arbiters “magic moment of European contact” would never arise because the law in of rights. But we are likely to be less rather than the “traditions and stan- question was established by European comfortable with the idea that a state’s dards of the aboriginal people in ques- settlers and has evolved to accommodate supreme court should decide what tion” as the standard within the test. their changing cultural practices. In this counts as distinctive about the culture of Aboriginal peoples in Canada, despite way, the distinctive culture test actually a community that the state has colo- serious reservations about the test, have judges Aboriginal rights on the basis of nized. Similarly, we can accept that made arguments in at least two addition- the degree to which Aboriginal societies rights must be understood according to al constitutional cases using the distinc- are politically and sociologically similar standards embedded in the development tive culture test. And, internationally, to , allowing that they of law. But when a legal test is used to something similar to this test is being have distinctive practices that ought to be identify the standards that explicitly dis- developed through the evolving work of protected. tinguish a culture, the biased nature of the United Nations Human Rights Yet it would be a mistake to con- these standards becomes less obscure Committee. Notably, no international clude that the distinctive culture test, or and abstract (as in the case of the pre- case uses the European contact require- something like it, ought to be abandoned contact rule) and therefore more likely to ment found in Van der Peet. tout court. To determine in the context be questioned. In the end, there is no magical fix to of cultural disputes whether a particular The point is not that the distinctive working out fair relations in a pluralistic practice is central to a community’s culture test is less ethnocentric than society. Yet these relations can be

A distinctive culture test is a helpful way to bring implicit biases out into the open so they can be challenged and changed.

identity, as the distinctive culture test other ways of framing and discussing improved by finding ways in which insti- . n does, and to reconcile what is central to cultural conflicts. Ethnocentricity is like- tutions can engage in, rather than avoid, o i s s i one culture with what is central to ly to be a part of any public discussion discussions about culture and cultural m m another are unavoidable concerns in a about cultural claims. The important identity in public forums and institu- o C

s pluralistic society. Moreover, the process question is what sort of institutional tions, and in a manner that exposes eth- e i r

e of establishing transparent criteria that approach is likely to expose these biases nocentricity and problems of legitimacy. h s i

F ask what is distinctive and integral about and render them more open to critical A distinctive culture test is one such way, c m a culture has the potential to compel assessment and revision. Something like and is likely to be increasingly used and e p

w public institutions to confront difficult a distinctive culture test is a helpful way developed by national and international e c e questions about political legitimacy and to bring implicit biases out into the open institutions. hr S e

h ethnocentricity that they might not con- so that they can be challenged and t f o front otherwise. changed, and so that a fair and systemat- Read about the struggles facing members y s e t Many of these difficult questions ic guide to the assessment of cultural of Cambodia’s fishing communities as they r u o recede into the background when cultur- claims can be developed. fight for the rights to access and manage C ; e al conflicts are framed in terms of Legal activists in Canada and else- natural resources crucial for their survival c a e abstract and contending rights because where are working to use and refine the in “Environmental Rights as a Matter of p n e

e discussions that focus on rights bring distinctive culture test. The Supreme Survival” by Blake D. Ratner in the r

G with them their own implicit set of stan- Court of Canada was not unanimous in t environmental rights issue of Human Rights h g i

r dards and procedures for reasoning its judgment in Van der Peet, and dis- Dialogue, available at y p

o through claims. For example, we tend to senting justices argued against using the http://www.carnegiecouncil.org. C ; e c i f f O ’ s f e i h C n a s x t i G f o y s e t r u o c s o t o h P The Gitxsan Nation at the Supreme Court of Canada; members of the Nuxalk First Nation; and Chief Nathan Matthew of the Simpwc First Nation.

CULTURAL RIGHTS human rights dialogue Spring 2005 27 A European Experiment in Protecting Cultural Rights Will Kymlicka

As Europe continues to institutionalize its union, the cultural rights approach it has adopted to address minority rights falls short.

Over the past fifteen years a fascinating dards of minority rights, there has been teeing of political representation for if flawed experiment has taken place in far less agreement about what precisely minorities; or the prohibition on settle- Europe regarding the codification of these standards should be. Western ment policies designed to swamp cultural and minority rights. As commu- countries differ significantly in terms of minorities in their historic homelands nism collapsed in Eastern Europe in which rights they accord to which with settlers from the dominant group. 1989 several ethnic conflicts broke out, minorities, or even which groups they Article 27 has nothing to say about such and people feared that ethnic violence recognize as “minorities.” Trying to find claims. If European standards were to be would spiral out of control. In response, a common framework for articulating useful in resolving such conflicts, they Western democracies decided to “inter- pan-European standards has not been would have to address claims for positive nationalize” the treatment of national easy. minority rights. minorities in post-communist Europe, As a starting point, European Article 27 has a second limitation in creating a pan-European regime to mon- organizations looked to Article 27 of the that it applies to all types of ethnocul- itor their treatment in accordance with International Covenant on Civil and tural minorities, no matter how large or small, recent or historic, territorially concentrated or dispersed. Indeed, the The “right to enjoy one’s culture” is UN Human Rights Committee has too weak to address issues underlying declared that Article 27 applies even to visitors within a country! Article 27, in ethnonational conflicts. other words, articulates a truly universal cultural right—a right that can be European standards. Some of these stan- Political Rights (ICCPR), adopted in claimed by all individuals and carried dards were formulated by the High 1966, which for many years was the only with them as they move around the Commissioner on National Minorities example in international law of a minor- world. of the Organization for Security and Co- ity rights norm. While this article pro- This commitment to identifying operation in Europe (OSCE)—a position vided a starting point, it was widely universal cultural rights limits the sorts established in 1993. Others were formu- viewed as insufficient for two reasons. of minority rights that can be recognized lated by the Council of Europe in its First, the right to “enjoy one’s culture” in international law. In particular, it pre- 1995 Framework Convention for the as originally formulated included only cludes claims that flow from facts of his- Protection of National Minorities. negative rights of non-interference, in toric settlement or territorial concentra- Compliance with these OSCE and effect simply reaffirming that members tion. Since Article 27 articulates a Council of Europe standards became a of minorities must be free to exercise universal and portable cultural right that requirement for a country to “join the their standard rights of freedom of applies to all individuals, even migrants West,” and in particular to join the speech, association, assembly, and con- and visitors, it does not articulate rights European Union. science. These minimal guarantees, that are tied to the fact that a group is This was a novel idea—the first time while vital, were inadequate to address living on what it views as its historic that the Western democracies collective- the issues underlying violent ethnic con- homeland. Yet it is precisely claims relat- ly asserted that respect for minority flicts in post-communist Europe. These ing to residence on a historic homeland rights was a prerequisite for membership conflicts centered on various positive that have been at stake in all of the vio- in the family of liberal democracies. It claims, such as the right to use a minor- lent ethnic conflicts in post-communist has also been a controversial idea. While ity language in courts or local adminis- Europe, (e.g., in Bosnia, Kosovo, there has been broad support for the tration; the funding of minority schools, Macedonia, Georgia, Chechnya, general principle that post-communist universities, and media; the extent of Nagorno-Karabakh). Indeed, homeland countries should meet minimum stan- local or regional autonomy; the guaran- claims are at the heart of most violent

28 Spring 2005 human rights dialogue ethnic conflicts in the West as well (e.g., linguistic” minorities, the Council of national group. They can also organize the Basque provinces, Cyprus, Corsica, Europe’s Framework Convention and the higher education, professional accredita- Northern Ireland). In all of these cases, OSCE High Commissioner focus solely tion, and political offices so that mem- minorities claim the right to govern on “national minorities.” While there is bers of minorities must linguistically themselves in what they view as their his- no universally agreed-upon definition of assimilate in order to achieve profession- toric homeland, including the right to “national minorities,” the term usually al success and political power. In short, use their language in public institutions refers to historically-settled minorities, these norms do not address the clash within their traditional territory, and to living on or near what they view as their between minority self-government have their language, history, and culture national homeland. Most countries have claims and centralizing state policies celebrated in the public sphere (e.g., in explicitly stated that immigrant groups that generated the destabilizing ethnic the naming of streets, the choice of holi- are therefore not national minorities. conflicts in the first place. days and state symbols). None of these Unfortunately, having set themselves In fact, the Council of Europe and claims can plausibly be seen as universal the courageous and novel task of defin- OSCE norms are essentially a revised or portable; they only apply to particu- ing the rights of national minorities, version of the Article 27 right to enjoy lar sorts of minorities with a particular European organizations then lost their one’s culture, strengthened to include sort of history and territory. In short, nerve. The new norms do not in fact certain modest positive rights, such as these are all cases of ethnonational (or address the challenges raised by national public funding of minority elementary ethnonationalist) conflict, revolving minorities. There is no discussion of schools, the right to spell one’s surname around competing claims to nationhood how to resolve (often competing) claims in accordance with one’s own language, and national territory. relating to territory and self-government and the right to submit documents to To be useful in resolving conflicts in or how to assign official language status, public authorities in the minority lan- post-communist Europe, European stan- and there are no guarantees that minori- guage. These changes are significant, but dards would need to go beyond universal ties can pursue higher-level education or they do not address the distinctive char- minority rights and articulate targeted professional accomplishment in their acteristics and aspirations of national minority rights, focusing on the specific own language. States can fully respect minorities—their sense of nationhood ethnonational groups involved in these these standards and yet centralize power and claims to a national homeland. conflicts. Whereas Article 27 lumps in such a way that all decisions are made This failure to address the more fun- together “national, ethnic, religious and in forums controlled by the dominant damental issues of cultural identity has, . c n I , d l o n r A r e t e P / P E N U / o g a D . J y b o t o h Bread is thrown to Kosovan refugees prevented from entering the former Yugoslav Republic of Macedonia. P

CULTURAL RIGHTS human rights dialogue Spring 2005 29 self-determination,” granting national minorities the right to territorial auton- omy. Such a norm has been included in recent declarations on indigenous rights (for example, in the U.N.’s Draft Declaration on the Rights of Indigenous Peoples). Moreover, most Western democracies have accepted the need for territorial autonomy to accommodate their national minorities—for example, Catalonia, the Basque provinces, Scotland, Wales, Flanders, South Tyrol, Aland Islands, Quebec, Puerto Rico— and this seems to be working well. However, many European countries were unwilling to accept a principle of national minority self-government. For many states, particularly in Eastern Europe, acknowledging the “national” dimension of a minority’s identity raises the spectre of secession or irredentism, and jeopardizes the right of the state to speak for, and to govern, all of its citi- zens and territory. As a result, the few tentative proposals for incorporating a norm of internal self-determination— including a proposal by the Parliamentary Assembly of the Council Kosovo Albanians fleeing . of Europe in 1993—were quickly quashed. I believe, resulted in an unstable situa- ration focused on distinctive needs of In short, the “right to enjoy one’s tion. At the moment only national immigrants, but that seems unlikely. own culture” is too weak to address the minorities are currently protected by After all, none of the EU states has rati- issues underlying ethnonational con- these European norms, however inade- fied the 1990 U.N. Convention on the flicts, and the right to “internal self- quately. But since the actual rights being Protection of the Rights of All Migrant determination” is too strong to be codified are not based on claims of his- Workers, and the prospects of adopting accepted by most states. Is there any way toric settlement and territorial concen- European-level norms are almost nonex- out of this deadlock? Some commenta- tration, there is no reason why they istent. Consequently, the only realistic tors have suggested that the right to should not be extended to apply to way to achieve this protection is by fit- “effective participation” might provide immigrant groups as well. And indeed ting immigrants under some pre-existing the key. This idea, which is also part of there is currently a movement within scheme of minority protection, which in OSCE and Council of Europe norms, both the Council of Europe and the the European context means sliding may provide a basis for addressing the OSCE to do exactly that—in effect, to them under the umbrella of national political dimensions of ethnonational move back to the original Article 27 minorities. conflicts without embracing the contro- model that attempts to articulate univer- While this extension is progressive in versial idea of internal self-determina- sal cultural rights applicable to all giving protection to groups that would tion. The hope is that states and minori- . c n I minorities, new or old, large or small, not otherwise be protected, we must also ties would be more likely to resolve their , d l o

dispersed or concentrated. recognize that it is potentially regressive competing claims relating to territory n r A

Many people involved in issues of in other respects. It amounts to the slow and autonomy if they framed them in r e t e

minority rights assume that redefining abandonment of the bold experiment of the language of effective participation, P / the category of national minorities to articulating international norms target- rather than nationhood and national P E include immigrants is a progressive step: ed at the distinctive historic/territorial self-government. In my view, this only N U /

The more groups that are protected, the claims of national minorities—norms defers, rather than genuinely addresses, o g a

better. Moreover, immigrants in Europe capable of resolving potentially violent the underlying conflicts, but it is at the D . J

today are clearly a vulnerable group in ethnonationalist conflict. moment the only hope for developing y b o

need of international protection. The Is there any alternative? One option more effective norms. Time will tell t o h

ideal solution would be to adopt a decla- would be to enshrine a norm of “internal whether it will fare any better. hr P

30 Spring 2005 human rights dialogue The U.N. Human Rights Committee’s Decisions Dinah Shelton

For the past twenty-five years, every time a cultural minority has petitioned the Human Rights Committee under Article 27 of the ICCPR, it has failed.

Over the past twenty-five years, Article and measures to ensure the effective exhausted, even if they are difficult and 27 of the International Covenant on participation of members of minority expensive to undertake. Thus, the Civil and Political Rights (ICCPR) has communities in decisions which affect Committee has required recourse to the been invoked in more than a dozen them…. The protection of these prevailing legal system in a state even in individual complaints brought to the rights is directed towards ensuring the the face of complaints that it deals United Nations Human Rights survival and continued development unfairly with communal land tenure or Committee against states that have rati- of the cultural, religious and social nomadic lifestyles. fied the covenant and its Optional identity of the minorities concerned, Second, the Committee has accepted Protocol establishing the complaints thus enriching the fabric of society as without question the right of a state to procedure. These complaints have come a whole. file a reservation to Article 27, effective- from a wide variety of sources and have ly excluding the minority rights con- concerned interference with land and There are several reasons why, tained therein. France filed a “declara- resources and restrictions on use of despite this broad reading of the Article, tion” at the time it ratified the ICCPR in minority languages. Nordic indigenous members of minority groups have been which it asserted that Article 27 was Sámi have filed cases against Finland, unsuccessful in pressing their claims. inapplicable in the country because of Norway, and Sweden; Maori brought a First, many cases have been declared its national laws on equality and nondis- complaint against New Zealand; inadmissible for failure to exhaust local crimination. The Committee held the Bretons against France; Sudetenland remedies. The ICCPR requires that all declaration to be a reservation, noted Germans against the Czech Republic; effective and available local remedies be that no states had objected to it, and Afrikaaner and Khoi against Namibia; and indigenous groups have complained against Colombia and Canada. In near- ly every case, the Committee has declared the complaint inadmissible or rejected it on the merits. For minority groups, the Committee’s expansive interpretation of Article 27 through General Comment No. 23, issued in 1994, raised hopes that the U.N. system would provide them with legal recourse. According to the Comment, . c n

I Culture manifests itself in many , d l forms, including a particular way of o n r

A life associated with the use of land r e t resources, especially in the case of e P

/ indigenous peoples. That right may y l i o include such traditional activities as B y

u fishing or hunting and the right to live G

y in reserves protected by law. The b o t enjoyment of those rights may require o h

P positive legal measures of protection In Quebec, commercial signs such as the ones on Old Quebec Street seen here are only in French.

CULTURAL RIGHTS human rights dialogue Spring 2005 31 The Committee has set a high threshold for finding a violation. It is not enough that there is an impairment of a minority way of life; it should be a serious deprivation of cultural life. concluded that it therefore lacked juris- not violated by the extent of stone-quar- Committee judged for itself the link diction over all the Breton language rying permitted by Finland in traditional between an economic activity and the cases brought to it. In effect, such reser- lands of the Sámi. Moreover, the claim of cultural rights, determining vations amount to a denial that minority Committee determined that measures that cattle herding by descendants of an groups exist because all individuals are were taken to minimize the impact on Afrikaaner and Khoi community did not treated with equal rights and freedoms. reindeer herding activity and on the envi- present the type of links protected as No allowance is made for cultural diver- ronment. In effect, the Committee inter- cultural rights. The Committee stated sity and the right to be different. preted the treaty to mean that measures that “although the link of the Rehoboth Third, the Committee has set a high whose impact amounts to a denial of the community to the lands in question threshold for finding a violation. It is not right to culture are not acceptable, but dates back some 125 years, it is not the enough that there is an impairment of a those that simply have a “certain limited result of a relationship that would have minority way of life; it should be a seri- impact on the way of life of persons given rise to a distinctive culture.” While ous deprivation of cultural life. Thus, in belonging to a minority” do not violate the community did have self-government Lánsman et al v. Finland (I), the the treaty. over a period of time, this was not seen Committee decided that Article 27 was In Diergaardt v. Namibia, the as being “based on their way of raising e c a e p n e e r G t h g i r y p o C / n a m l l e n S t t a M y b o t o h

Members of the Sámi tribe herding reindeer in Inari, Finnish Lapland. P

32 Spring 2005 human rights dialogue cattle.” Therefore, there was no viola- sustainable management.” The Human might have felt that this was too intrusive tion of Article 27. Rights Committee decided in favor of in domestic matters, or that it would The Sámi cases suggest a fourth rea- the government, emphasizing exacerbate tensions to call the majority a son why applicants have failed to prove a minority because of population distribu- violation. The Committee considered it that the acceptability of measures that tion in particular areas. significant that the state made efforts to affect or interfere with the culturally sig- In sum, the Committee has balanced consult the minority community and nificant economic activities of a minority the cultural and economic needs of the take their views into account in making depends on whether the members of the minority with respect for the majority’s its decision. The consultations had been minority in question have had the oppor- laws and has unquestionably regarded the extensive and resulted in some changes tunity to participate in the decision-mak- state as the representative of the majori- in the government’s plans, based on dia- ing process concerning these measures ty’s decisions made through the demo- logue with leaders of the affected Sámi and whether they will continue to benefit cratic process. When it decides the merits community. It thus appeared to the from their traditional economy. of complaints, the Committee has Committee that the dispute was as much assessed the impact on the minority between factions within the minority The consultations undertaken by the gov- group of the actions taken, the degree to group as between the group and the ernment complied with this requirement which the state has consulted the group majority represented by the government. because the government paid special and attempted to mitigate damage, and The Committee did not articulate attention to the cultural and religious sig- the benefits to all those in the state, any standards for determining whether nificance of fishing for the Maori. Thus, including the minority, from the actions the government had acted in good faith, the Committee evaluated both the process taken. In general, it has found the state but returned to the issue in the Maori and the substantive balance between actions reasonable and the harm to the complaint against the government of majority and minority interests. community insufficient to amount to a New Zealand. In Apirana Mahuika et al v. New Zealand the petitioners claimed violations of the rights of self-determina- State actions have been found tion, right to a remedy, freedom of asso- reasonable and the harm to the community ciation, freedom of conscience, nondis- crimination, and minority rights as a insufficient to amount to a breach of result of New Zealand’s efforts to regu- late commercial and noncommercial cultural rights as guaranteed by Article 27. fishing after a dramatic growth of the fishing industry. The government and the Finally, the Committee has taken a breach of cultural rights as guaranteed by Maori, whose rights are guaranteed by strict view of what constitutes a minority Article 27. The Human Rights the Treaty of Waitangi, executed a Deed within a state. For example, it has Committee also has restricted potential of Settlement in 1992 to regulate all fish- refused to view English-speakers in claims by minority groups through eries issues between the parties. The Quebec as a minority because they are General Comment No. 23, where it pro- authors of the communication represent- part of the national majority in Canada vides its interpretation of Article 1 on the ed and sub-tribes that objected to even though they are a minority in right of peoples to self-determination. In the Settlement, contending that they had Quebec. The Committee did find, howev- the Comment, the Committee concluded not been adequately informed and that er, that a measure requiring all commer- that the right of petition cannot extend to the negotiators did not represent them. cial signs to be in French was a denial of matters of self-determination because it The government acknowledged its freedom of expression to the English- is a right belonging to peoples, while only duty to ensure recognition of the right to speaking businessman. It is not clear how individuals can file complaints. This culture, including the right to engage in far the Committee will go in re-charac- allows the Committee to avoid deciding fishing activities, but argued that the terizing minority complaints as individ- matters of self-determination. Thus, Settlement met the obligation by balanc- ual complaints involving violations of despite the Committee’s broad definition ing the needs of the majority and minor- other rights under the Covenant. In the of cultural rights in General Comment ity after good faith negotiations. case of the signage, the practical results 23, it has chosen to limit claims of auton- According to the government, the system for the applicant were the same whether omy by minority groups, thus upholding of fishing quotas reflected the need for the case was won based on Article 27 the sovereignty and territorial integrity of effective measures to conserve the (minority rights) or on Article 19 (free states. hr depleted inshore fishery. Thus, in impos- speech). By characterizing the case the ing the quotas the government carried way it did, however, the Committee A full list of communications of the United out its “duty to all New Zealanders to avoided the prospect of looking within Nations Human Rights Commission’s decisions conserve and manage the resource for states at smaller geographic areas where on cultural rights can be found at future generations…based on the rea- the ethnic balance may be different from http://www.carnegiecouncil.org/dialogue/ sonable and objective needs of overall the country as a whole. The Committee Shelton

CULTURAL RIGHTS human rights dialogue Spring 2005 33 Cultural Rights and Intellectual Property Debates Rosemary J. Coombe

A case involving Taiwan’s Ami people can be seen as a model for how best to protect the rights of cultural minorities when it comes to questions of ownership and appropriation of cultural property.

As the mounting controversies around States are seeking to meet their legal rights of intellectual property are both pharmaceuticals, genetically modified obligations under the Convention on specified and limited—is governed by organisms, technology transfer, and Biological Diversity and to respect inter- the overarching obligation to identify school readings make clear, the expan- national principles established by the and to take specific measures to improve sion of corporately-held intellectual Draft Declaration on the Rights of the position of the most vulnerable and property rights can conflict with other Indigenous Peoples. The World disadvantaged groups in society. This recognized human rights such as rights Intellectual Property Organization Covenant has, unfortunately, remained to health, food security, economic devel- (WIPO) has, likewise, recognized a need largely outside of the purview of most opment, and education. One prominent to reach out to “new beneficiaries” if the intellectual property activists. Moreover, response has been the movement to “free intellectual property system is to achieve the U.S. Government has historically dis- culture,” based upon the widespread global legitimacy. This includes an tanced itself from UNESCO—the UN conviction that the expansion and extensive effort to articulate the princi- enforcement of intellectual property ples through which traditional knowl- have a chilling effect on cultural creativ- edge and traditional cultural expressions A more inclusive ity and the sharing of public goods. We are best recognized, maintained, and cannot deny a need to protect the public protected. All of these initiatives involve public domain must domain from overzealous and sometimes the elaboration of cultural rights, acknowledge a inhumane intellectual property enforce- although they are rarely framed as such. ment, particularly when driven by cor- Cultural rights have largely been wider range of porate interests. Unfortunately, however, ignored in contemporary debates about in the words of legal theorists Anupam the extension of intellectual property social relationships Chandler and Madhavi Sundar, this rights and the endangerment of the pub- than is recognized newfound “romance of the public lic domain. Perhaps this is because domain” sees all forms of cultural pro- Americans operating within the United by fair use and tection as equivalent forms of nefarious States legal tradition are the most publi- censorship, according little respect for cized intellectual property activists. For freedom of speech. the distinctive rights of indigenous peo- these activists, the remedy for corporate ples and other minorities to their intan- over-reaching is a robust jurisprudence body responsible for preparing and gible cultural heritage. of “fair use” together with the constitu- interpreting international normative The rights of peoples with respect tional protection of free speech. These principles and instruments with regard to their cultural heritage pose new and are understood to balance the use of to cultural rights. This lack of a U.S. necessary challenges for balancing the copyrights and trademarks, permitting commitment to the Covenant and to exercise of intellectual properties with transformative, critical, or noncommer- UNESCO has limited recognition within individual freedoms of creativity. These cial usages of cultural works. Such a per- contemporary debates that intellectual include a need for the international ceived conflict between intellectual property rights are also cultural rights human rights system to pay greater property rights and the expressive rights within international law and thus must attention to potential violations of the of individuals has a strong legal founda- be balanced with other cultural rights cultural rights of minorities and indige- tion in the United States. claims and obligations. nous peoples. Obligations to protect tra- The United States has not, however, The rights of communities to partic- ditional environmental knowledge and ratified the International Covenant on ipate in decisions that involve the use of to respect indigenous cultural heritage Social, Economic, and Cultural Rights. their cultural heritage are affirmed in are already internationally recognized. This international framework—in which too many international and national

34 Spring 2005 human rights dialogue legal instruments to be ignored. Particularly in Europe, we can point to the promotion of the ethnic, cultural, linguistic, and religious identities of national minorities. Such developments acknowledge the need to preserve and promote cultural diversity as a public good within and between societies. Renewed attention to the rights of minorities to enjoy and to develop their own cultures together with a growing recognition of cultural diversity as grounds for sustainable development suggest that we are moving toward a greater appreciation for the understand- ing of culture as a resource. This under- standing can be applied to current dis- cussions about intellectual property. The influential assumption that there should be a singular or unitary public domain of cultural materials— including the concept of a digital “cre- ative commons”—cannot embrace the range of concerns expressed by ethnic An Ami troupe shares its cultural traditions through music. minorities and indigenous peoples. These might include an understanding of what was then considered an oral per- a settlement that recognized the contri- cultural heritage as the basis for group formance of the folk music of a minori- butions of these talented vocalists. identity and as an integral resource for ty ethnic group, the Ami. Unknown to Compensation for the two singers the continued survival of a people. A the performers of this music, the record- was arguably the least of what was more inclusive public domain must ing made its way into a compilation of accomplished here. More importantly, acknowledge and respect a wider range Chinese folk music on a record album the case conveyed to a global audience of social relationships to cultural forms released in France. Twenty years later a an acknowledgement of Ami oral cul- than is recognized by fair use and free- European band used a sample of this ture, which enabled the establishment of dom of speech. The cultural survival of recording to create a musical composi- a foundation for the preservation and peoples demands that we formulate new tion, which received widespread acclaim. revitalization of Ami tribal music. It also principles governing the use of cultural The music performed by the Ami singers drew world attention to the cultural tra- heritage to ensure the conditions neces- was neither individually authored nor ditions of Taiwan’s indigenous peoples, sary to foster diverse forms of cultural fixed in material form. Therefore, it was affirming their existence as distinctive creativity. squarely in the public domain, and not first peoples after years of state denial. In a global environment where eligible for copyright protections. Its use Many groups, whose languages and opportunities for cultural representation by the band was not in violation of any traditions were considered extinct by are so unequally distributed, vague fears laws in force. The European composi- scholars and who had been repressed by about “copyrighting culture” cannot tion, Return to Innocence, was a global the state, found new means of pursuing ethically be met with mere assertions of hit and the Olympic Committee chose it cultural self-determination through the individual liberty or the importance of as an anthem for the 1996 Olympic incentives and opportunities for musical L

A the undifferentiated public circulation of Games in Atlanta. In the absence of contribution and collaboration afforded Y A

T culture. We should be working toward global information and transportation in the case’s aftermath. In short, the case A f o cultural policies that enable more peo- technologies, it is unlikely the original provided a means for the revitalization y s

e ples with distinct traditions to partici- performers would even have learned of of endangered traditions. t r u o pate in the cultural life of their own the appropriation. But news of their This experience suggests that rights C

/ communities, in new and emergent voices in the recording reached the elder- of acknowledgement or attribution— e g d

i forms of cross-cultural dialogue, and in ly performers. Ultimately, with the help ideally coupled with legal requirements l o o a more inclusive public domain. A case of a local record company and sympa- for prior consent and mutually agreed C y

n involving the music of the Ami of thetic lawyers, a little known interna- upon forms of compensation for cultur- o T

y Taiwan illustrates this potential. tional legal provision that prohibited the ally distinctive forms of creation—can b o

t In 1978 visiting researchers in unauthorized appropriation in material enable cross-cultural dialogues that fos- o h

P Taiwan recorded for archival purposes form of performances was used to effect ter the growth of cultural diversity. Such

CULTURAL RIGHTS human rights dialogue Spring 2005 35 Coombe (con’t from page 35) Gustafson (con’t from page 12) cultural exchange and creativity are not tions, etc.—not as distinct ethnic in. The Guarani are taking back the mean- nourished by the protection of market- enclaves. ing of their language while working to circulated commodities as intellectual With constitutional changes and the change public understandings as well. In properties in what is otherwise a global launch of a sweeping national education events staged for both Guarani and public domain. Neither are they nour- reform in 1994, Bolivia’s government Spanish-speaking Bolivians, the Guarani ished by an exclusive commitment to a recognized native languages as valid make claims for legitimacy as citizens with cultural or creative commons and the instruments of schooling. “Bilingual distinct histories and ways of speaking, yet vigorous defense of free speech and intercultural” education, at least in offi- citizens nonetheless. At a 1998 event com- individual creativity. Our challenge, cial law, promises significant change, memorating the Guarani struggle, the therefore, is to pursue a more inclusive even redefining Bolivia itself as a “pluri- leader Valerio Mena signaled this renais- and culturally pluralist public domain ethnic” and multilingual nation. sance of a new kind of yemboe (school when considering the privileges to be However, detractors of bilingual educa- learning), reconnecting the word to the accorded to intellectual property. Doing tion continue to voice the racism of Guarani word arakuaa (knowledge), in so recognizes that the objectives of sus- those who oppose cultural rights more effect beginning to repair the ruptures pro- tainable development, the promotion of broadly. There are also technical chal- duced by schooling in the past: social cohesion, and the support for lenges to such profound educational democracy all require respect for the full change in the form of preparing new Our ancestors did not read and write, range of cultural rights provided by textbooks in indigenous languages, but they had arakuaa, they defended international law. hr restructuring school administration, this land so that we could live…We will retraining teachers, transitioning to a not forget these histories. Now that we For a related perspective on the conflict more intercultural curriculum—all have our own teachers and our own between the international intellectual requiring money, administrative capabil- yemboe we will pass this new knowl- property system and the rights of local ities, and skilled personnel. In other edge on to the young. This is arakuaa and indigenous communities see Justin words, full implementation of these that we have been given; let us place VanFleet’s “Protecting Knowledge,” from reforms is by no means guaranteed. these words into our very being. hr the Globalization issue of Human Rights Nevertheless, bolstered by multicul- Dialogue available online at tural reforms, indigenous movements are The ideas expressed are the author’s and do not http://www.carnegiecouncil.org. already transforming the state from with- purport to represent official Guarani positions.

Ghodsee & Filipov This issue of Human Rights Dialogue grew out of the workshop, “The Case for Cultural Rights” held on September 23-24, 2004 at the Carnegie Council (New York). (con’t from page 21) Special thanks to the valuable insights of all who participated: Daria Caliguire, Danielle Celermajer, Janet Chernela, Maivan Clech Lam, Elizabeth Cole, Rosemary After repeated failed attempts at forced Coombe, Faye Ginsburg, Kirsty Gover, Martha Honey, Benedict Kingsbury, Ellen assimilation, they have now only grudg- Lutz, Tara Melish, Sally Engle Merry, Tanni Mukhopadhyay, Fred Myers, Andrew ingly come to accept the Pomak identity. Nathan, Folabi Olagbaju, Nnenna Ozobia, Alison Dundes Renteln, Joel Rosenthal, In this setting, Bulgaria’s support for the John Scott, Joan Shigekawa, Elsa Stamatopoulou-Robbins, Shalini Venturelli, war on terror inadvertently aids both Armstrong Wiggins, Richard Wilson, George Yudice, Robert Albro, Joanne Bauer, majority Slavic Christians and minority Rebecca Kraley, Morgan Stoffregen. Turkish Muslims who seek to forcefully shape the Pomak culture into something For an edited transcript of portions of this workshop and further information see more acceptable to mainstream Bulgarian www.carnegiecouncil.org. society. hr

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36 Spring 2005 human rights dialogue READERS RESPOND Environmental Rights

Concerns about Conservation million people in Africa alone.” exist with people’s material needs, This is an astonishing and tragic whether they are met through hunting, In “When Parks and People Collide,” number! fishing, logging, energy extraction, etc. It Peter Veit and Catherine Benson seem to I am perplexed, however, by what would be nice if environmentalists depart- identify two major guilty parties: first, these African governments and their “cir- ed from their “conservation-first” mental- undemocratic regimes in Africa “that cle of elite” gain by these lands being set ity and demonstrated as much concern for have used their monopoly over nature to aside. Ecotourism dollars? I know that the preservation of native cultures as they consolidate power and wealth among a the global conservationists operate out of do for the preservation of the land these small circle of elite;” and second, a the ideological belief that the preserva- people depend on for survival. “powerful international lobby of conser- tion of wildlife and biodiversity should vation-first organizations” that “encour- be prioritized above all else. But what Keith Kloor age” these governments “to establish motivates African governments to sacri- Senior Editor networks of protected areas.” What fice the welfare of so many of its citizens Audubon Magazine ensues, the authors claim, is mass dis- in favor of national parks? New York, New York placement of indigenous people from The larger question for the environ- their homelands that “may exceed 14 mental community is how nature can co-

Climate Change’s Effects heritages and continue a way of life in fauna. When farmers set fire to their synchrony with the environment. But it farmlands in order to clear them for crop I appreciated Sheila Watt-Cloutier’s arti- is also the right of every person on the planting, bush fires can spread to other cle on climate change and human rights. planet to benefit from Micronesia’s farms, damaging properties and in some Although Micronesia’s environment has unique diversity of plant and animal life. cases harming people. little in common with that of the Arctic, People who engage in such practices climate changes may prove equally devas- Susi Menazza Olmsted might not see their actions as violations tating for its people. MIC Program Coordinator of others’ environmental rights, but Spread over an area nearly the size of The Nature Conservancy rather as their legitimate way of life. the United States, Micronesia’s some Micronesia Should ways of life that infringe on the 2,000 islands and surrounding reefs host a environmental rights of others be diversity of ecosystems that rival any on modified or changed? What is the way the planet. For countless generations the Individuals as Violators forward? people of the region have thrived on an intimate relationship with nature. Despite Many of the articles in the environmen- Odirin Omiegbe centuries of colonization, the devastation tal rights issue show how governments College of Education caused by world conflicts, and Cold War and multinational corporations encroach Agbor Delta State, Nigeria atomic tests, many of the ecosystems in on the environmental rights of individu- Micronesia are still intact. Yet as the als and communities. I would like to effects of globalization reach Micronesia’s highlight an additional area of environ- shores and the region becomes integrated mental rights concern: situations in into the world economy, the area’s natural which individuals and groups encroach abundance is threatened by a series of on the environmental rights of others as man-made and natural forces on a global they explore and exploit the environment scale. Climate change, in particular, has for their sustenance and survival. unleashed the threats of coral bleaching, For example, certain tribes in droughts, and rising sea level. Shore ero- Southern Nigeria—such as the Edos, sion, tide encroachment in low-lying Urhobos, Ijaws and Itshekiris—are pre- areas, and salt-water intrusion into fresh dominantly hunters, fishers, and farmers. groundwater are also becoming more dra- Some of them hunt wild animals and fish matic as a result of global climate change. with chemicals, a hazard to the life and Education reforms in Bosnia and Herzegovina It is an unalienable right of the health of others. Many set forest fires as are giving Romani children, seen here and on the back cover, greater access to schools. Micronesia peoples to continue to live a means of killing wild animals, which Photos courtesy of the Organization for Security and on their islands, preserve their cultural threatens or even destroys the flora and Co-operation in Europe (OSCE)

CULTURAL RIGHTS human rights dialogue Spring 2005 37