A response to Elsa Stamatopoulou's paper "Why Cultural Rights Now?" (9/23/04)

• Remarks
• Discussion

RICHARD WILSON: I'm grateful for the chance to share some of my thoughts on Elsa Stamatopoulou's excellent presentation and paper. She began her compelling case for cultural rights by noting the scant attention given to cultural rights compared to other types of human rights. She described, intriguingly, how liberal human rights, individuals, and cultural relativism conspire to keep cultural rights off of the table. This is an interesting sort of pact which keeps the full discussion of cultural rights from really happening. In Elsa's paper, there are also some intriguing historical perspectives on how cultural rights discussions were broached in that early period after the Second World War, but then omitted from human rights declarations and treaties, from the UN Declaration of Human Rights and from the Genocide Convention, in particular. This was especially surprising because it was a time of decolonization across Africa and Asia. The 1945-1965 period was one of splintering and fragmenting of empires, and the creation of new nation-states, raising questions of how both new and old states would address minority rights for the coming decades and centuries to follow. It's striking to note that cultural rights weren't fully addressed in that particular moment. Despite this history, argues Elsa Stamatopoulou, the international human rights system does contain a legal and policy framework for cultural rights, and a set of mechanisms for monitoring them. In the case of some cultural rights, such as those contained in the 1948 Genocide Convention, there are some mechanisms of enforcement at the International Criminal Tribunals for Yugoslavia and Rwanda and at the International Criminal Court. She's now arguing that it is the time to implement these rights.

Elsa Stamatopoulou adopts a position on human rights and cultural rights that I would categorize as a kind of 'mediated' or 'modulated universalism'. She's aware of the difficulties involved in questions of relativism and the oppressive local practices that might require a response. In each of these cases that she addresses, she leans towards international standards and norms. But, I think there are still three unresolved ambiguities and contradictions at the heart of cultural rights that we still have to address in the coming discussions.

First, there are two views of culture operating here. If you read Thomas Hylland Eriksen [2001 in Culture and Rights, Cambridge University Press], an anthropologist who has written on culture and UNESCO, he argues that there are always two views of culture in UN documents. The first is culture as a distinctive way of life, specific to each group. And second, cultures as overlapping, cultures as a subset of a larger humanity. These two views of culture are not always compatible and need further elucidation and discussion. That's the first issue.

The second issue is the question of cultural rights as group rights that are held collectively, aspired to collectively, and claimed collectively in courts, versus the primacy of the individual whose self-expression may be constrained by the group. This issue is a very knotty one that needs a great deal more discussion than Elsa gave it.

Third, is the question of respect for local culture and local interpretation, and the upholding of international human rights standards. There was one line I pulled out of Elsa's remarks that said, "International norms prohibit the exercise of cultural practices that contravene internationally proclaimed human rights." If only it were that easy.

I wonder if these knotty issues can be elucidated at all by social science and the kinds of debates scholars have been having since the mid-1980s—certainly not to resolve them, but perhaps to better understand the conceptual difficulties we are facing. It's worth pointing out that, although we are often presented with an array of many distinct versions of culture, by and large socio-cultural anthropologists and cultural sociologists have come to agree on one working version of culture.

They didn't always, but these days you find a lot of consensus on culture. The consensus view goes something like this: If culture is useful at all as a concept for analyzing and thinking about society, it's as a transformative, open system. Culture is fluid. It is unbounded. It is shaped by transnational social processes. The identities of the members within it are not single, but multiple. They're contested, and they're changing all the time.

This is opposed to an old, essentialist view of culture of mid-twentieth century anthropology, which had its origins in the German Romanticism of Johann Herder, Johann Hamann, and Johann Fichte. If you read Isaiah Berlin's The Roots of Romanticism, you can see the German Romantic view of culture reappearing in the mid-twentieth century anthropological version of culture. And in a sense, anthropology was the discipline which channeled that Romantic view of society—a view that saw culture as organic, holistic, static and bounded, and authentically embedded in a tradition that stretched back into the misty depths of the distant past.

It is kind of an irony, then, that just as anthropology jettisons this old view of German Romanticism—of organic, bounded societies—suddenly, everyone else discovers it, picks it up, and takes it to the UN and demands it. Indigenous and minority rights movements and their international advocates, by and large, are working with this essentialist view of culture. Why? Because that's what an international, legal framework can recognize. It can't recognize the fluid, changing, ephemeral contingent version of culture. It can grab onto that thing which is bounded, closed, and can be categorized and measured.

Next, I want to move on from definitions of culture to looking at the conjuncture of culture and rights. That is, what happens when questions of rights enter the legal process?

As I've just indicated, and as Elsa Stamatopoulou said in her talk, "We lawyers want to pin down specificity." Here, the first point is that law builds fixed and static categories; whereas the open system view of culture is not fixed and bounded. This makes it very difficult to combine the two together. This point has never been better illustrated than in James Clifford's chapter on the Mashpee of Cape Cod [in The Predicament of Culture: Twentieth-Century Ethnography, Literature and Art, Harvard University Press, 1988] who claimed rights on the basis of a treaty signed in the late eighteenth century. In their court case they stated: "We the Mashpee have this long-standing claim to this land. We are the Mashpee who signed a treaty back in the eighteenth century with the white settlers of the time. We demand this land back on the basis of our treaty. It's incredibly valuable land in Cape Cod and it was taken from us."

They took their case to court in the 1980s, and the court heard a number of experts to decide whether the Mashpee could get their land back on the basis of the treaty they had signed. The judge asked a historian: "Are the Mashpee of the present the same as the Mashpee of the 1700s?" And the historian said: "Well, if you take identity to be a continuous and uninterrupted line from one point to another, they're not. No." Then the judge asked an anthropologist the same question: "So, are the Mashpee of the 1700s the same as the Mashpee of the 1980s?" And the anthropologist said, "Well, identity is what you make it. Identity is fluid and subjective. Escaped slaves married with the Mashpee. Whites married with the Mashpee. The Mashpee moved out, came back. Other people moved in and became the Mashpee. But despite this I would say, yes. The Mashpee are those people who identify themselves as Mashpee."

Now, which do you think the court believed? The court believed the historian, and struck down the claim. The Mashpee could not prove to the satisfaction of the court that they were indeed the Mashpee of 200 years previously. This is exactly the point I'm making about law's fixedness versus the dominant view of culture that prevails within anthropology and other disciplines. There is a kind of elective affinity within the fixedness of law and the fixedness of a particular view of culture that we know to be wrong.

I do not want to be ambiguous about this: the old, static, organic, German, Romantic view of culture was empirically wrong. People were never in bounded little groups that stayed in bounded little groups who shared everything about their religion and culture and values and so on. There has always been dissent and debate. There has always been movement, whether you're talking about Africa or North America, or whatever. That old fixed, essentialist version was not even correct for the pre-colonial period. However, we have to recognize that while empirically wrong, it is ideologically very powerful and deserves study, but as an ideology, rather than an analytic frame we ourselves wish to adopt.

The language of cultural rights assumes that there is an independent, social fact lying around out there called "culture," and cultural rights are simply created to protect it. The view within much cultural rights thinking is that rights and culture are autonomous from one another. On the other hand, legal anthropologists and sociologists have argued that law transforms culture through rights, and that law is constitutive of cultural identity. How does that shape our understanding of the relationship between rights? How does creating an international legal regime of cultural rights shape culture in the future as lived, social practice? What would be the consequences of creating an international regime of cultural rights? Are they the kind of consequences we want? What would be the unintended consequences? How would the fixing of identity in law's fixed, pigeon-holing way, actually undermine the fluidity of identity?

I want to close with some more policy related thoughts:

First of all, we must jettison the view that all good things are compatible, including all rights. It is a myth that rights are indivisible or complementary. Instead rights are in conflict all the time. Rights simply contradict one another, and we have to make very hard choices between them and make our criteria for making those choices clear. I'm not a believer in cultural rights coming into the mix and fitting in neatly alongside all other rights, especially individual rights. All of these rights are jostling with one another. We may choose some over others in particular instances. But, let's at least be open and straightforward about that.

Second, if we're advocating a regime of cultural rights, we should start with developing negative rights in the first instance, and then move on to more positive rights. Negative rights such as stopping states from destroying places of religious worship, statues, temples; trying to stop states from the forced removal of children and instruction in languages and ways which are not their own, which occurred in Canada and Australia; and stopping genocide. If you think of genocide as one of the key cultural rights that there is movement around, think how difficult it is to get even a discussion of genocide in Darfur going, much less some of the more exalted dimensions of cultural rights that we will raise during our workshop tomorrow.

I retain a certain amount of skepticism towards positive cultural rights. I'm not convinced that states have an obligation to promote cultures and to save dying cultures. I simply don't think that's the role and responsibility of states, and I'm skeptical about states ever getting involved in that kind of thing. In fact, their record in interfering in cultural matters is overall pretty negative.

The final point I want to make about states is they come in many different kinds and the types of rights we promote in each can vary. I worked in a very weak state of Guatemala and a more measurably strong state of South Africa. And it struck me how different the capabilities and infrastructures were of these states. South Africa, after the transition from apartheid in 1994, passed a Constitution, formalized in 1996. Within that Constitution were various affirmative action clauses. It made the official language not just Afrikaans, but 11 languages.

But South Africa is the wealthiest state in Africa—it has a larger GDP most of than the rest of the entire African continent put together, excepting Nigeria and Egypt. It has an infrastructure which can at least begin to address the question of minority languages and race. It is interesting to note that it does not do any of this in the language of 'cultural rights' since this was the discourse of apartheid for many decades. South Africans have had quite enough of cultural rights and the discourse on separate cultures.

In Guatemala, where I've also worked, there simply wasn't that infrastructure. Between 1996 and 2001, there were over 250 lynchings of suspected thieves across the country, and many of them in the indigenous altiplano. Mass criminality and mob justice are still very prevalent in Guatemala right now. When the indigenous rights activists were talking about setting up a system of indigenous customary law, many of us were thinking "but, you know, actually what they're doing right now is burning people alive." Is it really responsible, where the rule of law doesn't operate, where the criminal justice system is a shambles, where the state infrastructure is terribly weak, to fragment the state further? I think that to create a customary law framework without building the rule of law to begin with is irresponsible. The main imperative for now is to create a state legal system that is efficient and fair and respects due process and treats all citizens equally.

These are the kinds of questions about the power of states and the ability of state infrastructures to deal with cultural rights that we need to address openly. I will stop here. I'm sure that I have, as they say in Guatemala, he levantado el polvo—raised a bit of dust. Thanks.

Armstrong Wiggins: The Indian Law Resource Center is a non-profit law office of mostly Indian lawyers, practicing Indian Law. We struggle to try to translate everything that we just heard tonight from our cultural point of view. At the Indian Law Resource Center we are trying to educate non-indigenous lawyers, law professors, anthropologists, sociologists and others who see indigenous culture strictly from a romantic point of view. We work so that they can truly understand why we act the way we do—so that we can convey to those nine judges at the Inter-American Courtwhat indigenous rights are. It is very hard to change international law to respect our culture because those international laws were put there by our enemies, which are the governments that wanted to keep us down and even destroy us. We have an uphill battle because we have few resources and little money.

I am glad you mentioned Guatemala, but think about this: the dictatorship in Guatemala against the Mayans was brutal, and where there is no rule of law, you take it into your own hands. That can happen in any culture. The colonized sons and daughters became our fathers and mothers, and they were also very brutal. And if you have violence in your house, your kid will probably become a very violent person too. To blame the indigenous community for that is very difficult for us to understand.

If we can promote a greater understanding of Western and Indian law, I think the rule of law problem you are talking about in Guatemala can be improved. It's very important and that's why the law is so important to us.

Andrew Nathan: I would like to see examples of cultural rights issues that can't be handled without the concept of cultural rights; the easy cases. Tell me an outrage that took place—the taking of children, destruction of religious places—something that offends your sense of justice. There are always hard cases, and I don't think that is a place to begin. I'd rather begin with clear injustices and then ask why the less problematic types of rights, like freedom of religion, integrity of the person, integrity of the family and so forth, don't already cover those cases—and I'm sure they don't because you wouldn't be doing what you're doing otherwise. What is the value added of the concept of cultural rights?

Tanni Mukhopadhyay: I was struck by the observation about hard choices between rights, and the argument that they are not indivisible. I don't want to suggest that all good things come in neat little bundles, but I would be cautious about the hard distinction that you made about the divisions, and these choices that you have to make, because there are synergies that exist between different kinds of rights. While they might not all come together at the same time, they are in some way complementary.

Also, with respect to the example you gave about public lynchings in Guatemala—those aren't so much a part of customary law. That is a frustration with the absence of justice. It's the impunity with which perpetrators of violence can get away with anything. It is very important to make that distinction between what customary law would actually entail—what would be the legitimate processes that would exist in a community to address certain things—and to see mob violence and public lynchings as an absence of justice. We should be careful about making that distinction.

Shalini Venturelli: I think that the problem of any country that has a cultural problem today is that not enough people or social groups in that society are participating in the production of cultural ideas. It's not whether cultures change, but how many social groups, including indigenous groups, are participating in the production of new ideas.

Tara Melish: I wanted to talk about the issue of governments' positive obligations to protect and fulfill. There is so much jurisprudence that goes beyond the obligation to respect. If we look at the jurisprudence, the majority of it is actually with regards to the positive obligation of the state to protect cultural rights against violations by third parties. In Colombia, for example, there is a tremendous amount of jurisprudence with regard to the right to education and the state's obligation to ensure that indigenous communities can develop their own educational system, and to provide resources for that. There are many examples that we can give, but the point is that there is substantial jurisprudence not only with regard to the obligation to respect but also the obligation to protect and the obligation to fulfill.

The other quick point that I wanted to make is with regard to your thoughts on the legal system. As a lawyer, I think that legal systems are designed specifically to deal with specific factual situations. They're not looking for pigeon holes. They're going to look at exactly what's happening behind a situation and then deal with that. And with regard to the idea that cultural rights are vague—I don't think cultural rights are more vague than any other right. The right to participate in cultural life—is that any more vague than the right to life? Or the right to due process? The right to judicial protection? They are all vague. They have been defined, and we know what the normative content of the right to life is, or the right to due process, because they have been developed in specific factual situations through a judicial process. That's how we know what the normative content is. As more and more cases are being brought in the cultural context, then we know exactly what the right to culture means.

John Scott: I have problems with the word "the." "The" law proposes that there is one law. When people say this, it is a cultural statement that says western law is superior to everything else. Western law was imposed on the aboriginal people of Australia and western law also allowed genocide. Aboriginal people also have a law. The reason that cultural rights are not adequately protected by national and international legal systems is because my national system is culturally biased—it is a western legal system that is built on the rights of individual people at the expense of rights of the groups. International law is also based on western law—it is not based on indigenous law which values the rights of groups. Western law holds supreme the rights of individuals. What I have been struggling for in my life is to work towards national and international law reform so that we develop a truly diverse legal system that values all the cultural traditions that make up humanity today.