Cultural Rights in International Law and Discourse : Contemporary Challenges and Interdisciplinary Perspectives [1 ed.] 9789004328587, 9789004328570

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Cultural Rights in International Law and Discourse

Cultural Rights in International Law and Discourse Contemporary Challenges and Interdisciplinary Perspectives

By

Pok Yin S. Chow

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Chow, Pok Yin S. (Pok Yin Stephenson). Title: Cultural rights in international law and discourse : contemporary challenges and interdisciplinary perspectives / By Pok Yin S. Chow. Description: Leiden : Brill Nijhoff, 2018. | Includes bibliographical references. Identifiers: LCCN 2017050081 (print) | LCCN 2017052137 (ebook) | ISBN 9789004328587 (E-book) | ISBN 9789004328570 (hardback : alk. paper) Subjects: LCSH: Human rights. | Social rights. | Cultural policy. | International law. Classification: LCC K3240 (ebook) | LCC K3240 .C527 2018 (print) | DDC 342.08--dc23 LC record available at https://lccn.loc.gov/2017050081

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-32857-0 (hardback) isbn 978-90-04-32858-7 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

In memory of Li Tak Chi

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Contents Preface iX List of Abbreviations and Acronyms Xi 1 Introduction: Cultural Rights—A Radical Hope? 1 1.1 Clarifications of Scope and Approach 9 1.1.1 The Distinction between Minority Rights and Cultural Rights 9 1.1.2 The Relationship between Cultural Rights and Other Freedoms 12 1.1.3 The Distinction between Cultural Rights and the Protection of Culture 14 1.1.4 Culture, Anthropology and Human Rights 17 1.1.5 On Defining Culture 26 2 Culture and Anthropology 30 2.1 Introduction 30 2.2 Sameness and Difference 35 2.2.1 Culture, Behaviour and Thought 36 2.3 Forms of Abstraction and Forms of Explanation 41 2.3.1 Culture as Functional 43 2.4 Culture and the Study of Meanings 50 2.4.1 Interpreting Culture 54 2.4.2 Culture and Social Processes 56 2.5 Meanings and Practice: Contemporary Perspectives 60 2.5.1 Practice and the Habitus 62 2.5.2 The Habitus and the Reproduction of Power 64 2.5.3 Heritage, Power and Practice 68 2.6 Discourse and Identity: The Narrativisation of the Self 75 2.6.1 Identity and Resistance: Gender 78 2.7 Conclusions 81 3 Cultural Rights in the Work of the Treaty Bodies 85 3.1 Introduction 85 3.2 The un Human Rights Treaty Bodies 91 3.2.1 The Working Methods of the un Human Rights Treaty Bodies 92 3.2.2 The Significance of the Work of the Treaty Bodies 95 3.3 Cultural Rights in the Work of the Treaty Bodies 97 3.3.1 Cultural Rights and the cescr 97 3.3.2 General Principles Governing Article 15 of the icescr 101

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3.3.3 Definitions of Culture and Derived Obligations under Article 15 of the icescr 105 3.3.4 Culture as High and Popular Culture 107 3.3.5 Culture as a Way of Life 116 3.3.6 Cultural Identity 139 3.3.7 Cultural Diversity 143 3.3.8 The Survival of Culture 146 3.3.9 Three Dimensions of Culture 151 3.4 Insights from Anthropology into the Work of the Treaty Bodies 160 3.4.1 The Limits of Cultural Rights 161 3.4.2 Implications of Contemporary Anthropology 171 3.4.3 Other Uses of ‘Culture’ 179 3.5 Conclusions 182 4 Cultural Rights and the Human Rights Treaty Bodies: The Limitations on Cultural Rights 186 4.1 Introduction 186 4.2 The Legal Framework around the Limitations on Cultural Rights 194 4.2.1 Gender Discrimination and Culture 200 4.3 ‘Culture’ in the Context of Limitations 207 4.3.1 Consequences of Conflating Culture with Values, Beliefs and Stereotypical Roles 212 4.3.2 Understanding the Experiences of Women through the Concepts of Identity and Subjectivity: Anthropological Perspectives 219 4.4 Conclusions 243 5 Conclusions: Cultural Rights and Insights from Anthropology 246 5.1 Introduction 246 5.2 Theories of Culture in Anthropology: From Linear Evolutionism to Culture as a System of Narratives and Discourses 247 5.3 The Multiple Dimensions of ‘Culture’ in the Context of Cultural Rights: From Arts and Institutions to Process and Symbols 249 5.3.1 The Transfigurability of Culture and Its Jurisprudential Implications 251 5.4 Limitations on Cultural Rights: Notions of Choice and Identity 253 5.5 Further Implications: Beyond Legal Narratives 256 Bibliography 261 Index 281

Preface Now that contemporary anthropologists have begun to understand ‘culture’ as a fluid and ubiquitous set of narratives, both shifting and contested, does it still make sense to speak of culture in the context of human rights law? If so, what kind of state obligations does such an understanding entail? Challenging questions arise in the effort to adequately protect the cultural rights of individuals and communities worldwide, not the least of which are those concerning our very understanding of ‘culture’. The manner in which the notion is understood and constructed critically shapes the very ways that culture is protected (or challenged) under international human rights law. This book pieces together the rapidly developing material on cultural rights in the un human rights treaty bodies’ practice with the profound insights of contemporary anthropology’s understanding of ‘culture’. Not only does it provide a structured and coherent approach to comprehending the jurisprudence of the treaty bodies, but it also examines the relationship between culture, community and the individual and rediscovers culture as a conflicting set of narratives and discourses that are deeply implicated in questions of power. It offers original insights for acknowledging the power dynamics behind an individual or community’s participation in culture, and how these understandings should shape or even redefine cultural rights. This work represents a rare interdisciplinary contribution to a neglected area of human rights law. By teasing out hidden assumptions and highlighting what has been overlooked, it raises new and relevant questions regarding the very metaphysics underpinning this area of law. Through this approach, this book not only attempts to push back the current boundaries of knowledge regarding cultural rights, but also extends an invitation to explore some of the more in-depth discussions surrounding the role of law in the protection and regulation of culture. Over the course of my studies, I have had the privilege of benefitting from the exacting training of some of the most influential scholars in the area of international human rights law. I owe my deepest gratitude to Prof. Robert McCorquodale, my leading doctoral supervisor, who has been an important source of inspiration during my studies. His constructive comments and criticisms enabled me to refine my thoughts and arguments, but I would especially like to thank him for his patience and wisdom, which guided me through the times when everything seemed impossible and I was ready to give up. I am also indebted to Dr Daniel Moeckli, Dr Alice Edwards, Prof. Vanessa Munro and Prof. Mary Footer, whose breadth of knowledge has constantly challenged

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me to reflect critically on the nuances and complexities of the interactions between law and society. I thank my classmates, Amrei Müller, Ann-Catrin Theisen, Daria Davitti, Dimitris Pliatsikas, Intu-on Goonchorn, Adamantia Rachovitsa, Mehmet Bedii Kaya, Pei-lun Tsai, Ying Khai Liew and others, who have been my primary sources of joy and encouragement and without whom I could not have survived the PhD experience. I am grateful to my parents for supporting my decision to pursue further studies abroad, and to Chan Long Yee (Jackie) my girlfriend (now wife), for her unwavering support over the period when we were so far away from each other. Lastly, the completion of my studies would not have been possible without the generous funding of the School of Law, University of Nottingham. This book is dedicated to the memory of Li Tak Chi, a treasured friend who passed away as I was endeavouring to complete my studies abroad. Thank you for giving me the best memories that a friend could ever ask for.

List of Abbreviations and Acronyms cedaw Committee on the Elimination of Discrimination against Women cerd Committee on the Elimination of Racial Discrimination cescr Committee on Economic, Social and Cultural Rights cmw Committee on Migrant Workers crc Committee on the Rights of the Child crpd Committee on the Rights of Persons with Disabilities ecosoc United Nations Economic and Social Council hrc Human Rights Committee iachr Inter-American Commission on Human Rights iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights icj International Court of Justice ilo International Labour Organisation Inter-Am. chr Inter-American Court of Human Rights op-icescr Optional Protocol to the International Covenant on Economic, Social and Cultural Rights pcij Permanent Court of International Justice udhr Universal Declaration of Human Rights un ohchr Office of the United Nations High Commissioner for Human Rights unchr United Nations Commission on Human Rights undp United Nations Development Programme undrip United Nations Declaration on the Rights of Indigenous Peoples unesco United Nations Educational, Scientific and Cultural Organisation unga United Nations General Assembly unpfii United Nations Permanent Forum on Indigenous Issues

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Introduction: Cultural Rights—A Radical Hope? In Radical Hope: Ethics in the Face of Cultural Devastation, Jonathan Lear documents the experience of the Crow Nation through the testimony of an old tribal chief: The Crow had a conception of happiness, a conception of what life was worth living for. They lived in relation to a spiritual world in which they believed God had chosen them to live a certain kind of life. Happiness consisted in living that life to the full. This was an active and unfettered pursuit of a nomadic hunting life in which their family life and social rituals could prosper.1 Yet, when the buffalos were gone, their warrior code forbidden and their nomadic way of life confined to their reserves, their very concept of happiness ‘could no longer be lived’.2 What truly mattered to the once-proud wanderers has ceased to be discernible. When communities are denied their cultural expression, it often leads to the ‘destruction of the end or goal—the telos—of that life’.3 Although the people still live, the very parameters that define them have ceased to exist. Nothing is left to hold the community together. The loss of the capacity (and freedom) to express themselves therefore signifies not only the disappearance of their non-material legacies, but also a loss of cultural purpose—and thus the loss of their very identity. Nonetheless, indigenous communities are just one of the many groups around the world that are at risk of such losses and denials. Our world today is home to some 5000 ethnic groups.4 Over 150 states have significant religious or ethnic minorities, contributing to some of the world’s most precious intellectual legacies in terms of their languages and cultures.5 Yet, our global d­ iversity 1 Jonathan Lear, Radical Hope: Ethics in the Face of Cultural Devastation (Harvard University Press 2009) 55. 2 Ibid 2. 3 Ibid 57. 4 United Nations Development Programme, Human Development Report 2004: Cultural Liberty in Today’s Diverse World (undp 2004). 5 Elsa Stamatopoulou, ‘Why Cultural Rights Now?’ (Carnegie Council 23 September 2004) accessed 1 February 2017. © koninklijke brill nv, leiden, ���� | doi 10.1163/9789004328587_002

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is quickly diminishing. Many ethnic groups continue to be marginalised, impoverished and denied their ways of living. Others, including minorities and migrants, ‘face restrictions on religion, language, ceremonies and appearance’.6 Children from minority communities are often denied education in their mother tongue.7 In some instances, deprivation and suppression of an individual’s cultural identity have cultivated a sense of humiliation, agony and fear.8 In the most serious cases, the emotional pain and suffering associated with the denial of cultural expression have led some to resort to extreme forms of protest, such as self-immolation, believing that only death can relieve them.9 What is culture, and why is it so important to us? Challenging questions arise in the effort to adequately protect the cultural rights of individuals and communities worldwide, not the least of which are those concerning our very understanding of ‘culture’. ‘Culture’ is a complex notion,10 which legal commentators have been struggling to elaborate or define.11 Not only is the scope 6 Ibid para 10. 7 Ibid. 8 One notable example is the situation of the Romani population (‘Roma’), an ethnic diaspora of Indian origins consisting of 10 to 12 million people, around 6 million of whom live in the eu. A heavily discriminated-against and marginalised group, many Roma live in desperate conditions. Roma children are sometimes segregated from the majority in terms of schooling. Many of them face intimidation on a daily basis. See Dan ­Bilefsky, ‘Roma, Feared as Kidnappers, See Their Own Children at Risk’ The New York Times (­Paris, 23 October 2013) accessed 1 February 2017; Angelique Chrisafis, ‘Roma Fear Witch Hunt After Greek Case’ The Guardian (Paris, 24 October 2013) accessed 1 February 2017. 9 From 2009 onwards, hundreds of Tibetans committed self-immolation in protest against the cultural policies imposed on them by the Chinese government. These include prohibitions on their language, literature, festive activities and other cultural practices. See Tsering Woeser, ‘Tibet’s Enduring Defiance’ The New York Times (New York, 2 March 2014) accessed 1 February 2017. 10 Raymond Williams, Keywords: A Vocabulary of Culture and Society (Oxford University Press 1983) 87. Raymond Williams considers ‘culture’ one of the two or three most complicated words in the English language. The difficulty of defining culture is also reflected in a work by anthropologists Kroeber and Kluckhohn, published in 1952, which gathered and analysed more than 200 definitions of culture appearing in anthropological literature at that time. See Alfred L Kroeber and Clyde Kluckhohn, Culture: A Critical Review of Concepts and Definitions (Vintage Books 1952). 11 unesco, Cultural Rights as Human Rights (unesco 1970) 15–23; Dominic McGoldrick, ‘Culture, Cultures, and Cultural Rights’ in Mashood Baderin and Robert McCorquodale

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of culture difficult to determine, but the concept embraces both objective and subjective dimensions (as the term ‘cultural identity’ suggests). In soft law, the term ‘culture’ carries at least three different meanings: the accumulated material heritage of human groups, their creative expressions and ‘the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups’.12 These divergent understandings of culture have often led to confusion in its application13 and, as ­individual commentators argue, this has in turn undermined the law’s enforceability.14 ­Asbjørn Eide, former Chair of the United Nation’s Working Group on Minorities,15 remarks that ‘“Cultural rights” derive from the word “culture”, an overworked concept with little semantic precision’.16

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(eds), Economic, Social and Cultural Rights in Action (Oxford University Press 2007) (The concept of ‘cultural rights’ is vague because interpretations of the word ‘culture’ vary widely.); Lyndel Prott, ‘Cultural Rights as Peoples’ Rights in International Law’ in James Crawford (ed) The Rights of Peoples (Clarendon Press 1988); Lyndel Prott, ‘Understanding One Another on Cultural Rights’ in Halina Niec (ed), Cultural Rights and Wrongs: a Collection of Essays in Commemoration of the 50th Anniversary of the Universal Declaration of Human Rights (unesco Publishing 1998); Yvonne Donders, Towards a Right to Cultural Identity? (Intersentia 2002) 2: ‘One of the reasons given for this underdevelopment is the vagueness of the term “culture.”’ Rodolfo Stavenhagen, ‘Cultural Rights and Universal Human Rights’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers 1995) 63; unesco, ‘Cultural Rights as Human Rights’ (n 11) 9–14. In the Final Report of the World Commission on Culture and Development, published by unesco and entitled Our Creative Diversity, it was remarked that ‘A great deal of confusion arises in both academic and political discourse when culture in the humanistic sense is not distinguished from “culture” in its anthropological senses, notably culture as the total and distinctive way of life of a people or society.’ See World Commission on Culture and Development, Our Creative Diversity: Report of the World Commission on Culture and Development (2nd edn rev, unesco Publishing 1996). Margaret Wilson, ‘Cultural Rights: Definition and Contexts’ in Paul Hunt and Margaret Wilson (eds), Culture, Rights and Cultural Rights: Perspectives from the South Pacific (Huia Publishers 2000) 13; Halina Niec, ‘Casting the Foundation for the Implementation of Cultural Rights’ in Halina Niec (ed), Cultural Rights and Wrongs: A Collection of Essays in Commemoration of the 50th Anniversary of the Universal Declaration of Human Rights (unesco Publishing 1998) 178. Established in 1995, the un Working Group on Minorities is a subsidiary body of the un Sub-Commission on the Promotion and Protection of Human Rights (previously called the Sub-Commission on the Prevention of Discrimination and Protection of Minorities). Asbjørn Eide, ‘Cultural Rights as Individual Human Rights’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd edn,

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Drawing on insights from across the disciplines of law and anthropology, this book is both a contribution to the current state of knowledge on cultural rights and an invitation to explore some of the more in-depth issues ­surrounding the understanding of culture in law. The analysis contained in these chapters reveals that, while cultural rights are a recognised category of human rights (in equal standing with their civil, political, economic and social counterparts), answers to questions as to what culture is, and the theoretical basis for protecting culture, remain obscure. For instance, why are some cultural practices considered protected expressions, and others subject to prohibition? Why are some organised ways of living considered to constitute ‘distinctive’ ways of life worthy of human rights protection while others are not? Why are culture and identity often addressed together when individuals from the same community may have different understandings of what the essence of their tradition is, and therefore of what is worthy of protection? As the book unfolds, it will demonstrate that the notion of culture as understood in contemporary anthropology is very different from the way international legal discourse understands it. In particular, contemporary ­anthropology no longer treats culture as a ‘thing’ or a political entity, but as a process—or more precisely, a process associated with meaning-making.17 As individuals, we produce, transform and challenge meaning.18 Cultural knowledge within a community is not equally shared among individuals. Yet, it is always our ability to create meaning that generates narratives, discourses and ideologies, and so always central to the production and reproduction of meaning is the relative power of groups and individuals to articulate, control and manipulate meaning. The above observations will undoubtedly raise more questions concerning the application of law in the area of cultural rights. If understandings of cultural knowledge differ within groups, how can culture be ‘adjudicated’? Take the example of cultural practices deemed discriminatory: are international l­egal experts in a good position to identify these practices and to judge? In challenging the understanding of ‘culture’ in law, anthropological knowledge also

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Martinus Nijhoff Publishers 2001) 289; Yoram Dinstein, ‘Cultural Rights’ (1979) Israel yb Hum Rts 58, 74: ‘As with many other abstract phrases, a precise definition [of culture] is virtually impossible and any attempt to bring the expression within set bounds may only generate lengthy debates.’ Rodolfo Stavenhagen, ‘Cultural Rights and Universal Human Rights’ (n 12) 67. As Stavenhagen points out, ‘[R]ecent scholarship treats culture as something that is constantly constructed, reconstructed, invented and reinvented by ever-changing subjects; the ­emphasis here is on the way people perceive and speak about their culture.’ Maykel Verkuyten, The Social Psychology of Ethnic Identity (Psychology Press 2005) 17.

Introduction

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makes visible the institutional limitations of the current international ­human rights regime. Thus, the implications of anthropological knowledge for cultural rights go beyond providing an empirical or theoretical basis for cultural rights; by challenging legal epistemology, they also raise methodological questions. As our understanding of the social world often conditions and shapes our objects of enquiry (and therefore the questions to be asked), legal narratives, based on Kantian metaphysics and the formula of universality,19 often generate ­legal tests, questions and criteria which are abstract and absolute.20 Lawyers then apply these tests and criteria to ‘material facts’, i.e. facts that they deem relevant. Thus, when the law defines culture, it looks to features that reaffirm its own preconceptions. In a way, ‘facts’ are not just ‘out there’ waiting to be discovered,21 but are filtered by the very criteria and tests devised to evaluate them. What is at issue, therefore, also relates to the legal mode of enquiry, i.e. the way lawyers (through the way law is applied) ‘know’ about the world. Can anthropological insight, then, mitigate the bluntness of the law and accommodate the messiness and fluidity of ‘culture’ that contemporary anthropologists embrace? To go back to our example of discriminatory cultural practices, can anthropological insights tell us more about the basic relationship between culture and the individual, and enable a deeper understanding of individual agency in the practice of cultural traditions, so that the law may be reconceptualised to accommodate such nuances? The present work pieces together the rapidly developing material on cultural rights in the practice of the un human rights treaty bodies with the ­profound insights of contemporary anthropology’s understanding of culture. The resulting study is an example of the kind of interdisciplinary research that is much needed but has not been fully explored in this area of scholarship. By teasing out hidden assumptions, highlighting what has been neglected and its practical significance and raising new and relevant questions, this book attempts to provide ‘a “space of encounter” at the cross-section of disciplines … [and a] temporary relief from methodological and theoretical restrictions of 19 20

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Stamatopoulou, ‘Why Cultural Rights Now?’ (n 5). Clifford Geertz, ‘Local Knowledge: Fact and Law in Comparative Perspectives’ in Clifford Geertz (ed), Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books Inc 1983) 173. According to Geertz, law too is a form of social imagination, and legal reasoning is ‘part of a distinctive manner of imagining the real’. Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropology Perspectives (Cambridge University Press 2001) 12.

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established disciplines’, the latter of which are often perceived as hindrances to developing broader protections for cultural rights in international law.22 Chapter 2 explores how culture is viewed in anthropology. As the discipline has evolved over time, anthropologists have developed different views and understandings with regard to culture, and so it is not possible to derive a single definition of culture in anthropology. From equating culture with ‘civilisation’ to conceptualising culture as the system of values and beliefs which shape behaviour, and from viewing cultural features as embodying different functions to imagining culture as the symbolic realm that underlies the social life of ­individuals and communities, this chapter not only demonstrates how anthropologists came to view culture differently over time, but also demonstrates the epistemological and theoretical challenges behind the debates which shaped the development of anthropology. Understanding these epistemological and theoretical debates is important, because it is through these debates that theoretical assumptions—i.e. the assumptions that underlie different conceptions of culture—are unveiled. Delving into these assumptions, we can better appreciate why certain views were subsequently adopted in anthropology, and why certain views on culture ought to be adopted or abandoned in law. Chapter 3 examines the jurisprudence of the treaty bodies on cultural rights. Cultural rights as a category address one’s ‘access to culture’ and they were first acknowledged in the udhr. Chapter 3 begins by highlighting the legal framework for the protection of cultural rights. From its inception to its proliferation, the concept of cultural rights can be found scattered throughout the instruments of the treaty bodies. As the chapter shows, the expanding jurisprudence of cultural rights in the work of the treaty bodies is deeply related to the expanding understanding of ‘culture’ that these bodies adopted over these decades. It reveals that, at present, cultural rights address three different dimensions of culture: (1) culture as a collection of products (which addresses ‘culture’ in its material sense), (2) culture as a process (which addresses an individual’s participation in cultural life, and, from the perspective of the community, a temporal aspect of ‘culture’) and (3) culture as a system (which ­addresses ‘culture’ as the environment that provides the symbolic references for our everyday lives—in other words, the spatial aspect of culture or the ‘­cultural space’). Nevertheless, the expansion in the scope of cultural rights brought about contradictory implications. As the treaty bodies have begun to adopt and acknowledge a conception of culture as the symbolic space of our everyday 22

Reza Banakar and Max Travers, ‘Law, Sociology and Method’ in Reza Banakar and Max Travers (eds), Theory and Method in Socio-Legal Research (Hart Publishing 2005) 5.

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lives, the scope of cultural rights has expanded dramatically, raising various questions concerning their application and enforcement. In essence, if culture denotes the symbolic aspects of social life, as contemporary anthropologists would argue, then culture is potentially everywhere, in everything to which symbolic meanings can be attached. Has ‘culture’ then ceased to be a viable legal concept? Chapter 3 demonstrates that viewing ‘culture’ as the ­symbolic realm of social life does not undermine the effectiveness of cultural rights protection. Although it implies that culture is everywhere, cultural rights do not protect these ‘symbols’; rather, they protect the process through which meanings are created. It also demonstrates how the transfigurability of the concept has enabled a more nuanced application of cultural rights, without ­undermining legal certainty. Nonetheless, drawing on the lessons derived from Chapter 2, especially the critique of ‘symbolism’ by contemporary anthropologists, Chapter 3 goes on to demonstrate how international lawyers can benefit from understanding culture as the set of power relations which underlie contested narratives and discourses. It does not argue that cultural rights should protect these ‘conflicting narratives’. Rather, the contemporary anthropological understanding of culture as contentious, and as reflecting competing discourses of power, should be adopted by the treaty bodies as a heuristic device that enables us to understand how these conflicting narratives operate. This perspective would in turn allow the treaty bodies to raise questions which might not have been possible with earlier conceptions of culture. It demonstrates how viewing culture through the lens of contemporary anthropology provides valuable insights through which more subtle forms of human rights violation could be brought to light. Chapter 4 addresses issues concerning the limitations on cultural rights. ­International human rights law deems certain aspects of culture unworthy of human rights protection, and so imposes certain limitations. The most obvious example is where violations of women’s rights could be regarded as ‘attributable’ to cultural norms and practices. The protection of cultural rights (studied in Chapter 3) and the limits of cultural rights are two issues that are intertwined—exploring the landscape of cultural rights requires an understanding of ‘culture’ as well as the extent to which cultural rights are limited. Nevertheless, as will be explored in detail, these two aspects relate to very different concerns. While the question of the protection of cultural rights is primarily concerned with the elusive qualities of culture and, therefore, how one should approach ‘culture’ in the context of cultural rights, the question of the limits of cultural rights goes beyond acknowledging these qualities and requires both a deeper understanding of how culture influences/shapes a sense of self, agency and personhood, and a richer

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analysis of why people participate in certain cultural practices and/or resist these practices. Chapter 4 begins by exploring the relevant legal principles that are applicable in the context of limitations on cultural rights. Borrowing from the lessons of Chapter 2, it then turns to contemporary anthropology to examine how the notion of culture as a system of narratives and discourses could contribute to a more in-depth understanding of why individuals participate in cultural practices. Contemporary anthropologists argue that identity is the ‘narratisation’ of the self and is therefore deeply shaped by prevailing discourses (culture). As an individual takes up multiple subject positions (such as those relating to her gender, ethnicity, family positions, sexual orientation, and so on), her sense of self is heavily influenced by multiple discourses that are sometimes contradictory and shifting (for instance, how others expect her to perform her gender may be different from or incompatible with how others expect her to perform her cultural identity). As an individual reconciles these differences and integrates these experiences as her own, she develops unique thoughts about, for example, her gender and her cultural identity. When these identities come under challenge, she defends/interprets her identities in her own unique ways. Chapter 4 seeks to demonstrate how such understandings could be incorporated into legal analysis by asking relevant ‘cultural questions’ that correspond to four aspects of cultural life: how discourses are (1) produced, (2) reproduced, (3) experienced and (4) resisted.23 By applying this framework, Chapter 4 demonstrates that this approach yields better legal analysis. It offers a method to better understand the experiences of individuals, through understanding their agency and subjectivity. The contemporary anthropological understanding of identity will also be used to challenge the notion of ‘choice’ adopted by the cescr when deciding whether cultural practices ought to be prohibited. It argues, from contemporary anthropological perspectives, that if ‘choice’ is to be respected, individuals should be allowed to resist cultural practices and norms in their own ways. This implies an obligation to refrain from blanket bans on certain practices that are integral to the individual’s cultural identity. Chapter 5 concludes this study. It summarises how contemporary anthropological concepts of culture could be applied in the work of the treaty bodies, taking into account their institutional limitations, and explains why the advocated approach is important from a methodological perspective. It also indicates some additional implications of anthropological knowledge for legal approaches to cultural rights and highlights themes for future research. 23

See Leslie McCall, ‘The Complexity of Intersectionality’ in Davina Cooper et al (eds), Intersectionality and Beyond: Law, Power and the Politics of Location (Routledge-Cavendish 2009) 49.

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Clarifications of Scope and Approach

As noted above, the purpose of the book is to explore the ways in which anthropological understandings of culture might contribute to the development of cultural rights in the context of the un treaty bodies’ jurisprudence. It aims to do this through an interdisciplinary study of anthropology and law. Before turning to the substance of the book, several clarifications are required in terms of its assumptions and scope. 1.1.1 The Distinction between Minority Rights and Cultural Rights The first clarification is the distinction between cultural rights and minority rights. Cultural rights and minority rights are interlinked in many ways, although the two terms describe different categories of rights.24 Minority groups have been subject to international legal protection since the years of the League of Nations, through its minority protection treaty system.25 Minority rights were subsequently developed through United Nations (un) conventions and declarations,26 international human rights treaties27 and regional

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William Barth, in On Cultural Rights: the Equality of Nations and the Minority Legal Tradition (Martinus Nijhoff Publishers 2008) 1, notes that cultural rights and minority rights have often been confused. See also Ana Filipa Vrdoljak, ‘Self-Determination and Cultural Rights’ in Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Martinus Nijhoff Publishers 2007) 41, 56. 25 Barth, On Cultural Rights (n 24) 1. For an excellent background introduction to the minority protection system, see Patrick Thornberry, ‘The un Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analaysis, Observations and an Update’ in Alan Philips and Allan Rosas (eds), The un Minority Rights Declaration (Åbo Akademi University Institute for Human Rights 1997) 1–13. See also United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘Treaties and International Instruments Concerning the Protection of Minorities 1919–1951’ (1951) un Doc E/CN.4/Sub.2/133. 26 These instruments include the International Labour Organisation Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989, entered into force 5 September 1991) 1650 unts 383 (‘ilo Convention No 169’); 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and ­Linguistic Minorities, unga Res 47/135 (18 December 1992) (adopted without a vote) (‘1992 Declaration on the Rights of Minorities’); 2007 un Declaration on the Rights of Indigenous Peoples, unga Res A/61/L.67 (13 September 2007) (adopted by 144 to 4 with 11 abstentions). 27 Lying at the core of the rights of minorities is the principle of non-discrimination, the protection of which is strengthened through cerd. Meanwhile, article 27 of the iccpr provides for the cultural rights of minorities.

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treaties.28 These declarations and treaties recognise the existence of minorities and establish standards for the protection of the rights of minority groups within the state.29 Eloquently summarised by the Permanent Court of International Justice (pcij) in the Minority Schools in Albania case,30 the purpose of the system for the protection of the rights of minorities is: to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and cooperating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs.31 Similarly, Eide argues that the purpose of international human rights protection for minorities is to transform the state ‘[into] a civic nation which allows for double identity and loyalty … respecting the common legal code with particular emphasis on equality and non-discrimination in the common domain, and at the same time to maintain one’s identity to separate ethnic, religious or

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30 31

See eg Council of Europe, European Charter for Regional or Minority Languages (4 ­November 1992) ets 148; Council of Europe, Framework Convention for the Protection of National Minorities (1 February 1995) ets 157. For a detailed discussion on minority protection at the international and regional level, see Dieter Kugelmann, ‘The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity’ (2007) 11 Max Planck unyb 223. See eg un Human Rights Committee, ‘General Comment No 23’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008), un Doc hri/gen/1/Rev.9 (vol 1) at 208 (‘hrc, General Comment No 23’), para 3.2: ‘The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party.’ The term ­‘nation-state’ itself contains a paradox, as a nation is not a state. The former, in its simplest sense, is a cultural community; the latter is an administrative apparatus. At present, there are nearly 200 states containing approximately 2500 nations; ie nations are 12 times more numerous than states. See cescr ‘Day of General Discussion: Right to take part in cultural life (article 15(1)(a) of the Covenant): Background paper submitted by Mr Ephraim Nimni’ (9 May 2008) un Doc E/C.12/40/17. Minority Schools in Albania (Advisory Opinion) [1935] pcij Rep Series A/B No 64 (‘Minority Schools in Albania’) 17. Ibid para 48. See also Thornberry, ‘The un Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ (n 25) 13, 16.

Introduction

11

linguistic groups’.32 Thus, while cultural rights are closely related to ‘access to culture’, minority rights also embody rights such as political participation and the right to self-determination.33 In addition, cultural rights differ from minority rights in application. Cultural rights ‘comprise an aspect of human rights in that they are universal in character’.34 This means that cultural rights are extended to all persons regardless of their status. For instance, Article 15(1)(a) of the icescr provides for the right of everyone, regardless of their ethnic, religious or linguistic background, to participate in cultural life.35 In contrast, minority rights are granted only to recognised minorities.36 This is best reflected in Article 27 of the iccpr on the rights of minorities, which only confers rights on individuals or groups belonging to a cultural, religious or linguistic minority.37 Nevertheless, minority rights and cultural rights do substantially overlap.38 The protection of minority rights, such as the protection of language, heritage, institutional formation and distinctive ways of life, are crucial to the personal development of every member of a minority and may be appropriately considered a subset of cultural rights.39 In other words, in many instances the protection of a minority group’s rights is also integral to their ‘access to culture’.40 32

Asbjørn Eide, ‘Minority Protection and World Order: Towards a Framework for Law and Policy’ in Alan Philips and Allan Rosas (eds), Universal Minority Rights (Åbo Akademi University 1997) 99. See also Barth, On Cultural Rights (n 24) 6. 33 For a detailed discussion, see Patrick Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’ (1989) iclq 867. 34 Barth, On Cultural Rights (n 24) 5–6, 79; Janusz Symonides, ‘Cultural Rights’ in Janusz Symonides (ed) Human Rights: Concept and Standards (unesco 2000) 175, 201; 2001 unesco Universal Declaration on Cultural Diversity (2 November 2001) unesco Doc 31C/Resolution 25 Annex 1 (‘2001 Universal Declaration on Cultural Diversity’). 35 Article 15(1)(a) icescr. 36 Barth, On Cultural Rights (n 24) 5. 37 hrc, General Comment No 23, paras 4 and 5.1; unchr ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’ (1979) un Doc E/CN.4/Sub.2/384/ Rev.1. 38 Francesco Francioni, ‘Culture, Heritage and Human Rights: An Introduction’ in Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Martinus Nijhoff Publishers 2008) 5; Prott, ‘Understanding One Another’ (n 11) 161, 168–169. 39 Jack Donnelly, ‘Human Rights, Individual Rights, and Collective Rights’ in Jan Berting et al (eds), Human Rights in a Pluralist World: Individuals and Collectivities (Meckler 1990) 39, 56–57; Prott, ‘Understanding One Another’ (n 11) 161, 168–169. Here, I refer to this type of rights as ‘minority cultural rights’. 40 See article 27 of the iccpr which provides, inter alia, for the rights of minorities ‘to enjoy their own culture’. See also Hurst Hannum, ‘The Rights of Persons Belonging to

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Accordingly, Szabo comments that cultural rights ‘in their totality are … not considered identical to minority rights and vice versa: [while] minority rights are not considered to be restricted only to cultural rights … minorities’ cultural rights are part of the range of general cultural rights’.41 The respective relationship between cultural rights and minority rights could also be understood from the perspective of the interdependence and indivisibility of rights, i.e. the cultural rights of minorities cannot be adequately protected without the protection of minority rights.42 As this book focuses on cultural rights, it will not address minority rights as a distinctive category. However, minority rights will be addressed where the cultural rights of minorities are involved. As will be demonstrated in ­Chapter 3, considerations relating to the cultural rights of minorities are at the heart of current developments in cultural rights in the work of the treaty bodies. 1.1.2 The Relationship between Cultural Rights and Other Freedoms The second point to note in relation to the scope of this book concerns the relationship between cultural rights and other areas of human rights protection which make implicit reference to culture, including, inter alia, linguistic rights, religious rights, the right to education and the right to marriage, alongside other freedoms such as freedom of expression, assembly and association:43 are these rights cultural rights?

41 42

43

­Minorities’ in Janusz Symonides (ed), Human Rights: Concepts and Standards (unesco Publishing 2000) 277. Emphasis original. Imre Szabo, Cultural Rights (A W Sijthoff 1974) 108. For example, it is possible to argue that certain rights, such as the right to s­ elf-determination, provide support to minority cultural rights and thus have implications for cultural rights. Some would also argue that the right to self-determination forms part of cultural rights. These arguments serve more to obscure than to clarify the scope of cultural rights. It is sufficient to understand that cultural rights relate to access to culture, and that like other rights, cultural rights and other human rights are interdependent and interrelated. Eide ‘Cultural Rights as Individual Human Rights’ (n 16) 312: ‘As so often is the case within the international normative system of human rights, there are close links between the cultural rights contained in Article 27 of the udhr and the corresponding Article 15 of the cescr with other rights contained in the International Bill of Human Rights. Most obvious are the links to the right to education, which can be seen as a cultural right in itself; the right to freedom of expression and information, which include a right also to cultural expression, as well as access to and dissemination of such cultural expression; the freedom of religion, since religions and cultures are closely interrelated; as well as the freedom of assembly and of association, since many cultural manifestations by necessity are carried out in association with others or depend for their meaning on interaction with others.’

Introduction

13

For a long period of time, ascertaining the scope of cultural rights (or what counts as a cultural right) presented serious difficulties.44 In fact, the lack of clarity in relation to the scope and content of cultural rights has been noted by many, and led unesco to commission a report to compile a list of cultural rights.45 Nevertheless, such attempts have been unsuccessful, largely because cultural rights are scattered throughout numerous instruments adopted by the un and other specialised agencies, and because they are both explicitly and implicitly referenced in the law,46 which ‘opens the way for various classifications and groupings’.47 Moreover, ‘culture’ is an evolving notion in international human rights law and discourse, which implies that cultural rights are also an expanding category of rights.48 In this context, analysing the scope and content of each and every right which could be said to form part of the category of cultural rights may do more to obscure than to clarify. As cultural rights embody an expanding category of rights, this book examines cultural rights by exploring their progressive development. It begins by analysing the right to take part in cultural life as articulated in Article 27 of the udhr and Article 15(1)(a) of the icescr, and draws on subsequent instruments and jurisprudence which strengthen and expand the content of this right. These provisions were also the first to establish cultural rights49 and are recognised as being among the most comprehensive.50 Although categories of human rights protection such as linguistic and religious rights qualify in and 44

Halina Niec, ‘Cultural Rights: At the End of the World Decade for Cultural Development’ (Intergovernmental Conference on Cultural Policies for Development, Stockholm, 30 March–2 April 1998). Academics have sought to come up with a list of cultural rights; see eg Janusz Symonides, ‘Cultural Rights: A Neglected Category of Human Rights’ (1998) 15 Int’l Soc Sci J 559; Prott, ‘Cultural Rights as Peoples’ Rights in International Law’ (n 11) 96–97. 45 Birgitta Leander, Preliminary List of Cultural Rights (Culture and Development Coordination Office 1996). 46 Szabo, Cultural Rights (n 41) 50; see Chapter 3. 47 Symonides, ‘Cultural Rights’ (n 34) 176. 48 Szabo, Cultural Rights (n 41) 50: ‘[C]ultural rights cannot by far be considered as definitely settled; whether the content of certain kinds of cultural rights expands over a wider field, or new cultural rights become detached and acquire independent standing, is open to question.’ The expanding nature of cultural rights is amply demonstrated in Chapter 3. 49 Ragnar Adalsteinsson and Páll Thórhallson, ‘Article 27’ in Gudmundur Alferdsson and Asbjørn Eide (eds), The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Nijhoff Publishers 1999) 575; Halina Niec, ‘Introduction’ in Halina Niec (ed), Cultural Rights and Wrongs: A Collection of Essays in Commemoration of 50th Anniversary of the Universal Declaration of Human Rights (unesco Publishing 1998) xiii. 50 Ibid.

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of themselves as distinctive areas of human rights law worthy of extensive research, this book does not treat them as distinctive categories but attempts to deal with these areas of rights as they supplement cultural rights. The Distinction between Cultural Rights and the Protection of Culture The third point is the difference between the protection of culture and the protection of cultural rights in international law. Since the drafting of the udhr, unesco, as the principal un body in the fields of education, science and culture,51 has taken on a crucial role both in elaborating and articulating the protection of culture and in executing programmes, action plans52 and special procedures53 aimed at promoting and protecting culture. To date, unesco has 1.1.3

51

52

53

Founded in 1945, unesco was given an explicit human rights mandate, albeit a ‘broad and general’ one. Article i (1) of the unesco Constitution provides that the purpose of unesco is to ‘promot[e] collaboration among the nations through education, science and culture in order to further universal respect for … human rights and fundamental freedoms which are affirmed … by the Charter of the United Nations’. Moreover, member states of the un pledge themselves under article 56 of the un Charter to cooperate with specialised agencies established under article 57 of the Charter (including unesco) to promote the goals enshrined in article 55, including, inter alia, ‘universal respect for, and observance of, human rights’. See also Fons Coomans, ‘unesco and Human Rights’ in Raija Hanski and Markku Suksi (eds), An Introduction to the International Protection of Human Rights: A Textbook (Åbo Akademi University Institute for Human Rights 1999) 181; Stephen Marks, ‘unesco and Human Rights: The Implementation of Rights Relating to Education, Science, Culture and Communication’ (1977) 13 Tex Int’l L J 35. Kishore Singh, ‘unesco and Cultural Rights’ in Halina Niec (ed), Cultural Rights and Wrongs: A Collection of Essays in Commemoration of the 50th Anniversary of the Universal Declaration of Human Rights (unesco Publishing 1998) 152–158. In 1978, unesco’s Executive Board established a mechanism for receiving individual communications on human rights violations within its field of competence. The communications procedure is not accusatory in nature. Rather, it is a procedure which aims to ­promote human rights through initiating confidential consultations between the state and the alleged victim with the objective of achieving the settlement of c­ ases. Note, ­however, that the procedure has not been invoked in recent years. Moreover, since the process and outcome of these communications are confidential (in contrast to the individual communications received by the Human Rights Committee), it is unlikely that they will affect the development of the law, and they will therefore not be discussed here. For a thorough account of the procedure, refer to Mieczslaw Paszkowski, ‘unesco’s “Unknown” Human Rights Procedure’ (1996) 5 The Polish Q of Int’l Affairs 83; Stephen Marks, ‘The Complaint Procedure of the United Nations Educational, Scientific and Cultural Organization’ in Hurst Hannum (ed), Guide to International Human Rights Practice (Transnational Publishers 2004) 107–123; Donders, Towards a Right to Cultural Identity (n  11)

Introduction

15

compiled over thirty standard-setting instruments aimed at the protection of culture.54 These instruments, comprising recommendations,55 declarations56 and conventions, cover a wide range of topics, including, inter alia, the status of artists, copyrights, archaeological excavations, traditional folklore and cultural diversity. The aim of these instruments is to articulate legal obligations (in the case of conventions)57 and to formulate principles and norms (in the cases of declarations and recommendations) to promote international cooperation and best practice in the respective areas of concern.58

54

55

56

57

58

110–111. For a description of the possible outcomes of these settlements, see GeorgesHenri Dumont, ‘unesco’s Practical Action on Human Rights’ (1989) 122 Int’l Soc Sci J 585, 589–590. For a list of unesco instruments in relation to culture, see unesco, ‘Culture’ accessed 1 February 2017; Stephen Marks, ‘Education, Science, Culture and Information’ in Oscar Schachter and Joyner C Christopher (eds), United Nations Legal Order (Cambridge University Press 1995) 578. Recommendations are defined in article 1(b) of the unesco Rules of Procedure as instruments ‘in which the General Conference formulates principles and norms for the international regulation of any particular question and invites Member States to take whatever legislative or other steps may be required in conformity with the constitutional practice of each State and the nature of the question under consideration to apply the principles and norms aforesaid within their respective territories’. (Emphasis added) Although recommendations are not subject to ratification and are not legally binding, they are instrumental in influencing national laws and practices. See unesco, ‘General introduction to the standard-setting instruments of unesco’ accessed 1 ­February 2017. Ibid. In the past, unesco has adopted various declarations of crucial importance. The status of declaration itself is not mentioned in the unesco constitution. Declarations adopted by the General Conference are described by the organisation as ‘another means of defining norms, which are not subject to ratification’. According to unesco, ‘Like recommendations, they set forth universal principles to which the community of States wished to attribute the greatest possible authority and to afford the broadest possible support.’ In other words, declarations may be said to be solemn statements of goals and aspirations. Similarly to the un human rights treaties, unesco conventions have their respective system of treaty bodies to monitor state compliance. In this respect, commentators such as Marks and Symonides describe the work of the unesco instruments as having a ‘normative’ or ‘legislative’ character. Marks, ‘unesco and Human Rights’ (n 51); Symonides, ‘Cultural Rights’ (n 34) 183, 191. Marks, ‘unesco and Human Rights’ (n 51).

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However, compared to the un human rights instruments, those adopted by unesco do not grant individuals or groups substantive rights.59 Nevertheless, unesco’s work has contributed significantly to the development of cultural rights in three different ways. Firstly, unesco has participated in elaborating the content of cultural rights through means such as organising expert ­conferences and international forums on cultural rights,60 participating in the drafting of the relevant provisions of human rights instruments pertaining to cultural rights (such as the udhr and the icescr), participating in drafting the icescr reporting guidelines on the relevant provisions61 and participating in the Day of General Discussion organised by the relevant human rights treaty body for cultural rights.62 Secondly, unesco has adopted instruments aimed at elucidating and enriching the content of cultural rights, such as the 1966 Declaration on International Cultural Cooperation and the 1976 Recommendation on Participation in Cultural Life.63 While some of these instruments are directly referenced in the texts of the treaty bodies,64 the understandings of different aspects of cultural rights articulated in other unesco instruments often influence, and thus indirectly contribute to, the way the treaty bodies understand the scope of cultural rights.65 Thirdly, unesco instruments enhance states’ capacity to respect, protect and fulfil cultural rights; access to culture 59

Francioni, ‘Culture, Heritage and Human Rights’ (n 38) 3: ‘[C]ultural provisions contained in the existing [unesco] legal instruments do not establish real rights, with ­corresponding precise and unconditional obligations, but rather political commitments of a programmatic character that create at most legitimate expectations but not true rights.’; Nevertheless, it is still important to note that ‘A majority of these instruments is linked directly or indirectly with human rights.’ Janusz Symonides, ‘unesco’s Contribution to the Progressive Development of Human Rights’ (2001) 5 Max Planck unyb 307, 309; See also Janusz Symonides and Vladmir Volodin, unesco and Human Rights: ­Standard-Setting Instruments Major Meetings Publications (unesco 1999) vi. 60 In 1952, unesco appointed the first Committee of Experts to study ‘the right freely to participate in the cultural life of the community’ enshrined in article 27(1) of the udhr, setting out the scope of reference for the future elaboration of cultural rights. Singh, ‘unesco and Cultural Rights’ (n 52) 146–160. 61 Symonides, ‘unesco’s Contribution’ (n 59) 338. 62 See cescr ‘General Discussion on the Right to Take Part in Cultural Life as Recognized in Article 15 of the Covenant’ (11 December 1992) un Doc E/C.12/1992/sr.17, para 35. 63 Francioni, ‘Culture, Heritage and Human Rights’ (n 38) 2. 64 Symonides, ‘unesco’s Contribution’ (n 59) 336–337. These instances will be pointed out in Chapter 3. 65 As will be demonstrated, the works of the treaty bodies sometimes contain r­ eferences to unesco instruments. See eg un Committee on Economic, Social and Cultural Rights, ‘General Comment No 21: Right of Everyone to Take Part in Cultural Life of the

Introduction

17

presupposes the availability of culture, and in this respect the protection of culture plays a crucial role.66 This book focuses particularly on the jurisprudence of the un human rights treaty bodies rather than unesco instruments, owing to the varying legal implications of the latter, although the significance of unesco instruments in shaping the understanding of culture in the international human rights discourse will be noted where relevant. 1.1.4 Culture, Anthropology and Human Rights The fourth clarification relate to the difference in terms of the approach employed in this book and that subscribed by other studies which concern anthropology and human rights. Throughout the last century, anthropologists have been seeking answers to questions pertaining to culture. ‘Anthropology’ derives from ‘anthropos’, the Greek word for ‘human being’.67 As Kimball explains, anthropology involves the study of ‘every aspect of human behaviour or of the environmental conditions that affect the physical or cultural development of man. …From the study of man’s technical equipment, customs, activities, institutions, values, and symbols, the anthropologist records the culture of people’.68 Anthropological studies in their earliest form began by asking how and why individuals behave differently (or similarly) in different geographical locations.69 ‘Culture’ was initially a term that described different

66

67 68

69

­International Covenant on Economic, Social and Cultural Rights’ (21 December 2009) un Doc E/C.12/gc/21 (‘cescr, General Comment No 21’). Hanna Saba, ‘unesco and Human Rights’ in Karel Vasak (ed), The International Dimensions of Human Rights, Vol 2 (unesco 1982) 401. unesco instruments are aimed at ‘creating the indispensable material, intellectual, moral and cultural conditions whereby ­human rights may pass from being principles to becoming tangible realities in the lives of all human beings’. See also Marks, ‘unesco and Human Rights’ (n 51) 51: ‘A meaningful participation in cultural life and use of the benefits of scientific progress is possible only if there is effective protection of copyright and preservation of cultural heritage.’ Bernardo Bernardi, ‘The Concept of Culture: A New Presentation’ in Bernardo Bernardi (ed), The Concept and Dynamics of Culture (Mouton Publishers 1977). Solon T Kimball, Culture and the Educative Process (Teachers College Press 1974) 3–4; Henrietta L Moore and Todd Sanders, ‘Anthropology and Epistemology’ in Henrietta L Moore and Todd Sanders (eds), Anthropology in Theory: Issues in Epistemology (Blackwell Publishing 2006) xi; Edward B Tylor, Primitive Culture (Harper and Row 1871) 1: culture is the ‘study of laws of human thought and action’. Jerry D Moore, Visions of Culture: An Introduction to Anthropological Theories and Theorists (2nd edn, Altamira Press 2004) 1.

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human groups.70 However, as anthropology developed, understandings of culture evolved. Contemporary anthropology no longer treats culture as a ‘thing’ or a political entity, but as a process, or, more precisely, a process associated with meaning-­making.71 As individuals, we produce, transform and challenge meaning.72 To talk about culture is to talk about how individuals experience culture. Among other themes, contemporary anthropologists are concerned with how experience is situated and mediated, how position shapes perspective and how narratives—‘always bound up with processes of interpretation and ­understanding’73— ­influence individuals’ identity and agency. The engagement of anthropology with human rights dates back to the 1940s, when the Universal Declaration of Human Rights (udhr) was drafted. In 1947, the Executive Board of the American Anthropology Association (aaa) published an article entitled ‘Statement on Human Rights’, a document ­submitted to the Commission on Human Rights after the latter solicited comments on earlier drafts of the udhr. The Statement raised questions regarding the appropriateness and legitimacy of a declaration of universal human rights. It asked: as individuals from different human groups may have different views as to what constitutes a dignified and honourable life, would it be detrimental to the right of an individual to his fullest development as a member of society if a set of universally applicable rights were to be drawn up? And would a declaration proposed to be applicable to all ‘not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America?’74 70

Lucy Mair, An Introduction to Social Anthropology (Clarendon Press 1965) 3; Alan Barnard and Jonathan Spencer, Encyclopaedia of Social and Cultural Anthropology (Routledge 1996) 136. Barnard and Spencer note that ‘The word “culture” is probably the single most central concept in twentieth-century anthropology.’ 71 Rodolfo Stavenhagen, ‘Cultural Rights and Human Rights: A Social Science Perspective’ in Pedro Pitarch, Shannon Speed and Xochitl Leyva Solano (eds), Human Rights in the Maya Region: Global Politics, Cultural Contentions, and Moral Engagements (Duke University Press 2008) 32. 72 Verkuyten, The Social Psychology of Ethnic Identity (n 18) 17. 73 Michael Pickering, ‘Experience and the Social World’ in Michael Pickering (ed) Research Methods for Cultural Studies (Edinburgh University Press 2008) 47. 74 See the Executive Board of the American Anthropological Association, ‘Statement on Human Rights’ (1947) 49 Am Anthropol 539. The Statement proved to be controversial and sparked a fierce debate between universalism and relativism that would last for decades. While some tried to defend the Statement’s credibility, others scathingly denounced it and accused it of defending cultural relativism. It is also the relativistic position of the Statement that led some to believe that anthropologists are uninterested in human rights. However, this belief is incorrect. For more recent discussions on universalism–­relativism,

Introduction

19

For some decades, anthropologists contributed to human rights discourse and advocacy through ethnographic studies. Utilising their strengths, anthropologists engaged in cross-cultural research have raised important questions, such as: what are rights?75 Who is a ‘full person’, entitled to rights?76 What is the relationship between individual rights and the individual as a social being whose duties and achievements are socially defined?77 What is the relationship between human rights and the realisation of personhood and selfhood?78 Could there be a universal humanity on which rights might be based?79 In ­addition, anthropologists participated in the development of international institutions, offering their unique knowledge and insights, even though such knowledge may not have been framed in explicit human rights terms. To name one example, Alfred Metraux, Ashley Montagu and Claude Levi-Strauss played a key role in crafting a series of unesco statements on race that challenged race as a biological concept, arguing instead that it was a social construct—an argument which at the time (the 1950s–60s) was both provocative and radical.80 Nevertheless, Goodale observes that it was in the 1980s that ­‘anthropology as a discipline took a sustained interest in human rights’.81 Within the discipline, a paradigm shift occurred which profoundly challenged prevailing ­theories of social reality and the mode in which it was described.82 As the rapidly changing world exerted an increasing influence on communities once regarded as isolated, anthropologists began to re-examine earlier methods of e­ thnographic research which emphasised the systematic orientation of ­ethnographic data and to question the scientific legitimacy of these methods in the modern (and see Marie-Bénédicte Dembour, ‘Following the Movement of a Pendulum: Between Universalism and Relativism’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001); Marie-Bénédicte Dembour, ‘Human Rights Talk and Anthropological Ambivalence: The Particular Contexts of Universal Claims’ in Olivia Harris (ed) Inside and Outside the Law (Routledge 1996). 75 Ellen Messer, ‘Anthropology and Human Rights’ (1993) 22 Annu Rev of Anthropol 221, 221. 76 Ibid. 77 Ibid. 78 The Executive Board of the American Anthropological Association, ‘Statement on ­Human Rights’ (n 74) 539. 79 Terence Turner, ‘Human Rights, Human Difference: Anthropology’s Contribution to an Emancipatory Cultural Politics’ (1997) 53 J Anthropol Res 273. 80 Mark Goodale, ‘Becoming Irrelevant: The Curious History of Anthropology and Human Rights’ in Mark Goodale (ed), Surrendering to Utopia: An Anthropology of Human Rights (Stanford University Press 2009) 29. 81 Ibid 31. 82 Ibid.

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increasingly globalised) world.83 What emerged from this ‘period of intense disciplinary self-critique’84 was an endeavour to render ethnographic writing ‘more sensitive to its broader political, historical and philosophical implications’.85 Putting this into practice, anthropological expertise was applied by many ‘at the service of specific groups of people struggling against specific forms of systematic oppression and violence’.86 Such research proved invaluable, especially in terms of advocacy, as it unveiled in detail the plight of ­indigenous groups who found themselves ‘suffering under a range of new or intensified constraints … [in] the era of neoliberalism’,87 and testified to the human rights violations often associated with modernisation and development practices. From the late 1990s on, an interesting development caught the attention of anthropologists engaged in the study of human rights: the globalisation of human rights. Those embroiled in local struggles around the world came to use the term ‘human rights’ as part of a rhetoric or discourse to strengthen their claims. Anthropologists quickly realised the emancipatory potential of this phenomenon, as rights concepts were transformed and translated into ideas that made sense locally.88 In particular, contemporary anthropologists are increasingly interested in studying how human rights discourses translate into criticisms of everyday life practices.89 This area of study is referred to as the ethnography of human rights: the study of how international human rights discourse has influenced the way local communities view their rights as persons and as citizens.90 It studies how local communities ‘reframe human rights ideas to fit into their system of cultural meanings’,91 so they can be ‘made sense 83 Ibid. 84 Ibid. 85 Michael Fischer and George Marcus, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (University of Chicago Press 1999) vii. 86 Goodale, ‘Becoming Irrelevant’ (n 80) 29. See eg Karen Engle, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Duke University Press 2010). 87 Goodale, ‘Becoming Irrelevant’ (n 80) 33. 88 Sally E Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press 2006). 89 See eg Shannon Speed, Rights in Rebellion: Indigenous Struggle and Human Rights in C ­ hiapas (Stanford University Press 2008) 181; Ann-Belinda S Preis, ‘Human Rights as Cultural Practice: An Anthropological Critique’ (1996) 18 hrq 286. 90 Sally E Merry, ‘Transnational Human Rights and Local Activism: Mapping the Middle’ (2006) 108 Am Anthropol 38. 91 Merry, Human Rights and Gender Violence (n 88) 1; Marie-Bénédicte Dembour and Tobias Kelly, ‘Introduction’ in Marie-Bénédicte Dembour and Tobias Kelly (eds), Paths to

Introduction

21

of’ in the local context (sometimes referred to as the process of legal globalisation and vernacularisation).92 More often, such research focuses on minority and indigenous groups as they ‘increasingly harness the symbolic power of human rights’ in pursuit of their causes.93 In imagining human rights as a cultural practice, anthropologists explore and evaluate how the discourse of human rights is enacted by vulnerable groups and individuals in particular contexts, and reveal how existing configurations of power are thereby affected.94 One interesting twist to this body of scholarship developed as a number of anthropologists studied how indigenous groups engaged with human rights institutions. Through studying the way they encountered these institutions and how the latter responded to their claims, some argued that human rights institutions have a ‘culture’ too.95 Instead of viewing human rights institutions and concepts as advocacy tools, certain anthropologists argued that human rights actors and institutions could also be ‘subjects of ethnographic research, on par with other ethnographic subjects’.96 One such study is provided in Sally Engle Merry’s work, Human Rights and Gender Violence: Translating International Law into Local Justice, on the procedures of the meetings of the Committee on the Elimination of Discrimination against Women (cedaw). She observes that international human rights law and institutions articulate ‘a particular cultural system, one rooted in secular transnational modernity’,97

­International Justice: Social and Legal Perspectives (Cambridge University Press 2007) 2, 6. Dembour and Kelly have highlighted the importance of exploring ‘how and why international justice is mobilised, understood and abandoned by concrete social actors and to what effect’. Human rights are given ‘shape and meaning in specific local contexts’. For excellent accounts, see eg Jane K Cowan, ‘Ambiguities of an Emancipatory Discourse: The Making of a Macedonian Minority in Greece’ in Jane K Cowan, Marie-Bénédicte ­Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001); Rachel Sieder and Jessica Witchell, ‘Advancing Indigenous Claims through the Law: Reflections on the Guatemalan Peace Process’ in Jane K Cowan, MarieBénédicte Dembour and Richard A Wilson (eds), Culture and Rights: ­Anthropological P­ erspectives (Cambridge University Press 2001). 92 Richard A Wilson, ‘Introduction’ in Richard A Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives (Pluto Press 1997) 18. 93 Ibid. 94 See e.g. Fuyuki Kurasawa, The Work of Global Justice: Human Rights as Practice (Cambridge University Press 2007). 95 Annelise Riles, ‘Anthropology, Human Rights and Legal Knowledge: Culture in the Iron Cage’ (2006) 108 Am Anthropol 52, 53. 96 Ibid. 97 Merry, Human Rights and Gender Violence (n 88) 90.

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which shapes any advocacy efforts that are expressed in its terms.98 By ‘secular transnational modernity’, she means the way that the language of universal human rights establishes itself as the norm in opposing gender violence, and at the same time attributes the cause of gender violence to local ‘cultures’ that are deemed ‘backward and patriarchal’.99 By doing so, the human rights regime projects itself as a ‘transnational modern society’ as opposed to those ‘traditional societies’ that it condemns.100 In this context, she argues that the global human rights regime is producing a ‘culture’ of its own,101 whereby participants, including government and ngo representatives as well as treaty body committee members, are ‘products’ of this setting who over time develop a ‘cultural repertoire’ of procedures, strategies and particular ways of responding and reacting to issues of gender violence.102 The proliferation of documents produced has brought to the fore new ideas and insights from the perspective of human rights discourse and practice. In order to put this work into perspective, Cowan et al. eloquently summarise four contemporary approaches to rights and culture. The first of these is ‘rights versus culture’, which in its primary form explores the uneasy relationship between rights and culture often brought about by positioning the universality of human rights and awareness of cultural differences in binary opposition (the universalism/cultural relativism debate, for example, argues that recognising culture amounts to the denial of rights and vice versa).103 Nevertheless, as the notion of culture as bounded and isolated began to be dismantled, ­demands that ‘culture’ be respected became misleading.104 It was therefore no longer valid to view culture and rights in oppositional terms.105 What emerged, rather, was an empirical need to enquire into local concepts (for example of 98 Ibid 100. 99 Ibid. 100 Ibid. 101 Ibid 102. 102 Ibid. Note that Merry’s observations on a ‘transnational modernity’ only account for part of her work. She goes on to describe the disjunction between the global human rights discourse and local perspectives, and argues for the need to defend human rights in local terms. Her work will be explored further in Chapter 4. 103 Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ (n 21) 27. 104 Ibid. 105 Preis observes that, at the time when the universalism/relativism debate was fierce, the concept of culture as a ‘homogenous, integral, and coherent unity’ (a concept which arguments in favour of relativism heavily relied on) gradually lost analytical purchase within anthropology itself. It was replaced by ideas such as ‘creolisation’, ‘hybridity’ and ‘cultural complexity’, with culture viewed as a ‘network of perspectives’, to underscore the

Introduction

23

personhood, agency and dignity), contestations and contingencies.106 In contrast to the rights versus culture debate, the ‘rights to culture’ discourse asserts a universal human right to culture.107 It involves the study of the process whereby minority and indigenous groups claim what they perceive to be their culture as a human right, in order to promote and maintain cultural difference. From the local to the national, from activism and mobilisation strategies to rights advocacy, ‘rights to culture’ explores issues such as representation,108 minoritisation,109 competing individual and collective interests110 and competing national and local narratives.111 It seeks to make visible the complex social reality associated with these struggles—and thus what is being n ­ eglected and marginalised during these processes—as well as their consequences. The third approach, ‘rights as culture’, suggests that rights ‘constitute a kind of culture, in the sense that the rights discourse embodies certain features that anthropologists recognize as constituting culture’.112 This proposition shares similarities with those put forward by anthropologists inspired by Clifford Geertz, who argues that law is an important source of knowledge as people try to understand the world; in a sense, law actively constructs worldviews.113 As Cowan et al. observe, ‘[R]ights talk, rights thinking, rights practices … entail certain constructions of self and sociality, and specific modes of agency.’114 The study of the globalisation and vernacularisation of rights, as mentioned above, is a typical example of this approach. The fourth approach, ‘culture as analytic to rights’, is easily confused with the ‘rights as culture’ approach, but as Cowan explains, it was intended to distinguish between object and method.115 In the ‘rights as culture’ approach, scholarship and literature ‘had come to look on law as culture, thereby making law an object of analysis’;116 it looks at how ‘rights’ penetrating influence of globalisation. Preis, ‘Human Rights as Cultural Practice’ (n 90) 288–289. 106 Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ (n 21) 27. 107 Ibid. 108 Jane K Cowan, ‘Ambiguities of an Emancipatory Discourse’ (n 92). 109 Ibid. 110 David Gellner, ‘From Group Rights to Individual Rights and Back: Nepalese Struggles Over Equality’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001). 111 Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ (n 21). 112 Ibid 11. 113 Geertz, ‘Local Knowledge: Fact and Law in Comparative Perspectives’ (n 20). 114 Jane K Cowan, ‘Ambiguities of an Emancipatory Discourse’ (n 92) 12. 115 Jane K Cowan, ‘Culture and Rights after Culture and Rights’ (2006) 108 Am Anthropol 9, 10. 116 Ibid.

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constitute connected practices and beliefs. In the ‘culture as analytic to rights’ approach, anthropologists engage with ‘culture’ in its analytical sense, or as a heuristic tool, which in turn enables anthropologists to engage in rights practices by making visible the patterns, intersections, processes and gaps ­between rights and different aspects of the social world without necessarily conceding that rights in this regard ‘constitute anything so coherent as a culture’.117 Yet, despite the long-standing history of anthropological interest in human rights, and the fact that anthropologists have long sought to understand what is meant by culture, it is surprising how little anthropological knowledge was consulted during the development of human rights law and jurisprudence on cultural rights. In the jurisprudence of the treaty bodies (comprising i­ ndividual communications, general comments and recommendations and concluding observations),118 one can hardly identify any traces of anthropological input. One of a number of reasons for this is that the interpretation and elaboration of convention texts, including the articulation of legal rights and obligations, remains a ‘legalistic domain of activity’—‘[P]roducing and refining documents’, as Merry observes, ‘has a very lawyerly quality to it’,119 which is inconsistent with the mode of enquiry that anthropologists embrace. Another reason is that articulating legal principles entails forms of ‘compromise’. This ‘compromise’ refers not only to the political compromises that state delegates make when treaty texts are negotiated, but also to the balancing exercise of weighing states’ interests against their capacity to fulfil these legal obligations, a process which may be unfamiliar to anthropologists (examples are the concepts of ‘progressive realisation’ and ‘minimum core obligations’).120 Anthropology has contributed rather indirectly to the development of cultural rights through the unesco conventions and soft documents (such as declarations and recommendations) that some anthropologists helped draft, as noted above.121 In fact, it does seem awkward, if not ironic, that a discipline which ­directly addresses the issue of culture was not consulted in articulating cultural rights in law. A rare example of an interdisciplinary critique of the un’s human rights jurisprudence is another of Sally Engle Merry’s works, entitled 117 Ibid. For further contributions on the involvement of anthropologists in human rights, see Richard A Wilson, ‘Human Rights, Culture and Context: An Introduction’ in Richard A Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives (Pluto Press 1997); Goodale, ‘Becoming Irrelevant’ (n 80). 118 For an introduction to the works of the treaty bodies, see Section 3.2. 119 Sally E Merry, ‘Human Rights Law and the Demonization of Culture (And Anthropology Along the Way)’ (2003) 26 PoLAR 55. 120 For an explanation of these concepts, see Section 3.3.2. 121 See text accompanying supra n 80.

Introduction

25

‘Human Rights Law and the Demonization of Culture (and Anthropology along the Way).’ In this article, she explains how the essentialised notion of culture applied by cedaw entails practical consequences: not only does it deem all forms of gender-related violence to be cultural (to the neglect of the economic, social and political), but such a misunderstanding potentially misinforms the law in terms of the remedies that it offers (further explained in Chapter 4), and overlooks the ways in which discourses can be altered or transformed by ruling out alternative emancipatory strategies.122 Anthropological knowledge thus enables lawyers to investigate the hidden assumptions of the law’s empirical claims. In a similar context, Riles comments that ‘[A]nthropological or sociological research provides a desperately needed empirical antidote to the ­unsophisticated ruminations of legal academics.’123 Stamatopoulou argues that, in drawing upon experiences of empirical field research, anthropology is the law’s ‘reality check’.124 This book utilises anthropological knowledge to seek answers to some of the most basic questions of relevance to cultural rights, such as the relationship between individuals and culture; the ways in which individuals engage in culture; the significance of culture to an individual; the extent to which individuals ‘take part’ in culture and the factors which inhibit their participation; the concept of identity and how individuals acquire identity; and the concept of heritage and how culture is transmitted.125 By understanding these issues, it is hoped that the rights and duties associated with cultural rights, and the limitations to be placed on them, can be better articulated. With the adoption of the Optional Protocol for the icescr in 2009, such a review of the treaty bodies’ jurisprudence on cultural rights seems particularly timely.126 122 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 119). 123 Annelise Riles, ‘Representing In-Between: Law, Anthropology and the Rhetoric of Interdisciplinarity’ (1994) U ii L Rev 597, 635. 124 Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (Martinus Nijhoff Publishers 2007) 24. 125 Exceptions include Timo Makkonen, ‘Minorities’ Right to Maintain and Develop Their Cultures: Legal Implications of Social Science Research’ in Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Martinus Nijhoff Publishers 2008) 193–206. 126 The General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (op-icescr) on 10 December 2008. See unga, ‘Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (5 March 2009) un Doc A/RES/63/117. Note that at the time of writing the op-icescr has not been invoked. See also Philip Alston, ‘Establishing a Right to Petition under the Covenant on Economic, Social and Cultural Rights’ in Philip Alston, Ryan Goodman and ­Henry J Steiner (eds), International Human Rights in Context: Law, Politics, Morals

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1.1.5 On Defining Culture The previous section offered partial reasons for adopting an approach that focuses on understanding the theoretical substance of culture.127 But why not simply identify an ‘anthropological definition’ of culture and apply that to law? In fact, individual commentators such as O’Keefe,128 McGoldrick,129 Das,130 Ringelheim131 and Stavenhagen132 have in the past looked to anthropology in the hope that its body of knowledge would lead to a legal definition of culture. Das, for example, notes that ‘In its anthropological use, the term (culture) refers to a system of shared meanings through which collective existence becomes possible.’133 Ringelheim agrees that the legal definition of culture should be in line with its anthropological meaning, i.e. ‘as referring to the language, norms, values, beliefs and practices specific to a certain human group, which bind the group’s members together and distinguish them from others’.134 Symonides refers to a ‘broad, anthropological definition of culture’ as ‘mean[ing] much more than traditional arts and the humanities … culture embraces the education system, the mass media [and] the cultural industries’.135

(3rd edn, ­Oxford University Press 2007) 364. Alston argues that ‘The real problems confronting individuals and groups [can] come alive in a way that can never be the case in the context of the abstract discussions that arise in the setting of the reporting procedure.’ 127 Szabo, Cultural Rights (n 41) 54. 128 Roger O’Keefe, ‘The “right to take part in cultural life” under Article 15 of the icescr’ (1998) 47 iclq 904. 129 McGoldrick (n 11) 449. 130 Veena Das, ‘Cultural Rights and the Definition of Community’ in Oliver Mendelsohn and Upendra Baxi (eds), The Rights of Subordinated Peoples (Oxford University Press 1994) 122. 131 cescr ‘Day of General Discussion: Right to take part in cultural life (article 15(1)(a) of the Covenant): Background paper submitted by Ms Julie Ringelheim’ (9 May 2008) un Doc E/C.12/40/4. 132 Stavenhagen, ‘Cultural Rights and Universal Human Rights’ (n 12) 66: ‘A third view of culture comes from the discipline of anthropology. It interprets culture to mean the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups. Thus understood, culture is also seen as a ­coherent self-contained system of values and symbols that a specific cultural group reproduces over time and which provides individuals with the required signposts and meanings for behaviour and social relationships in everyday life.’ 133 Das, ‘Cultural Rights and the Definition of Community’ (n 130) 122. 134 cescr ‘Day of General Discussion: Right to take part in cultural life (article 15(1)(a) of the Covenant): Background paper submitted by Ms Julie Ringelheim’ (9 May 2008) un Doc E/C.12/40/4. 135 Symonides, ‘Cultural Rights’ (n 34) 181.

Introduction

27

This approach is, however, undesirable. As can be readily observed, when these commentators refer to ‘culture’ they are referring to very different things, despite the fact that they all claim anthropology as their source of inspiration. In fact, even in anthropology there is no single understanding of culture.136 In 1952, anthropologists Kluckhohn and Kroeber collected some 164 different definitions and accounts of culture used within the discipline.137 These definitions and accounts have different emphases: on culture as a set of rules, personality traits or ideals, as the capacity to learn, as a collection of artefacts, ideas or symbols, and many more.138 In social science, definitions of social phenomena often derive from theories,139 in the sense that these differing definitions actually reflect a variety of changing perspectives on that subject within the discipline. In fact, there is a wide array of approaches to culture in anthropology, such that it is difficult, if not impossible, to fit anthropology into one single methodological box.140 Another reason is the practical impossibility of offering a satisfactory definition of culture, i.e. one that is able to exhaustively set out the scope of the concept. In fact, as contemporary anthropology seeks to explain that every human action and belief is imbued with meaning, culture is everywhere. The result is often that once one comes up with a definition of ‘culture’, ‘culture’ becomes partial or essentialised. Anthropologist Thomas Eriksen, for instance, challenged the inconsistent use of the concept of ‘culture’ in a unesco report, ‘Our Creative Diversity’,141 written by an interdisciplinary group of anthropologists, sociologists and lawyers. The report first acknowledged that ‘[E]very 136 Kroeber and Kluckhohn, Culture: A Critical Review of Concepts and Definitions (n 10). 137 Ibid. 138 Ibid 76. 139 In fact, the concept of ‘culture’ is so elusive that the viability of arriving at a definition has been debated extensively among anthropologists. See Albert C Cafagna, ‘A Formal Analysis of Definitions of “Culture”’ in Gertrude Dole (ed), Essays in the Science of Culture (Crowell Co 1960). 140 Moore and Sanders note that anthropology engages in extensive theoretical borrowing. Sociologists, such as Durkheim, had a profound influence on the work of early anthropologists. Contemporary anthropologists have also explored the works of prominent ­sociologists such as Wolf, Bourdieu, Foucault and Butler for inspiration on issues such as hybridity, performance, power and identity. These factors point to the immense difficulty of mapping out the basic structure of the discipline. See Henrietta L Moore and Todd Sanders, ‘Anthropology and Epistemology’ (n 68) xi. 141 Thomas H Eriksen, ‘A Critique of the unesco Concept of Culture’ in Jane K Cowan, ­Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001).

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­ uman activity, including those relating to development and the economy, has h a cultural component or dimension.’142 Yet, there was also an inclination to view culture as difference, i.e. as the varying ‘ways of living’ that differentiate groups. As Eriksen muses, ‘If culture is a way of life, then buying groceries at a 7-eleven is naturally neither less nor more cultural than [any other human activity].’143 In another inconsistency, the report acknowledged culture to refer to artistic production (products that are particular to a group of people and are associated with their heritage), while also acknowledging globalisation and external influences to be cultural phenomena, thus resulting in a kind of development that is both relativistic and globalised.144 While this is not particularly problematic as an empirical description, it remains difficult to grasp what unesco was trying to say about culture as an analytical concept, i.e. whether ‘culture’ stresses uniqueness and localness (and thus essentially ‘cultures’ which are bounded, distinct and reflective of a system of values) or is something creole, hybrid and adaptive. Ultimately, which version of culture is the law seeking to protect? If it is the ‘mystifying’/exotic conception of culture that the law is seeking to protect, rights and development programmes should be framed in a way that aims to reinforce symbolic practices and social cohesion, but efforts in this regard may not necessarily promote tolerance and universal values.145 Eriksen’s enquiries eventually lead to a fundamental challenge to ‘cultural rights’ as a notion: does it make sense to speak of ‘culture’ in this particular area of human rights? If culture is ‘everywhere’, then perhaps ‘Instead of invoking culture, if one talks about local arts, one could simply say local arts; if one means language, ideology, patriarchy, children’s rights, food habits, ritual practices or local political structures, one could use those or equivalent terms instead of covering them up in the deceptively cozy blanket of culture. In a continuous world, as Ingold puts it … “the concept of culture … will have to go”’.146 As one can see, ‘culture’ is a very difficult concept to apply. But if Eriksen’s proposal is to be seriously considered, we also ought to ask whether cultural rights would lose their very meaning and purpose if the concept of ‘culture’ were to be abandoned and replaced by (or reduced to) a mere catalogue of human activities. Eriksen’s line of thought seems to argue that the law cannot fully operate without a working definition, i.e. a definition that can determine 142 Ibid 131. 143 Ibid. 144 Ibid. 145 Ibid 140. 146 Ibid 142.

Introduction

29

the scope within which cultural rights operate. However, this may not be true. For example, although the notion of ‘peoples’ has not been clearly defined, the right of peoples to self-determination is one of the most important recognised rights. Similarly, the terms ‘minority’ and ‘indigenous’ are also unclearly defined, and yet substantial jurisprudence has been developed in the area of ­minority and indigenous rights.147 This seems to illustrate that it is not necessarily a working definition of culture that is required in articulating cultural rights, but conceptual clarity. The need to ‘define’ culture in the legal context may have been brought about by a misconception, i.e. that cultural rights ­protect culture itself rather than the enjoyment of culture, and that cultural rights offer a right to culture (with ‘culture’ construed as a noun) as opposed to the right to participate in or enjoy culture. To fully evaluate these claims, it is crucial to also understand the purposes of cultural rights; i.e. what are cultural rights seeking to protect? Therefore, while Eriksen’s questions are relevant and thought provoking, they cannot be fully addressed in the absence of a thorough discussion of cultural rights from a legal perspective. These questions yet again highlight the need for interdisciplinary research on this subject—from the perspective of law, on the one hand (to establish what the law is), and from the perspective of anthropology, on the other (to determine what the law ought to be). When the book goes on to address cultural rights (in Chapter 3), the questions raised by Eriksen will be examined in detail, as it argues in favour of Eriksen’s view about the nature of culture but disagrees that this renders the use of a flexible, fluid and contested notion of culture fatal in the context of cultural rights. 147 Stamatopoulou, ‘Why Cultural Rights Now?’ (n 5).

chapter 2

Culture and Anthropology [The objective of anthropology] is to understand the steps by which man has come to be what he is, biologically, psychologically and culturally.1 franz boas, Race, Language, and Culture

∵ 2.1 Introduction Anthropologists have in the past come up with numerous understandings of culture. These understandings derive from different theories developed within the discipline over time. To enable a better understanding of anthropology as a discipline, and of how various understandings of culture were derived, this chapter seeks to trace the development of theories of culture from the early twentieth century (i.e. when coherent theories of culture first began to ­develop) to the present, by highlighting the paradigm shifts that occurred in the discipline. A paradigm is a set of presuppositions, patterns or dominant beliefs within a field which underpin a particular theoretical method by establishing standards of investigation.2 It defines research problems and ­hypotheses of explanation and establishes rules for scientific investigation, and is therefore often expressed through various theoretical orientations, generalisations and methods of collecting and organising data.3 In anthropology, a paradigm shift tends to occur when there is a need to explain certain discrepancies between a paradigm and reality, such as when earlier explanations are found insufficient or unable to explain new data or contrary evidence.4 Thus, despite major paradigm shifts over time, new theories arise as responses to or critiques of earlier theories, and so we can observe a strong strand of coherence. In particular, anthropological theories tend to address a common set of questions: 1 Franz Boas, Race, Language and Culture (University of Chicago Press 1940) 244. 2 Mark Moberg, Engaging Anthropological Theory: A Social and Political History (Routledge 2013) 16. 3 Ibid. 4 Ibid 16–20.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004328587_003

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31

What is the nature of society? Why do cultures change? What is the ­relationship between the person as an individual and the person as a member of a distinctive social group? What are the distinguishing ­characteristics of humanness? Why are cultures different?5 Studying how one paradigm is adopted after another is important, because through understanding the debates and discussions surrounding these ‘transitions’ we can better appreciate the merits and limitations of earlier concepts of culture. This chapter will therefore illustrate and interrogate these moments of paradigmatic shift.6 It will explain why certain conceptions of culture were adopted by earlier anthropologists, what kind of theoretical enquiry and presumptions these conceptions entailed and why they were later rejected or seen in a very different light by subsequent theorists. Section 2.2 begins by tracing earlier uses of the concept of culture and how anthropologists sought to explain human sameness and difference through this idea. Culture was initially taken to mean ‘civilisation’, i.e. all the technological 5 Jerry D Moore, Visions of Culture: An Introduction to Anthropological Theories and Theorists (2nd edn, Altamira Press 2004) 1. 6 The theoretical ‘turn’ in anthropology has been noted and extensively studied by many ­anthropologists. The author, as a non-anthropologist, undertook extensive reading encompassing a variety of introductory works on anthropology. These included the works of Mark Moberg (Engaging Anthropological Theory: A Social and Political History), Henrietta Moore and Todd Sanders (Anthropology in Theory: Issues in Epistemology), Michael Fischer and George Marcus (Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences) and Jerry Moore (Visions of Culture). The original works of prominent anthropologists such as Clifford Geertz were also studied and are discussed below. This reading also included some of the works of individual sociologists on various related topics, as their work heavily influenced anthropology in these areas, such as Michael Foucault (on power), Pierre Bourdieu (on the concept of ‘practice’ and the habitus) Stuart Hall (on identity) and Judith Butler (on performativity). These are referred to as they arise below. See Moberg, Engaging Anthropological Theory (n 2); Henrietta L Moore and Todd Sanders (eds), Anthropology in Theory: Issues in Epistemology (Wiley-Blackwell 2006); Michael Fischer and George Marcus, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (University of Chicago Press 1999); Moore, Visions of Culture (n 5); Clifford Geertz, The Interpretation of Cultures: Selected Essays of Clifford Geertz (Basic Books Inc 1973); Michel F­ oucault, Discipline and Punish (Tavistock 1977); Pierre Bourdieu, Outline of a Theory of Practice (­Cambridge University Press 1977); Pierre Bourdieu, The Logic of Practice (Polity Press 1990); Stuart Hall, ‘­Introduction: Who needs “Identity”?’ in Stuart Hall and Paul du Gay (eds) Questions of C ­ ultural Identity (Sage Publication 1996); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990).

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and political advancements of different human groups. As this understanding became anachronistic, culture was thought to mean the totality of the way of life of a group of people, including all of their customs, traditions, heritage and values, although this latter definition was also subsequently challenged. Section  2.3 explores other anthropological uses of the term ‘culture’ by ­explaining how ‘culture’ was thought to be an ‘abstraction’, i.e. an epiphenomenon, in the sense that ‘culture’ does not ‘exist’ but can be used as an a­ nalytical device to explain human behaviour. In this context, the term ‘culture’ was ­adopted to denote a functional unit, and, at the same time, the functional ­aspects of groups and societies, such as how religion, political structure and social relationships were created by groups of people to fulfil societal and ­personal needs. In this discussion, the section distinguishes between two ­major uses of the term ‘culture’ from the 1930s to the 1960s: (1) as an analytical and explanatory concept for understanding human behaviour; and (2) as a set of values and beliefs. It highlights why ‘culture’ is an easily confused concept. Section 2.4 explores symbolic anthropology, i.e. the idea that culture ‘is embodied in public symbols, symbols through which the members of a society communicate their worldview, value-orientations, ethos, and all the rest to one another, to future generations.’7 Through the use of symbols, humans ‘make visible, audible, and tangible beliefs, ideas, values, sentiments, and psychological dispositions which cannot directly be perceived.’8 The development of symbolic anthropology took on two diverging strands: that advocated by scholars whose theoretical interests lay in discovering the values, ethos and worldviews of different human groups (i.e. ‘how symbols shape the ways social actors see, feel, and think about the world’9 and thus how symbols serve as a vehicle for the transmission and acquisition of cultural knowledge); and that which focused on symbols as operators in social processes (i.e. how ­culture sustains social processes and makes them possible).10 As Spencer et al. ­helpfully summarise:

7

Sherry B Ortner, ‘Theories in Anthropology since the Sixties’, reprinted in Peter Sack (ed), Law and Anthropology (Dartmouth Publishing 1992) 162. 8 Victor Turner, The Forest of Symbols: Aspects of Ndembu Ritual (Cornell University Press 1967)  50; David A Napier, Foreign Bodies: Performance, Art, and Symbolic Anthropology (University of California Press 1992) xviii: ‘A symbol is, therefore, something that both stands in place of and represents something else while, at the same time, partaking of that other thing.’ 9 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 162. 10 Ibid.

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What [authors working in symbolic anthropology] shared, and what gives retrospective coherence to the work of the 1970s in particular, is the triumph of a certain vision of culture as a set of shared meanings. Where they differed was in the extent to which they attempted to relate their ­vision of cultural meaning to social processes and social practices.11 As demonstrated below, symbolic anthropology inspired a theoretical move towards a much more comprehensive and nuanced understanding of culture, involving an enquiry into the nature of symbols (their multivocality, fluidity, contestability and ability to mobilise action) and their role in perpetuating ­social structures.12 Such an understanding enables us to reflect critically upon those accounts which emphasise culture as a set of logical structures, as text or as a functionally integral ‘whole’, and those which portray culture as static, relatively stable and unchanging, atemporal and homogenous.13 Viewing culture as the symbolic representation of the social world laid the foundations for contemporary anthropology. Section  2.5 seeks to explain the concept of cultural ‘practice’. In general terms, this involves a theoretical emphasis on the individual as the ‘­performer’ of culture. It aims to unveil the conceptual world created by social actors as they perform symbolic functions, and how ‘culture’ is employed to denote both the conceptual world and the meanings it embodies. Contemporary ­anthropologists argue that cultural knowledge is mediated through action.14 This action both reflects and reaffirms cultural knowledge. As we engage in culture, we are u ­ nconsciously signifying and resignifying the symbolic m ­ eanings attached to cultural practices, and over the course of time these meanings and practices form an ‘unquestioned, taken-for-granted’ part of personal 11

12 13

14

Jonathan Spencer, ‘Symbolic Anthropology’ in Alan Barnard and Jonathan Spencer (eds), Encyclopaedia of Social and Cultural Anthropology (Routledge 1996) 535, 538; Fischer and Marcus, Anthropology as Cultural Critique (n 6) 28: ‘Both of these initiatives, from divergent directions, attempted to break through the sociological reifications of functionalism by asking how institutions were constructed in conceptual terms by the cultures in question.’ See Sections 2.4–2.4.2. The increasing difficulty of viewing cultures as discrete entities is also noted in Wolf’s work. See Eric R Wolf, Europe and the People without History (University of California Press 1982). The idea of the habitus is closely related to the concept of ‘embodiment’, which refers to the ways in which our bodies and actions shape our psychology. A discussion on ‘embodiment’ is outside the scope of this book; however, for a good introduction see Thomas J Csordas, ‘Embodiment as a Paradigm for Anthropology’ (1990) 18(1) Ethos 5.

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­knowledge (­referred to as the habitus).15 Contemporary anthropologists therefore argue that cultural traditions, values and norms are not simply ‘passed down’ (through socialisation), as early anthropologists argued, but are ‘reproduced’ through practice. In this context, the reproduction of culture means not only the continuity of traditions and norms, but also the reproduction (and endorsement) of the social ordering.16 In other words, the process of reproduction is a process of legitimation.17 The focus here is on how the cultural values and norms embodied in traditions are legitimised through practice. Compared with symbolic anthropology, which gave the ‘elusive concept of culture a relatively fixed locus, and a degree of objectivity, that it did not have before’,18 contemporary anthropology is more concerned with the ‘workings’ of culture on the individual, drawing attention to questions of agency, selfhood, personhood, identity and subjectivity. Contemporary anthropology thus stresses the ‘messiness’ of cultural life. To contemporary anthropologists, not only is culture contested (i.e. individuals from the same community may not share the same views about customs, traditions, heritage, and so on), but such contestation is predicated on power relations. Cultural narratives are in fact discourses of power. Consequently, it is imperative to understand how individuals experience these conflicting discourses of power, how they bear identities that can be inconsistent and contradictory19 and how they can be deeply affected emotionally. Understanding these aspects of culture has significant implications for our study of cultural rights. Section 2.6 concludes the chapter by revisiting how anthropology has contributed to understandings of culture. It highlights the significance of the history of anthropology and provides a justification of the value of applying contemporary anthropological knowledge to the present study. Although ­intuitively appealing, the concept of ‘culture’ is often ridden with theoretical assumptions. Identifying such assumptions makes them easier to confront.

15

Elaine Baldwin et al, Introducing Cultural Studies (1st rev edn, Pearson/Prentice Hall 2004) 110. 16 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 162. Reproduction is also referred to by Ortner as a reproduction of ‘consciousness’. See also Henrietta L Moore and Todd Sanders, ‘Anthropology and Epistemology’ in Henrietta L Moore and Todd Sanders (eds), Anthropology in Theory: Issues in Epistemology (Blackwell Publishing 2006) 15. Moore and Sanders refer to the reproduction of culture as the institutionalisation of values. 17 Ibid. 18 Ibid 374; Fischer and Marcus, Anthropology as Cultural Critique (n 6) 28. 19 See Section 2.5.2.

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Moreover, by understanding these assumptions, we will also be able to appreciate the practical consequences they entail as they are invoked in law.20 2.2

Sameness and Difference

Anthropological studies in their earliest form began by asking how and why ­individuals behave differently (or similarly) in different geographical locations.21 References to early anthropological studies are said to date back to the days of Aristotle.22 Notable subsequent work includes that of Ibn ­Khaldun, a fourteenth-century Arab geographer, who studied the differences among ­people and cultures in different climates and observed that in warmer ­climates, societies tend to be passionate and expressive, whereas in cooler climates, people tend to be more restrained.23 In 1725, Giambattista Vico wrote Scienza Nuova (‘The New Science’), describing what he regarded as a historical model of the evolution of human society.24 The topic of societies and human behaviour occupied a prominent place in eighteenth-century philosophy, drawing on the ethnographic accounts of anthropologists at the time.25 However, it was not until the late nineteenth century that scientific investigations of culture began to develop. Edward Tylor (1832–1917) is often referred to as the first to propose a scientific method for the study of cultural differences.26 In his field study, Tylor observed that different societies have similar 20 See Sections 3.4–3.4.3. 21 Lucy Mair, An Introduction to Social Anthropology (Clarendon Press 1965) 3. 22 Moore, Visions of Culture (n 5) 1. 23 Ibid. See Mahdi Muhsin, Ibn Khaldun’s Philosophy of History: A Study in the Philosophic Foundation of the Science of Culture (George Allen & Uwin 1957). 24 Moore, Visions of Culture (n 5) 1; Giambattista Vico, Principi di Una Scienza Nuova (Presso R Martta e Vanspandoch 1826). 25 Moore, Visions of Culture (n 5) 1. 26 Tylor suggested that the study of culture must first begin with the recording of phenomena and objects. Next, one should classify the empirical data into groups, in a manner similar to the classification of different animals into zoological species in natural science. For example, myths were to be divided into myths of natural phenomena, local myths and eponymic myths; rites and ceremonies are divided into different forms of worships and sacrifices. This is followed by further investigation into their spatial and temporal distribution in order to identify the relations that exist among them. His theory and methodology inspired a scientific investigation of culture. Culture was not spoken of merely as h ­ aving a vague existence, but was treated as a specifiable phenomenon. See Edward B ­Tylor, Primitive Culture (Harper and Row 1871) 1, 7–8; Albert L Kroeber and Clyde K ­ luckhohn, Culture: A Critical Review of Concepts and Definitions (Vintage Books 1952).

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technological and social inventions, despite the fact that these societies might never have come into contact.27 Tylor hypothesised that cultures are similar because human beings think alike and are similarly governed by the basic laws of cognition.28 Since human behaviour is driven by ‘uniform action of uniform causes’,29 cultures progress along a similar trajectory—the trajectory of human evolution.30 The differences among cultures represent the different stages of cultural progress.31 Thus, to Tylor, ‘culture’ was equivalent to ‘civilisation’ (i.e. the sum total of the artistic, technological, scientific and political advancements of a group).32 The theory proposed by Tylor sought to explain how groups are different yet similar. Although different in the way they express culture, it is assumed that human beings are fundamentally similar because they share common ­attributes. This idea became an important foundation for subsequent anthropological studies. 2.2.1 Culture, Behaviour and Thought Anthropologists in the twentieth century, however, did not subscribe to ­Tylor’s theory. Franz Boas believed that since cultural phenomena are so diverse and complex, it was unlikely that any ‘cultural laws’ or normative rules could ever be derived.33 His position was that ‘[C]ultural happenings lie always in the 27

Edward B Tylor, Researches into the Early History of Mankind and the Development of Civilization (University of Chicago Press 1886) 3: ‘When similar arts, customs, beliefs, or legends are found in several distant regions, among peoples not known to be of the same stock, how is this similarity to be accounted for?’ 28 Ibid 1. 29 Ibid. 30 Tylor’s theory is sometimes referred to as the theory of ‘linear evolution’. See Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 1. 31 Tylor, ‘Researches into the Early History of Mankind’ (n 26) 1. 32 Ibid. In Tylor’s definition, ‘Culture, or civilization, taken in its broad, ethnographic sense, is that complex whole which includes knowledge, belief, art, morals, law, custom, and other capabilities and habits acquired by man as a member of society.’ 33 Tylor’s emphasis was on how human beings sought to master the challenges of their surroundings through the creation of tools (such as arrows) and the relationships between different kinds of expressions and the individual as their creator. Implicit in his theory is the assumption that culture involves the imposition of order on the environment by people. By this formulation, culture is equated with the ways in which human beings overcome and utilise nature. Also implicit in his claim is the rational presumption that every human creation serves a function or purpose, and that this function or purpose is universal, as all people are destined to meet with the same problems in life and are driven by the same basic laws of cognition. This presumption laid the ground for subsequent

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i­nteraction between individual and society’,34 meaning that culture is ­always contextual.35 Cultural phenomena, such as customs and traditions, are to be u ­ nderstood in light of the specific historical developments that produce them.36 As subsequent anthropologists explain, to Boas, culture was ‘the common possession of a body of people who share the same tradition’37 or ‘a unique way of life’: ‘Each culture had its own “genius” and there was no way that they could be ranked or valued against or in comparison with each other.’38 The theory proposed by Boas is often said to have inspired later anthropological studies on the subject of culture, although his theory, like Tylor’s, was also critiqued and abandoned by subsequent theorists. Inspired by the idea of ‘cultural difference’, subsequent accounts of culture sought to explain why cultural groups behave in different ways by specifying the relationships b­ etween anthropologists who were interested in exploring culture as the way in which societies are organised in order to fulfil their functional needs. The presumed sameness of human beings corresponds to the ability of man to problem-solve and to create. On the other hand, Boas was first impressed by the differences that cultures display. This led him to query whether different cultures could ever fully understand one another. In essence, he was a particularist opposed to efforts to understand culture and its elements outside of their historical and local context. However, he did not claim that cultures are different by nature. He too claimed that human beings share common human conditions on the basis of which cultures are created. However, the ways in which cultures are expressed are different and the manifestations of cultures are particular to their histories. This is observable from the different ways in which different cultural groups behave. See Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 1–2; Boas, Race, Language, and Culture (n 1) 310–311. 34 Franz Boas, ‘The Aim of Anthropological Research’ (1932) 76 Science 605, 612; See also Alfred L Kroeber, ‘The Concept of Culture in Science’ (1949) 3 The J of General Education 183. 35 Marshall Sahlin, Culture and Practical Reason (University of Chicago Press 1976) 65–66. Boas’s position was that ‘For any given human group, the tradition at issue is a set of ­accumulated meanings: collective and historical theory which makes of their perception a conception.’ 36 Boas, Race, Language and Culture (n 1) 305–311. The view that culture is created and should be understood in light of the historical developments that produce it is often referred to as ‘historical particularism’. 37 Mair, ‘An Introduction to Social Anthropology’ (n 21) 8. This involves an epistemological presumption which potentially determines the result. The result here is that of ­relativism—cultures are unique and can only be understood within themselves; they cannot be judged from the outside. 38 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 2; Franz Boas, ‘The Limitations of the Comparative Method of Anthropology’ (1896) 4 Science 901; Boas, Race, ­Language and Culture (n 1) 310–311.

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culture, thought and behaviour. For example, it was claimed that Boas’s idea of customs and traditions as part of a culture’s ‘unique way of life’ not only referred to observable phenomena and behaviour, but also hinted at an ­underlying structure of values and beliefs that is always associated with these customs and traditions. This led anthropologists to hypothesise the relationship between these values and peoples’ behaviour, and to try to account for the characteristic behavioural patterns displayed by different cultures:39 does culture (or a particular set of cultural values) cause individuals to act in a certain manner? Individual anthropologists, such as Ruth Benedict, have argued that cultures have the ability to influence an individual’s psychology. Such theorists are deeply influenced by Gestalt psychology, which argued that ‘perception could be understood only when the thing perceived was viewed not as an ­assemblage of separate elements, but as an organized pattern.’40 As Benedict notes: Gestalt psychologists have shown that in the simplest sense-perception no analysis of the separate precepts can account for the total experience. It is not enough to divide perceptions up into objective fragments. The  subjective framework, the forms provided by past experience, are crucial and cannot be omitted.41 The word ‘subjective’ in this sense refers to ‘subjective values that explain why members of a particular society behave in certain ways.’42 Benedict points to behavioural patterns as evidence for the existence of a society’s underlying values, which are ‘best perceived as integral and patterned “wholes.”’43 These values are ‘those arrangements or systems of internal relationship which give 39

Kroeber, ‘The Concept of Culture in Science’ (n 34) 131. Behavioural patterns, which can be observed from a culture, can be understood as ‘arrangements or systems of internal relationship which give to any culture its coherence or plan, and keep it from being a mere accumulation of random bits.’ This idea is reflected in the work of anthropologists such as Benedict, Kroeber and Sapir who believed that ‘patterned co-occurrences of cultural traits … marked different cultural groups.’ See also Moore, Visions of Culture (n 5) 69, 81. 40 Ruth Benedict, Patterns of Culture (Houghton Mifflin 1934) 51; Christina Toren, ‘Culture and Personality’ in Alan Barnard and Jonathan Spencer (eds), Encyclopaedia of Social and Cultural Anthropology (Routledge 1996) 143. 41 Benedict, Patterns of Culture (n 40) 51. 42 Moore, Visions of Culture (n 5) 82. 43 Alan Barnard and Jonathan Spencer, ‘Culture’ in Alan Barnard and Jonathan Spencer (eds), Encyclopaedia of Social and Cultural Anthropology (Routledge 1996) 139.

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to any culture its coherence or plan, and keep it from being a mere accumulation of random bits.’44 The above account of culture emphasises two points: the diversity of/across cultures and the internal integrity of specific cultures.45 To ­demonstrate how values are internalised, anthropologists who subscribed to this view ­emphasised the process of socialisation. Socialisation is ‘an interactional ­display … to a novice of expected ways of thinking, feeling and acting.’46 It was thought that through intensive and socially mediated interactions, children in society ‘acquire tacit knowledge of principles of social order and systems of belief.’47 It follows that social interactions themselves form the sociocultural environments in which children ‘learn to recognize and construct ­contexts and to relate contexts to one another.’48 To these earlier anthropologists, the r­elationship between culture and individuals depended on the acquisition of cultural meanings, often learned as a consequence of socialisation. ­Accordingly, psychological accounts of culture attempted to explain the subtle and profound influences of culture on individuals, not only in terms of the ways they think, act and speak, but also in terms of the values from which they derive and develop meanings for life. Through socialisation, the individual also develops her view of the ‘self’.49 In this way, culture was described ‘as an expression of core values that most people learn and absorb.’50 Some went a step further, to interpret culture as a synonym for a standardised type of behaviour51 leading to certain personality traits.52 44 45 46

Kroeber, ‘The Concept of Culture in Science’ (n 34) 131. Barnard and Spencer, ‘Culture’ (n 43) 139. Elinor Ochs and Bambi B Schieffelin, Language Socialization across Cultures (Cambridge University Press 1986) 2; Adam Kuper, Culture: The Anthropologists’ Account (Harvard ­University Press 1999) 67. Socialisation, in the simplest sense, refers to the interaction among individuals, from the interaction between the infant and her parents after she is born, to her interaction with other members of society as she grows up. 47 Ochs and Schieffelin, Language Socialization across Cultures (n 46).2. 48 Kuper, Culture: The Anthropologists’ Account (n 46) 67. 49 Ochs and Schieffelin, Language Socialization across Cultures (n 46). 50 Moore, Visions of Culture (n 5) 85. 51 William H Kelly and Clyde Kluckhohn, ‘The Concept of Culture’ in Ralph Linton (ed), The Science of Man in the World Crisis (Columbia University Press 1945) 97: culture is the ‘summation of all the ideas for standardized types of behavior.’ 52 Ruth Benedict, The Chrysanthemum and the Sword: Patterns of Japanese Culture (Houghton Mifflin 1946). In her work The Chrysanthemum and the Sword, Ruth Benedict studied Japanese culture and identified the strong concept of shame in Japanese society, whereby individuals are ashamed if they feel they have not performed their duties diligently and in a proper fashion. The idea of shame became almost a form of sanction and external

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Nevertheless, the idea that if someone is brought up in a particular ­cultural environment, she necessarily ‘renounces’ her individuality is questionable.53 In fact, it is not difficult to observe that even within the same group individuals do possess different characters. The argument that culture could be said to be represented by a core set of values or sets of personality traits is therefore flawed in several ways. Firstly, it commits the error of cultural ­determinism. Cultural determinism refers to the claim that cultures dominate the individuality of their members. In other words, it is the idea that culture causes behaviour.54 Excessive determinism undermines an individual’s exercise of ‘independent creative autonomy’, which in turn shifts the emphasis away from individuals as active participants engaging in the dialectal relationship of shaping and ­reshaping cultural values and beliefs.55 From another perspective, nothing that an individual thinks or does can be disconnected from the ideas and feelings which constitute her selfhood.56 Individuals are in this sense unique, rather than manufactured/engineered products of culture. Furthermore, representing culture as collective personality, or as the expression of core values, risks essentialising and reifying culture. The essentialisation of culture refers to the way that certain (distinctive) characteristics of culture are taken to represent the culture as a whole. Reification refers to the way in which culture is depicted as a separate entity in and of itself, independent of the members that constitute it.57 Accordingly, if we were to conflate culture with cultural values and neglect the social processes which constitute it, we would be treating coercion of individual behaviour. In this sense, culture strongly influences individual behaviour and contributes to a unique personality trait. This led Benedict to believe that different personality traits mark the differences among cultural groups. 53 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 3; Judith Irvine, Edward Sapir, The Psychology of Culture: A Course of Lectures (Mouton de Gruyter 1994). 54 Martin Sökefeld, ‘Debating Self, Identity, and Culture in Anthropology’ (1999) 40 Current Anthropol 417, 430: ‘[A]ll humans are able and required to act, which means that there is no culture … acting for them or uncontradictably prescribing which mode of behavior must be chosen in any situation.’ 55 Moore, Visions of Culture (n 5) 73; Alfred L Kroeber, Anthropology: Race Language, C ­ ulture Psychology, Prehistory (Harcourt, Brace & World 1948) 254; Alfred L Kroeber, ‘Culture, Events, and Individuals’ in Alfred L Kroeber (ed) The Nature of Culture (University of Chicago Press 1952) 104; Barnard and Spencer, ‘Culture’ (n 43) 139; Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 3. 56 Melford E Spiro, ‘Postmodernist Anthropology, Subjectivity, and Science: A Modernist Critique’ (1996) Comp Studies in Society & History 759. 57 Mair, An Introduction to Social Anthropology (n 21) 8: ‘[If] culture is simply thought of as a set of rules [it will] be dangerously easy to think of a culture as a set of rules and ­technique with independent existence.’

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culture as having an existence independent of its members.58 Both reification and ­essentialisation unduly generalise social reality, including the processes through which values and knowledge are produced and acquired, and undermine the individuality of members, including their thoughts and motivations for certain behaviour59—the very reasons why contemporary anthropologists chose to abandon such ideas. Nevertheless, the notion of culture as a set of values and the concept of socialisation have had profound implications across different disciplines of social science and the humanities (although the concept of socialisation and the extent to which individuals are said to be socialised often v­ aries among authors).60 The same idea of ‘culture’ also permeates international human rights law, especially when the law addresses customs and practices which perpetuate gender stereotypes (this aspect of the law will be explored in ­Chapter  4, as it studies the negative consequences of this development).61 The question remains: does culture influence individuals, and if so, to what extent? As the next section will show, this question is not as straightforward as it seems. When we ask whether ‘culture’ influences individuals, what exactly are we referring to as ‘culture’? 2.3

Forms of Abstraction and Forms of Explanation62

Section  2.2 explored how early anthropologists made use of the concept of culture to explain differences between the thoughts, behaviour and personalities exhibited by members of different cultural groups. In these accounts, culture was postulated as the set of common traditions, practices and values which were built up historically and passed down the generations through ­socialisation (i.e. the engagement of individuals with other members of the group).63 This idea of culture was subsequently rejected. 58 59

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61 62 63

Edward Sapir, ‘Cultural Anthropology and Psychiatry’ in Edward Sapir (ed), Culture, L­ anguage and Personality: Selected Essay (University of California Press 1949) 151. Ibid: ‘The true locus of culture is in the interactions of specific individuals and, on the subjective side, in the world of meanings which each one of these individuals may unconsciously abstract for himself from his participation in these interactions.’ See also Spiro, ‘Postmodernist Anthropology, Subjectivity and Science’ (n 56). See e.g. Marie Macey, ‘Ethnicity, Gender and Boundaries of Choice’ in Clare Beckett et al (eds), Negotiating Boundaries? Identities, Sexualities, Diversities (Cambridge Scholars Publishing 2007). See Section 4.3.1. Moore and Sanders, ‘Anthropology and Epistemology’ (n 16). See Section 2.2.

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In the 1930s, the discipline was heavily informed by social anthropology, which developed primarily within British academia.64 While cultural ­anthropologists are interested in how cultural values and practices interact with individuals and shape their characters, social anthropologists set out to ‘analyz[e] segments of societies and the institutions that articulate them.’65 Social ­anthropologists felt that seeing culture primarily as the collection of ­values and knowledge that individuals acquire seemed to overlook other sets of cultural phenomena and the relationships between them, such as how ­people relate to each other (for example through kinship, marriage and family or through religions or other social institutions), and the ways in which culture and society sustain themselves.66 They were eager to explore the relationships between culture, society and individuals and to construct theories grounded in a social context. In this regard, social anthropologists proposed that the ‘ways of acting, thinking and feeling’ of individuals (and thus their ways of living) were social facts to be understood in the broader social context.67 Culture was better understood with reference to the society as a whole, rather than with reference to individual thoughts and behaviour.68 Social anthropological theories claim that human beings live in groups in order to survive, forming societies. Within the group context, individuals enter into social relationships. Social order is then constructed through social relationships,69 which in turn give rise to values, through expected roles and duties. Through the process of socialisation, these expectations are acquired and internalised by the individual (i.e. the social actor).70 To social anthropologists, ‘[E]nds and norms are [not] … merely individual but also social.’71 64

See e.g. Fred W Voget, ‘The History of Cultural Anthropology’ in John J Honigmann (ed), Handbook of Social and Cultural Anthropology (Rand McNally College Publishing 1973) 28. 65 Moore, Visions of Culture (n 5) 117–118. 66 Other sets of questions which were not satisfactorily answered relate to why culture exists and how cultural phenomena are related, such as the object and the individual who uses it, the dwelling and those who occupy it and the economic means of production and the society which depends upon it. These questions are thought to be crucial for explaining the nature of culture and society as well as the relationship between them. See Bronislaw Malinowski, A Scientific Theory of Culture and Other Essays (University of North Carolina Press 1944) 158. 67 Henrika Kuklick, ‘Functionalism’ in Alan Barnard and Jonathan Spencer (eds), Encyclopedia of Social and Cultural Anthropology (Routledge 1996) 246, 249. 68 Voget, ‘The History of Cultural Anthropology’ (n 64) 28. 69 Alfred Radcliffe-Brown, ‘On Social Structure’ in Alfred Radcliffe-Brown (ed), Structure and Function in Primitive Society: Essays and Addresses (The Free Press 1965). 70 Ibid. 71 Kuper, Culture: The Anthropologists’ Account (n 46) 50.

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Influenced by Durkheim, social anthropological theories are built upon the presumption that ‘[S]ocial facts determine individuals’ behaviors and the collective consciousness’,72 and on the principle that ‘[S]ocial facts must be treated as systems where the meaning and purpose of individual elements can only be understood with reference to the total set of relevant social facts.’73 The underlying presumption is that the assemblage as a whole is always greater than the sum of its parts,74 and therefore that if we were to focus on explaining culture from the starting point of the individual mind, we would lose sight of the bigger picture, i.e. the trilateral relationship between culture, society and the individual.75 It is important to note that cultural and social anthropology do not merely provide two different approaches to viewing culture; within the two schools of thought, ‘culture’ differs in scope and content. This is because the two schools started from different theoretical presumptions, which framed the questions to be asked and influenced the ways in which anthropologists constructed their objects of enquiry.76 For cultural anthropologists, ‘culture’ refers to values and meanings, i.e. ideas that reside in our minds. Social anthropologists tend to subscribe to the idea of ‘culture’ as an empirical description of the total system. This gives rise to further complications associated with the different usages of the term (highlighted in the sections below). 2.3.1 Culture as Functional Malinowski proposed that explanations of human behaviour must be ­grounded in human nature.77 Human beings are conditioned by basic human needs which are essential to survival. In order to survive, human beings organise to achieve these purposes or goals.78 In this sense, culture exists to satisfy the needs of human beings.79 The essential concept here is one of organisation.80 72 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 8. 73 Ibid. 74 Kuklick, ‘Functionalism’ (n 67) 249. 75 Ibid. This claim is both substantive and methodological. The former relates to w ­ hether ­society could be left out of the equation when seeking to explain culture. The latter relates to whether culture could indeed be studied independently of the social structure. 76 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16). 77 Malinowski, A Scientific Theory of Culture (n 66). 78 Ibid 39. Malinowski, therefore, considers culture the ‘instrumental realization of biological necessities: constructed out of practical action and interest’ (Sahlin, Culture and Practical Reason (n 35) 73). 79 Malinowski, A Scientific Theory of Culture (n 66) 39. 80 Ibid.

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In Malinowski’s view, culture could be viewed as ‘an enormously complicated behavioral web responding to complex needs that can ultimately—but not ­always immediately—be traced to the individual’,81 while ‘Each culture owes its completeness and self-sufficiency to the fact that it satisfies the whole range of basic, instrumental and integrative needs.’82 The Malinowskian approach to explaining human activities is commonly referred to as functionalism. It purports to show how human activities correspond to particular functions which can be traced to the satisfaction of biological needs.83 As an illustration of how functionalists explain cultural phenomena, Malinowski points to the relationship between kinship and ­reproduction—the former as a cultural phenomenon and the latter as a biological need.84 Similarly, the shelters that human beings create relate to basic needs of bodily comfort and protection.85 Other examples of the functions of culture are evident in particular economic modes of production, such as how the division of labour is sustained by customs, quasi-legal procedures and ­hierarchical political structures (i.e. the status of each member in relation to others).86 All these elements, according to Malinowski, can ultimately be traced to the ­imperative of tackling problems impeding the satisfaction of biological needs. In this sense, it was argued that culture is ‘utilitarian, adaptive, and functionally integrated’.87 In a similar contribution, Radcliffe-Brown argues that every social phenomenon serves a function.88 However, instead of fulfilling individual needs, their 81 Moore, Visions of Culture (n 5) 141. 82 Malinowski, A Scientific Theory of Culture (n 66) 40; Robert Lavenda and Emily Schultz, Core Concepts in Cultural Anthropology (3rd edn, McGraw-Hill 2007) 73. For an analysis of the limitations of this approach, see Geertz, The Interpretation of Cultures (n 6) 143–144. 83 Malinowski, A Scientific Theory of Culture (n 66). 84 Ibid 91. 85 Ibid. 86 Ibid 48. Another example of this is the functionalists’ explanation of religion. They argue that religion exists because it serves individual needs: it endows individuals with an inner sense of security in the face of threats from nature and other contingencies, provides a meaningful life and explains ‘the otherwise unexplainable’, making the world comprehensible (e.g. suffering, death, mysterious events in everyday life). Therefore, instead of considering religion as mythical or ideological, functionalists construe religion as occupying a central functional role in the context of culture. See Geertz, The Interpretation of Cultures (n 6) 143; Lavenda and Schultz, Core Concepts in Cultural Anthropology (n 82). 87 Moore, Visions of Culture (n 5) 142. 88 Radcliffe-Brown, ‘On Social Structure’ (n 69). Radcliff-Brown prefers the use of the term ‘social relations’ over the word ‘culture.’ For the difference between society and culture, refer to Section 2.3.1.1.

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function is to maintain society and the social structure, i.e. to ensure its continuity.89 He sets out his theory by inviting readers to analogise social structures to the biological structures of organisms.90 The biological structure of an organism consists of a collection of units called cells, arranged in a structure to form organs. Meanwhile, the set of relations that exists between the different organs sustains the organism.91 He claims that the same can be said of societies. Individuals and social institutions are related to each other, forming social relations. Social relations (the relationships among different constitutive components) give rise to a social structure.92 Social structures exist to establish and sustain the continuity of societies.93 Social life is the functioning of the social system, which enables the parts of the system to work as a whole ‘with a sufficient degree of harmony or internal consistency.’94 Therefore, to study culture and its components in relation to social structure is the primary focus of Radcliffe-Brown’s model of culture. By way of ­example, Radcliffe-Brown explains that ‘The function of any recurrent activity, such as the punishment of a crime, or a funeral ceremony, is the part it plays in the social life as a whole and therefore the contribution it makes to the maintenance of the structural continuity.’95 Subsequent anthropologists inspired by Radcliffe-Brown focus, for example, on how religions function by giving the members of a society ‘a common identity, activity, interest, and destiny.’96 A religion creates a sense of social coherence and solidarity among those who adhere to it,97 thus contributing to the continuity of the society as a whole.98 They suggest that by comparing societies which have a similar structure, we 89 Ibid; Moore, Visions of Culture (n 5) 154. 90 Radcliffe-Brown, ‘On Social Structure’ (n 69). 91 Ibid. 92 Ibid. 93 Alfred Radcliffe-Brown, ‘On the Concept of Function in Social Science’ (1937) 37 Am A ­ nthropol 394: ‘The continuity of structure is maintained by the process of social life, which consists of the activities and interactions of the individual human beings and of the organized groups into which they are united.’ 94 Ibid 397. 95 Jack D Eller, Introducing Anthropology of Religion: Culture to the Ultimate (Routledge 2007) 23. 96 Ibid 21. 97 Lavenda and Schultz, Core Concepts in Cultural Anthropology (n 82). 98 Dan Sperber, Rethinking Symbolism (Cambridge University Press 1975) 334. Another ­example would be the structuralists’ account of kinship, which they view as a kind of alliance within and between tribes in order to create stability (while the primary focus of kinship for functionalists would be the function of reproduction).

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can compare and examine the underlying principles that account for these structures.99 The common theme of the two theories concerns the concepts of function and needs. Malinowski began by hypothesising how human beings were left in the natural environment and started to transform the environment through cooperation.100 In this view, culture was seen ‘as an instrumental reality which allows humans to meet their biological and cultural needs, and to transform their environment.’101 Radcliff-Brown, on the other hand, argued that the idea of needs should include not only biological needs, but also needs that are ­socially defined.102 The difference between the two theories rests on the ­priority given to different kinds of needs: some theorists saw basic needs as the determining factors, especially in small-scale societies. In this sense, cultural change depended on how societies progressed and developed to meet their needs over time.103 Meanwhile, the notion of function presupposed the idea of a system with interrelated parts, of which the actor is a functioning unit.104 Subsequent theories built upon functionalism also sought to demonstrate how specific cultural traits could be explained by their functions and purposes within the overall system.105 2.3.1.1 Culture—Is It Real or Is It an ‘Abstraction’? Cultural anthropology (as discussed in Section  2.2) and social anthropology entail different approaches. In broad terms, the former seeks to locate culture in the minds of human beings and the latter seeks to explain human behaviour in the context of the total set of social facts. Social anthropologists attempt to theorise human behaviour through the use of behavioural models based on the identification of regularities and norms which seem to govern this behaviour. Another way of understanding this difference is that social a­ nthropology 99 Moore, Visions of Culture (n 5) 154. 100 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 6. 101 Ibid. 102 Radcliffe-Brown, ‘On the Concept of Function in Social Science’ (n 93); Radcliffe-Brown, ‘On Social Structure’ (n 69). 103 Viewed as a functional ‘whole’, ‘culture’ came very close to meaning ‘civilisation’. 104 Radcliffe-Brown, ‘On Social Structure’ (n 69). 105 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 6; Fischer and Marcus, Anthropology as Cultural Critique (n 6) 27: ‘Functionalists were particularly fond of showing how the ostensible economic institutions of society were in fact structured by kinship or religion, how the ritual system stimulated economic production and organized politics or how myths were not idle stories or speculations but charters that codified and regulated social relations.’

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seeks to explain human behaviour by means of generalisations and categorisations, whereas cultural anthropology seeks to specify and locate human ­motives by reference to the human psyche. In fact, one of the distinctive features of functionalist models is that they seem to imply the existence of certain (often ­teleological) norms defining ideal behaviour,106 raising the question of whether these models correspond to social reality,107 i.e. whether individuals are in fact able to comprehend such ‘rules’ and norms. Leach argues that when social anthropology theorists construct analytical models, the intention of the actor is always presumed.108 The way that culture is theorised raises a crucial question: if culture is an analytical concept—i.e. if it is purely a concept used to analyse human ­behaviour—does ‘culture’ actually exist? To understand this, it is useful to note the debate over the issue of whether culture is an ‘abstraction’. Radcliffe-Brown contests the use of the word ‘culture’. If culture were to mean a set of ideas and values, as cultural anthropologists posit, then ‘culture’ would not denote any concrete reality, as it would not be derived from direct observation.109 ­Radcliffe-Brown argues that ‘culture’ in this sense is an abstraction, because it is only a secondary phenomenon (or epiphenomenon) deriving from ­behaviour. He prefers the term ‘social relations’ over the term ‘culture’ to denote the existing relationships of human beings.110 He claims that individuals ‘are c­ onnected by a complex network of social relations’ which is directly observable from human behaviour.111 We can observe from his analysis that Radcliffe-Brown makes a strict distinction between behaviour and values.112 For Radcliffe-Brown, behaviours are 106 Malinowski, A Scientific Theory of Culture (n 66) 48. 107 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 6. In addition, as Moore and Sanders note, ‘[The] problem was further compounded by a tendency to treat structures as if they were both institutional regularities and underlying principles, both the pattern of relationships between persons and the relations between the logical principles of cultural systems.’ 108 Edmund Leach, ‘On Certain Unconsidered Aspects of Double Descent Systems’ (1962) 62 Man 130. 109 Radcliffe-Brown, ‘On Social Structure’ (n 69) 190. Radcliffe-Brown notes, ‘We do not ­observe a “culture,” since that word denotes, not any concrete reality, but an abstraction, and as it is commonly used a vague abstraction. But direct observation does reveal to us that these human beings are connected by a complex network of social relations. I use the term “social structure” to denote this network of actually existing relations.’ 110 Ibid. 111 Ibid 190; Moore, Visions of Culture (n 5) 153. 112 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 4–9.

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real (since they are directly observable) while values and meanings are not.113 In this light, he calls culture (as a set of values and meanings) an ‘abstraction’.114 However, it was soon pointed out that behaviour and thought cannot strictly be separated from each other; i.e. an individual’s actions cannot be said to ­operate outside of the values, ideas and meanings which constitute the intentions and motives directing his or her behaviour.115 In order to operate within a network of social relations, it seems that one would first need to comprehend these s­ ocial relations, and it is through the process of comprehension that ­individuals derive or invoke meanings and values.116 Moore and Sanders note that: Cultural values and beliefs, since they are held to influence social ­behavior and social relations to varying degrees depending on the theoretical position of the analyst … cannot logically be seen as less material, ­concrete or real than social relations, the way people interact with each other. Hence, culture is not more abstract than behavior if by abstraction it is implied that it is more ideal, less material. However, if by ‘abstraction’ we mean the construction of a model or concept or notion that allows us to order, compare and analyze data then both culture and social relations are forms of abstraction.117 Accordingly, although ‘culture’ as a set of values and meanings cannot not be observed, social relations and culture are in fact ‘mutually determining, although the one could not be reduced to the other.’118 Meanwhile, ‘culture’ and social relations are forms of abstraction of human behaviour if they are intended as notions for analysing behaviour. 113 Ibid. 114 Ibid; Kelly and Kluckhohn, ‘The Concept of Culture’ (n 51) 93–94: ‘Remember that “­culture” is an abstraction. Hence culture as a concrete, observable entity does not exist ­anywhere—unless you wish to say that it exists in the “minds” of the men who make the abstractions … [although the] objects and events from which we make our abstractions do have an observable existence. But culture is like a map. Just as a map isn’t the territory but an abstract representation of the territory so also a culture is an abstract description of trends towards uniformity in the words, acts, and artefacts of human groups.’ 115 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 4–9. 116 Ibid. As Moore and Sanders note, the material and the ideal/the body and the mind are mutually specifying. At issue is the question of whether ideas and acts are a false dichotomy. 117 Ibid; Albert C Cafagna, ‘A Formal Analysis of Definitions of “Culture”’ in Gertrude Dole (ed), Essays in the Science of Culture (Crowell Co 1960) 124–125. 118 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 5.

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Comparing these two different conceptions of culture—i.e. as a set of v­ alues and beliefs, and as an abstraction/explanation of behaviour—we can identify one of the conceptual difficulties which commonly persist in the ­usage of the term. When employed as a concept which explains human ­behaviour, ­culture eventually consists of different referents. Kluckhohn and Kelly propose that, assuming there are four variables which govern human actions (‘man’s ­biological equipment, his social environment, his physical environment, and his ­culture’119), if we designate them as a, b, c, and d and the overall ‘system of designs for living’ as ‘x’, then it is not difficult to acknowledge that ‘d’ (­values and beliefs) is different from ‘x’ (the explanatory concept).120 However, e­ arlier anthropologists seem to have regarded ‘culture’ as embracing both ‘d’ and ‘x’,121 and this results in serious conceptual difficulties.122 What Kluckhohn and Kelly suggest is that not only does the meaning of culture vary, but the ­manner in which the word ‘culture’ is employed as a conceptual tool entails an inherent confusion which fails to meet the criteria of strict logic.123 In seeking to ­encapsulate the totality of human behaviour, it must be seen ‘as the combined product of “d” and the other three variants.’124 Perhaps, R ­ adcliffe-Brown was also led to regard ‘d’ (the values and beliefs) as an abstraction but not ‘x’ b­ ecause ‘x’ encompasses more of observable reality than ‘d’. Kluckhohn and K ­ elly would agree:125 ‘“D” is, if you will only a hypothesis—though a highly ­useful hypothesis. “X,” however, is an abstract representation of central ­tendencies in observed facts.’126 This also explains the difference between definitions which present culture as the totality of a group’s activities and those which refer to culture as primarily a matter of values, beliefs and traditions. 119 Kelly and Kluckhohn, ‘The Concept of Culture’ (n 51) 172. 120 Ibid. 121 Ibid. 122 Ibid. Although, in practice, the confusion between the two usages of culture might be clarified through the use of ‘culture’ for the analytical abstraction ‘d’ and ‘a culture’ for the generalising abstraction ‘x’. 123 Ibid 172–173. Therefore, when we ask the question ‘what is culture’, strict logic demands that we think about whether we are in fact asking ‘what is culture’ in a descriptive sense or ‘what is culture’ in an explanatory sense, the latter being better phrased as ‘what is a culture’ and the former by ‘what is the culture (of a particular group)’. As Kelly and Kluckhohn further note, ‘In sum, when a culture is described, this is merely the ­conceptualization—highly convenient for certain purposes—of certain trends toward uniformity in the behavior of the people making up a certain group. No pretence is made at a total “explanation” of all this behavior.’ 124 Ibid. 125 Ibid. 126 Ibid.

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Kelly and Kluckhohn’s observations are highly useful. With their explanation, we can see that previous uses of culture switched between these two ­conceptions. For example, Tylor’s definition of culture refers to the ­totality of artistic, scientific, technological and political advances of different h ­ uman groups in a sense very similar to the concept of ‘civilisation’ or ‘x’, while ­Benedict’s idea of culture refers to values, beliefs and behavioural traits, or ‘d’.127 Similarly, while some may think of culture as an enclosed and self-­ sufficient system represented by a unique form of social organisation, others refer to ‘culture’ as the set of values and beliefs that underpin a particular way of living.128 Talking about ‘culture’ can at times be slippery and confusing. More importantly, this distinction concerns a difference not only in understanding, but also in the approaches from which each conception of culture derives (because these different approaches ask different questions). While cultural anthropologists such as Benedict are deeply concerned with how ­culture shapes behaviour through the socialisation of values, personality traits, social virtues and attributes, functionalists are concerned with explaining human behaviour through an understanding of how societies operate and how individuals conduct their lives as members of a society.129 However, both definitions are fundamentally insufficient. These insufficiencies will be explored in the next section as it explains why another concept of culture was subsequently adopted by anthropologists. 2.4

Culture and the Study of Meanings

Section 2.3 highlighted issues concerning the anthropological understanding of culture. Of particular importance is the distinction between culture as an analytical model (an abstract representation of human behaviour) and ­culture as a set of values and beliefs.130 This distinction is often characterised as the objectivity/subjectivity divide.131 As anthropology developed, one question 127 See text accompanying supra n 119–126. 128 Frederick Barth, ‘The Analysis of Culture in Complex Societies’ (1989) 54 (3) Ethnos 120: ‘Our usage of “culture” is … flawed by the deep imprecision of referring simultaneously to (a sum total of) observable patterns, and to the ideational bases of such patterning— which invites the recurring fallacy of misconstruing description as explanation.’ 129 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 4–9. 130 See Section 2.2.1. 131 James Bevan, ‘What is Meant by the “Shift from Function to Meaning” in Anthropology?’ (1979) 3 Sussex Anthropol 24.

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in particular caught the attention of theorists: could human behaviour be ­objectively described without enquiring into individual subjectivity?132 One of the difficulties with using ‘culture’ as an analytical model is the presumption that individuals always behave in a teleological manner.133 Although these theories remind us that cultural phenomena may have wider purposes, they presume that all individuals have knowledge of the ‘bigger picture’ and take steps to act upon it, without offering a satisfactory explanation of how individuals actually perceive these ‘social structures’.134 Therefore, even if it were true that certain cultural phenomena serve functional purposes, this would not be sufficient to explain human behaviour, and, in particular, why individuals participate in these activities.135 Thus, individual anthropologists came to rethink the objectivity/­subjectivity divide. Rather than trying to construct an ‘empirical description of the total system’, it was proposed that we should start from an understanding of the operation of norms and actions within social structures and in social relations.136 They argued that in order to examine the structures which underlie the ­diversity of cultures, we must realise that there is always a mediator between the cultural and the material forms—i.e. a conceptual scheme which renders 132 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 6; Leach, ‘On Certain Unconsidered Aspects’ (n 108). 133 Ibid. 134 Bevan correctly argued that although the assumption that the ‘ultimate aim of a society was its self-preservation and regulation might have endowed cultural phenomenon with a meaningful purpose’, this should not substitute the question of how culture becomes meaningful (or intelligible) to the individual; Bevan, ‘What is Meant by the “Shift from Function to Meaning”’ (n 131) 26. From this angle, the question of the objectivity/subjectivity divide is deeply related to the wider question, to what extent does culture influence individuals? 135 The challenges not only relate to the apparent soundness of cultural theories, but also carry methodological implications pertaining to the collection, organisation and interpretation of ethnographic data. For example, Leach raised doubt as to whether social structures are ‘abstract models that are the product of a particular way of looking at and characterizing social data’, such that within the theoretical framework, analysts seek to understand the differences and similarities among societies and institutions by comparing the models constructed for such purposes. In other words, Leach noted that there seemed to be a tendency to organise ethnographic data into pre-existing categories generated by those theories themselves. In this sense, concepts and theories not only ‘frame the questions to be asked, but actually construct objects of enquiry.’ Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 6. 136 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 7.

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these ideas intelligible.137 As will be explored in this section, this conceptual scheme takes the form of a system of symbols and meanings.138 In contrast to previous periods, when anthropology was dominated by a few theoretical positions,139 the development of anthropology that began in the 1960s was characterised by a diversity of theoretical interests.140 Nevertheless, certain common themes run through these theories.141 One prominent theme relevant to the present study is the emphasis on the symbolic nature of culture. The symbolic nature of culture refers to the ways in which human beings ­endow our environment with symbolic meanings. It starts by acknowledging the human faculty to symbolise, which is part of human cognitive capability.142 A symbol consists of a sign that expresses an idea.143 The best evidence of our ability to symbolise is our use of language, wherein, for example, a combination of alphabetic or logographic characters is used to signify the meaning to which the word is assigned.144 Moreover, there is no intrinsic relationship b­ etween the meaning and the symbol:145 ‘It is only cultural habit that unites the two.’146 Given the relationship between meanings and symbols (the vehicles of meanings), the study of the symbolic nature of culture inevitably concerns itself with the study of meanings and the relationships between meanings and their creators and users.147 In short, to study the symbolic nature of culture is to study how we, as human beings, try to make sense of our experiences in ways that connect us meaningfully to the wider world.148 137 Ibid. 138 Bevan, ‘What is Meant by the “Shift from Function to Meaning”’ (n 131) 31. Bevan describes this as a move from ‘objectivity’ to ‘subjectivity’. 139 Moore, Visions of Culture (n 5) 227. 140 Ibid. 141 Ibid. 142 Lavenda and Schultz (n 82) 72. 143 Ferdinand de Saussure, Course in General Linguistics (McGraw Hill 1960). 144 Ibid 67–68. 145 David M Schneider, American Kinship: A Cultural Account (University of Chicago Press 1968) 1. 146 Jack D Eller, Introducing Anthropology of Religion: Culture to the Ultimate (Routledge 2007) 55; de Saussure, ‘Course in General Linguistics’ (n 143) (1960). 147 Moore, Vision of Culture (n 5) 228. 148 In this sense, symbolism is grounded in human nature on the basis of the faculty of h ­ uman cognition. Lavenda and Schultz note that it is in the nature of human beings to try to make sense of their experiences in ways that ‘link them meaningfully to the wider world.’ Culture is fundamentally a cognitive device. See Lavenda and Schultz, ‘Core C ­ oncepts in Cultural Anthropology’ (n 82) 72; Geertz, The Interpretation of Cultures (n 6) 5, 45; Ladislav Holy, Religion and Custom in a Muslim Society: The Berti of Sudan (Cambridge University Press 1991) 202; Eller, Introducing Anthropology of Religion (n 95) 62.

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The symbolic approach to culture had an enormous impact on anthropology. In contrast to previous work, the study of symbols ‘attempted to break through the sociological reifications of functionalism by asking how ­instructions were constructed in concept terms by the cultures in question.’149 This distinguishes ‘society’ from ‘culture’; the former concerns the interactions of people living in a geographical locality,150 while the latter, loosely defined, ­concerns the ways in which ‘social relationships are expressed and symbolized.’151 Fischer and Marcus note that the emergence of symbolic ­anthropology in the 1960s ‘shifted the emphasis of anthropological analysis away from behavior and social structure toward the study of symbols, meanings, and mentality.’152 Swidler takes the same view, noting that since the study of culture as a symbolic system was adopted: [T]he older definition of culture as the entire way of life of a people, i­ ncluding their technology and material artefacts, or … as everything one would need to know to become a functioning member of a society, have been displaced in favor of defining culture as the publicly available symbolic forms through which people experience and express meaning.153 Two major variants of symbolic anthropology emerged at around the same time, one championed by Geertz and the other by Turner.154 These two ­accounts share considerable similarities, especially in their views on the ­nature of culture as a symbolic system. However, their research interests were different; while Geertz’s primary concern was how culture forms worldviews and value orientations, Turner’s interest was the role of symbols in social processes, such as ‘heal[ing] people through curing rites [and] turn[ing] boys and girls into men and women through initiation.’155 Both accounts are studied below. 149 Fischer and Marcus, Anthropology as Cultural Critique (n 6) 28; Christina Toren, ‘Society’ in Alan Barnard and Jonathan Spencer (eds), Encyclopedia of Social and Cultural Anthropology (Routledge 1996) 512, 513. In this respect, it has been noted that ‘[T]he distinction between cultural and social anthropology became increasingly blurred.’ 150 Mair, An Introduction to Social Anthropology (n 21) 8. 151 Ibid 10. It is generally understood that focusing on either society or culture leads to two different kinds of study, although it is difficult to agree on a clear demarcation between them. 152 Fischer and Marcus, Anthropology as Cultural Critique (n 6) 33. 153 Ann Swidler, ‘Culture in Action: Symbol and Strategies’ (1986) 51 Am Sociol Rev 273; ­Sperber, Rethinking Symbolism (n 98) 145. 154 See text accompanying supra n 9–11. 155 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 177. Geertz could be considered to represent an extension of the American cultural anthropology tradition, while Turner

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2.4.1 Interpreting Culture Geertz proposed that the best way to conceptualise culture was to view it as a complex system of meanings ‘stored’ in symbols.156 Symbols are the ­result of the attachment of meanings to something that is ‘externally given’, be it ­tangible or intangible.157 In their simplest sense, symbols take the form of ­objects, ­images, sounds, utterances, gestures, actions and other media to which meanings can be attached.158 Geertz defined a symbol as ‘any object, act, event, quality, or ­relation which serves as a vehicle for a conception—the conception is the symbol’s meaning.’159 Culture therefore denotes ‘an [sic] historically transmitted pattern of meanings embodied in symbols, a system of inherited conceptions expressed in symbolic forms by means of which men communicate, perpetuate, and develop their knowledge about and attitudes toward life.’160 Through the use of symbols, culture is ‘incorporated into the individual via the psychodynamic processes of identification and internalization.’161 An example of the symbolic approach is the view that religion consists of a set of symbols which carry special meanings concerning the material or spiritual world. Barnard and Spencer note as an example that ‘in Christian ritual, the act of ingesting bread during holy communion is different from eating bread at any other time.’162 What informs the action and gives it its significance is the special symbolic meaning attached to the act.163 Geertz observes that religion ‘is a cluster of sacred symbols, woven into some sort of ordered whole, which makes up a religious system. For those who are committed to it, such a religious system seems to mediate genuine knowledge, knowledge of the essential conditions in terms of which life must, of necessity, be lived.’164 could be said to represent an extension of the British social anthropology tradition. See Moore, Visions of Culture (n 5) 247. 156 Geertz, The Interpretation of Cultures (n 6) 89–94. 157 Schneider, American Kinship (n 145) 1. Schneider defines a symbol as ‘something which stands for something else, or some things else, where there is no necessary or intrinsic relationship between the symbol and that which it symbolizes.’ 158 Geertz, The Interpretation of Cultures (n 6) 89–94. 159 Ibid 91. 160 Ibid 89. 161 Toren, ‘Culture and Personality’ (n 40) 145; Kingsley Davis, Human Society (Macmillan Co 1949) 3–4. Davis asserts that ‘[Culture] embraces all modes of thought and behavior that are handed down by communicative interaction—i.e., by symbolic transmission.’ 162 Alan Barnard and Jonathan Spencer, ‘Rite of Passage’ in Alan Barnard and Jonathan ­Spencer (eds), Encyclopedia of Social and Cultural Anthropology (Routledge 1996) 490. 163 Ibid. 164 Geertz, The Interpretation of Cultures (n 6) 129.

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In this sense, religion (like any expression of culture that uses symbols to convey meanings) is an example of the ways in which people ‘use symbols to bring meaning and coherence to the interpretation of their experience.’165 Geertz views culture as a ‘public act document’,166 i.e. it is in the public realm that symbols are constituted, mediated and expressed and the process of symbolic communication occurs.167 Accordingly, since culture consists of symbols projected in public, material objects have symbolic meanings. A work of art, for example, may have symbolic meaning other than the image which it tries to portray. Forms of cultural heritage, tangible or intangible, convey ­specific cultural information to be ‘decoded’ by the local population. In fact, while it is convenient to classify cultural heritage into tangible cultural heritage and intangible cultural heritage, anthropologists note that tangible ­cultural heritage would have no significance were it not for the (symbolic) meanings ­attached to it.168 In this sense, all tangible heritage has an intangible side to it.169 In short, cultural heritage refers to symbolic meanings that are passed on through tradition.170 The same holds true for cultural activities (such as rituals and dance performances) or events (from the past, in the form of history or narratives or in the present). Therefore, in contrast to psychological accounts of culture,171 viewing culture as the symbolic implies that individuals acquire cultural knowledge not only through interaction with the community, but also through their direct engagement with culture, i.e. their exposure to and interaction with the surrounding environment. Through the process of symbolising, social actors ‘interpret their experience and guide their action’.172 In this way, Geertz’s ‘system of meanings’ not only refers to the system of symbols manifested in the public sphere, but also implies the subjective experience of the actor. To participate in culture in this respect is to engage with the symbolic realm, i.e. to be able to participate in stories, folklore, myths, rituals and other customs and traditions, and, most 165 Ibid. 166 Geertz, The Interpretation of Cultures (n 6) 10. 167 Toren, ‘Culture and Personality’ (n 40) 145. 168 Denis Byrne, ‘A Critique of Unfeeling Heritage’ in Natsuko Akagawa and Laurajane Smith (eds), Intangible Heritage (Routledge 2009) 230: ‘“Heritage” only comes into being via the discourse of heritage and to this extent heritage, being by nature discursive, is always intangible.’ 169 Ibid. 170 Cultural practices, in this sense, are a part of cultural heritage. 171 See Section 2.2.1. 172 Geertz, The Interpretation of Cultures (n 6) 145: ‘Culture is the fabric of meaning in terms of which human beings interpret their experience and guide their action.’

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importantly, to be able to believe in the meanings that these activities invoke. Verkuyten observes that: Beliefs about origin and ancestry are often very important for people b­ ecause they give them a place in time and address existential questions. Rituals, myths, monuments, statues, founding fathers, historical battles, and burial places can all come to represent (part of) this common ­origin and ancestry. The significance attributed to relations of descent is ­embodied and made visible in symbolic forms. The symbols reflect the continuing existence of the ethnic or national group in which the ancestors, contemporaries, and future generations are included. These symbols help to sustain and make acceptable the idea of a common origin. Individuals can find meaningfulness by using these symbolic forms as means to experience the abstract symbolic content.173 Since the process of symbolic communication takes place in public, public participation in culture is especially important. At an individual level, we understand the external environment through our practical engagement with it.174 Culture is ‘shared’, not as a collective set of rules and norms, but as behaviours and symbols manifested in the public domain.175 2.4.2 Culture and Social Processes Turner’s approach to culture is similar to that of Geertz, in that it also involves the study of symbols and meanings. However, Turner adopts a different emphasis in understanding the role of symbols in culture. Instead of studying culture as a ‘cultural system’, Turner focuses on the relationship between symbols and collective action.176 Using the example of the Ndembu ritual in Zambia, he illustrates how different actors—the chief, hunters, family members and other participants—are mobilised for this purpose: I found that I could not analyze ritual symbols without studying them in a time series in relation to other ‘events,’ for symbols are essentially involved in social processes. I came to see performances of ritual as 173 Maykel Verkuyten, The Social Psychology of Ethnic Identity (Psychology Press 2005) 87. 174 Geertz, The Interpretation of Cultures (n 6). 175 Moore, Visions of Culture (n 5) 351; Geertz, The Interpretation of Cultures (n 6). 176 Frederick Barth, Ethnic Groups and Boundaries: The Social Organization of Cultural Difference (Little, Brown and Company 1969); Eric R Wolf, Envisioning Power: Ideologies of Dominance and Crisis (University of California Press 1999).

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d­ istinct phases in the social processes whereby groups became adjusted to internal changes and adapted to their external environment. From this standpoint the ritual symbol becomes a factor in social action, a positive force in an activity field. The symbol becomes associated with human interests, purposes, ends, and means, whether these are explicitly formulated or have to be inferred from the observed behavior. The structure and properties of a symbol become those of a dynamic entity, at least within its appropriate context of action.177 The above reveals important implications about the nature of symbols. Turner views cultural symbols (including ritual symbols) ‘as originating in and sustaining processes involving temporal changes in social relations.’178 He emphasises that culture is dynamic and always in action.179 Neither culture (as a system of symbols) nor social relations themselves are timeless entities.180 Moreover, Turner’s original contribution goes beyond understanding culture as ‘text’ or merely as meaning-conferring,181 but as deeply entrenched in ‘human interests and purposes’, serving social goals by mobilising action.182 As cultural symbols are involved with social processes,183 ‘[T]he construction and reconstruction of meaning occurs within specific, dynamic contexts of social process.’184 This marks the difference between Turner’s account of culture and Geertz’s, the latter of which views culture as a text to be interpreted and decoded. For Turner, the meanings invested in symbols often serve a particular purpose which the creator seeks to achieve. Another important contribution is his observation that symbols often evoke multiple meanings.185 In his study of the Ndembu ritual, he notes that the configuration of the Ndembu shrine is associated with fifteen different meanings, including meanings connected to social relationships and the virtues of

177 Turner, The Forest of Symbols (n 8) 20. 178 Victor Turner, Dramas, Fields, and Metaphors: Symbolic Action in Human Society (Cornell University Press 1974) 55. 179 Turner, The Forest of Symbols (n 8) 20. 180 Ibid. 181 Cf Geertz, The Interpretation of Cultures (n 6). 182 Victor Turner, On the Edge of the Bush: Anthropology as Experience (University of Arizona Press 1985) 171. 183 Barth, Ethnic Groups and Boundaries (n 176); Barth, ‘The Analysis of Culture in Complex Societies’ (n 128). 184 Moore, Visions of Culture (n 5) 253. 185 Ibid.

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t­ oughness, piety towards ancestors and fertility.186 Moore considers the ‘evocative nature’ of religious symbols to be a good example of Turner’s observation: the multiple meanings behind a Christian cross, which is made up of ‘simply two perpendicular pieces of wood of unequal length’ to represent crucifixion (and associated events), salvation, the relationship between humanity and the trinity, and so on.187 The multivocality and evocative nature of symbols ­often make them ‘powerful condensations of meaning’188 through which ‘Many things and actions are represented in a single formation.’189 In addition, it is also observed that the same symbol (or set of symbols) can vary in nature and intensity depending on its context.190 For example, a national flag hanging on the back of a van, the same flag hoisted on a flagpole outside a school and the flag laid out on the coffin of a soldier all evoke meanings and sentiments of varying intensity, although the image of the symbol remains the same.191 Symbols are susceptible to many meanings.192 Furthermore, Turner observes that not only are meanings multivocal, but symbols may mean different things to different actors. In relation to the ­example of the Ndembu ritual, he notes: [The vision of a participant in a rite] is circumscribed by his occupancy of a particular position, or even of a set of situationally conflicting positions, both in the persisting structure of his society, and also in the role structure of the given ritual. Moreover, the participant is likely to be governed in his actions by a number of interests, purposes, and sentiments, dependent upon his specific position, which impair his understanding of the total situation. An even more serious obstacle against his achieving objectivity is the fact that he tends to regard as axiomatic and primary the ideals, values, and norms that are overtly expressed or symbolized in the ritual … What is meaningless for an actor playing a specific role may well be highly significant for an observer.193

186 Ibid. 187 Ibid. 188 Ibid. 189 Turner, The Forest of Symbols (n 8) 28; Moore, Visions of Culture (n 5) 253. 190 Moore, Visions of Culture (n 5) 253. 191 Ibid. 192 Ibid. 193 Turner, The Forest of Symbols (n 8) 27.

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What Turner is trying to say is that cultural knowledge is not equally shared among individuals.194 Meanings can be contradictory and inconsistent, ­depending on the position which the actor takes up in a given event or activity or on the role of the actor in the ‘persisting structure of his society’.195 It is also shaped by the actor’s interests, purposes and motivations.196 Symbols ‘may speak to different people in different ways’.197 Turner’s work has deep theoretical implications. Firstly, it rebuts certain theoretical claims made by earlier anthropologists: [I]f … symbols are the key to cultural life and if, as Turner suggested, symbols are dynamic social creations—with the potential for contradictory, but coexisting, interpretations—then how can a cultural trait or a social structure be abstracted from its dynamic context? Why should one believe that cultural patterns serve to create social stability (RadcliffeBrown) or meet discernible human needs (Malinowski) when the very nature of cultural life is fluid, contradictory, and dynamic as opposed to stable, congruent, and static?198 Turner’s contribution enabled anthropology to move away from a static and atemporal concept of culture—accounts of culture that stressed notions of ‘structure, equilibrium, function and systems’199—to a more dynamic understanding which seeks to understand the cultural process. In his own words, the study of culture was shifting ‘from a “being” to a “becoming” vocabulary’.200 Culture is messy; it is multivocal, contradictory, dynamic and actively in the making. Turner’s emphasis on the role of culture in the operation of social processes enabled subsequent accounts to move away from an apolitical notion of culture. If the use of a symbolic discourse can mobilise collective action, then the very use of symbols implicates the exercise of power.201 One example would be violent conflict. It has been noted that ‘Conflicts are mediated by a society’s 194 Barth, Ethnic Groups and Boundaries (n 176); Barth, ‘The Analysis of Culture in Complex Societies’ (n 128); Wolf, Envisioning Power (n 176) 66. 195 Turner, The Forest of Symbols (n 8) 27. 196 Ibid. 197 Moore, Visions of Culture (n 5) 253. 198 Ibid. 199 Turner, On the Edge of the Bush (n 182) 170. 200 Ibid. 201 Spencer, ‘Symbolic Anthropology’ (n 11) 536.

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cultural perception that gives specific meaning to a situation, evaluating it on the basis of the experience of past conflicts, stored as objectified knowledge in a group’s social memory.’202 Conflicts are ‘a form of symbolic action that conveys cultural meanings, most importantly ideas of legitimacy.’203 The ability of symbols to mobilise action and the fact that symbols consist of condensations of meanings sometimes give them great ideological power.204 Turner observes that it is through the enactment of traditions that actors are ‘wedded to the norms and values of their culture’.205 Wolf asserts that ‘Culture is not a shared stock of cultural content. Any coherence that it may possess must be the outcome of social processes through which people are organized into convergent action or into which they organize themselves.’206 Criticising the assumption of the neutrality of symbols and meanings, Barth argues that we should regard meaning as ‘a relationship between a configuration or sign and a viewer, not something enshrined in a particular expression’,207 as depicted by Geertz.208 The relationship between symbols and collective action had profound ­implications for subsequent anthropologists. If ‘culture’ could be used to ­mobilise, in what ways could this be done to the detriment of others? This refers not only to situations of violent conflict (which invoke narratives of self-otherness), but also situations where narratives are deployed to sustain certain structural relationships, such as those relating to gender and gender stereotypes. Two relevant questions can now be highlighted: (1) what role do ­symbolic discourses play in the production and reproduction of structural power, and (2) to what extent are individuals affected by symbolic discourses? To explore possible answers to these questions, contemporary anthropologists turn to the concept of ‘practice’. 2.5

Meanings and Practice: Contemporary Perspectives

The understanding of culture as a system of symbols and meanings had an enduring impact on the subsequent development of anthropology. 202 Bettina E Schmidt and Ingo W Schröder, ‘Introduction: Violent Imaginaries and Violent Practices’ in Bettina E Schmidt and Ingo W Schröder (eds), Anthropology of Violence and Conflict (Routledge 2001) 4. 203 Ibid 8. 204 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 10. 205 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 187. 206 Wolf, Envisioning Power (n 176) 66. 207 Barth, ‘The Analysis of Culture in Complex Societies’ (n 128). 208 See Section 2.4.1.

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­ ontemporary accounts of culture are characterised by the proliferation of C concepts deriving from this understanding of culture. Ortner notes the growing interest in the field in analysing culture through two sets of interrelated concepts: (1)  ‘­practice, praxis, action, interaction, activity, experience, performance’209—concepts which stress actual engagement with culture; and (2) the ‘agent, a­ ctor, person, self, individual [and] subject’210 as ‘the doer of all that doing’.211 Accordingly, anthropology became increasingly concerned with understanding the dynamic relationship between culture (as a system of symbols) and individuals (as actors). In general terms, this relationship has two aspects: the significance of the individual to culture (how culture is reproduced through the individual’s performance of culture) and the significance of culture to the individual (how culture is associated with selfhood, personhood and identity, shaping her sense of self). These accounts were juxtaposed with other vocabularies predicated on the notion of power, such as those of discourse, hegemony and ideology.212 Furthermore, earlier accounts of culture were more frequently problematised on epistemological grounds: the objectification of individuals (treating individuals as mere objects of cultural theories, devoid of subjective experience),213 the atomisation of individuals (treating experience as isolated rather than intersubjective), the o­ veremphasis on the boundedness of culture (treating cultures as integrated wholes)214 and the presumed objectivity of ethnographic writing (treating ethnographic writing as containing objective experimental truths).215 Despite the diversity of work in this area, the overall effect was a renewed interest in the individual 209 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 177. 210 Ibid. 211 Ibid. 212 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 182. See e.g. Wolf, Envisioning Power (n 176) (on power); Foucault, Discipline and Punish (n 6) (on discourse); Raymond Williams, Marxism and Literature (Oxford University Press 1977) 108–110; Geertz, The Interpretation of Cultures (n 6) 193–233 (on ideology); Swidler, ‘Culture in Action: Symbol and Strategies’ (n 153) 279. 213 Henrietta L Moore, A Passion for Difference: Essays in Anthropology and Gender (Polity Press 1994); Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 16–19. The ­emphasis on subjectivity represents a conscious objection to generalising and occluding difference into forms of analytical classification and representation. It implies that individuals are no longer objects capable of being observed and counted. 214 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 17. See Wolf’s work on the effect of globalisation on cultural change, Wolf, Europe and the People without History (n 13). 215 Fischer and Marcus, ‘Anthropology as Cultural Critique’ (n 6) 29.

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(as ­opposed to culture/­structure, discussed in Section 2.3) and the positioning of individuals within anthropological theories. Most relevant to the present study is how contemporary anthropologists came to understand the concept of practice and its role in the social reproduction of meanings. In the most general terms, practice refers to ‘anything that people do’,216 and the study of practice involves exploring questions about what motivates action, how culture shapes our behaviour and how that in turn shapes culture.217 In any discussion of practice, questions of action, experience, agency and power will naturally arise. 2.5.1 Practice and the Habitus Section 2.4 explained the concept of culture as a system of symbols and meanings. The concept of practice concerns how individuals act upon symbols and meanings and how they position themselves in the realm of meanings. Pierre Bourdieu is one of the most prominent theorists on this topic.218 Bourdieu’s account of practice begins by exploring the effect of culture on the ways individuals think and behave.219 Bourdieu criticises accounts of ­culture that equate culture with the rules and norms which guide human ­actions (the latter view is pervasive in functionalism, which, he argues, ­neglects the intentionality and experience of actors).220 If we were to view culture simply as a set of rules and norms, the performance of culture would be ‘no more than the acting-out of roles … or the implementation of plans.’221 However, Bourdieu argues that it is a mistake to view culture as determining human b­ ehaviour. He argues that it would be unrealistic to imagine that we as actors are ‘precisely and unconsciously orchestrated by our culture’,222 for it would be inaccurate to assume that an actor has complete knowledge of her culture.223 Nor could ­human behaviour be explained if the actor were to be stripped of the pragmatic concerns that trouble her everyday life.224 216 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 182. 217 Ibid 182, 190. 218 See e.g. Bourdieu, Outline of a Theory of Practice (n 6); Bourdieu, The Logic of Practice (n 6). 219 Bourdieu, The Logic of Practice (n 6). 220 Ibid 31. He claims that structuralism views culture as ‘a pure construct of which there is no sense experience.’ See also Fischer and Marcus, ‘Anthropology as Cultural Critique’ (n 6) 29. 221 Bourdieu, The Logic of Practice (n 6) 52. 222 Richard Jenkins, Key Sociologists: Pierre Bourdieu (Routledge 1992) 50. 223 Ibid. 224 Swidler, ‘Culture in Action’ (n 153).

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Rather, Bourdieu thinks that the relationship between cultural knowledge and action should be understood as similar to the relationship between rules and strategies.225 Imagine that the cultural system is a sports game and actors in culture are the players of that game. To adapt to the game, players must first know its goals, limits and rules. According to these rules, the players ­devise tactics and strategies and act upon these strategies. In this sense, although players tend to comply with the rules of the game, the rules do not determine their actions. In a similar manner, Bourdieu proposes that individuals are partially conditioned by pre-existing cultural knowledge. Individuals operate within that cultural knowledge, devising tactics and strategies and acting ­accordingly.226 Their actions are therefore informed by cultural knowledge but are not determined by it.227 In a similar manner, Swindler describes culture as a ‘tool kit’ of knowledge forming the basis on which an individual devises strategies that guide her everyday life.228 However, note that these strategies are not ‘culture-free’. They are culturally informed and as such they are also cultural products.229 Nevertheless, by positing actions as informed by culturally produced strategies, the idea of practice suggests that culture does not define behaviour in an absolute way.230 Although culture often provides a conceptual framework for actors, the fact that individuals participate in culture in no way downplays their individuality. To conclude, the above account highlights the paradoxical nature of culture: culture is both enabling and conditioning. It is enabling in the sense that it endows us with meanings without which we could not make sense of the world. It is conditioning in the sense that ‘[T]he agents’ aspirations have the same limits as the objective conditions of which

225 Bourdieu, The Logic of Practice (n 6); Craig Calhoun, ‘Pierre Bourdieu’ in George Ritzer (ed) The Blackwell Companion to the Major Social Theories (Blackwell 2000). 226 Leach, ‘On Certain Unconsidered Aspects of Double Descent Systems’ (n 108) 133: ‘In all viable systems, there must be an area where the individual is free to make choices so as to manipulate the system to his advantage.’ See also Bourdieu, Outline of a Theory of Practice (n 6) 26; Bourdieu, The Logic of Practice (n 6) 53. 227 In this analogy, the actions of the players are linked to the rules of the game by tactics and strategies. The rules themselves are not the game, nor are the performance of the actors or the strategies themselves. Rather, the game comprises all the rules and strategies in conjunction with the performance of individuals. 228 Swidler, ‘Culture in Action’ (n 153) 277; Ulf Hannerz, Soulside: Inquiries into Ghetto Culture and Community (Columbia University Press 1969) 168–188. 229 Swidler, ‘Culture in Action’ (n 153) 277. 230 Since culture is not imposed or forced upon us, teleological motives are not the chief ­element explaining culture.

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they are the product.’231 It is in this sense that culture ‘defines’ our experience and reality. However, is it true that every action an individual performs is a conscious cultural practice? The problem with hypothesising the concept of practice as equivalent to tactics and strategies is that individuals may not be fully conscious of and alert to their every act. Bourdieu recognises that not all actions result from conscious decisions based on cultural ‘rules’. In order to depict a more complete picture, his account of practice stresses both those ‘highly ­intentionalized moments of practice’232 and those ‘routines people enact, again and again’233 through their engagement in ordinary living, such as the ‘­little scenarios of etiquette they play out again and again in social interaction.’234 Here, he distinguishes between two concepts: the structure (cultural knowledge or the symbolic representation of the social world) and the habitus (i.e. the ‘cultural framework wherein and whereby the habitual aspects of everyday social thought and action operate’).235 The habitus refers to the aspect of culture which operates ‘subconsciously’. Bourdieu claims that individual behaviour is not determined by the structure; yet, through practical engagement with culture, actors acquire a set of schemata or dispositions which later become incorporated as part of their actual knowledge.236 At times when individuals act in a less conscious manner, this set of dispositions supplies information for their engagement in their daily affairs. As Ortner explains, ‘All of these routines and scenarios are predicated upon, and embody within themselves, the fundamental notions of temporal, spatial, and social ordering that underlie and organize the system as a whole.’237 2.5.2 The Habitus and the Reproduction of Power The reason that Bourdieu stresses the ‘less intentional moments’ is because it is through these moments that the ‘structure’ is reproduced. To Bourdieu, systems of knowledge are replicated, endorsed and legitimised through action.238 Ortner observes that ‘In enacting … routines, actors not only continue to be shaped by the underlying organizational principles involved, but continually 231 Bourdieu, Outline of a Theory of Practice (n 6) 166. 232 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 187. 233 Ibid. 234 Ibid. 235 Baldwin et al, Introducing Cultural Studies (n 15) 110. 236 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16). 237 Ibid. 238 Moore, Visions of Culture (n 5) 330.

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re-endorse those principles in the world of public observation and discourse.’239 According to Bourdieu, this process is subtle. The actor may not fully appreciate the influence of culture on herself.240 This is because once the actor is ­accustomed to the culture, it naturally forms part of that ‘self’. As he succinctly expresses it, ‘The habitus—embodied history, internalized as a second nature and so forgotten as history—is the active presence of the whole past of which it is the product.’241 In this sense, one characteristic feature of the habitus is that it can be ‘inculcated’ in the individual through the practice of culture. To some extent, cultural knowledge is mediated through action. This action both reflects cultural knowledge and is a reaffirmation of cultural knowledge. As we engage in culture, we are unconsciously signifying and resignifying the symbolic meanings attached to cultural practices, and over the course of time these meanings and practices become our habitus, forming an ‘unquestioned and taken-for-granted’ part of personal knowledge.242 As we acquire cultural knowledge through repeated practice, the habitus influences us in a very profound way: not only does it become a habit, but it actually becomes part of our ‘selves’.243 It is often through these ‘less intentional moments’, as cultural knowledge becomes personal knowledge, that the prevailing ‘structure’ is endorsed and legitimised. Cultural knowledge is ‘internalised’ by individuals and often left unchallenged. In Bourdieu’s words, this set of rules and norms ‘goes without saying because it comes without saying: the tradition is silent, not the least about itself as a tradition.’244 The relationship between the habitus and its role in reproducing culture has significant implications for the question of power. The dominant group in society seeks to sustain its leading position by ensuring that its cultural 239 Ibid. 240 Foucault was able to articulate this point with succinct clarity: ‘People know what they do; they frequently know why they do what they do; but what they don’t know is what what they do does.’ Cited in Hubert L Dreyfus and Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (University of Chicago Press 1982) 187. See also Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 190; Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 17: the reproduction of culture is ‘most often the consequence of unintended actions.’ 241 Bourdieu, The Logic of Practice (n 6) 56. The use of the word ‘history’ in this context is different from the way we use it in ordinary language. It refers more to the everyday/routine recurrences of the past—ordinary events—rather than particular ‘historical’ events of a significance subsuming these ordinary events. 242 Baldwin et al, Introducing Cultural Studies (n 15) 110. 243 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 162. 244 Bourdieu, Outline of a Theory of Practice (n 6) 167.

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­habitus is preferred,245 i.e. power is reflected in the ways in which social reality is imposed.246 This view provides a more nuanced understanding of power and its operation in culture. It enables us to enquire beyond our traditional understanding of power as physical strength or as referring solely to relative economic and political positions. In the context of culture, power is deployed through the use of cultural knowledge to: prevent people, to whatever degree, from having grievances by shaping their perceptions, cognitions and preferences in such a way that they accept their role in the existing order of things, either because they can see or imagine no alternative to it, or because they see it as natural and unchangeable, or because they value it as divinely ordained and beneficial.247 Wolf argues that ‘Power is implicated in meaning through its role in upholding one version of significance as true … against other possibilities that may threaten truth.’248 Power is most evident when these rules and norms sustain or legitimise a particular structural relationship. For example, the theory of practice is widely employed in feminist anthropology to explain how gender concepts p ­ roduce and reproduce themselves.249 Collier and Rosaldo argue that ‘[G]ender conceptions in any society are to be understood as functioning aspects of a 245 Baldwin et al, Introducing Cultural Studies (n 15) 111. 246 Ibid 165. 247 Steven Lukes, Power: A Radical View (MacMillan 1974) 24; Baldwin et al, Introducing Cultural Studies (n 15) 31; Foucault, Discipline and Punish (n 6) 27: ‘There is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations.’ 248 Eric R Wolf, ‘Distinguished Lecture: Facing Power. Old Insights, New Questions’ (1990) 92 Am Anthropol 586, 593; Eric R Wolf, Pathways of Power: Building an Anthropology of the Modern World (University of California Press 2001) 225: ‘Cultural form dictates the limits of the field of social play but also limits the direction in which the play can go in order to change the rules of the game when this becomes necessary.’ 249 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 178; Sherry B Ortner and ­Harriet Whitehead, ‘Introduction: Accounting for Sexual Meanings’ in Sherry B Ortner and ­Harriet Whitehead (eds), Sexual Meanings: The Cultural Construction of Gender and Sexuality (Cambridge University Press 1981) 2: ‘[When] gender, sexuality, and reproduction are treated as symbols … the approach to the problem of sex and gender is … a matter of symbolic analysis and interpretation, a matter of relating such symbols to other cultural symbols and meanings on the one hand, and to forms of social life and social experience on the other.’

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c­ ultural system through which actors manipulate, interpret, legitimize, and reproduce the patterns … that order their social world.’250 According to Wolf, whose work heavily influenced anthropological studies on power, power relations are ‘­expressed in political, religious, ethnic, or other schemes’.251 It has been argued that: Power lies in the creation of discourses, institutions, objects and identities; power is all about making and remaking the world in a particular way … power produces classifications of knowledge which define our understanding of the relationship between people and nature … power produces sexuality as the site that tells us most about ourselves. Power is not about saying ‘no’; it is about producing things, identity and ideas.252 Thus understood, culture is far from static and far from being only a meaningful representation of the social world. It is also a site where social arrangements, patterns, meanings, identity and ideas are produced, reproduced and sustained. The above discussion has hinted at the relationship between power and ­discourse, and how power and discourse may contribute to the constitution of the subject (i.e. how they contribute to the creation of a sense of self).253 As Ortner eloquently summarises, ‘[T]here seems to be general agreement that action is constrained most deeply and systematically by the ways in which culture controls the definitions of the world for actors, limits their conceptual tools, and restricts their emotional repertoires. Culture becomes part of the self.’254 Discourses deeply shape an individual’s views and identity; as Foucault observes, ‘[P]articular, historically located, disciplinary processes and

250 Jane F Collier and Michelle Z Rosaldo, ‘Politics and Gender in Simple Societies’ in Sherry B Ortner and Harriet Whitehead (eds), Sexual Meanings: The Cultural Construction of Gender and Sexuality (Cambridge University Press 1981) 311; Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 178. 251 Moore, Visions of Culture (n 5) 344. 252 Brian Longhurst et al., Introducing Cultural Studies (3rd edn, Routledge 2017) 94. 253 Lila Abu-Lughod and Catherine A Lutz, ‘Introduction’ in Lila Abu-Lughod and Catherine A Lutz (eds), Language and the Politics of Emotion (Cambridge University Press 1990); See also Spencer, ‘Symbolic Anthropology’ (n 11) 163. It has been noted that the term ‘­discourse’ is adopted by anthropologists influenced by Foucault ‘with implicit connotations of power and possible contestations, as an alternative to traditional anthropological notions of culture.’ 254 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 186.

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­concepts … enable us to consider ourselves individual subjects … [and] constrain us from thinking otherwise’255 and ‘[D]iscourse encloses or subjugates a person’s identity.’256 From this perspective, it has been argued that the subject is the product of discourses and ‘power matrices’.257 Power produces subjects and subjects reproduce power through practice. Foucault, however, alerts us to the fact that power should not be thought of as merely a top-down imposition, but as an act which is ‘exercised in the course of social relations’.258 Therefore, power not only needs to be studied at the ‘level of patterns [in which power] is institutionalized’, but also requires an empirical investigation at the level of individual practice—where power is exercised.259 2.5.3 Heritage, Power and Practice The concepts of practice, habitus and power have important implications for our understanding of heritage and identity. In terms of cultural heritage, the concept of practice suggests that not only are there symbolic meanings attached to cultural heritage,260 but that in order for these meanings to be perpetuated, they must be practised and enacted. In other words, meanings attached to cultural heritage do not exist in the abstract, but always ‘reside and live’ within the individual’s memory, and are resignified, reaffirmed, refreshed and revitalised through the individual’s practice of culture. As Silverman and Ruggles argue: Cultural heritage requires memory. It is not enough for things and monuments to exist on a landscape: in order to be cultural heritage they must be remembered and claimed as patrimony, even if their original meaning

255 Wendy Grace and Alex McHoul, A Foucault Primer: Discourse, Power and the Subject (Routledge, reprint 2002) 3. 256 Lise Nelson, ‘Bodies (and Spaces) do Matter: The Limits of Performativity’ (1999) 6 Gender, Place and Culture 331, 332. 257 Ibid. 258 Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 13; See also Grace and McHoul, A Foucault Primer (n 255) 7. Foucault invites us to conceptualise power ‘in terms of relations built consistently into the flows and practices of everyday life, rather than as something imposed from the top down.’ He argues for ‘the need for a more subtly ­historical and detailed analysis of the local and specific effects of power.’ 259 Ibid. 260 See text accompanying supra n 166–171.

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is lost or poorly understood. In this sense cultural heritage is always, to some degree, intangible.261 Moreover, they argue that ‘For tangible and intangible cultural heritage to have meaning and potency, the heritage must be active, dynamic, used, and performed, rather than existing inert and static.’262 Therefore, it is not enough for heritage to be ‘preserved’ or archived as part of ‘the past’. For heritage to be passed on to future generations, heritage (these common memories) must be lived and performed.263 As Arizpe puts it, heritage ‘is not an object, not a performance, not a site; it may be embodied or given material form in any of these, but basically, it is an enactment of meaning embedded in collective memory.’264 In this respect, it is also useful to note how ‘memory’ in this context is distinguished from ‘history’.265 As Nora eloquently explains: Memory is life, borne by living societies founded in its name. It remains in permanent evolution, open to the dialectic of remembering and ­forgetting, unconscious of its successive deformations, vulnerable to manipulation and appropriation, susceptible to being long dormant and periodically revived. History, on the other hand, is the reconstruction, always problematic and incomplete, of what is no longer. Memory is a perpetually actual phenomenon, a bond tying us to the eternal present; history is a representation of the past.266 In other words, contemporary anthropologists argue that memories are ­dynamic and vibrant, while history is static and dormant. Memory is what 261 D Fairchild Ruggles and Helaine Silverman, ‘Cultural Heritage and Human Rights’ in D Fairchild Ruggles and Helaine Silverman (eds) Cultural Heritage and Human Rights (Springer 2007) 12–13. 262 Ibid; Mark Johnson, ‘Renovating Hue (Vietnam): Authenticating Destruction, Reconstructing Authenticity’ in Robert Layton et al (eds), Destruction and Conservation of Cultural Property (Routledge 2001) 75. Johnson observes that ‘[L]andscapes, sites and monuments are always emergent and processual, whose meaning(s) and significance are continually being remade through various material and discursive practices.’ 263 Lourdes Arizpe, ‘The Cultural Politics of Intangible Cultural Heritage’ (2007) 12 Art ­Antiquity and Law 361. 264 Ibid. 265 Pierre Nora, ‘Between Memory and History: Lex Lieux de Memoire’ (1989) 26 Representations 7. 266 Ibid.

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binds us to the past, while history is a representation of the past267—and culture is closely associated with that dynamic and shifting ‘community memory’.268 However, since cultural heritage (as a form of memory) requires a narrative to sustain it, conflicts arise as to who gets to decide the meanings behind these narratives. As discussed in Section  2.4.2, cultural meanings are multivocal. ­Cultural heritage thus often forms a contested site among interested parties.269 Tensions over how these sites should be remembered often fuel conflicts and social divisions,270 as heritage can be used to ‘manipulate people’ by shaping public opinion.271 As Logan notes, heritage can be used in both positive and negative ways: Interpretations of the past can be opened out so as to recognize the roles played by minority groups in the national story, to engage them more f­ ully in celebration of the nation’s achievements, and to recognize ­injustices done to them in the past. Efforts to rediscover ‘unpleasant’ episodes in our national histories can result in the empowering of indigenous minorities.272

267 Kearney offers a more comprehensive understanding of heritage, stressing both its performative and its temporal aspects: ‘[Heritage] denotes performative cultural resources, including dance, song, language, oral traditions and knowledge systems, monumental constructions, archaeological sites, material culture and ideology. These reflect a time depth to cultural expressions that draws connections between ancestors, contemporaries and descendants, making such expressions fundamental to cultural identity and cultural distinctiveness. To designate some of this as intangible is to signal the ephemeral ­components of culture or performative culture.’ Amanda Kearney, ‘Intangible Cultural Heritage: Global Awareness and Local Interest’ in Laurajane Smith and Natsuko Akagawa (eds), Intangible Heritage (Routledge 2009) 210. See also Michael F Brown, ‘Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property’ (2005) 12 Int’l J of Cultural Property 40. 268 Roderick J McIntosh, ‘Social Memory in Mande’ in Roderick J McIntosh (eds), The Way the Wind Blows: Climate, History, and Human Action (Columbia University Press 2000) 141. 269 Liz Ševčenko, ‘Sites of Conscience: Heritage of and for Human Rights’ in Helmut K ­Anheier and Yudhishthir Raj Isar (eds), The Cultures and Globalization Series 4: Heritage, Memory and Identity (Sage Publications 2011) 120. 270 Ibid. 271 Ibid. 272 William S Logan, ‘Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage Protection’ in Helaine Silverman and D Fairchild Ruggles (eds), Cultural Heritage and Human Rights (Springer 2007) 42; Sevcenko, ‘Sites of Conscience’ (n 269) 120.

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There are also, however, ‘negative’ uses of heritage. This happens when governments employ ‘selective versions of “national cultural heritage” to force ­minority groups to adapt to the dominant culture, effectively wiping out their own cultural identity.’273 Therefore, heritage cannot be viewed as neutral; contemporary anthropologists remind us that heritage often has a discursive ­dimension that speaks to the power relationships behind the manifestation of cultural meanings.274 As Skounti observes: What we consider today as heritage was not always so; it becomes heritage through the intervention of a variety of diverse factors. It is not a given from the outset; it is produced, and there are numerous elements at stake in this production … Finally there are cultural stakes which rest on the affirmation of a strong, homogenous and unchanging identity, sometimes manipulated to mobilise people.275 In other words, cultural narratives are competing discourses of power. Once we see narratives that are sustained by memories as competing ­discourses of power, the imposition of such narratives and meanings on heritage becomes a form of misappropriation, because it involves the process of transforming the meanings behind heritage and practice. One of the more prevalent forms of misappropriation involves the invention of new discourses to displace old ones.276 A vivid example of how these aspects of cultural heritage are played out in the context of a conflict between the dominant group and the minority is offered by contemporary anthropologist Janette Philp, who 273 Logan, ‘Closing Pandora’s Box’ (n 272) 42. 274 Not only do groups compete over the meaning of practices in the context of preservation, but there is also a tension as to who gets to decide ‘what to remember [and] what to forget’. D Fairchild Ruggles and Helaine Silverman, ‘Cultural Heritage and Human Rights’ (n 261) 12–13; Logan, ‘Closing Pandora’s Box’ (n 272) 34: ‘Heritage is the result of a selection process. It is not everything from our history—heritage and history are not one and the same. The aim of heritage protection is to pass on this selection of things with their values intact and in authentic condition.’ See also Ahmed Skounti, ‘The Authentic Illusion: Humanity’s Intangible Cultural Heritage, the Moroccan Experience’ in Natsuko Akagawa and Laurajane Smith (eds), Intangible Heritage (Routledge 2009) 75. 275 Skounti, ‘The Authentic Illusion’ (n 274) 75; Mary Kenny, ‘Deeply Rooted in the Present: Making Heritage in Brazilian Quilombos’ in Natsuko Akagawa and Laurajane Smith (eds), Intangible Heritage (Routledge 2009) 154. 276 Janette Philp, ‘The Political Appropriation of Burma’s Cultural Heritage and its Implications for Human Rights’ in Mairead N Craith et al (eds), Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice (Routledge 2010) 83.

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demonstrates how efforts towards nation-building in Myanmar/Burma have had the effect of denying ethnic and religious minority groups their sense of past and identity.277 In her field studies, Philp notes the intricate relationships between Buddhism and indigenous beliefs, and discusses the importance of Buddhism throughout Burmese history and culture and in the everyday lives of the local people.278 In order to forge a sense of national identity, the m ­ ilitary regime sponsored Theravada Buddhist merit-making rituals of p ­ atronage, ‘[­including] the restoration and reconstruction of Burma’s cultural heritage sites (for ­example, pagodas, temples and monasteries) and the revival or ­reinvention of Burmese cultural traditions (for example, the giving of dana [­religious ­offerings] and patronage of members of sangha [monkhood]).’279 Worshippers and military leaders gather in state-sponsored Theravada ­Buddhist sites, while the latter seek to represent the locals in merit-making rituals as ‘joint acts of merit’.280 The meanings of traditional rituals have thus been appropriated for political purposes and this has offended local believers who do not accept the legitimacy of the government. They feel that the government ‘has challenged the spiritual integrity of Theravada Buddhism in Burma as it has sought to appropriate its beliefs, values and institutions, as well as its traditions, rituals and symbols, as a means of legitimating its political power and authority.’281 On other occasions, the Burmese government initiated plans to reconstruct heritage sites glorifying a sixteenth-century Burmese king who conquered the province where the Mon minority historically resided.282 Meanwhile, the cultural heritage sites of the Mon minority were allowed to deteriorate, thus denying the Mon their right to assert their uniqueness and distinctiveness.283 Philp demonstrates how, by building a dominant historical narrative which is privileged over others, the state has sought to suppress the minorities’ opportunities to assert their uniqueness and distinctiveness, in order to weaken their group identity and sense of belonging and to attach connotations of inferiority to their cultural identity.284 This sense of inferiority is inculcated through repeated practices (habitus) and might lead individuals to harbour resentment 277 Ibid. 278 Ibid. 279 Ibid 84. 280 Ibid. 281 Ibid. 282 Ibid. 283 Ibid. 284 Ibid.

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or negative feelings towards their group, thus weakening the cohesion and identity of the minority group as a whole.285 Philp’s account demonstrates how narratives which sustain heritage and identity turn out to be especially vulnerable as they become the grounds for conflict between the majority population and minorities, and as governments try ‘to weld disparate ethnic groups into a more cohesive and harmonious ­national entity.’286 The observation that heritage here is being manipulated points to an important fact: heritage or memory is not something of the past, but, as Lowenthal argues, ‘The prime function of memory … is not to preserve the past but to adapt it so as to enrich and manipulate the present.’287 In this way, we cannot understand heritage or practice by imagining it to be simply a product of historical processes, but only by understanding the ‘present’: the process through which discourses are formed and the extent to which these discourses affect people both emotionally and practically. In this vein, Comaroff and Comaroff argue that we must look at the ‘[p]roduction [of cultural narratives and discourses] in imaginative and material practice, of those ­compound political, economic, and cultural forms by means of which human beings create community and locality and identity … by means of which, in the face of material and moral constraint, they fabricate social realities and power relations and impose themselves on their lived environments; by means of which space and time are made and remade.’288 To conclude, while culture could be viewed as a system of symbols and meanings, culture is also lived and sustained through the individual. In this sense, culture and heritage could also be viewed as communal memory. The idea of communal memory ‘implies that memory itself is only relevant if it is situated within a socio-cultural context.’289 In fact, communal memories are 285 Ibid 85. Philp summarises the general strategy taken by the military regime in its pursuit of nation-building: ‘The first approach involves the promotion of the ethos of “unity in diversity”, which allows minority groups to express cultural diversity, but only where this does not contest “national” identity. The second approach involves the destruction of cultural heritage such that minority groups have been denied the right to assert their own cultural particularity, that is, their own cultural heritage and cultural identity. The third approach involves the assimilation of minority groups into a cohesive “national” cultural identity with their cultural heritage appropriated and redefined as “national” heritage.’ 286 Logan, ‘Closing Pandora’s Box’ (n 272) 42. 287 David Lowenthal, The Past is a Foreign Country (Cambridge University Press 1985) 210. 288 Jean Comaroff and John L Comaroff, ‘Occult Economies and the Violence of Abstraction: Notes from the South African Postcolony’ (1999) 26 Am Ethnologist 279. 289 Laura McAtackney, Gobopaone Senata and Susan Keitumetse, ‘Memory and Identity as Elements of Heritage and Tourism in Southern Africa’ in Helmut Anherier and Yudishthir

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sustained by the cultural narratives that produce them. While it is true that cultural heritage endows individuals with meanings and so is significant to community members, cultural heritage also implies the imposition of power, as different actors strive to impose their versions of ‘the truth’. An investigation into heritage at the level of discourse, and at the level where heritage is performed, reveals the power relations behind the articulation of narratives associated with both tangible and intangible heritage (as will be demonstrated in Chapter 3).290 We should not presume that engagement with cultural heritage is necessarily satisfying to the individual. Heritage and the performance of heritage are often manipulated in the creation (or destruction) of group identities. Cultural meanings are ‘defined, challenged and negotiated’:291 ‘[T]he focus is on the dynamic nature of culture as an ongoing process in which people are not just culture-bearers, but they also appropriate and alter the meanings by which they live.’292 This view enables a more dynamic illustration of culture and a deeper insight into the cultural process. Culture cannot simply be understood as the symbolic/meaningful universe and treated as a ‘text’ which is objective and unchanging.293 By studying the discourse through which culture is practised, it is possible to understand how ‘culture’ is used in compelling uniformity, in mobilising the masses and in defining interethnic conflicts.294 As Cohen observes: The interpretations which people make of behaviour, of symbols, of the world, are not usually random. Although profoundly influenced by ­personal experience, they are made within terms which are characteristic of a given group, and are affected … by its language, its ecology, its traditions of belief and ideology, and so on. The vehicles of interpretation are symbols, which are by their very nature malleable, maneuverable, manipulable by those who use them.295

Raj Isar (eds), The Cultures and Globalization Series 4: Heritage, Memory and Identity (Sage Publications 2011) 157. 290 See Sections 3.4.2 and 3.4.2.1. 291 Verkuyten, The Social Psychology of Ethnic Identity (n 173) 230. 292 Ibid. 293 Ibid. 294 Ibid. 295 Anthony P Cohen, Self Consciousness: An Alternative Anthropology of Identity (Routledge 2013) 17.

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Therefore, to understand ‘culture’ and its workings, we must scrutinise the production of discourses and interrogate the contexts, and especially the power relations, which underlie their production. 2.6

Discourse and Identity: The Narrativisation of the Self

The previous section introduced several important concepts. It examined culture as a system of contested narratives and discourses, and explored how ‘power’ plays a role in shaping these narratives. These contested narratives are then reproduced through the habitus; i.e. through actual engagement with these symbolic discourses, this knowledge becomes an unquestioned part of our ‘selves’. In this sense, heritage can be used to mobilise and construct identity. Sections 2.5.2 and 2.5.3 illustrated an important point: that meanings and discourses are at times contested. The multivocality and diversity of meanings in culture is perhaps the best evidence that culture is a site of contestation and contradiction.296 As Wolf notes, ‘[Although culture constructs our reality], symbolic work is never done [and] achieves no final solution. The cultural assertion that the world is shaped in this way and not in some other has to be repeated and enacted, lest it be questioned and denied.’297 Cohen ­similarly ­observes that ‘[G]roups have to struggle against their own contradictions, which lie precisely in the fact that they are composed of individuals, self-­conscious individuals, whose differences from each other have to be resolved and reconciled to a degree which allows the group to be viable and to cohere.’298 Conceptualising this ‘contestation’ (between the individual and prevailing discourses) has become an important theme for contemporary ­anthropologists, as it hinges on other important concepts such as self, identity and agency. In fact, viewing culture as a collection of narratives has enabled contemporary anthropologists to re-examine the concept of identity. The ‘self’ ­refers to the ways in which an individual views herself,299 while identity is the

296 See text accompanying supra n 194–209. 297 Wolf, ‘Distinguished Lecture: Facing Power’ (n 248) 593. 298 Cohen, Self Consciousness (n 295) 11. 299 Grace G Harris, ‘Concepts of Individual, Self and Person in Description and Analysis’ (1989) 91 Am Anthropologist 599: ‘[Self is the conceptualisation of a human being as a locus of experience], including experience of the human’s own someoneness.’

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‘­narrativisation of the self’.300 In essence, identity is the process of interpretation: interpreting from prevailing discourses301 who we are and who we ought to be.302 Identity is a sense of being and knowing—it informs us not only of who we are, but also of why we are here, where we should go from here and what things would be appropriate/inappropriate to do.303 The concept of identity is sometimes difficult to grasp, as it often invokes two different ideas: personal identity and group identity. Is an individual’s personal identity the same as the group’s? Does an individual acquire a group identity as a part of her personal identity? Indeed, it is very difficult to conceptualise identity as either something that pertains to the individual or something that pertains to the group. Barth, for instance, observes that ‘People participate in multiple, more or less discrepant, universes of discourse; they construct different, partial and simultaneous worlds in which they move; their cultural construction of reality springs not from one source and is not of one piece.’304 Therefore, a better way to understand identity is not to determine to whom the identity belongs (i.e. whether it belongs to the group or the individual), but to consider identity to signify the relationship between culture and the individual.305 Building on Erikson’s observations, Verkuyten notes that: [When dealing with ‘identity’] we deal with something which can be experienced as ‘identical’ in the core of the individual and yet also identical in the core of a communal culture, and which is, in fact, the identity of those two identities.… [T]he identity concept is not about individuals as 300 Hall, ‘Introduction: Who needs “Identity”?’ (n 6) 4. Hall notes that identity is the ‘narrativization of the self’. He further argues that the ‘necessarily fictional nature of this process in no way undermines its discursive, material or political effectivity, even if the belongingness, the “suturing into the story” through which identities arise is, partly, in the imaginary’. 301 Verkuyten, The Social Psychology of Ethnic Identity (n 173) 17: ‘People make their own lives, negotiate meanings, and change prevailing views and ideas to their own insights and desires.’ 302 Barth, Ethnic Groups and Boundaries (n 176) 30: ‘[C]ertain constellations of categorization and value orientation have a self-fulfilling character.’ 303 For example, it has been argued that ethnicity may sometimes provide answers to the ‘­perennial problems of life: the question of origins, destiny and, ultimately, the meaning of life.’ See Thomas H Eriksen, Ethnicity and Nationalism: Anthropological Perspectives (Pluto Press 1993) 45. 304 Barth, ‘The Analysis of Culture in Complex Societies’ (n 128). 305 Sökefeld, ‘Debating Self, Identity and Culture’ (n 54) 429–430: ‘Culture and self are complementary concepts that have to be understood in relation to one another in order to avoid the reification of one or the other.’

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such, nor about society as such, but the relation of the two. It is about the intricacies, paradoxes, dilemmas, contradictions, imperatives, superficialities, and profundities of the way individuals relate to and are related to the world in which they live.306 Verkuyten’s point is that we should not take identity as it ‘is’; instead, we should focus on how identity is formed. Identities ‘are never unified … [but are] ­fragmented and fractured, never singular but multiply constructed across different, often intersecting and antagonistic, discourses, practices and ­positions. They are subject to a radical historicization, and are constantly in the process of change and transformation.’307 Identity is therefore a ‘hybrid, often discontinuous inventive process.’308 In essence, we can conclude that contemporary anthropological a­ pproaches attempt to link culture (i.e. as sets of discourses or dispositions of cultural knowledge and the symbolic representation of the social world) to agency (through concepts of individuality, self and identity),309 and connect the l­ atter to wider questions of discourse, power and how realities are constructed. First, discourses and narratives convey cultural meanings. Second, discourse implies power, in the sense that discourses may be easily manipulated to sustain forms of social or structural relationships. Third, through the habitus, cultural knowledge becomes personal knowledge (as an unquestioned part of the ‘self’) and is ‘legitimised’ through this process. In this regard, identity is fluid and shaped by prevailing discourses. ‘Who we are’ cannot be separated from ‘who we ought to be’. Identity is not only a sense of being but also a sense of becoming, and is therefore seen as ‘actively accomplished within particular rhetorical contexts and by mobilizing and interpreting cultural discourses. The focus is on the r­ elational nature of social life and the discursive construction and use of social categories.’310 306 Verkuyten, The Social Psychology of Ethnic Identity (n 173) 42. Emphasis added. See Erik H. Erikson, ‘The Concept of Identity in Race Relations: Notes and Queries’ (1966) 95 Daedalus 145. 307 Hall, ‘Introduction: Who needs “Identity”?’ (n 6) 4. 308 James Clifford, The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art (Harvard University Press 1988) 10. 309 Alan Barnard and Jonathan Spencer, ‘Glossary’ in Alan Barnard and Jonathan Spencer (eds), Encyclopedia of Social and Cultural Anthropology (Routledge 1996) 595: ‘An agent is a person who is the subject of action. Agency … suggests intention or consciousness of action.’ 310 Verkuyten, The Social Psychology of Ethnic Identity (n 173) 81; Hall, ‘Introduction: Who needs “Identity”?’ (n 6) 4. Hall notes that identities are ‘about questions of using the

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2.6.1 Identity and Resistance: Gender As identity is ‘fragmented and fractured’, the motivation behind an individual’s engagement in culture is never solely attributable to prevailing cultural discourses. Identity, to quote Verkuyten again, is about ‘the intricacies, paradoxes, dilemmas, contradictions, imperatives, superficialities, and profundities of the way individuals relate to and are related to the world in which they live.’311 The uniqueness of individuals means that it is impossible to map out every factor that contributes to the individual’s experience, from which her motivations may stem.312 Each individual has a personal history impossible to capture in words alone. An important question then arises: is it possible to conceptualise an individual’s resistance and complicity with respect to cultural practices, and to take into account her motivations and state of mind as she takes part in those practices?313 Despite the fact that each individual has a personal history that is particular and unique to herself, Moore argues that ‘[I]t is in the intersection of this history with collective situations, discourses and identities that the problematic relationship between structure and praxis, and between the social and the individual, resides.’314 What she suggests is that we may move towards a better understanding of an individual’s experience and engagement with culture through a deeper understanding of how that individual views her sense of self, since resistance and complicity reflect individual agency which is, in turn, deeply integral to identity and subjectivity.315 The relationship between gender and culture provides a good example of how this could be examined. When we speak of gender, it is easy to think of gender as composed of social roles and expectations.316 In fact, earlier anthropological studies f­ocused on understanding the distinctive roles of men and women in d­ifferent ­societies.317 Although gender roles differ from society to society, it was ­recognised that g­ ender was an important consideration when it came to the ­resources of history, language and culture in the process of becoming rather than being: not “who we are” or “where we came from”, so much as what we might become, how we have been represented and how that bears on how we might represent ourselves. ­Identities are therefore constituted within, not outside representation.’ 311 Verkuyten, The Social Psychology of Ethnic Identity (n 173) 42. 312 See Section 2.5.3. 313 Moore, A Passion for Difference (n 213) 49. 314 Ibid 50. 315 Ibid. 316 See Section 4.3.2. 317 Sally E Merry, Gender Violence: A Cultural Perspective: Introduction to Engaged Anthropology (Wiley-Blackwell 2009) 10.

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division of ­labour.318 Nevertheless, from the 1980s onwards, social roles were increasingly considered insufficient to describe the social experience of gender. ­Rather, ­gender has been increasingly viewed, not as a fixed role formed by social e­ xpectations, but as an identity that is enacted through dynamic social interactions.319 In other words, gender is not ascribed through sets of expectations, but is actively achieved through the performance of identity.320 By fulfilling gender performances, individuals accomplish their gender identity, ‘reinforc[ing] the way they feel about themselves and their membership in groups.’321 In this sense, gender could also be said to be ‘performative’; that is, an identity that is defined and redefined through repeated or reiterated acts of consolidated self-expression (the habitus).322 In light of the above, ‘The basic premise of [contemporary a­ nthropological] thinking on the subject is that discourses and discursive practices provide subject positions, and that individuals take up a variety of subject positions within different discourses.’323 One important implication is that it is no longer ­sufficient to view an individual through the lens of a single subject position (such as gender, race or ethnicity). Rather, ‘Individuals are multiply ­constituted subjects … [who] take up multiple subject positions within a range of d­iscourses and social practices.’324 Consequently, contemporary ­anthropologists hold the view that the individual is composed of ‘multiple and contradictory positionings and subjectivities.’325 These ‘multiple subjectivities’ contribute to the totality of the individual’s subjective experience.326 318 Ibid. 319 Ibid. 320 Ibid; Moore, A Passion for Difference (n 213); Denise A Segura, ‘Chicanas in White-Collar Jobs: “You Have to Prove Yourself More”’ in Louise Lamphere, et al (eds), Situated Lives: Gender and Culture in Everyday Life (Routledge 1997). 321 Merry, Gender Violence (n 317) 11. 322 Butler, Gender Trouble (n 6); Sara Salih, ‘On Judith Butler and Performativity’ in Karen E Lovaas and Mercilee M Jenkins (eds), Sexualities and Communication in Everyday Life: A Reader (Sage Publications 2007). 323 Moore, A Passion for Difference (n 213) 55; Bourdieu, Outline of a Theory of Practice (n 6); Barth, ‘The Analysis of Culture in Complex Societies’ (n 128). 324 Moore, A Passion for Difference (n 213) 55. 325 Ibid. 326 Ibid 55–58: ‘The notion of the subject as the site of multiple and potentially contradictory subjectivities is a very useful one. If subjectivity is seen as singular, fixed and coherent, it becomes very difficult to explain how it is that individuals constitute their sense of self—their self-representations as subjects—through several often mutually contradictory subject positions, rather than through one singular subject position.’ See also Teresa de Lauretis, Feminist Studies/Critical Studies (Macmillan London 1986) 9 on the ‘concept

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The above understanding of identity enables us to move away from viewing gender identity as determined by gender roles ascribed by the values and norms held jointly by a group or a collectivity.327 Rather than a fixed and static entity (as the functionalists held), the multiply constituted self suggests that individual identity is fluid. Moreover, the subjective self is constantly in the ­dynamic process of shaping and reshaping itself.328 It is shifting and sometimes contradictory. This implies that culture (understood as a system of ­discourses and discursive practices) does not determine behaviour—as earlier anthropologists suggested329—although it is a ‘necessary scene of agency’.330 Since performing gender is an action that is culturally informed, this suggests that cultural identity and gender are mutually constitutive; i.e. although conceptually they are separate discursive sites, these identities nevertheless ­intersect to form distinctive positions unique to the subjective experience of the i­ndividual, which cannot be understood from a linear understanding of cultural identity or gender alone.331 The application of this concept in law is explored in detail in Chapter 4.332 To conclude, over decades anthropologists have sought ways to understand how culture affects behaviour. The issue has to do with the conscious or ­unconscious character of different explanations of culture: how has ­culture ­influenced the minds of human beings and thus their social behaviour? Is the human mind the product of culture, or its author? In answering these ­questions, anthropologists have tended to oscillate between ‘two diametrically opposite of a multiple, shifting, and often self-contradictory identity … an identity made up of heterogeneous and heteronomous representations of gender, race and class, and often indeed across languages and cultures.’ 327 See Section 2.2.1. 328 Salih, ‘On Judith Butler and Performativity’ (n 322) 8: ‘Like social constructionism, performativity assumes that there is not a single, objective social reality readily acknowledged by all. Rather, our social worlds are constantly being made and remade through all kinds of symbolic interactions.’ 329 See Section 2.2.1. 330 Salih, ‘On Judith Butler and Performativity’ (n 322); Butler, Gender Trouble (n 6) 147; Moore, A Passion for Difference (n 213) 51: ‘Gender difference, like other forms of difference, is not merely an effect of signification or language. If we accept the view that the concept of the individual or person is only intelligible with reference to a culturally and historically specific set of categories, discourses and practices, then we have to acknowledge the different ways in which the categories “woman” and “man”, and the ­discourses which employ those categories, are involved in the production and reproduction of notions of personhood and agency.’ 331 Ibid. 332 See Sections 4.3.2–4.3.2.4.

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theoretical positions’:333 first, the idea that conscious individuals build their own social universe, which can be observed and accounted for in their behaviour, and second, the idea that the social universe is regulated by general principles of social life quite distinct from individual choice and consciousness.334 What contemporary anthropology has succeeded in explaining is how culture influences behaviour, by pointing out how culture (as a collection of discourses and narratives) affects/shapes the individual to the extent that these narratives become an unquestioned part of personal knowledge (i.e. identity), which helpfully provided an analytical exit from earlier debates. Individuals are both the authors and the products of culture: individuals act in accordance with their agency, but culture provides the ‘necessary scene of agency’.335 2.7 Conclusions Chapter 2 explored different conceptions of culture in anthropology. ‘­Culture’ as understood in anthropology is a broad concept. Section  2.2 began by ­exploring the earlier use of the term to denote the differences among different human groups, i.e. culture as the total or distinctive way of life of a people, ­denoting a distinctive way of thinking, feeling and believing, as r­ eflected in different customs, traditions, thoughts and value orientations. Section 2.3 ­explored ‘culture’ as the organisation of society, ultimately traceable to the ­satisfaction of functional needs. The difference between culture as a collection of values, beliefs and thoughts (explored in Section  2.2) and as the ­organisation of society prompted the question: does culture exist merely as an ‘abstraction’? It was explained how ‘culture’ is at times invoked to denote meanings and values, and at other times as an analytical concept to explain observable behavioural patterns. Yet, both concepts entail very different approaches and modes of theoretical enquiry. Section 2.4 explains how culture came to be viewed as the totality of the symbolic aspects of social life, and that through the use of symbols, the environments in which we live are endowed with meaning. It is through symbols that individuals are connected to the ­wider world. Nevertheless, the conceptions of culture explored in Sections 2.2 and 2.4 raise similar epistemological issues. These concern, for instance, the divide between subjectivity and objectivity (i.e. the difference between how

333 Moore, Visions of Culture (n 5) 320. 334 Ibid. 335 Salih, ‘On Judith Butler and Performativity’ (n 323) 59.

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actors perceive culture and how analytical models portray culture)336 and the issue of structure and agency (i.e. intentions and motivation),337 used to critique traditional views of ‘social structure’ from the perspective of individual choice and decision-making.338 While some constructions of ‘culture’ were abandoned by a­ nthropologists, others came to be seen in a very different light. For instance, while it was agreed that culture provides individuals with worldviews (Section  2.4), and deeply shapes their selfhood and identity (Section 2.2), this understanding gave way to more nuanced approaches to conceptualising individual behaviour, i.e. ­approaches that built on ideas of disjunction, contradiction and contestation, and favoured ‘strategies, interests and improvisations over the more static and homogenizing cultural tropes of rules, models and texts.’339 Section  2.5 explored how actors are mobilised through culture (as a system of meanings), how culture is reproduced and legitimised and how the r­eproduction of culture implies notions of power. These approaches prompted anthropologists to investigate the meanings produced by the social and the political, i.e. the ‘unbounded [and] contested’ meanings that are ‘connected to relations of power.’340 The contestations associated with culture as a system of meanings illustrate that culture is dynamic and heterogeneous rather than ‘static, unchanging and monolithic’.341 In contrast to an understanding of culture as equivalent to tradition or social heritage, culture is now seen as embodying a ‘fluid, contested, and changing set of values and practices’.342 As Preis remarks: A major implication of these perspectives is that ethnography is no ­longer defined as the interpretation of distinct, ‘whole’ ways of life, but rather as a series of specific dialogues, impositions, and inventions. Cultural difference is no longer viewed as a stable, exotic otherness; self–other relations

336 See Section 2.4. See also Moore, Visions of Culture (n 5) 268; Roy Rappapor, ‘Humanity’s Evolution and Anthropology’s Future’ in Robert Borofsky (ed), Assessing Cultural Anthropology (McGraw-Hill 1994) 153–166. 337 See Section 2.5. 338 Ortner, ‘Theories in Anthropology since the Sixties’ (n 7) 177. 339 Lila Abu-Lughod, ‘Do Muslim Women Really Need Saving? Anthropological Reflections on Cultural Relativism and its Others’ (2002) 104 Am Anthropol 783. 340 Sally E Merry, ‘Human Rights Law and the Demonization of Culture (And ­Anthropology Along the Way)’ (2003) 26 PoLAR 55, 67.; Kuper, Culture: The Anthropologists’ Account (n 46) 231: ‘Culture serves power, and … it is (and should be) contested.’ 341 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 340) 67. 342 Ibid.

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are increasingly considered to be matters of power and rhetoric rather than essence.343 The discussion of these issues reminds us that we should be cautious of ­explanations of culture which purport to generalise culture; ‘Such terms as ­objectivity, neutrality, and impartiality refer to subject positions once e­ ndowed with great institutional authority’344 and have gradually been displaced by ­perspectives which stress the vibrant nature of culture.345 This calls for a contextual enquiry into different forms of power and how these are played out in the context of culture as a system of narratives and discourses. For contemporary anthropologists, the question is no longer what culture ‘is’ but how ­culture, as the shared (but sometimes contested) system of meanings, practices and symbols that constitute our realities, is produced and reproduced at specific times and in specific spaces.346 The history of anthropology tells us that, when ‘culture’ is invoked, it often brings with it certain theoretical assumptions that tend to be overlooked. If we construe culture as having to do with values and beliefs, it is easy to think of culture as determining an individual’s behaviour. If we construe cultures as self-sustained ‘wholes’, this often invokes the idea of homogeneity and internal coherence, such that the diversity of individuals is compromised. If we simply read culture as a collection of symbolic ‘texts’, the intrinsically political nature of the process of meaning-making is often ignored. These assumptions are powerfully ingrained in our everyday usages of the term. Chapter 3 will explore the protection of cultural rights in the work of the un human rights treaty bodies. It will focus on examining how different conceptions of culture have yielded different state obligations. As the chapter will demonstrate, when the concepts discussed above are invoked in a legal context, these theoretical assumptions have practical consequences. In essence, if we were to regard culture as primarily functional, we would necessarily ­presume that cultural activities are teleological, thus justifying individual sacrifice.347 But if we were to approach culture as a system of values and beliefs, 343 Ann-Belinda S Preis, ‘Human Rights as Cultural Practice: An Anthropological Critique’ (1996) 18 hrq 286; Kuper, Culture: The Anthropologists’ Account (n 46) 226–234. 344 Renato Rosaldo, Culture and Truth: The Remaking of Social Analysis (Beacon Press 1989) 20. 345 Kuper, Culture: The Anthropologists’ Account (n 46) 216. 346 Comaroff and Comaroff, ‘Occult Economies and the Violence of Abstraction’ (n 288); Moore and Sanders, ‘Anthropology and Epistemology’ (n 16) 13–14; Moore, A Passion for Difference (n 213) 11. 347 See Section 3.4.3.

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we would be adopting an essentialised understanding of culture and overlooking culture as a process (and the struggles associated with this process).348 Both ­conceptions of culture potentially undermine the law’s ability to address the nuances of meaning-making, and so need to give way to an understanding which stresses hybridity, contestation, contingency and contradiction.349 348 Ibid. 349 Ibid.

chapter 3

Cultural Rights in the Work of the Treaty Bodies [D]epriving individuals of their culture is treated as wronging them directly, over and above any wrong done to them by undermining other aspects of their dignity.

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cindy holder, ‘Culture as a Basic Human Right’1

∵ 3.1 Introduction International human rights law protects culture as a human right through a set of rights collectively known as ‘cultural rights’. Adopted in 1949, Article 27 of the Universal Declaration of Human Rights (udhr) provides that: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.2 * An adapted version of this chapter was published in the Human Rights Law Review. See Pok Yin S Chow, ‘Culture as Collective Memories: An Emerging Concept in International Law and Discourse on Cultural Rights’ (2014) 14(4) Human Rights Law Review 611. 1 Cindy Holder, ‘Culture as a Basic Human Rights’ in Avigail Eisenberg (ed) Diversity and Equality: The Changing Framework of Freedom in Canada (ubc Press 2006) 82. 2 Acting under the auspices of the un Economic and Social Council (ecosoc), in 1947 the Commission on Human Rights began to draft the udhr. For more information on the drafting of the udhr, see the United Nations Department of Public Information, These Rights and Freedoms (United Nations DoPI, 1950) 5–11; Yvonne Donders, Towards a Right to Cultural Identity? (Intersentia 2002) 139–140.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004328587_004

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At the time of its inception, ‘cultural rights’ was a relatively new concept.3 ­Although a few national constitutions, such as the 1946 French Constitution and the 1918 Soviet Constitution, provided for culture-related rights, neither the un Charter nor the Constitution of unesco recognised culture in the context of human rights, but rather saw it as something that served human rights and through which the universal enforcement of justice, rule of law, human rights and fundamental freedoms could be achieved.4 Culture was, for many years, ‘taken for granted’5 and was frequently addressed in the context of other rights, such as the right to religion or the freedom of opinion and expression.6 Nevertheless, it did not take long for the international community to include culture as a category of human rights. In 1966, the icescr was adopted. Closely resembling Article 27 of the udhr, Article 15 of the icescr provides that: 1.

2.

3.

The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

3 unesco, Cultural Rights as Human Rights (unesco 1970) 9. In fact, initial drafts of the udhr did not contain a reference to culture. This was introduced by the us delegation to the Commission on Human Rights, who proposed the enjoyment of ‘minimum standards of ­ economic, social and cultural well-being’ as a worthy category of human rights. See unchr, ‘Drafting Committee: International Bill of Rights’ (11 June 1947) un Doc E/CN.4/AC.1/3/Add.1; Donders, Towards a Right to Cultural Identity (n 3) 141; Johannes Morsink, The Universal Declaration of Human Rights: Origin, Drafts and Intent (University of Pennsylvania Press 1999) 366. 4 Ibid. See also Constitution of the United Nations Education, Scientific and Cultural Organisation (adopted 16 November 1945, entered into force 4 November 1946) 4 unts 275 (‘unesco Constitution’). 5 unesco, Cultural Rights as Human Rights (n 4) 9. 6 Ibid.

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The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.7

Read literally, Article 15 of the icescr presents three substantive rights: the right to cultural participation (Article 15(1)(a)); the right to benefit from ­scientific advantages (Article 15(1)(b)); and the right to benefit from the protection of intellectual property (Article 15(1)(c)). These rights are to be substantiated by supporting freedoms, such as academic and creative freedom (Article 15(3)), measures including conservation, development and diffusion (Article 15(2)) and international contacts and cooperation (Article 15(4)).8 Nevertheless, the scope of Article 15 of the icescr has expanded over the decades, to the extent that a literal interpretation of the article is insufficient to capture the rights and obligations that it now embodies. The purpose of this chapter is to address how cultural rights have developed in the context of the un human rights treaty bodies. Although there was initially ‘little appreciation of the nature of these rights and the corresponding obligations imposed on States’,9 cultural rights have now evolved to occupy an important place in the work of the treaty bodies. Article 15(1)(a) of the icescr (the right to cultural life) was a critical starting point for this process, and will be the main focus of this chapter.10 The phrase ‘cultural life’ makes the right to take part in cultural life the broadest in scope of all cultural rights. As will be demonstrated, ‘cultural life’ not only encompasses artistic, literary and creative activities, but also covers popular culture and the cultural activities of minorities and indigenous communities (such as their traditions and customs).11 The phrase ‘cultural life’, although vague, afforded the flexibility to incorporate varying obligations, and brought to the fore other important concepts such as (the right to) cultural identity and (the right to) cultural heritage.12 Beyond the icescr, the right to take part in cultural life was ­subsequently adopted 7 8

9 10 11 12

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3, article 15. cf Stephen Marks, ‘Defining Cultural Rights’ in Morten Bergsmo (ed), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (Martinus Nijhoff Publishers 2003). Rod Fisher et al, Human Rights and Cultural Policies in a Changing Europe: The Right to Participate in Cultural Life (Helsinki University Press 1994) 73. For an explanation of why the book takes the right to participate in cultural life as a starting point, see Chapter 1. See Section 3.3.3. See Sections 3.3.5.2 and 3.3.6.

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by ­numerous conventions including the crc (Article 31(1)),13 cerd (Article 5(vi)),14 the cmw (Articles 43(1)(g) and 45(1)(d)),15 the crpd (Article 30),16 and cedaw (Article 13(c)),17 which together reflect the importance of this right for vulnerable groups such as children, migrant workers, persons with disabilities and women, although each of these articles has a slightly different focus. These differences reflect the specific needs of the respective vulnerable groups. For instance, the formulation of Article 15(1)(a) of the ­i cescr is broad and general, while cedaw and cerd stress the right to equal participation in cultural life and cultural activities, as these covenants address discrimination against women and racial discrimination respectively.18 On the other hand, Article 30(1) of the crpd not only provides for the right of persons with disabilities to take part in cultural life on an equal basis with others, but also specifies that states must ensure that they have access to cultural materials in ‘accessible formats’.19 The language of Article 30(1) of the crpd sought to make the needs of persons with disabilities explicit, for example by making it a ­requirement

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Article 31(1) of the crc provides that ‘States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.’ Article 5(vi) of cerd provides that ‘States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law … [and] the right to equal participation in cultural activities.’ Article 43 of the cmw provides that: ‘1. Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to: … (g) Access to and participation in cultural life.’ Article 45(1)(d) of the cmw provides that: ‘1. Members of the families of migrant workers shall, in the State of employment, enjoy equality of treatment with nationals of that State in relation to: … (d) Access to and participation in cultural life.’ See text accompanying infra n 20. Article 13 of cedaw provides that ‘States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: … (c) The right to participate in recreational activities, sports and all aspects of cultural life.’ Article 13(c) cedaw; article 5 cerd. Article 30(1) of the crpd provides that: ‘1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities: (a) Enjoy access to cultural materials in accessible formats; (b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats; (c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.’

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that cultural materials should be accessible to persons with sight, hearing or other disabilities. For other vulnerable groups, ‘access to culture’ may have different implications. The jurisprudence arising from these sources supplements and reaffirms some of the cescr’s interpretations of Article 15(1)(a) of the icescr. This material will be highlighted where relevant (although it must be noted that, at the time of writing, such work remains scarce, and A ­ rticle 15 of the icescr remains the richest source of jurisprudence on cultural rights within the un human rights treaty bodies). The fact that the right to participate in cultural life is widely adopted across the core un human rights treaties is another major reason why this chapter focuses heavily on this right. Although the right to take part in cultural life is generally considered the broadest of all cultural rights,20 important references to cultural rights can be found scattered across various treaties. These include, for example, Article 29(1)(c) of the crc, which provides that the education of the child should be directed to ‘the development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own’.21 In fact, for children from minority groups, the right to receive an education consistent with their cultural values is an important right, which is also emphasised in the work of the Human Rights Committee (hrc), the treaty body of the iccpr.22 Another example is found in Article 31 of the cmw, which provides that ‘States Parties shall ensure respect for the cultural identity of migrant workers and members of their families and shall not prevent them from maintaining their cultural links with their State of origin.’23 This article clearly falls within the scope of cultural rights, as it demands that states parties make sure migrant workers’ ‘access to culture’ is not hindered in any way,24 although ‘culture’ here takes on a very specific meaning, i.e. as national ‘culture’. The work of the Committee on the Rights of the Child (crc) and the Committee on Migrant Workers (cmw) in these respective areas will be noted where education and identity are discussed.25 The hrc is another important source of law for cultural rights. Over the years, the hrc has developed a remarkable jurisprudence on the cultural 20 21 22 23 24 25

Marks, ‘Defining Cultural Rights’ (n 9). For a detailed discussion, please see Chapter 1. Article 29(1)(c) crc. See Section 3.3.5.4. Article 31 cmw. The purpose of cultural rights is to ensure the individual’s ‘access to culture’. For a detailed discussion, see Chapter 1. Note that work by the crc and cmw in these areas remains scarce.

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rights of minorities based on Article 27 of the iccpr. In fact, the cultural rights of minorities and indigenous groups have become increasingly significant, ­especially when culture is viewed by the treaty bodies as referring to a ‘distinctive way of life’.26 Although the work of the hrc has focused on the rights of minorities to enjoy their culture, it has deeply influenced the most recent developments in relation to the right to take part in cultural life. Section 3.2 begins by explaining the workings of the treaty bodies and their respective mandates and approaches in realising the human rights of all. This provides a context for Section 3.3, which analyses the texts produced by the treaty bodies. Section  3.3 discusses the specific legal obligations that Article 15 of the ­i cescr entails, by looking at how understandings of ‘culture’ or ‘cultural life’ have developed over these decades. This section considers how the conception of culture in the work of the treaty bodies on cultural rights evolved from addressing culture as the fine arts, to addressing culture as popular culture, and eventually to addressing culture as the way of life of a people. Over this period, the treaty bodies have taken various approaches to ‘culture’ that reflect three different dimensions of the concept: culture in its material sense, as a process and as a system (or a symbolic universe). As the treaty bodies address these different dimensions, new state obligations are articulated. This section demonstrates how these dimensions interact with each other to become three ­overlapping layers of protection of cultural rights for individuals and communities. Section  3.4 explores some of the conceptual issues relating to the rapid ­expansion of cultural rights. In particular, if cultural rights acknowledge the symbolic dimension of culture (in ways resembling the approach taken by symbolic anthropologists), they necessarily also have to acknowledge that culture is ‘everywhere’, because meaning is infused into every human activity. If so, do cultural rights therefore require the protection of every human activity? Are there perhaps limits to the protection of cultural rights? Or has ‘culture’ ceased to be a viable legal concept? These questions are by no means trivial, as they touch upon issues concerning the enforceability and justiciability of these rights. A concept that is vague makes it difficult to determine legal obligations. This section raises two examples to demonstrate that although the symbolic notion of culture implies that culture is everywhere, cultural rights are not thereby undermined. This is because cultural rights do not seek to protect or preserve cultural symbols; rather, they seek to ensure that individuals and communities are able to create and express cultural meanings. 26

See Section 3.3.5.

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Nevertheless, this section demonstrates that when the treaty bodies talk about the protection of culture, culture is assumed to be a body of knowledge that individuals share equally. This is inconsistent with contemporary anthropologists’ views on culture, which treat culture/cultural knowledge as a system of contested and contradictory discourses and narratives. This more recent perspective brings issues surrounding the conservation of cultural heritage and other forms of cultural knowledge (such as history) to the fore: heritage is highly selective, and the question of what is to be remembered and forgotten is contentious. Section 3.4 argues that culture in this sense should be viewed as a heuristic device to facilitate a more nuanced understanding of subtle violations of cultural rights. Section 3.5 concludes by summarising the findings outlined above. It points out that omitting the political dimension of culture can represent a serious obstacle to the protection of cultural rights. Although it would not be appropriate to replace current jurisprudence with an entirely new approach to culture, the political dimension of culture (or the view that culture consists of discourses and competing narratives) should be properly acknowledged in the work of the treaty bodies, as suggested above. 3.2 The un Human Rights Treaty Bodies There are currently nine core un human rights treaties. These treaties can be categorised into three different groups: (1) the iccpr and the icescr (which, together with the udhr, are often referred to informally as the ‘international bill of rights’); (2) the Convention against Torture (cat), the Convention for the Protection of All Persons from Enforced Disappearance (cped) and cerd, i.e. treaties that address thematic human rights issues (such as torture, enforced disappearances and racial discrimination); and (3) the cmw, cedaw, crc and crdp, i.e. treaties that address the rights of vulnerable groups including migrant workers, women, children and persons with disabilities. When a state ratifies or accedes to a treaty, it accepts the legal obligations to protect and promote human rights created by that treaty. Some of these treaties are supplemented by optional protocols which states parties to the respective treaty may ratify. They strengthen the original treaties, either by offering additional monitoring procedures or by elaborating further substantive rights consistent with those treaties. The nine core global human rights treaties provide for the setting up of an ­independent body to monitor state implementation of treaty obligations. These bodies, known as treaty bodies (or committees), are composed of ­independent

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experts (or committee members) who serve on a voluntary basis. The treaty bodies convene one to three times annually, depending on their respective workload and the financial resources available. 3.2.1 The Working Methods of the un Human Rights Treaty Bodies The terms of reference for each of the un human rights treaties are slightly different. Firstly, all conventions provide for a compulsory state reporting procedure. This procedure requires states parties to periodically submit a report on the implementation of the treaty, providing, among other information, a realistic assessment of the human rights situation of the state party, in addition to the legal, administrative, judicial and other measures adopted towards the realisation of treaty rights.27 It is usual practice for treaty bodies to also invite ­local ngos to comment on the accuracy of these government reports in the form of ‘shadow reports’. The government reports and the supplementary information submitted by ngos are then discussed by the committee members in public sessions, in the presence of state delegations, with a view to ­facilitating a ‘constructive dialogue’.28 The respective committee will then suggest p ­ ossible improvements, or, on occasions, highlight the positive aspects of states’ implementation of the relevant provisions in the form of p ­ ublic documents referred to as ‘concluding observations’ or ‘concluding recommendations’. As each of the human rights treaty bodies has a periodic review ­procedure, the reporting procedure is ‘the single most important activity of the treaty ­bodies’.29 To ensure that the state reports are properly structured—i.e. that the reports address relevant issues and not irrelevant ones—some committees have drawn up a set of reporting guidelines30 containing detailed questions on each of the rights pertaining to the respective covenants. States’ reports are expected to adhere to these guidelines as far as possible. General comments/­recommendations are also drawn up by the committees from time to time, to further assist states parties in fulfilling their reporting obligations. These documents embody the essential interpretive views of the committees 27

28 29 30

See e.g. un Committee on Economic, Social and Cultural Rights, ‘General Comment No 1’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008), un Doc HRI/GEN/1/Rev.9 (vol 1) at 1 (‘cescr, General Comment No 1’), para 2. un ohchr ‘Monitoring the Core International Human Rights Treaties’ accessed 1 February 2017. Michael O’Flaherty, ‘The Concluding Observations of Human Rights Treaty Bodies’ (2006) 6 Human Rights Law Review 27. Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford University Press 2009) 231.

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and are intended to clarify the content of the covenant rights.31 Both the reporting guidelines and the general comments/recommendations provide good insights into how the respective treaty bodies interpret covenant rights. Secondly, all treaties, except for the crc, provide for individual communication procedures should states ratify the respective optional protocols or make the relevant declarations. Individual communication procedures allow an alleged victim of a human rights violation to lodge a formal complaint with the appropriate treaty body. As soon as a communication is received by the committee, the relevant state party should file a comment with the committee on both the admissibility and the merits of the complaint within six months. The author of the original communication is then given the opportunity to reply to the state party’s arguments. Should the state party fail to comment, the committee will proceed to assess the merits of the complaint based on the author’s allegations, if the committee finds the allegations credible. On completing this assessment, the committee will indicate whether rights have been violated in a document referred to as the ‘views’ of the committee. Thirdly, some treaties provide for interstate communication, which a­ llows a state party to the treaty to file an allegation against another state on the basis of a violation of a covenant right. These treaties include the icescr (­Article 10), the iccpr (Article 41), cat (Article 21), cerd (Articles 11–13) and the cmw (Article 76). However, note that these procedures have never been invoked.32 It has been argued that states have been highly cautious of invoking the i­nterstate communication procedure, regarding it as ‘a Pandora’s Box, which all parties prefer to keep shut’.33 Fourthly, cat, cedaw, the crpd, the cped and the op-icescr grant the respective committees the power to investigate allegations of serious, grave or 31

32 33

To give an example, some states in their periodic reports contend that for minorities to be protected under article 27 of the iccpr (which sets out the rights of minorities to their language, religion and culture) they also need to be citizens of the state. General Comment No 23 of the hrc clarifies that to enjoy the right provided for under article 27 of the iccpr, the members of the minority population at issue need not be citizens; i.e. the scope of article 27 of the iccpr is not restricted to citizens alone. un Human Rights ­Committee, ‘General Comment No 23’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008), un Doc HRI/GEN/1/Rev.9 (vol 1) at 208 (‘hrc, General Comment No 23’), para 5.1. un ohchr ‘Human Rights Bodies—Complaints Procedure’ accessed 1 February 2017. un ecosoc ‘Status of the International Covenants on Human Rights: Draft Protocol to the International Covenant on Economic, Social and Cultural Rights’ (18 December 1996) E/CN.4/1997/105, para 14.

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systematic violations of treaty rights on their own initiative, should they receive reliable and well-founded information regarding these allegations. This procedure is referred to as the ‘enquiry procedure’. The findings of the enquiry procedure are confidential unless the state consents to their disclosure, although a summary account of the findings may be published. For instance, the Committee against Torture (cat) has conducted enquiries into nine states including Turkey, Egypt, Peru, Sri Lanka, Mexico, Serbia and Montenegro, Brazil and Lebanon, and the summaries of the findings are accessible to the public.34 In the first six of the states listed, the Committee concluded that there was a pattern of systematic torture.35 Fifthly, when a complaint procedure is triggered after an alleged human rights violation has taken place, the op-icescr and the op-cat each offers a preventive procedure which seeks to prevent systematic violations of human rights through site visits. Like the enquiry procedure, reports of preventive measures are confidential and will not be published unless the state party consents, although, under cat, the Sub-Committee against Torture does have the authority to publish such reports where states fail to cooperate. The significance of the enquiry and preventive procedures for cultural rights will not be studied in this chapter, as they have never been invoked with respect to cultural rights. Lastly, the Committee on the Elimination of Racial Discrimination (cerd) has developed an early-warning procedure to respond to emerging issues requiring immediate attention. The aim of the early-warning procedure is to ‘address [sic] existing structural problems from escalating into conflicts’ and ‘to prevent or limit the scale or number of serious violations’.36 Based on the information received, cerd will make specific requests for action including requiring states parties to furnish information on the situation and the actions they have taken to remedy it. The early-warning procedure has been invoked in situations such as escalating racial hatred and violence, large-scale internal displacement linked to racial discrimination and where credible information points to extreme acts of violence (such as the bombing of villages, e­ xtrajudicial

34

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un ohchr, ‘Confidential Inquiries under Article 20 of the Convention against Torture’  accessed 1 February 2017. In the context of cultural rights, this procedure has never been invoked. unga ‘Prevention of Racial Discrimination, Including Early Warning and Urgent Action Procedures: Working Paper adopted by the Committee on the Elimination of Racial Discrimination’ (1993) un Doc A/48/18, Annex iii, para 8.

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killings and rape) targeted at minorities.37 Instances where the e­ arly-warning procedure has been invoked in relation to cultural rights are noted below. 3.2.2 The Significance of the Work of the Treaty Bodies Unlike international courts or tribunals, the treaty bodies are not judicial bodies. Jurisprudence produced by the treaty bodies is generally considered to be non-legally binding. Nonetheless, the work of the treaty bodies is significant in several ways. Although the concluding observations and recommendations are advisory in nature, they are generally of high persuasive value and contain the committee’s interpretation of treaty article provisions, owing to the fact that the committees are endowed with the mandate to monitor state compliance with the respective treaties. Under international law, an international body may exercise various powers that are not explicitly provided for by a treaty; these powers are considered to be implied if they are necessary for the body to fulfil its functions.38 As O’Flaherty argues, the authority of the concluding observations is ‘most apparent in situations where the treaty bodies pronounce on issues of violation of the treaties and where they otherwise purport to interpret treaty provisions’.39 Furthermore, from a normative, standard-setting point of view, the purpose of the mandatory periodic review procedure has moved beyond the provision of technical advice to the promotion of voluntary selfcompliance, and in this sense the periodic review procedure has the potential to shape state practice. A similar view could be taken regarding the general comments and recommendations. Note that the interpretations of treaty provisions contained in the general comments and recommendations are often broader than originally anticipated by the drafters of the treaties. Human rights treaties should not be viewed as static and unchanging, but as living instruments40—the ­obligations 37 38

39 40

unga ‘Guidelines for the Early Warning and Urgent Action Procedures’ (2007) un Doc A/62/18, para 7. Reparation for Injuries Suffered in the Service of the un (Advisory Opinion) [1948] icj 121. In the Reparations case, the icj ruled that ‘Under international law, the organization must be deemed to have those powers which, though not expressly provided … are conferred upon it by necessary implication, as being essential to the performance of its duties.’ O’Flaherty, ‘The Concluding Observations of Human Rights Treaty Bodies’ (n 30) 36. The nature of human rights treaties as living instruments is expressly acknowledged by the crc: ‘[T]he Convention, like all human rights instruments, must be regarded as a living instrument, whose interpretation develops over time.’ See un Committee on the Rights of the Child, ‘General Comment No 8’, in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’

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contained in these treaties evolve over time—although some states parties and commentators disagree with the approach of the committees, arguing that the role of the treaty bodies is to monitor state compliance with treaty obligations, not to ‘create’ human rights.41 Nevertheless, in practice, the interpretations of the treaty bodies often ‘[shape] the practice of States in applying the Convention and may establish and reflect the agreement of the parties regarding its interpretation.’42 In other words, although they are not binding per se, they affect state reporting obligations and behaviour, both domestically and internationally.43 Views expressed in individual communications are closest to judicial decisions, and are often considered ‘quasi-judicial’. These views are, strictly speaking, non-legally binding, but committees have in many cases received ‘de facto recognition of [their] decisions, which closely resemble judicial judgements in terms of form and content’ by virtue of their ‘high-quality jurisprudence’.44 It is generally the case that states comply with these decisions in cases to which they are parties.45 Moreover, it is arguable that the individual communications procedure also has a deterrent effect. As Alston points out, ‘[T]he mere possibility that complaints might be brought in an international forum should encourage governments to ensure that more effective local remedies are available’.46 Although the doctrine of stare decisis does not strictly apply to the documents and practice of the committees, they have strived to ensure the ‘consistency and coherence of its jurisprudence’, even though there are ­instances when reviews of the jurisprudence in light of international legal ­developments are required.47

41 42 43 44 45 46

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(27 May 2008), un Doc HRI/GEN/1/Rev.9 (vol 2) at 488 (‘crc, General Comment No 8’), para 20. Stephen Tully, ‘A Human Right to Access Water? A Critique of General Comment No 15’ (2005) 23 Neth Q Hum Rts 35, 42. Theodor Meron, Human Rights Law-Making in the un: A Critique of Instruments and Process (Clarendon Press 1986) 10. Tully, ‘A Human Right to Access Water’ (n 42) 42. Kälin and Künzli, The Law of International Human Rights Protection (n 31) 220. O’Flaherty, ‘The Concluding Observations of Human Rights Treaty Bodies’ (n 30). Philip Alston, ‘Establishing a Right to Petition under the Covenant on Economic, Social and Cultural Rights’ in Philip Alston et al (eds), International Human Rights in Context: Law, Politics, Morals (3rd edn, Oxford University Press 2007) 364. Sandy Gandhi, ‘The Human Rights Committee and Interim Measures of Relief’ (2007) 13 Canterbury L Rev 203, 225.

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Cultural rights represent one of the five recognised categories of rights, along with civil, political, economic and social rights.48 The fact that the icescr came to be the primary treaty addressing cultural rights cannot be understood in isolation from its historical context. After the udhr was adopted, there was a plan to draft a single human rights treaty drawing upon the udhr.49 However, owing to ideological differences during the Cold War era, this idea was abandoned. With liberal democracies favouring civil and political rights on one hand, and the communist bloc favouring economic and social rights on the other, these differences prompted the adoption of two separate treaties: the iccpr and the icescr.50 The iccpr seeks to protect individuals from violations of civil liberties and political freedoms. The icescr recognises that individuals are entitled to economic rights (such as the right to unionise51 and the right to fair wages52 and safe working conditions53), social rights (including minimum guarantees regarding health,54 social security55 and housing56) and cultural rights (which declare that everyone is free to participate in cultural life and to engage in and benefit from scientific, artistic and literary pursuits).57 This development positioned the icescr as the core treaty with an explicit mandate for cultural rights.58 3.3.1 Cultural Rights and the cescr The Committee on Economic, Social and Cultural Rights (cescr) was established in 1986.59 At the time of its inception, it was the only human rights 48 49

Yoram Dinstein, ‘Cultural Rights’ (1979) 9 Israel yb Hum Rts 58, 58. Kitty Arambulo, ‘Drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Can an Ideal Become Reality?’ (1996) 2 uc Davis J Int’l L & Pol’y 111, 120. 50 Ibid. 51 Article 8 icescr. 52 Article 7(a)(i) icescr. 53 Article 7(b) icescr. 54 Article 12 icescr. 55 Article 9 icescr. 56 Article 11 icescr. 57 Articles 15(1)(a) and (c) icescr. 58 Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (Martinus Nijhoff Publishers 2007) 48. 59 From 1978 to 1986, the implementation of the icescr fell within the mandate of the Working Group of the Economic and Social Council. The Working Group was transformed into

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treaty body specifically mandated to address cultural rights, i.e. to oversee and monitor the implementation of Article 15 of the icescr.60 However, during its first few years of existence, Article 15 was given only limited attention by states parties in their periodic reports.61 As a result, in 1990 the cescr issued a set of revised guidelines (‘1990 Revised Guidelines’).62 The 1990 Revised Guidelines contained a clear list of the information that states were required to provide in their periodic reports to the Committee under Article 15, establishing the initial principles upon which the Committee’s future work on the article would be based. The effects of the 1990 Revised Guidelines on the legal obligations of states parties under the provision will be explored in detail in the following sections, but, in essence, they required states parties to provide information regarding the promotion of cultural development, the setting up of cultural infrastructure (such as museums and libraries), the role of mass media in the dissemination of culture and cultural information, the preservation of cultural heritage and the ‘[p]romotion of cultural identity as a factor of mutual appreciation among individuals, groups, nations and regions.’63 ‘Culture’ or ‘cultural life’ was not defined anywhere in the 1990 Revised Guidelines.64 Later, the scope of protection envisaged in the 1990 Revised Guidelines was considered insufficient to deal with violations of cultural rights. A subsequent

a committee of 18 independent experts in 1986: the Committee on Economic, Social and Cultural Rights. See un ecosoc, ‘Review of the Composition, Organization and Administrative Arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights’ (28 May 1985) un Doc E/RES/1985/17; Matthew C R Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Clarendon Press 1995) 1. 60 Both article 27 of the udhr and article 15 of the icescr ‘confirm the right to take part in cultural life as well as to share in the benefits of scientific progress.’ It has therefore been argued that the ‘difference between the two provisions lies in their grammatical form rather than in substance.’ Dinstein, ‘Cultural Rights’ (n 49) 74–75. 61 Stamatopoulou, Cultural Rights in International Law (n 59) 48; Donders, Towards a Right to Cultural Identity (n 3) 83. 62 un Committee on Economic Social and Cultural Rights, ‘Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by State Parties under Articles 16 and 17 of the International Convention on Economic, Social and Cultural Rights’ (17 June 1991) un Doc E/C.12/1990/8 Annex iv (‘1990 Revised Guidelines’) 108. The guidelines are intended to ‘provide a uniformly applicable framework within which the Committee can work and enable it to demonstrate a consistency of approach from one report to another.’ 63 Ibid. 64 Ibid.

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attempt by the Committee to review the scope of Article 15 took place in 1992.65 In that year, the cescr held its first Day of General Discussion on the right to take part in cultural life, based on a report compiled by the then-member for Senegal, Samba Cor Konaté.66 The Day of General Discussion sought to expand and consolidate the content of Article 15, in preparation for a general comment on the article.67 The Day of General Discussion was helpful in identifying and elaborating several important concepts that form the very basis of Article 15, such as the right to have access to culture, to enjoy its benefits, to demand its protection and to contribute to its development, and the right to cultural identification (such as the right of an individual to assert her identity and to establish relations with her cultural community).68 It highlighted the situation of minorities and argued not only that minorities should be given recognition and equal protection, but that in order to honour their right to take part in cultural life, priority must be given to the protection of their cultural rights, including their right to speak their language and to practise their customs.69 However, the cescr was not able to publish the anticipated general comment due to the death of Konaté, and the next Day of General Discussion on Article 15 did not take place until 2008.70 During the period from 1992 to 2008, the cescr interpreted the right to take part in cultural life primarily through its concluding observations.71 Meanwhile, Article 15 received limited attention in General Comment No. 5 (on persons with disabilities)72 and General ­Comment 65 Stamatopoulou, Cultural Rights in International Law (n 59) 48. 66 un Committee on Economic, Social and Cultural Rights, ‘General Discussion on the Right to Take Part in Cultural Life as Recognized in Article 15 of the Covenant’ (11 December 1992) un Doc E/C.12/1992/SR.17. 67 Ibid. 68 Ibid. 69 Ibid. 70 un Committee on Economic, Social and Cultural Rights, ‘General Comment No 21: Right of Everyone to Take Part in Cultural Life of the International Covenant on Economic, Social and Cultural Rights’ (21 December 2009) un Doc E/C.12/GC/21 (‘cescr, General Comment No 21’), para 5. 71 Individual communications under the icescr were only made available in 2009 with its first optional protocol. unga Res 63/177 (10 December 2008) un Doc A/RES/63/117; un Committee on the Rights of the Child, ‘General Comment No 8’, in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 2) at 488 (‘crc, General Comment No 8’), para 20. 72 un Committee on Economic, Social and Cultural Rights, ‘General Comment No 5’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations

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No. 6 (on the economic, social and cultural rights of older persons),73 wherein the cescr sought to articulate the right to take part in cultural life in relation to these vulnerable groups. General Comment No. 15 (on the right to water) also referred to the right to take part in cultural life when it noted the relationship between the use of water resources and its importance for protecting the way of life of indigenous groups.74 While General Comment No. 17, adopted by the cescr in 2005, elaborated on the protection of intellectual property under Article 15(1)(c) of the icescr,75 it fell short of addressing Article 15(1)(a) on the right to take part in cultural life, which embraces a much wider range of cultural rights. In 2008, the cescr adopted a new set of reporting guidelines which serves to replace the 1990 Revised Guidelines;76 nevertheless, there is no substantial difference in the interpretation of the scope and content of ­Article 15 (both of which will be discussed presently). In December 2009, the cescr adopted General Comment No. 21 on ­Article  15(1)(a) of the icescr, marking a milestone in the development of ­cultural rights within the work of the treaty bodies.77 The contribution of General Comment No. 21 is manifold. It summarised the cescr’s interpretations of the provision as embodied in its earlier concluding observations and other general comments. In addition, it expanded on its previous work, incorporating the latest developments in relation to cultural rights in international legal discourse, and transformed the ways in which ‘culture’ and thus cultural rights could be viewed. It also articulated concrete and practical obligations towards

73

74

75

76

77

­Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 17 (‘cescr, General Comment No 5’), para 15. un Committee on Economic, Social and Cultural Rights, ‘General Comment No 6’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 27 (‘cescr, General Comment No 6’), paras 36–42. un Committee on Economic, Social and Cultural Rights, ‘General Comment No 15’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008), un Doc HRI/GEN/1/Rev.9 (vol 1) at 97 (‘cescr, General Comment No 15’), para 16(d). un Committee on Economic, Social and Cultural Rights, ‘General Comment No 17’, Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 123 (‘cescr, General Comment No 17’). un Committee on Economic, Social and Cultural Rights, ‘Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights’ (24 March 2009) un Doc E/C.12/2008/2 (‘2008 Reporting Guidelines’). cescr, General Comment No 21.

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the applicability of Article 15(1)(a)—such as enumerating the minimum core obligations and introducing acceptability and appropriateness tests—further clarifying the attribution of responsibility and improving the justiciability of the right.78 In essence, General Comment No. 21 of the cescr provides a comprehensive instrument for the interpretation of the right to take part in cultural life that was long overdue. These aspects of General Comment No. 21, and earlier documents relating to cultural rights, will be studied at length below. 3.3.2 General Principles Governing Article 15 of the icescr As an esc right, several normative principles govern the application of ­Article 15 of the icescr. The first is the principle of non-discrimination, which is an overarching theme of the Covenant.79 The application of rights contained in the icescr must conform to Articles 2(2) and 3 of the icescr without ­discrimination as to, inter alia, race, colour, sex, language, religion, origin or other status.80 The second principle concerns the tenets of progressive realisation and minimum core obligations.81 Article 2 of the icescr provides that states undertake to ‘achiev[e] progressively the full realization of the rights’ contained in the Covenant.82 This stipulation acknowledges the resource implications of fulfilling economic, social and cultural rights, and provides leeway for states to fulfil such obligations in a progressive manner. However, this does not mean that states are free from any immediate obligations. In this respect, the cescr has articulated the concept of minimum core obligations, which obliges states ‘to ensure the satisfaction of … minimum essential levels’ of esc 78

For an introduction to the issue of justiciability concerning esc rights, see un Committee on Economic, Social and Cultural Rights, ‘General Comment No 9’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 47 (‘General Comment No 9’), paras 9–10; Michael J Dennis and David P Stewart, ‘Justiciability of Economic, Social and Cultural Rights: Should there be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?’ (2004) 98 ajil 462; Martin Scheinin, ‘Economic and Social Rights as Legal Rights’ in Asbjørn Eide et al (eds), Economic, Social and Cultural Rights: A Textbook (2nd edn, Martinus Nijhoff Publishers 2001). 79 Articles 2(2) and 3 icescr. 80 Ibid. 81 Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 hrq 156, 172–177. 82 Article 2(1) icescr.

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rights,83 ­irrespective of the availability of resources.84 General Comment No. 3 of the cescr, for instance, notes that ‘[A] State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.’85 The minimum core requirements thus serve as a ‘bottom line’ for economic, social and cultural rights,86 without which the Covenant would be deprived of its raison d’être.87 In the context of cultural rights, the minimum core obligations include taking legislative measures to ensure non-discrimination, respect for the right of all individuals to identify themselves and respect for the right to engage in cultural practices; eliminating barriers to obstacles which restrict access to culture; and encouraging minority groups’ participation in cultural life by preserving their ways of life and cultural expressions.88 The third principle is known as the tripartite typology,89 i.e. the obligations to respect, protect and fulfil.90 The obligation to respect requires states 83

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un Committee on Economic, Social and Cultural Rights, ‘General Comment No 3’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations ­Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 7 (‘cescr, General Comment No 3’), para 10. International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (26 January 1997) accessed 1 February 2017 (‘Maastricht Guidelines’), para 9; Stamatopoulou, Cultural Rights in International Law (n 59) 154. Stamatopoulou refers to these obligations as the ‘obligations of immediacy’. cescr, General Comment No 3, para 10. Eva Brems, ‘Human Rights: Minimum and Maximum Perspectives’ (2009) 9 Human Rights Law Review 349, 355. cescr, General Comment No 3, para 10; Stamatopoulou, Cultural Rights in International Law (n 59) 153. Stamatopoulou views the issue of core obligations for cultural rights as ‘very much … [one] of democracy and not necessarily one of public financial resources.’ cescr, General Comment No 21, para 55. Henry Shue, ‘The Interdependence of Duties’ in Philip Alston and Katarina Tomasevski (eds), The Right to Food (Martinus Nijhoff 1985) 86; Eide, ‘Cultural Rights as Individual Human Rights’ (n 16) 234. cescr, General Comment No 21, para 48; un Committee on Economic, Social and ­Cultural Rights, ‘General Comment No 13’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 63 (2008), paras 46–47 (cescr, General Comment No 13’); un Committee on Economic, Social and Cultural Rights, ‘General Comment No 14’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/ Rev.9 (vol 1) at 78 (‘cescr, General Comment No 14’), para 33; cescr, General Comment

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to ‘refrain from interfering, directly or indirectly, with the enjoyment of the right to take part in cultural life.’91 General Comment No. 21 of the cescr calls upon states to respect the individual’s choice of identity, freedom of opinion, freedom to create and freedom to access heritage.92 The obligation to protect requires states to prevent third parties from interfering with the right, by enacting the required laws and/or implementing the required administrative policies.93 The obligations to respect and protect are often read together, especially in relation to cultural heritage and the protection of diversity.94 For instance, General Comment No. 21 of the cescr calls upon states parties to respect and protect cultural heritage, which entails that cultural heritage must be ‘preserved, developed, enriched and transmitted to future generations’95 without the interference of states or third parties (for example through deregulation and the privatisation of goods and services or through the illegal exploitation and appropriation of land by the state and private entities).96 The obligation to fulfil ‘requires States parties to take appropriate legislative, administrative, judicial, budgetary, promotional and other measures aimed at the full realization of the right enshrined in article 15, paragraph 1(a) of the Covenant.’97 General Comment No. 21 of the cescr calls upon states to adopt policies, provide financial means,98 implement programmes99 and devise curriculums100 in order to facilitate the promotion of cultural diversity and intercultural dialogue,101 to facilitate the development of cultural and linguistic No 17, para 28; un Committee on Economic, Social and Cultural Rights, ‘General Comment No 18’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/ Rev.9 (vol 1) (‘cescr, General Comment No 18’), para 22. See also the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (8 January 1987) un Doc E/CN.4/1987/17, Annex i, para 6. (‘Limburg Principles’); Maastricht Guidelines, para 6. 91 cescr, General Comment No 21, para 48. 92 Ibid para 49. 93 Ibid para 48; Maastricht Guidelines, paras 18–19. 94 cescr, General Comment No 21, para 50. 95 Ibid para 50(a). 96 Ibid para 50. 97 Ibid para 48; See also cescr, General Comment No 13, paras 46–47; cescr, General Comment No 14, para 33; cescr, General Comment No 17, para 28; cescr, General Comment No 18, para 22; Limburg Principles, para 6. 98 cescr, General Comment No 21, para 52. 99 Ibid paras 52 and 54(b). 100 Ibid paras 53 and 54(c). 101 Ibid paras 52(a), 52(b) and 53.

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minorities or preserve their culture,102 to grant assistance to artists and scientists103 and to eliminate discrimination so as to ensure that individuals have the chance and the freedom to express and develop their identities.104 The fourth principle involves a set of tests articulated in General Comment No. 21 of the cescr, which monitor the outcomes of the application of Article 15(1)(a) in both quantitative and qualitative ways. States are required to ensure (1) the availability of cultural goods and services, including the presence of the arts, literature, cultural institutions and cultural heritage in all forms;105 (2) the accessibility to the above within the physical and financial reach of all;106 (3) the acceptability of all laws and policies aimed at realising this right, including, inter alia, the obligation to consult individuals and groups on culturerelated matters which concern them;107 (4) the adaptability of such policies, taking into account the evolving nature of culture and cultural diversity;108 and (5) the appropriateness of the above with reference to native traditions and respect for individuals and communities.109 Last but not least, particular attention must be paid to vulnerable groups who suffer disproportionate harm.110 These include women,111 children,112 ­older persons,113 persons with disabilities,114 minorities,115 migrants,116 indigenous peoples117 and persons living in poverty.118 In some cases, governmental policies may reveal a general neglect of the rights of these groups. In other situations, these policies impose human indignity.119 Social attitudes may also lead to their ‘marginalization and invisibility [and] exclusion from participating in the cultural life of the rest of society.’120 .

102 Ibid paras 52(a) and 52(f). 103 Ibid paras 52(d) and 52(e). 104 Ibid para 52(i). 105 Ibid para 16(a). 106 Ibid para 16(b). 107 Ibid para 16(c). 108 Ibid para 16(d). 109 Ibid para 16(e). 110 Maastricht Guidelines, para 20. 111 cescr, General Comment No 21, para 25. 112 Ibid paras 26–27. 113 Ibid paras 28–29. 114 Ibid paras 30–31. 115 Ibid paras 32–33. 116 Ibid paras 34–35. 117 Ibid paras 36–37. 118 Ibid paras 38–39. 119 Stamatopoulou, Cultural Rights in International Law (n 59) 243. 120 Ibid.

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These general principles underlie the specific obligations of states with respect to Article 15 of the icescr. Definitions of Culture and Derived Obligations under Article 15 of the icescr As noted in Chapter 1, in the study of cultural rights we are often faced with a variety of approaches that commentators have adopted to date and which reflect the multidimensional nature of cultural rights.121 For instance, Marks divides the right to take part in cultural life into other rights, such as the right to education and the right to intellectual property.122 As culture encompasses a vast range of human activities, the right to take part in cultural life may embody a wide array of rights. It entails, inter alia, the right to popular participation in cultural life (including access to cultural institutions and participation in creative activities),123 the right to intellectual property, the right to education, the right of minorities to preserve and maintain their cultural distinctiveness (such as the right to use their own language, to practise their religion, to preserve their heritage and to use, develop and conserve their land) and the right to cultural identity.124 However, in analysing the scope of the right to take part in cultural life, it is perhaps unhelpful to break it down into many other rights.125 Besides the fact that some of these ‘rights’ are more accurately described as ‘normative principles’ governing the application of rights (for example, when we speak of a ‘right’ not to be discriminated against, we may really be referring to the principle of non-discrimination, which underlies all categories of rights), each of those ‘sub-rights’ is interconnected with many others, such as the right to freedom of expression, association, assembly and religion, in their own unique ways. For example, the right to cultural identity entails the freedoms of expression, association, assembly and religion in ways that concern the assertion of identity. The right to education within the context of the right to take part in cultural life may also entail freedom of association and religion in ways that concern the right to set up cultural institutions or the right to attend (or not attend) a religious school. In analysing the scope of Article 15 of the icescr, it is most useful to start with the definitions of culture covered by the texts of the

3.3.3

121 Vesselin Popovski, ‘Culture in International Law’ in Paul Meerts (ed), Culture and International Law (Hague Academic Press 2008) 58–59. Accordingly, different commentators have sought to impose different conceptual frameworks by which the right could be understood. 122 Marks, ‘Defining Cultural Rights’ (n 9). 123 2008 Reporting Guidelines (n 77), para 67. 124 Popovski, ‘Culture in International Law’ (n 122). 125 For a detailed explanation, see Chapter 1.

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treaty bodies and the range of activities which these definitions encompass. As noted earlier, the nature and scope of cultural rights heavily depend on how ‘culture’ is understood.126 Within the instruments of the cescr, the notion of culture in Article 15(1) (a) of the Covenant on Economic, Social and Cultural Rights embraces at least three different meanings:127 (1) Culture as high culture (i.e. culture in the traditional ‘highbrow’ sense) including art, literature, classical music, theatre and architecture;128 (2) Culture as ‘popular culture’, which involves a less elitist view of culture, incorporating the creative expressions of the general public—such as popular, folk and contemporary music, films, commercial radio and television and other leisure-related activities including organised sports and social events; and (3) Culture as a ‘way of life’,129 which acknowledges the fact that culture is embedded in our daily practices130 and encompasses our values, beliefs and ways of thinking and doing things.131 Following on from the idea of culture as a way of life, culture is also viewed as including the symbolic expressions underlying all these cultural manifestations. Stavenhagen notes that when culture is understood as a way of life, ‘[C]ulture is … seen as a coherent self-contained system of values and symbols as well as a set of practices that a specific cultural group reproduces over time and which provides individuals with the required signposts and meanings for behaviour and social relationships in everyday life.’132 Given such a broad 126 Ibid. 127 This categorisation is provided by O’Keefe in his widely cited work and remains very useful and highly relevant. See Roger O’Keefe, ‘The “right to take part in cultural life” under Article 15 of the icescr’ (1998) 47 iclq 904. 128 Ibid. 129 Ibid. 130 O’Keefe, ‘The “right to take part in cultural life”’ (n 128); Fergus MacKay, ‘Cultural Rights’ in Margot E Salomon (ed), Economic, Social and Cultural Rights: A Guide for Minorities and Indigenous Peoples (Minority Rights Group International 2005). 131 O’Keefe, ‘The “right to take part in cultural life”’ (n 128). 132 Rodolfo Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in Asbjørn Eide et al (eds), Economic, Social and Cultural Rights: A Text Book (2nd edn, Martinus Nijhoff ­Publishers 2001) 90. See e.g. Fribourg Declaration on Cultural Rights, accessed 1 February 2017 (‘­Fribourg Declaration on Cultural Rights’) article 4(d); cescr, General Comment No 21, paras 13, 43 and n 12.

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understanding, the protection of culture as a way of life encompasses a wide range of human activities. In the context of the treaty bodies, this protection extends to all kinds of cultural heritage and land from which forms of communal life spring. In addition, the work of the treaty bodies also covers other themes deriving from the protection of culture, including cultural identity and cultural diversity. The scope of obligations deriving from these definitions will be studied closely in the following sections. 3.3.4 Culture as High and Popular Culture The understanding of culture as ‘high culture’ derives from the travaux préparatoires of Article 27 of the udhr133 and Article 15 of the icescr. During the drafting of the udhr, the Czech delegate to the un Commission on ­Human Rights (unchr) saw the article ‘as involving a duty on the part of States to bring “masterpieces” and “treasures of culture” “within the reach of the masses”’.134 Culture was also understood by other delegates to refer to the creations of those few who could be called ‘artists’135 or ‘intellectual workers’.136

133 In 1951, ecosoc directed the Commission on Human Rights to include economic, social and cultural rights in the then-draft covenant on human rights. In the same year, the Commission began to discuss the content of economic, social and cultural rights in its seventh session, when the debates on the content of cultural rights took place. For a detailed study of the drafting process of article 27 of the udhr and article 15 of the icescr, see Morsink, The Universal Declaration of Human Rights (n 4). See also Donders, Towards a Right to Cultural Identity (n 3) 141; Ragnar Adalsteinsson and Pall Thorhallson, ‘Article 27’ in Gudmundur Alfredsson and Asbjørn Eide (eds) The Universal Declaration of Human Rights: A Common Standard of Achievement (Martinus Nijhoff Publishers 1999); O’Keefe, ‘The “right to take part in cultural life”’ (n 128). 134 O’Keefe, ‘The “right to take part in cultural life”’ (n 128) n 14; unga ‘Draft Covenant on Economic, Social and Cultural Rights’ (E/2573, Annex IA) un Doc A/C.3/SR.795, para 6; United Nations Department of Public Information, These Rights and Freedoms (n 3) 70–71. In the General Assembly, the Mexico delegate ‘pointed out that the Declaration had already recognized the rights of the wage earner, the family, the mother and the child. If the Committee wished to avoid a serious omission, the rights of the individual as an intellectual worker, scientist, or writer must be recognized.’ 135 See Adalsteinsson and Thórhallson, ‘Article 27’ (n 134) 577–580 noting the comments of the Chilean, Soviet, Ecuadorean and Peruvian delegates. 136 Ibid. Although it is tempting to read the article as including the protection of minorities (or ‘minority cultures’), that was not the intention of the drafters of article 27 of the udhr. In fact, protection of the rights of minorities was explicitly excluded.

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In 1951, the unchr began to draft the icescr. The final text was adopted by the un General Assembly (unga) in 1966. unesco played an important part in the drafting process by submitting the first draft of the proposal of what would later become Article 15 of the icescr.137 While unesco’s draft provided for access to books, publications and works of art, the preservation of certain cultural heritage and the cultural development of minorities, the final version, subsequently adopted, makes no specific reference to what constitutes ‘cultural life’.138 From the limited discussions which took place at the unchr139 and the unga140 on the content of ‘cultural life’, only the French 137 Proposals concerning the right to education and cultural rights, along with comments submitted by unesco, were considered by the Commission on Human Rights at the 226th to 230th meetings. unchr, ‘Draft International Covenant on Human Rights and Measures of Implementation: Draft Articles on Educational and Cultural Rights Submitted by the Director-General of the United Nations Educational, Scientific and Cultural Organization’ (18 April 1951) un Doc E/CN.4/541; unchr, ‘Report of the seventh session (Geneva, 16 Apr–19 May 1951)’ (24 May 1951) un Doc E/1992-E/CN.4/640. See un Committee on Economic, Social and Cultural Rights, ‘Day of General Discussion: The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’ (article 15(1) (c) of the Covenant): Background paper submitted by Maria Green’ (9 October 2000) un Doc E/C.12/2000/15; Yvonne Donders, ‘The Legal Framework of the Right to Take Part in Cultural Life’ in Yvonne Donders and Vladimir Volodin (eds), Human Rights in Education, Science and Culture: Legal Developments and Challenges (unesco Publishing and Ashgate 2007) 146. 138 One of the most interesting issues was another proposal by unesco concerning the role of cultural communities. It suggested including a reference to communities in article 15, and changing the wording to ‘to take part in the cultural life of the communities to which he belongs’. It was argued that individuals normally participate in the cultural life of various communities. States should not only recognise the right of every individual to participate in his or her national cultural life, but should also respect the right to have access to foreign cultures or the cultural life of smaller communities within the state. This proposal was, however, rejected by states. See also Donders, Towards a Right to Cultural Identity (n 3) 149. 139 The draft article 30 (now article 15) was adopted by the unchr at its seventh session. In the debates which took place in the unchr, the meaning of the term ‘cultural life’ was not discussed. It was noted that the ussr wanted to introduce a qualifier to the effect that science and culture should serve the interests of peace and democracy. Meanwhile, France urged the inclusion of authors’ rights. See un Doc A/C.3/SR.565; Donders, Towards a Right to Cultural Identity (n 3) 148. 140 As in unchr’s deliberations, there was limited discussion of the content of ‘cultural life’ in the General Assembly. The delegate from the ussr reiterated his concerns over the use of science and culture. The Czech delegate also submitted an amendment to include

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delegate’s contribution on the inclusion of the rights of authors seems to shed light on the meaning of culture (as high culture). The proposal was supported by the delegate from Uruguay, and was adopted in the final text.141 On a literal reading, one might argue that the scope of culture envisaged by Article 15 of the icescr is at least broader than that of its predecessor, Article 27 of the udhr, in the sense that it includes not only works of art and literature produced by artists, but also different forms of architecture and monuments of historical and cultural significance, as is evident from the explicit reference to their ‘conservation’ in Article 15(2) of the final text. Nevertheless, the understanding of cultural life in international legal discourse was expanded shortly after the adoption of the icescr. The concept of culture as ‘popular culture’ emerged in the late 1960s and 70s; at that time, it was gradually perceived that culture had a much greater reach than was ­anticipated in the udhr.142 Mass communication and other cultural and technological advancements had greatly increased the general population’s interest in culture.143 Culture had become more accessible to different people of different classes and social strata, to whom such information and knowledge had not been not so accessible in the past.144 In the statement adopted by the 1968 unesco Conference of Experts on Cultural Rights, it was observed that there was a ‘growing inclination to define culture in non-Elitist [sic] terms [and] a new recognition of the diversity of cultural values, artefacts and forms’,145 with culture no longer considered the ‘prerogative of the few’.146 The 1976 Recommendation on Participation in Cultural Life declared that: ‘peace and cooperation’ as the justification for science and culture, and raised the issue of international cooperation in the fields of science and culture. Similarly, Saudi Arabia also submitted an amendment to the effect that science and culture should serve the interests of progress and democracy. The proposals to limit the purpose of science and culture to be recognised in the Covenant were subsequently rejected, as it was felt that such a qualifier might invite state intervention in science and culture. See un Doc A./C.3/SR.798, 11. 141 Ibid 9. The Uruguayan delegate proposed that ‘[T]he right of the author and the right of the public were not opposed to but complemented each other. Respect for the right of the author would assure the public of the authenticity of the works presented to it’. 142 unesco, Cultural Rights as Human Rights (n 4). 143 Ibid. 144 Ibid 60–61: ‘The quantitative increase of messages … increases the extent of cultural ­exchange [and] … heightens the general level of aspirations. The increased flow of information creates fruitful ground for the growth of intercultural communication.’ 145 Ibid 105. 146 Ibid.

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[C]ulture is not merely an accumulation of works and knowledge which an elite produces, collects and conserves in order to place it within reach of all … culture is not limited to access to works of art and the humanities, but is at one and the same time the acquisition of knowledge, the demand for a way of life and the need to communicate.147 This broadened perspective led to the emergence of the concept of ‘popular participation in cultural life’,148 marking a significant shift in the interpretation of the right to participate in cultural life at the international level. This concept embraces several elements, including ‘popular culture’,149 in which respect the right to culture is considered to mean access to books, films, radio, television, newspapers and magazines,150 or what is generally referred to as ‘access to knowledge’151—signifying a move away from the traditional notion of culture as art and literature or the class of cultural products which academics have labelled ‘high culture’.152 A second element of the concept includes the ‘democratisation of ­culture’—i.e. the opening up of cultural institutions to the general public. This was strongly reflected in the 1976 Recommendation on Participation in Cultural Life, which defined its scope as covering ‘everything that should be done by Member States or the authorities to democratize the means and instruments of cultural activity, so as to enable all individuals to participate freely and fully in cultural creation and its benefits, in accordance with the requirements of social progress’ and further called for the decentralisation of 147 Preamble, unesco Recommendation on the Participation in Cultural Life (adopted at the 34th General Conference Plenary Meeting 26 November 1976) (‘1976 Recommendation on the Participation in Cultural Life’). 148 Marks, ‘Defining Cultural Rights’ (n 9) 304–306. 149 This concept is sometimes referred to as ‘mass culture’ in unesco documents. 150 See e.g. unesco Declaration of the Principles of International Cultural Cooperation (­adopted at the 14th General Conference Plenary Meeting 4 November 1966) (‘1966 Declaration on International Cultural Cooperation’). Although a definition of culture or any attempt to exhaustively set out its scope is difficult to find within the provisions of the 1966 Declaration on International Cultural Cooperation, article 3 provides that international cultural cooperation should cover all ‘intellectual and creative activities relating to education, science and culture.’ See O’Keefe, ‘The “right to take part in cultural life”’ (n 128). 151 Article 4(4) of the 1966 Declaration on International Cultural Cooperation provides that international cooperation should be aimed at ‘enab[ing] everyone to have access to knowledge, to enjoy the arts and literature of all peoples, to share in advances made in science in all parts of the world and in the resulting benefits, and to contribute to the enrichment of cultural life’. 152 O’Keefe, ‘The “right to take part in cultural life”’ (n 128).

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­facilities, ­activities and decisions concerning culture.153 Similarly, the need to ‘democratise culture’ was affirmed in the 1982 Mexico City Declaration.154 Making express reference to Article 27 of the udhr,155 it reiterated the need to ensure the ‘broadest possible participation … in the creation of culture goods, in decision-making and in the dissemination and enjoyment of culture’156 on the basis of non-discrimination.157 Along with the stress on democratising culture, political participation in areas concerning cultural life also became an emerging concern, as highlighted in the 1976 Recommendation on Participation in Cultural Life.158 Commenting on the 1976 Recommendation, Symonides argues that ‘Participation in cultural life presupposes [the] involvement of the different social partners in decision-making related to cultural policy as well as in the conduct and evaluation of relevant activities’.159 The idea of ‘participation’ brought significant implications for the understanding of ‘culture’, which was now understood to embrace two dimensions: passive culture and active culture.160 Passive culture refers to the freedom to enjoy or to ‘consume’ culture, whereas active culture refers to the freedom to participate in every aspect of cultural life.161 Likewise, Article 2(1) of the 1976 153 Section i 1976 Recommendation on Participation on Cultural Life. 154 1982 Mexico City Declaration, paras 17–22. 155 Ibid para 17. 156 Ibid para 18. 157 Ibid para 22. The importance of disseminating culture through education and the mass media was also noted. See 1982 Mexico City Declaration, paras 30–40. 158 Articles 3(c) and (d) 1976 Recommendation on the Participation in Cultural Life. See also 1982 Mexico City Declaration, para 21. 159 Janusz Symonides, ‘The History of the Paradox of Cultural Rights and the State of the ­Discussion within unesco’ (1993); ‘Les Droits culturels; une categorie sous-­developpee de droits de l’homme’ (Actes du VIIIe Colloque interdisciplinaire sur les droits de l’homme) 47, 59. 160 Imre Szabo, Cultural Rights (A W Sijthoff 1974) 45–47. 161 Ibid. In fact, this argument was made by Robinson, who based his study on the travaux préparatoires of article 27(1) of the udhr. It implies the right to both actively pursue and passively enjoy the arts and scientific progress without limitation or interference. See Nehemiah Robinson, The Universal Declaration on Human Rights: Its Origins, Significance, Application and Interpretation (Institute of Jewish Affairs 1958); Donders, Towards a Right to Cultural Identity (n 3) 147; unesco, Cultural Rights as Human Rights (n 4) 16. BoutrosGhali comments that there are two meanings to culture: ‘that of reception, where the human being is more or less a passive recipient of culture, and that of participation, where the human being is actively contributing to this general culture.’ As will be shown, the understanding that there is an active and a passive aspect to culture is still important today.

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Recommendation on Participation in Cultural Life recognises two elements of the right to participate in cultural life: access to culture and participation in cultural life. By the former, it means that ‘[C]oncrete opportunities [should be] available to everyone, in particular through the creation of the appropriate ­socio-economic conditions, for freely obtaining information, training, knowledge and understanding, and for enjoying cultural values and cultural property’.162 By the latter, it means that ‘[C]oncrete opportunities [should be] guaranteed for all groups or individuals to express themselves freely, to communicate, act, and engage in creative activities with a view to the full development of their personalities, a harmonious life and the cultural progress of society’.163 As a result of the wordings adopted, the interpretation of the right to participate in cultural life moved beyond a simple negative obligation to refrain, to positive obligations to provide. This interpretation also entails obligations that go beyond simply ensuring equal opportunities to participate in cultural life.164 By taking ‘active culture’ into account, the treaty bodies began to view ­culture less as a product or manifestation and more as a process.165 This has important implications. When culture is viewed as a process, it also includes different forms of artistic, creative and intellectual expression (i.e. culture is not just about access to cultural products).166 Moreover, culture read as a process presupposes certain things that are necessary or conducive to this ­process. The communication and transmission of culture became an ­implicit yet ­prominent concept underlying the protection of these rights, invoking other supporting rights such as the freedoms of expression and information. Participation also presupposes the freedoms of association and assembly.167 162 Article 2(a) 1976 Recommendation on Participation in Cultural Life. 163 Ibid article 2(b). 164 The provision of an ‘equal opportunity for all to participate in the … cultural life of the community’ was originally suggested by the us delegate to the unchr. See Morsink, The Universal Declaration of Human Rights (n 4) 218. 165 O’Keefe, ‘The “right to take part in cultural life”’ (n 128). 166 Article 3(a) 1976 Recommendation on Participation in Cultural Life: ‘[T]he concept of culture has been broadened to include all forms of creativity and expression of groups or individuals, both in their ways of life and in their artistic activities’. 167 Dominic McGoldrick, ‘Culture, Cultures, and Cultural Rights’ in Mashood Baderin and Robert McCorquodale (eds), Economic, Social and Cultural Rights in Action (Oxford University Press 2007) 453. Subsequent unesco instruments reaffirm this point. Article 6 of the 2001 Universal Declaration on Cultural Diversity provides that ‘[f]reedom of expression, media pluralism … and the possibility for all cultures to have access to the means of expression’ are indispensable to ensuring access for all to cultural diversity. 2001 unesco

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3.3.4.1 Culture as High and Popular Culture: Specific Obligations According to the 1990 Revised Guidelines adopted by the cescr, the obligations in relation to popular participation in cultural life involve three primary areas: (1) the protection and promotion of art, literature and other cultural a­ ctivities; (2) the establishment of and provision of access to cultural institutions and (3) respect for the role of mass media in the protection and promotion of culture.168 In earlier cescr instruments, the obligation on the part of the state to protect and promote the arts, literature and other cultural activities involves both negative and positive obligations. Negative obligations relate to freedom from censorship. For example, states are obliged to refrain from b­ anning plays and prohibiting books and periodicals169 and from imposing censorship on the mass media or on other literary and artistic works.170 Freedom from censorship was also construed in terms of freedom of expression.171 Positive obligations relate to duties to ensure access to arts and literature.172 This could take various forms, such as providing support and subsidies to ­cultural associations and artists,173 or, more importantly, setting up cultural institutions and ensuring individual access to these institutions.174 On other occasions, the cescr has noted the need to popularise such activities through the mass

168 169 170

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Universal Declaration on Cultural Diversity (2 November 2001) unesco Doc 31C/Resolution 25, Annex 1 (‘2001 Universal Declaration on Cultural Diversity’). 1990 Revised Guidelines (n 63), paras 1 (a), (b) and (e). See also 2008 Reporting Guidelines (n 77), para 67(a). cescr, Concluding Observations on Kenya (27 May 1993) un Doc E/C.12/1993/6, para 19. cescr, Concluding Observations on Egypt (23 May 2000) un Doc E/C.12/1/Add.44, para 25; cescr, Concluding Observations on Libyan Arab Jamahiriya (16 May 1997) un Doc E/C.12/1/Add.15, para 18; cescr, Concluding Observations on Iran (9 June 1993) un Doc E/C.12/1993/7, para 7: ‘The Committee expresses its concern over reports of censorship against expressions of a literary and artistic nature, and at the State party’s notion of “cultural security” to justify such censorship.’ See also cescr, General Comment No 21, para 49(c). cescr, Concluding Observations on the Democratic People’s Republic of Korea (29 ­November 1991) un Doc E/C.12/1991/4, para 157: ‘Concern was expressed that the machinery for the examination of works of art and literature for the purpose of publication could result in inadequate protection of freedom of expression.’ cescr, Concluding Observations on Guinea (28 May 1996) un Doc E/C.12/1/Add.5, para 24: ‘[T]he provisions under article 15 are not being implemented satisfactorily. Access to culture remains difficult, as demonstrated … by the high price of publications.’ cescr, Concluding Observations on Luxembourg (26 June 2003) un Doc E/C.12/1/Add.86, para 13. 1990 Revised Guidelines (n 63), para 1(b); 2008 Reporting Guidelines (n 77), para 67.

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media—a process often referred to as the ‘dissemination of culture’.175 Access to mass media was later expanded to include other forms of communication, including the internet.176 In this manner, we could also read (2) and (3) as describing the means for ensuring (1). Besides the obligation to provide for access to cultural institutions and the mass media, states are required to ensure that this is done in a ­non-discriminatory manner.177 In particular, special emphasis is placed on the importance of catering to the needs of vulnerable groups. General Comment No. 5 of the cescr on persons with disabilities urges states to ‘promote the accessibility to and availability of places for cultural performances and services’ to persons with disabilities.178 General Comment No. 6 of the cescr on the economic, social and cultural rights of older persons urges states to provide the elderly ‘with easier physical access to cultural institutions (museums, theatres, concert halls, cinemas, etc.).’179 In addition, mass media should also be provided in minority languages.180 The goal, as subsequently noted in General 175 Marks, ‘Defining Cultural Rights’ (n 9) 307; cescr, Concluding Observations on Germany (5 January 1994) un Doc E/C.12/1993/17, para 11. The obligation to ensure access to mass media and other forms of communication is also construed in relation to freedom of information. See cescr, Concluding Observations on China (13 May 2005) un Doc E/C.12/1/ Add.107, para 68; cescr, General Comment No 21, para 16(b): ‘Accessibility also includes the right of everyone to seek, receive and share information on all manifestations of culture in the language of the person’s choice, and the access of communities to means of expressions and dissemination.’ 176 cescr, Concluding Observations on Libya Arab Jamahiriya (25 January 2006) un Doc E/C.12/LYB/CO/2, para 39. 177 cescr, Concluding Observations on Austria (14 December 1994) un Doc E/C.12/1994/16. The Committee ‘notes with satisfaction the allocation of subsidies for the promotion of the cultural activities of minorities’. See also cerd, Concluding Observations on Armenia (14 August 2002) un Doc A/57/18, para 281; cerd, Concluding Observations on Turkmenistan (27 March 2007) un Doc CERD/C/TKM/CO/5, para 15; cerd, Concluding Observations on Nepal (28 April 2004) un Doc CERD/C/64/CO/5, para 21. In relation to women’s equal participation in cultural life, see un Committee on Economic, Social and Cultural Rights, ‘General Comment No 16’, ‘Notes by Secretariat: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008), un Doc HRI/GEN/1/Rev.9 (vol 1) at 113 (‘cescr, General Comment No 16’), para 31; See also cescr, General Comment No 21, para 25, States parties are urged to eliminate ‘institutional and legal obstacles as well as those based on negative practices, including those attributed to customs and traditions, that prevent women from participating fully in cultural life’. ; article 13(c) cedaw. 178 cescr, General Comment No 5, para 36. 179 cescr, General Comment No 6, para 40. 180 cerd, Concluding Observations on Albania (10 December 2003) un Doc CERD/C/63/ CO/1, para 23: ‘[P]ersons belonging to minorities in Albania have very little access to radio

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Comment No. 21 of the cescr, is for states parties to achieve ‘[g]uaranteed access for all, without discrimination on grounds of financial or any other status, to museums, libraries, cinemas and theatres and to cultural activities, services and events.’181 General Comment No. 21 of the cescr dramatically expanded the scope of participation in cultural life. It recognises that cultural institutions and the mass media are considered ‘cultural services’ and are not merely the sites where culture is ‘consumed’.182 Rather, they play an active role in the assertion of values and identities.183 General Comment No. 21 stipulates that an individual’s right to access to culture includes the right ‘to know and understand his or her own culture and that of others through education and information … Everyone has also the right to learn about forms of expression and dissemination through any technical medium of information or communication’.184 Accordingly, the role of cultural institutions and the mass media in this respect also includes the promotion and dissemination of information and material aimed at developing and facilitating the assertion of a person’s cultural identity and values. To conclude, what the cescr sought to achieve through Article 15 of the icescr was to construe the right to take part in cultural life as a freedom, as opposed to the mere access to opportunities to engage in cultural activities. As General Comment No. 21 succinctly sums up: The right to take part in cultural life can be characterized as a freedom. In order for this right to be ensured, it requires from the State party both ­abstention (i.e. non-interference with the exercise of cultural practices and with access to cultural goods and services) and positive action (ensuring preconditions for participation, facilitation and promotion of ­cultural life, and access to and preservation of cultural goods).185

and television in minority languages.’ See also cerd, Concluding Observations on Latvia (10 December 2003) un Doc CERD/C/63/CO/7, para 16; article 17(d) crc; cescr, General Comment No 21, para 52(a). 181 cescr, General Comment No 21, para 54(d); cescr, Concluding Observations on Estonia (19 December 2002) un Doc E/C.12/1/Add.85, para 10. The cescr noted with satisfaction that ‘[M]any cultural activities, such as theatrical performances, concerts, ballet and the like, continue to be subsidized in order to encourage the widest possible attendance.’ 182 cescr, General Comment No 21, para 49(b). 183 Ibid. 184 Ibid para 15(b). 185 Ibid para 6.

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The right to take part in cultural life implies an obligation for states, not only to set up cultural institutions as part of making culture available to everyone, but also to subsidise and fund the production and exhibition of cultural goods through all forms of cultural services in order to bring such cultural goods and services within the reach of all. 3.3.5 Culture as a Way of Life When addressing the situation of minorities and indigenous populations, it is not sufficient to define access to culture as access to cultural institutions, as international scholars engaged in this field are well aware. At the 1968 unesco Conference of Experts on Cultural Rights, it was thought that while culture could refer to the arts and humanities, the concept of culture could also be defined in a broader sense to denote a ‘way of life’.186 The meaning of a ‘way of life’ is very closely linked to a group’s habits of behaviour187 or living style, or the ‘world view representing the totality of a person’s encounter with the ­external forces affecting his life and that of his community’.188 In this sense, while the definitions of high and popular culture ‘conceive of cultural life as an external observable product of society, a more nuanced definition sees culture as the internal frame of reference of that “way of life” from which these and other products spring’.189 Stavenhagen remarks that culture as a way of life refers to ‘the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups.’190 The notion of a way of life is explicitly recognised in the 1982 Mexico City Declaration. Its preamble notes that: In its widest sense, culture may now be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs.191 186 unesco, Cultural Rights as Human Rights (n 4) 16, 25. It has been remarked that if we do not distinguish cultures as superior or inferior, or culture as desirable or undesirable, culture ‘is very much a question of how people select their way of living.’ 187 O’Keefe, ‘The “right to take part in cultural life”’ (n 128) 905: ‘[Culture is] society’s underlying and characteristic pattern of thought’. 188 Ibid 917. 189 Ibid 916. 190 Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ (n 133) 90. 191 Emphasis added.

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By moving beyond high arts and popular culture192 and acknowledging the distinctive features of the ways in which different peoples think and organise their lives, this definition provided a broad and inclusive understanding of culture on which subsequent unesco texts are based.193 Our Creative Diversity acknowledges culture to be ‘a complex web of relations and beliefs, values and motivations’.194 The 2001 Universal Declaration on Cultural Diversity defines culture as ‘the set of distinctive spiritual, material, intellectual and e­ motional features of society or a social group [encompassing] … in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs’.195 This definition, which is often referred to (erroneously) in legal literature as the anthropological definition,196 remains influential to the present day.197 Culture is no longer a product to be consumed, but ‘an expression of the identity of an individual or a community, including distinctive features, ways of thinking and the organisation of people’s lives.’198 To many (indigenous peoples in particular), it is the whole of human life.199

192 See Section 3.3.4.1. 193 Janusz Symonides, ‘Cultural Rights’ in Janusz Symonides (ed) Human Rights: Concept and Standards (unesco 2000) 180; See Elizabeth A Thomas-Hoffman, ‘Cultural Preservation and Protection’ accessed 1 February 2017. It has been observed that, by expanding beyond art and heritage, this definition ‘recognizes the intricate tapestry of culture that defines societies.’ 194 World Commission on Culture and Development, Our Creative Diversity: Report of the World Commission on Culture and Development (2nd edn, unesco 1996) 7. 195 Preamble, 2001 Universal Declaration on Cultural Diversity; The preamble of 2001 University Declaration on Cultural Diversity explicitly refers to the 1982 Mexico City Declaration on Cultural Policies. See unesco, Declaration on Cultural Policies, World ­Conference on Cultural Policies (26 July–6 August 1982) (‘1982 Mexico City Declaration’). 196 See e.g. O’Keefe, ‘The “right to take part in cultural life”’ (n 128). By ‘anthropological’, O’Keefe refers (in a footnote) to the concept of culture proposed by Ruth Benedict. This notion of culture is however outdated, as demonstrated in Chapter 2. Moreover, as pointed out in Chapter 2, there is no such thing as an anthropological definition of culture. 197 Preamble, 2001 Universal Declaration on Cultural Diversity; cescr, General Comment No 21. 198 Yvonne Donders, ‘The History of the unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions’ in Hildegard Schneider and Peter Van den Bossche (eds) Protection of Cultural Diversity from a European and International Perspective (Intersentia 2008) 3–4. 199 Ibid.

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3.3.5.1 The Significance of Culture as a Way of Life The definition of culture as a way of life brought cultural rights into direct relationship with minority rights.200 One important implication of this definition is that it provides for a holistic protection of minority and indigenous populations (rather than a piecemeal approach, such as discrete protections for their languages and religions).201 In order to protect the ways of life of minorities and indigenous peoples, it is essential to protect everything associated with the ways in which their distinctive lifestyles are organised; for instance, their languages, their religions, their traditions and beliefs, their traditional indigenous knowledge, the ecosystems and biodiversity associated with their livelihoods202 and their land—the total material and non-material heritage of their cultures203—so that this cultural heritage can be passed on to future generations. Culture as a way of life embodies a system-oriented approach to cultural rights. It seeks to protect a culture in terms of its social organisation, ­biodiversity/ecosystem and the symbolic universe pertaining to a specific time and space. From this perspective, an extensive amount of jurisprudence is ­dedicated to the protection of cultural heritage (tangible and intangible) and the protection of indigenous territorial rights. Moreover, protection in this respect is largely collective in nature, and cannot be fulfilled without respect for other culture-related rights. Particularly important in this context is the right to self-determination, which ensures the involvement and participation of ­minority and indigenous groups in policies affecting their ways of living.204 In the words of Daes, the protection of culture ‘is connected fundamentally with

200 O’Keefe, ‘The “right to take part in cultural life”’ (n 128); Alexandra Xanthaki, Indigenous Peoples and United Nations Standards: Self-determination, Culture, Land (Cambridge University Press 2007) 8. 201 unchr ‘Report of the Special Rapporteur of the Sub-Commission on Prevention of ­Discrimination and Protection of Minorities’ (1993) un Doc E/CN.4/Sub.2/1993/28 (28 July 1993), para 31: ‘All elements of heritage should be managed and protected as a single, interrelated and integrated whole.’ 202 unesco, Biodiversity in unesco (unesco Publishing 2007). 203 unchr ‘Final Report of the Special Rapporteur on Prevision of Discrimination and Protection of Minorities’ (1995) un Doc E/CN.4/Sub.2/1995/26, para 11: ‘The heritage of Indigenous peoples is comprised of all objects, sites and knowledge the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory.’ 204 unchr ‘Report of the Working Group on Indigenous Populations’ (23 August 1993) un Doc E/CN.4/Sub .2/1993/29, para 4.

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the realization of the territorial rights and self-determination of indigenous peoples.’205 3.3.5.2 Cultural Heritage The understanding of culture as a way of life brought important implications for the protection of cultural heritage. From the early 1950s to the 1970s, cultural heritage was often equated with cultural property, defined as the ‘movable and immovable property of great importance to the cultural heritage of a country’,206 such as architectural monuments, archaeological sites and works of art—a conception which parallels the notion of culture as ‘high culture’. Beginning in the 1970s, the concept of cultural heritage was expanded to include ‘objects of artistic, archaeological, ethnological or historical interest’.207 Under the definition of cultural property/heritage as referring to objects, there are traditionally two ways of thinking about cultural heritage in the context of unesco.208 One is to think of it in terms of national cultural heritage, whereby states have a special interest justifying national control in its import and export as well as giving them the right to demand its repatriation (as opposed to heritage as an economic commodity).209 The other is to think of heritage as a component of a common world culture, regardless of its place of origin or ­location (i.e. as ‘World Cultural and Natural Heritage’),210 premised on the belief that everyone has an interest in the most profound of cultural achievements.211 205 Ibid. 206 Article 1(a), Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954, entered into force 7 August 1956) 249 unts 216. See also article 1, Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of Ownership of Cultural Property (19 November 1964) unesco Doc 13C/Resolutions SHC/MD/3. From 1954 to 1970, 4 normative instruments were adopted on the topic of cultural property. 207 John H Merryman, ‘Two Ways of Thinking About Cultural Property’ (1986) 80 ajil 831. 208 Ibid. 209 Ibid 832. 210 Ibid. See Convention for the Protection of the World Cultural and Natural Heritage (adopted 21 November 1972, entered into force 17 December 1975) 1037 unts 151. 211 Lyndel V Prott, ‘Cultural Rights as Peoples’ Rights in International Law’ in James Crawford (ed), The Rights of Peoples (Clarendon Press 1988). Moreover, this is reflected in the fact that the wilful destruction of cultural heritage at times of war is considered a war crime. For instance, in Prosecutor v Strugar, the International Criminal Tribunal for Yugoslavia (icty) convicted Strugar, a commander of the Yugoslav army, on the count of ‘unjustified devastation, unlawful attacks on civilian objects, destruction or wilful damage to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and sciences’ for the bombing of Dubrovnik, a site inscribed in the

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A significant expansion of the notion of cultural heritage can be identified in the 1982 Mexico City Declaration, in which cultural heritage is defined as the ‘tangible and intangible works through which the creativity of that people finds expression’,212 giving values and meaning to the lives of individuals and communities. It also declares that ‘Every people therefore has a right and a duty to defend and preserve its cultural heritage, since societies recognize themselves through the values in which they find a source of creative inspiration.’213 In 1989, unesco adopted the Recommendation on the Safeguarding of Traditional Culture and Folklore214 (‘1989 Recommendation on Traditional Culture and Folklore’) within which folklore, or the ‘totality of tradition-based creations of a cultural community’,215 is viewed as an ‘integral part of cultural heritage and living culture’.216 Cultural heritage was no longer restricted to ­tangible objects belonging to a country but included expressions of groups or individuals ‘reflecting expectations of a community’.217 It embraced such manifestations as language, literature, music, dance, games, mythology, rituals, custom, handicrafts and architecture, among others, and reflected values as well as the cultural and social identity unique to the community.218 The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (‘2003 ­Convention on Intangible Cultural Heritage’) reaffirms the position taken in the 1989 Recommendation and calls for measures aimed at ‘ensuring the viability of intangible heritage’,219 including, inter alia, their ­preservation,

212 213 214 215 216 217 218 219

unesco World Heritage List as having ‘indisputable universal significance for humanity as a whole’. Prosecutor v Pavle Strugar, ICTY-IT-01-42-PT (31 March 2003), paras 34–37. See also Francesco Francioni, ‘Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’ (2004) 25 Mich J Int’l L 1209, 1215–1216. 1982 Mexico City Declaration, para 23. Ibid para 24. Recommendation on the Safeguarding of Traditional Culture and Folklore (15 November 1989) unesco Doc 25C/Resolutions, Annex i. Ibid Section A. Preamble, 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore. Ibid section A. unesco Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October, 2003, entered into force 20 April 2006) 2368 unts 3. The Convention reaffirmed the Istanbul Declaration adopted by the Third Round Table Meeting of Ministers of Culture on ‘Intangible Cultural Heritage, Mirror of Cultural Diversity’. See unesco, ‘Third Round Table of Ministers of Culture—“Intangible ­Cultural Heritage, Mirror of Cultural Diversity”—Istanbul, Turkey 16–17 September 2002’ (24 September 2002) accessed 1 February 2017.

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­ rotection, promotion, transmission and revitalisation.220 The inclusion of inp tangible cultural heritage as a subject of protection under international law recognises intangible cultural heritage as an essential source of identity,221 and strengthens the protection of the ways of life of minorities and indigenous populations. Protecting intangible heritage through its transmission and revitalisation has important implications for cultural diversity. Cultural diversity ‘best occurs when people are enabled and allowed to pursue their lives in ways that are meaningful to them’222—i.e. when the vibrant and dynamic nature of culture is acknowledged. In this sense, respect for cultural diversity does not merely mean acknowledging difference as a fact. It entails acknowledging ‘cultures’ perceptions of their own identity, taking into account the social, intellectual and cultural processes that generate such identity and their holistic views of life.’223 The adoption of the 1989 Recommendation on Traditional Culture and Folklore and the 2003 Convention on Intangible Cultural Heritage signified the beginning of a process through which the distinction between tangible and intangible cultural heritage is gradually fading away.224 This change is most evident in the 2005 Convention on the Protection and Promotion of the D ­ iversity of Cultural Expressions225 (‘2005 unesco Convention on Cultural Diversity’), produced as a direct consequence of the 2001 Universal Declaration on ­Cultural Diversity.226 Moving beyond the traditional compartmentalisation between tangible and intangible cultural heritage, Article 4 of the 2005 Convention recognises the symbolic or aesthetic meanings and values attached to cultural 220 Article 2(2), 2003 Convention on Intangible Cultural Heritage. 221 Ibid article 2(1). See Amanda Kearney, ‘Intangible Cultural Heritage: Global Awareness and Local Interest’ in Laurajane Smith and Natsuko Akagawa (eds), Intangible Heritage (Routledge 2009). 222 Amy Mountcastle, ‘Safeguarding Intangible Cultural Heritage and the Inevitability of Loss: A Tibetan Example’ (2010) 22 Studia Ethnologica Croatica 339, 348. 223 unesco ‘International Round Table: “Intangible Cultural Heritage: Working Definitions”’ accessed 1 February 2017. 224 Yahaya Ahmad, ‘The Scope and Definitions of Heritage: From Tangible and Intangible’ (2006) 12 Int’l J of Heritage Studies 292. 225 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (adopted 21 October 2005, entered into force 18 March 2007) 2440 unts 311. 226 See unesco, ‘Desirability of drawing up an international standard-setting instrument on cultural diversity’ (18 July 2003) unesco Doc 32C/52. See also Yvonne Donders, ‘The ­History of the unesco Convention on the Protection of Cultural Expressions’ (n 199).

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e­ xpressions, which are properly regarded as subjects of protection.227 The logic behind this is that every tangible good contains an intangible aspect, and it is this symbolic dimension of heritage that conveys meanings capable of being interpreted and appreciated.228 Cultural diversity thus ensures that these cultural expressions can be ‘expressed, augmented and transmitted’ in any form without hindrance.229 While reaffirming that culture should be regarded as ‘the set of distinctive spiritual, material, intellectual and emotional features of society’,230 the 2005 unesco Convention on Cultural Diversity acknowledges that ‘As a continuing, flexible and changing process, culture remodels tangible and intangible cultural heritage while inventing new forms of expression, thus revealing its infinite diversity.’231 Culture, thus understood, underlies every aspect of human activity which is endowed with symbolic meaning and through which identities and values are expressed. 3.3.5.3 Land The protection of a traditional way of life is dependent on the preservation of the indigenous territory on which it is organised and in which traditional knowledge and emotional and spiritual attachments are embedded. Malezer, an aboriginal leader, once testified that ‘Our claim to a global identity is based upon our ancient cultures and viable relationships with our territories, in contrast to the modern political identities of nation states and consumer cultures.’232 In this context, it makes no sense to see indigenous land as an economic commodity; rather, it should be seen as ‘a space of socio-economic, spiritual and cultural anchorage.’233

227 Article 4, 2005 unesco Convention on Cultural Diversity: ‘“Cultural content” refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities.’ 228 This understanding comes very close to symbolism in anthropology, explored in Chapter 2. 229 Article 4(1), 2005 unesco Convention on Cultural Diversity. 230 Preamble, 2001 Universal Declaration on Cultural Diversity. 231 unesco ‘Ten Keys to the unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions’ accessed 1 February 2017. 232 Les Malezer, ‘Permanent Forum on Indigenous Issues: Welcome to the Family of the un’ in Joshua Castellino and Niamh Walsh (eds), Indigenous Peoples and Human Rights (Martinus Nijhoff 2005) 67. 233 Jeremie Gilbert, ‘Custodians of the Land’ in Mairead N Craith et al (eds), Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice (Routledge 2010) 35.

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In a report prepared by the Working Group on Indigenous Populations on the Situation of Human Rights and Fundamental Freedoms of Indigenous ­People, Special Rapporteur Daes acknowledges that ‘[A] profound relationship exists between indigenous peoples and their lands, territories and r­ esources’.234 This relationship ‘has various social, cultural, spiritual, economic and political dimensions and responsibilities’ and is crucial to the collective lives of indigenous peoples.235 Moreover, the intergenerational relationship between the land and an indigenous community is crucial to its identity, survival and cultural viability.236 From this perspective, indigenous land could also be seen as integral to a community’s right to its past, present and future. The right to the past refers to recognising the ownership or custodianship of the land the group has traditionally occupied, in the form of preservation or restitution.237 The right to the present and future refers to the right to maintain, protect, develop and revitalise cultural traditions and customs through the use of land.238 3.3.5.4 Culture as a Way of Life: Specific Obligations Until General Comment No. 21, the protection of culture as a way of life received only scant mention in cescr documents.239 General Comment No. 21 provides that everyone has the right ‘to follow a way of life associated with the use of cultural goods and resources such as land, water, biodiversity, language or specific institutions, and to benefit from the cultural heritage and 234 unchr ‘Final Working Paper of the Special Rapporteur on the Promotion and Protection of Human Rights’ (11 June 2001) un Doc E/CN.4/Sub.2/2001/21, para 12. 235 Ibid para 20. 236 Ibid. 237 Article 14, International Labour Organisation (ilo), Indigenous and Tribal Peoples Convention C 169 (adopted 27 June 1989, entered into force 5 September 1991) 1650 unts 384 (‘ilo Convention No 169’). Outside of the context of land, it could also be argued that the right to the past refers to the right to respect for a people’s history and heritage and the right of redress for historical inequities. 238 See e.g. article 11(1), un Declaration on the Rights of Indigenous Peoples (adopted 13 ­September 2007 unga Res A/61/L.67) (undrip): ‘Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.’ 239 See e.g. cescr, General Comment No 15, paras 6, 7 and 16(d), which acknowledge that for some indigenous peoples the right to water and the right to access water resources is integral to preserving their way of life. See also cescr, Concluding Observations on Mexico (5 January 1994) un Doc E/C.12/1993/16; cescr, Concluding Observations on Venezuela (21 May 2001) un Doc E/C.12/1/Add.56, para 12.

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the ­creation of other individuals and communities’.240 This is particularly important for indigenous peoples, as the degradation of their particular ways of life may ultimately entail the loss of their cultural identity.241 As indigenous people have deep and intimate bonds with their ancestral lands, the protection of their way of life, in turn, entails the protection of their ‘right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.’242 The notion of culture as a way of life is also recognised by the Committee on the Elimination of Racial Discrimination (cerd).243 While highlighting the fact that indigenous populations have suffered the loss of land and resources to colonists, companies and state-owned enterprises, placing their culture and historical identity in peril, cerd has called upon states parties to ‘[r]ecognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State’s cultural identity and to promote its preservation’.244 In particular, states have an obligation to ‘[p]rovide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics’245 and to consult the indigenous population on matters concerning their rights and interests.246 States are obliged to ‘[e]nsure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs and to preserve and to practice their languages.’247 240 241 242 243

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cescr, General Comment No 21, para 15(b). Ibid para 36. cescr, General Comment No 21, para 36. See e.g. cerd, Concluding Observations on Finland (28 March 1996) un Doc CERD/C/304/ Add.7, para 11; cerd, Concluding Observations on Cambodia (30 March 1998) un Doc CERD/C/304/Add.54, para 19; cerd, Concluding Observations on Sweden (1 May 2001) un Doc CERD/C/304/Add.103, para 13; cerd, Concluding Observations on Argentina (10 December 2004) un Doc CERD/C/65/CO/1, para 16. un Committee on the Elimination of All Forms of Racial Discrimination, ‘General Recommendation xxiii’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (18 August 1997) un Doc HRI/GEN/1/Rev.9 (vol 2) at 285 (2008) (‘cerd, General Recommendation xxiii’), para 4(a). Ibid para 4(c); cerd, Concluding Observations on Ecuador (19 January 1994) un Doc A/48/18, para 145; cerd, Concluding Observations on Sweden (15 March 1994) un Doc A/49/18, para 200. cerd, General Recommendation xxiii, para 4(d); cerd, Concluding Observations on Nicaragua (16 August 1995) un Doc A/50/18, paras 533–536. cerd, General Recommendation xxiii, para 4(e).

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This conception of culture is most prominent in the jurisprudence of the hrc on Article 27 of the iccpr, this being the primary provision addressing the rights of minorities in the instruments of the treaty bodies. According to General Comment No. 23 of the iccpr (on Article 27 of the iccpr): [C]ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.… The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.248 The concept of a ‘way of life’ has been addressed extensively in various individual communications. For instance, the Lubicon Lake Band v. Canada case249 reaffirmed indigenous hunting, trapping and fishing activities as part of the people’s way of life. In this case, the Lubicon Lake Cree Indians of Alberta, Canada claimed that allowing oil and gas exploration activities to be carried out within their territory would endanger their traditional economic activities, threatening their indigenous traditions and practices and their survival as a people.250 The Committee recognised that the rights protected by Article 27 include ‘the rights of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong’251 and found the Canadian government to be in violation of the article. Similarly, the cases Kitok v. Sweden,252 O. Sara et al. v. Finland 253 and 248 hrc, General Comment No 23, paras 7 and 9. This interpretation is especially important. Article 27 of the iccpr provides for, inter alia, the right to enjoy one’s own culture. However, the hrc has not provided for a definition of culture. Instead, the hrc has on various occasions pointed to the ways in which culture is ‘manifested’. 249 Bernard Ominayak, Chief of the Lubicon Lake Band v Canada Communication No 167/1984 (26 March 1990) un Doc Supp No 40 (A/45/40) (‘Lubicon Lake Band Case’). 250 Ibid para 16.2. 251 Ibid para 32.2. 252 Ivan Kitok v Sweden, Communication No 197/1985 (27 July 1988) un Doc CCPR/C/ 33/D/197/1985. 253 O Sara et al v Finland, Communication No 431/1990 (23 March 1994) un Doc CCPR/C/ 50/D/431/1990.

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Äärelä and Näkkäläjärvi v. Finland254 recognised the reindeer-herding prac­ tices of the Nordic Sami people as an integral part of their culture and way of life under Article 27 of the iccpr. Note that the notion of a ‘way of life’ does not necessarily mean a ‘­traditional’ way of living. In Länsman v. Finland, the hrc commented that ‘The right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context.… [A]rticle 27 does not only protect traditional means of livelihood of national minorities.… [The] adapted … methods of reindeer herding over the years … with the help of modern technology does not prevent them from invoking article 27.’255 A similar decision was arrived at in Mahuika v. New Z ­ ealand.256 In this way, the hrc intended to acknowledge the fact that traditional cultures do develop over time.257 The right to enjoy culture is not a right to enjoy a culture that is frozen ‘at some point in time when culture was supposedly “pure” or “traditional”.’258 These cases are generally understood as pointing to the fact that culture construed as a way of life includes the protection of the economic activities of indigenous minorities, thus reinforcing the view that a ‘way of life’ embraces all forms of human activity pertaining to the indigenous community. H ­ owever, this assumption is inaccurate, as demonstrated by the case Diergaardt v. Namibia.259 The Rehoboth Baster community complained that the expropriation and privatisation of communal land and the subsequent overuse of land by inexperienced newcomers had led to the bankruptcy of many of the community’s farmers.260 The applicants argued that such commercial activities ‘robbed the community of the basis of its economic livelihood’, undermining 254 Anni Äärelä and Jouni Näkkäläjärvi v Finland, Communication No 779/1997 (4 February 1997) un Doc CCPR/C/73/D/779/1997. 255 Länsman et al v Finland, Communication No 511/1992 (8 November 1994) un Doc CCPR/C/52/D/511/1992. 256 Apirana Mahuika et al v New Zealand, Communication No 547/1993 (27 October 2000) un Doc CCPR/C/70/D/547/1993 (‘Mahuika v New Zealand’). 257 Gilbert, ‘Custodians of the Land’ (n 234) 36. 258 Human Rights and Equal Opportunity Commission, ‘Native Title Report: Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner’ (23 February 2001) accessed 1 February 2017 (‘Human Rights and Equal Opportunity Commission, Native Title Report 2000’) 58. 259 JGA Diergaardt (late Captain of the Rehoboth Baster Community) et al v Namibia, Communication No 760/1997 (6 September 2000) un Doc CCPR/C/69/D/760/1997 (‘Diergaardt v Namibia’). 260 Ibid para 3.1.

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its cultural, social and ethnic identity.261 On this occasion, the hrc rejected the applicants’ claim: As the earlier case law by the Committee illustrates, the right of members of a minority to enjoy their culture under article 27 includes protection to a particular way of life associated with the use of land resources through economic activities, such as hunting and fishing, especially in the case of indigenous peoples. However, in the present case the Committee is unable to find that the authors can rely on Article 27 to support their claim for exclusive use of the pastoral lands in question. This conclusion is based on the Committee’s assessment of the relationship between the authors’ way of life and the lands covered by their claims. Although the link of the Rehoboth community to the lands in question dates back some 125 years, it is not the result of a relationship that would have given rise to a distinctive culture.262 As can be noted, the majority decision did not elaborate on what was meant by ‘a distinctive culture’. The concurring opinion may be more indicative of what the Committee meant when it referred to the element of distinctiveness: [I]ndigenous communities … can very often show that their particular way of life or culture is, and has for long been, closely bound up with particular lands in regard to both economic and other cultural and spiritual activities, to the extent that the deprivation of or denial of access to the land denies them the right to enjoy their own culture in all its ­aspects.… [In the present case, the authors] cannot show that they enjoy a distinct culture which is intimately bound up with or dependent on the use of these particular lands, to which they moved a little over a century ago, or that the diminution of their access to the lands has undermined any such culture.263 This individual communication has been described as introducing a ‘distinctive culture test’ into the practice of the treaty bodies, stipulating that cultural practice ‘must be central, not incidental, to the culture’.264 In other words, the 261 Ibid. 262 Ibid para 10.6. 263 Diergaardt v Namibia, Individual opinion of Elizabeth Evatt and Cecilia Medina Quiroga. 264 Avigail Eisenberg, ‘Identity and Liberal Politics: The Problem of Minorities within Minorities’ in Avigail Eisenberg and Jeff Spinner-Halev (eds) Minorities with Minorities: Equality,

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activities in question must be distinctive to the culture or instrumental to the group’s expression of its cultural distinctiveness.265 This test is problematic in several ways. Firstly, the test is ethnocentric.266 To say that certain activities are not integral to cultural distinctiveness is almost the same as saying that the hunting and fishing practices of the Rehoboth Baster community are not cultural (read: exotic) enough. In the words of the Australian Aboriginal and Torres Strait Islander Social Justice Commission in 2000, ‘The enjoyment of culture should not be falsely restricted as a result of anachronistic notions of the “authenticity” of the culture.’267 Secondly, it is arguable that the test is unduly harsh, in the sense that even if the land-use practices at issue cannot be said to be ‘cultural’, economic survival is indispensable to the survival of the indigenous way of life. In this sense, the decision potentially set a bad precedent for future communications, as the erasure of cultural diversity often begins with forms of economic isolation and deprivation, often resulting from deliberate state plans and policies—a form of slow killing. Thirdly, the obvious danger that lies in this test is that the hrc is left to decide what is ‘cultural’ for the indigenous community and what is not, which may contradict the right to self-determination and development under Article 1 of the iccpr268 or may, in the absence of clear and convincing guidelines as to what constitutes ‘distinctiveness’,269 lead to arbitrariness in the application of the test.270 Rights and Diversity (Cambridge University Press 2005) 249; Avigail Eisenberg, ‘Reasoning about Identity: Canada’s Distinctive Culture Test’ in Avigail Eisenberg (ed) Diversity and Equality: The Changing Framework of Freedom in Canada (University of British Columbia Press 2006); See Ángela Poma Poma v Peru, Communication No 1457/2006 (24 April 2009) un Doc CCPR/C/95/D/1457/2006, para 7.4. (Poma v Peru). In this case, the author claimed that the degradation of pastoral land owing to a water diversion project had led to the deaths of thousands of livestock. The hrc decided that raising llamas was an essential element of the culture of the Aymara community, ‘since it is a form of subsistence and an ancestral tradition handed down from parent to child.’ 265 Sarah Joseph and Melissa Castan, ‘Minority Rights: Article 27’ in Sarah Joseph and Melissa Castan (eds), The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, Oxford University Press 2013) 849. 266 Eisenberg, ‘Identity and Liberal Politics’ (n 265). 267 Human Rights and Equal Opportunity Commission, Native Title Report 2000 (n 259) 58. 268 Article 1 iccpr. 269 Joseph and Castan, The International Covenant on Civil and Political Rights (n 266) 849. 270 The hrc seems to have applied a different test in cases where the contested land at issue had a symbolic and spiritual significance for the indigenous community, as demonstrated by the communication Hopu and Bessert v France, discussed below.

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Other individual communications concerning indigenous groups’ ways of life also reflect a high threshold for finding a violation of Article 27. In the second Länsman case, the Sami of Finland issued a complaint based on the first Länsman case with regards to the implementation of new measures affecting their living conditions. In deciding that logging activities authorised by the state and covering an area of 3,000 hectares of herding grounds did not amount to a violation of Article 27, the Committee noted that ‘[M]easures that have a certain limited impact on the way of life and the livelihood of persons belonging to a minority will not necessarily amount to a denial’.271 It further decided that ‘[O]n the basis of the information available … the State party’s forestry authorities have approved logging on a scale which … [while incurring extra expenses] … does not appear to threaten the survival of reindeer husbandry.’272 In Äärelä and Näkkäläjärvi, the facts of which are similar to the Länsman cases, the hrc dismissed the complainants’ claim and decided that there was insufficient information to find that logging activities would have a long-term impact on the sustainability of reindeer husbandry.273 The requirement that the violation must have an impact on the sustainability of traditional practices is also reflected in Mahuika v. New Zealand, where the hrc found that engaging in broad consultation with the indigenous group while paying attention to the sustainability of traditional fishing practices was sufficient for the state to discharge its obligations under Article 27.274 In Howard v. Canada, the hrc ­decided that states parties to the Covenant ‘may regulate ­activities that constitute an essential element in the culture of a minority, provided that the regulation does not amount to a de facto denial of this right.’275 Judging from these cases, the hrc has set a high threshold for finding a ­violation and ‘It is not 271 Jouni Länsman et al v Finland, Communication No 1023/2001 (15 April 2005) un Doc CCPR/C/83/D/1023/2001, para 9.4. 272 Ibid para 10.6. 273 Äärelä and Näkkäläjärvi, paras 7.5–7.6. Recognising reindeer husbandry as an essential element of culture, the Committee enquired whether the interference by the state party was so substantial that it failed to properly protect the authors’ right to enjoy their culture. The hrc decided that the logging of 92 hectares of the Kariselkä area failed to meet this threshold. 274 Mahuika v New Zealand, para 9.8. 275 George Howard v Canada, Communication No 879/1999 (26 July 2005) un Doc CCPR/ C/84/D/879/1999. The author was a member of the Hiawatha community, which forms part of the Mississauga First Nations. He complained that, although he was entitled to fish in the reserves under existing law, his right could not be exercised meaningfully as there were not enough fish in the reserves. Moreover, the law required that he would have to obtain a license if he wished to fish outside the reserves.

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enough that there is an impairment of a minority way of life; it should be a serious deprivation of cultural life.’276 This ‘proportionality’ test—i.e. the harm done must be sufficient to t­ hreaten the survival of traditional economic activities—ignores the fact that identities associated with ownership and custodianship may be infringed as a result of shrinking economic and cultural space. The ‘distinctive culture test’ and the proportionality test, in conjunction with the requirements to exhaust local remedies and the lack of scrutiny of reservations regarding Article 27,277 highlight the difficulties faced by indigenous peoples in raising successful claims before the hrc. 3.3.5.4.1 Cultural Heritage Article 15(2) of the icescr provides that states should take the necessary steps for the conservation, development and diffusion of science and culture.278 The 1990 Revised Guidelines required states to submit information on the ‘[p]romotion of awareness and enjoyment of the cultural heritage of national ethnic groups and minorities and of indigenous peoples.’279 It also required states to furnish information on the ‘[p]reservation and presentation of mankind’s cultural heritage’.280 In the past, the cescr has been concerned by the destruction of the material cultural heritage of religious communities and minorities.281 In addition to protecting and preserving heritage, providing access to cultural heritage has also been stressed. In its Concluding Observations on Belgium in 1995, the cescr urged the state to report on Article 15, especially 276 Dinah Shelton, ‘The un Human Rights Committee’s Decisions’ (2005) 2 Human Rights Dialogue 31, 33; Cindy Holder, ‘Culture as an Activity and Human Rights: An Important Advance for Indigenous Peoples and International Law’ (2008) 33 Alternatives: Global, L­ ocal, Political 7, 12. Commenting on the Sami cases, Holder remarks that the anticipated harm must be a significant one, to an extent that makes it impossible for the Sami population to engage in reindeer husbandry. 277 Shelton, ‘The un Human Rights Committee’s Decisions’ (n 277). 278 Article 15(2) icescr. 279 1990 Revised Guidelines (n 63), para 1(d). 280 Ibid para 1(f). 281 cescr, Concluding Observations on Iraq (30 May 1994) un Doc E/C.12/1994/6, para 12; cescr, Concluding Observations on Iraq (12 December 1997) un Doc E/C.12/1/Add.17, para 24; cescr, Concluding Observations on Afghanistan (7 June 2010) un Doc E/C.12/AFG/CO/2–4 (2010) (illegal excavation, vandalism and looting of cultural property). The importance of the protection and preservation of cultural heritage is also mentioned in documents produced by cerd; see cerd, Concluding Observations on ­Venezuela (27 September 1996) un Doc CERD/C/304/Add.17, para 12.

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in relation to access to ‘cultural activities and cultural property … by disadvantaged and marginalized groups in society, persons with disabilities and older persons.’282 In its Concluding Observations on Angola in 2008, the cescr drew a link between access to cultural activities and property and the preservation of culture: [D]ue to the massive migrations of communities and ethnic groups from the rural to urban areas, the preservation of their cultural heritage has been undermined. The Committee requests information … [on the] access to cultural activities and cultural property, especially by disadvantaged and marginalized groups in society, and on measures undertaken to implement the right of [indigenous groups] … to the preservation, protection and development of their cultural heritage.283 Thus, it is becoming clear that meaningful participation in cultural life is possible only if cultural heritage is effectively preserved.284 As Hansen notes, the conservation of culture is the prerequisite for its development and diffusion.285 General Comment No. 21 of the cescr reiterates the obligation to respect everyone’s right ‘[t]o have access to their own cultural and linguistic heritage and to that of others’.286 It also considers respect for heritage to relate to people’s freedom of expression, including ‘free exercise of their cultural identity and practices’.287 Respect for cultural heritage also entails respect for its transmission, including the right to be taught about one’s own culture and those of others.288 The access to cultural heritage, tangible or intangible, is therefore viewed as not only essential to acquiring cultural identity, it is also crucial in the perpetuation and continuation of cultural traditions’: they ‘must be preserved, developed, enriched and transmitted to future generations as a record of human experience and aspirations, in order to encourage creativity in all 282 cescr, Concluding Observations on Belgium (31 May 1994) un Doc E/C.12/1994/7, para 6. 283 cescr, Concluding Observations on Angola (1 December 2008) un Doc E/C.12/AGO/CO/3, para 40. 284 Vladmir Kartashkin, ‘Economic, Social and Cultural Rights’ in Philip Alston and Karel ­Vasak (eds), The International Dimensions of Human Rights (Greenwood Press 1982) 128. 285 Stephen A Hansen, ‘The Right to Take Part in Cultural Life, Toward Defining Minimum Core Obligation’ in Audrey R Chapman and Saga Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia 2002). 286 For obligations to protect cultural heritage, see Section 3.3.5.2. See also cescr, General Comment No 21, para 49(d). 287 Ibid. 288 Ibid.

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its diversity’.289 In this respect, states are also under a positive obligation to establish programmes aimed at preserving and restoring cultural heritage.290 Traditionally, cultural heritage is understood to relate primarily to tangible cultural properties, such as heritage sites.291 It also includes a limited list of intangible heritage, including language,292 aboriginal arts293 and traditional knowledge.294 One of the problems associated with earlier cescr texts is that cultural heritage is not clearly defined. For instance, it is unclear whether cultural practices and other forms of expression constitute cultural heritage. In line with the Universal Declaration on Cultural Diversity and the 2005 Convention on the Protection of Cultural Expressions, General Comment No. 21 of the cescr bridges the distinction between cultural heritage and other forms of cultural practice by employing the concepts of cultural goods and expressions.295 In essence, although the term ‘cultural heritage’ is retained, cultural heritage, cultural practices and other forms of cultural activities form part of ‘cultural goods’ and are often addressed together.296 Furthermore, General Comment No. 21 views the protection of cultural heritage, cultural goods and other forms of expression as closely associated with cultural identity and diversity. The distinction between tangible and intangible heritage has gradually narrowed. Cultural heritage is viewed more as the relationship between cultural knowledge (be it manifested in intangible form or embodied in tangible objects) and the community; i.e. cultural knowledge connects individuals to the wider community. This wider understanding of culture is encapsulated in paragraph 13 of General Comment No. 21, which provides that: 289 290 291 292 293

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cescr, General Comment No 21, para 50 (a). Ibid para 54(b). See Section 3.3.5.2. cerd, Concluding Observations on Venezuela (27 September 1996) un Doc CERD/C/304/ Add.17. cescr, Concluding Observations on Australia (3 June 1993) UN Doc E/C.12/1993/9, paras 12 and 20 (Aboriginal arts); cescr, Concluding Observations on Poland (4 December 1992) un Doc E/C.12/1992/2, para 132. cecsr, Concluding Observations on Mexico (9 June 2006) un Doc E/C.12/MEX/CO/4, para 27. The cescr urged for legislative measures for the protection of ‘collective authorship of indigenous peoples … [and] traditional knowledge and cultural heritage.’ See e.g. cescr, General Comment No 21, para 43 and n 41. Ibid para 37: ‘Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs, sports and traditional games, and visual and performing arts.’

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[F]or the purpose of implementing article 15 (1)(a), [culture] encompasses, inter alia, ways of life, language, oral and written literature, ­music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and the arts, customs and traditions through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view representing their encounter with the external forces affecting their lives. Culture shapes and mirrors the values of well-being and the economic, social and political life of individuals, groups of individuals and communities.297 This broad understanding of culture resembles the construction of culture as a system of symbolic references which provide and sustain the worldview of individuals and communities, addressed in anthropology.298 3.3.5.4.2 Land Protecting the use of land is crucial to protecting an indigenous way of life. This is particularly evident in the various individual communications and ­other actions of the treaty bodies.299 For example, in 2006, cerd utilised its early-warning and urgent procedures to call upon the us to freeze any planned action concerning the privatisation of land that the Western Shoshone claimed as their ancestral territory.300 Nevertheless, the protection of indigenous land rights as recognised by the treaty bodies has certainly extended beyond the right to the exclusive use of communal land. General Comment No. 21 of the cescr and cerd General Recommendation xxiii provide for the rights of indigenous peoples to own, develop, control and use their communal land.301 In addition, the treaty bodies have called for the restitution of lands and territories traditionally owned by indigenous communities and being used without

297 Ibid para 13. Emphasis added. 298 This view is very close to the understanding of culture embraced by symbolic anthropologists. See Sections 2.4–2.4.1. 299 See text accompanying supra n 250–277. hrc, Concluding Observations on Japan (19 ­November 1998) un Doc CCPR/C/79/Add.102, para 14. 300 un cerd ‘Early Warning and Urgent Action Procedure Decision 1(68)’ accessed 1 February 2017. 301 cerd, General Recommendation xxiii, para 5.

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their free and informed consent.302 Only where such restitution is impossible can the right of restitution be substituted by the right to just, fair and prompt compensation:303 ‘Such compensation should as far as possible take the form of lands and territories.’304 The word ‘restitution’ can at times be misleading, since it suggests that the rights of indigenous peoples to land arise from the fact that they were the first to inhabit the land.305 In this respect, the cultural rights approach to i­ndigenous land provides an alternative legal basis by asserting that land is e­ ssential to the practice of culture.306 The hrc jurisprudence clearly affirms the cultural i­mportance of land rights for indigenous people, as land is ­essential to maintaining their specific way of life,307 despite the ambiguity in defining a ‘distinctive culture’.308 Nevertheless, the emerging justification for ­indigenous peoples’ land rights seemed to be based on the symbolic attachment of the community to the land. 302 cescr, General Comment No 21, paras 36–37, 55(e); cerd, General Recommendation xxiii, para 4(d). 303 Although the language is strong in the case of cerd, the hrc seems to take the approach of balancing the public interest (economic development) and the livelihoods of indigenous populations by taking the stance that a violation can only be found where the economic activities concerned substantially impair the indigenous way of life. 304 cerd, General Recommendation xxiii, para 5; This entails special protection for indigenous people, as most states retain the right to ‘take’ property for public purposes upon the provision of just compensation. This doctrine is known as dominium eminens. However, it is also recognised that relocation and compensation may not be appropriate in order to comply with article 27 of the iccpr; in these circumstances, states must give consideration to the sustainability of the indigenous culture and way of life and must involve the indigenous communities in decision-making. See hrc, Concluding Observations on Chile (30 March 1999) un Doc CCPR/C/79/Add.104, para 22. 305 For example, article 1(b) of ilo Convention No 169 defines indigenous peoples as those ‘who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.’ Emphasis added. Karen Engle, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Duke University Press 2010) 163: ‘Until relatively recently, the discussions of land rights … [has been] concerned primarily with a group’s original relation to the land, often bypass[ing] questions of culture … there is a focus on ancestrality.’ See also Jonathan P Vuotto, ‘Awas Tingni v Nicaragua: International Precedent for Indigenous Land Rights?’ (2004) 22 B U Int’l L J 219, 222–223. 306 Engle, The Elusive Promise of Indigenous Development (n 306) 163. 307 Gilbert, ‘Custodians of the Land’ (n 234) 36. 308 See text accompanying supra n 260–271.

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In Hopu and Bessert v. France,309 an indigenous community residing in ­Tetaitapu in Tahiti, French Polynesia, filed a complaint with the hrc ­claiming that the construction of a hotel complex approved by the state would destroy their ancestral burial grounds, which are significant to their culture and history. At the admissibility stage, the hrc found Article 27 inapplicable owing to the state’s reservation. The authors relied on Articles 17 and 23, claiming that the destruction of ancestral burial grounds would violate their right to family and private life. The issue under dispute was whether the lack of a direct kinship link rendered the right to family life inapplicable. The majority found in favour of the authors, on the grounds that the concept of a ‘family’ should be given a broad interpretation—what constitutes a family is culturally determined and could extend beyond direct kinship links.310 The hrc noted that ‘[I]t transpires from the author’s claims that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life.’311 The minority opinion is illuminating. Firstly, it was noted that while the term ‘family’ may be taken to denote one’s extended family and other relatives, it should not be extended to include ‘all members of one’s ethnic or cultural group … [n]or … one’s ancestors, going back to time immemorial.’312 The minority suggested that the majority was stretching the legal understanding of the term ‘family’ in order to find a violation.313 Furthermore, the dissenting ­minority correctly pointed out that the majority, albeit implicitly, had acknowledged that both the practice of ancestral burial and the burial grounds in question must have a particular symbolic meaning to the members of the group, and it was on these grounds, rather than on the legal construal of ­‘family’, that the majority had made its decision: The [majority] mentions the authors’ claim ‘that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life.’ Relying on the fact that the State party has challenged neither this claim nor the authors’ argument that the burial grounds play an important part in their history, culture and life, the Committee concludes that the construction of the hotel 309 Hopu and Bessert v France, Communication No 549/1993 (29 July 1997) un Doc CCPR/ C/60/D/549/1993/Rev.1 (‘Hopu and Bessert v France’). 310 Ibid para 10.3. 311 Ibid. 312 Ibid, dissenting opinion, para 4. 313 Ibid.

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complex on the burial grounds interferes with the authors’ right to family and privacy. The reference by the Committee to the authors’ history, culture and life, is revealing. For it shows that the values that are being protected are not the family, or privacy, but cultural values. We share the concern of the Committee for these values. These values, however, are protected under article 27 of the Covenant and not the provisions relied on by the Committee. We regret that the Committee is prevented from applying article 27 in the instant case.314 In other words, the minority suggested that (1) the majority was actually deciding the case on the basis of Article 27 of the iccpr (i.e. a provision which is reserved by France) and (2) if Article 27 had not been reserved, the minority would have agreed that there was a breach of the article.315 At present, it is unclear whether the hrc will follow the rationale adopted in Hopu and Bessert v. France. If the hrc chooses to do so, it will mean that a ‘distinctive culture’ need not be proven in order for a land claim under Article 27 to be successful; it would be sufficient to establish a spiritual relationship with the disputed land. In fact, the shift in emphasis in relation to indigenous land claims towards the existence of a spiritual relationship can be identified in the Inter-American jurisprudence. The key case is Mayagna (Sumo) Awas Tingni v. Nicaragua.316 Awas Tingni is one of the indigenous communities of Nicaragua’s Atlantic Coast. In 1995, the indigenous community became aware that the state had 314 Ibid, dissenting opinion, para 5. 315 Yvonne Donders, ‘Do Cultural Diversity and Human Rights Make a Good Match?’ (2010) 61 Int Soc Sci J 15, 26. Donders notes that before Hopu and Bessert v France, the hrc considered several similar cases against France and all were deemed inadmissible. Note also that France’s reservation on article 27 was based on its refusal to acknowledge the presence of minorities, which is clearly inconsistent with the position taken by the hrc in its General Comment No 23. See hrc, General Comment No 23, para 5.2. 316 Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-Am Ct Hum Rts (Ser C) Case No 79 (31 August 2001), para 130(k) (‘Awas Tingn v Nicaragua’); James Anaya and Claudio Grossman, ‘The Case of Awas Tingni v Nicaragua: A New Step in the International Law of Indigenous Peoples’ (2002) 19 Ariz J Int’l & Comp L 1, 2. Awas Tingni v Nicaragua had a far-reaching effect as it was the ‘first legally binding decision by an international tribunal to uphold the collective land and resource rights of indigenous peoples in the face of a state’s failure to do so.’ It also influenced a series of subsequent cases before the InterAmerican Court of Human Rights on indigenous land. See Yakye Axa Indigenous Community v Paraguay, Inter-Am Ct Hum Rts (Ser C) No 125 (17 June 2005); Saramaka People v Suriname, Inter-Am Ct Hum Rts (Ser C) Case No 172 (28 November 2007); Kichwa Peoples of Sarayaku Community v Ecuador, Inter-Am chr Case 12.465, iachr Report No 56/69 (26 April 2010).

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awarded a licence for certain logging activities to a Korean lumber company, covering approximately 62,000 hectares of the community’s homeland.317 Having examined Article 21 of the American Convention of Human Rights on the right to property, the Inter-American Court concluded that the article ‘protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property’.318 The Court found a violation and ordered Nicaragua to delimitate, demarcate and title the property of the indigenous communities ‘with full participation by the community … taking into account its customary law, values, customs and mores.’319 What is revealing is this observation by the Court: Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.320 Thus, although the complainants’ case relied on the right to property, it was not only the ownership that mattered, but also the material and spiritual element that the land embodied, i.e. the cultural significance of land, without which the communal cultural lives of indigenous groups would be impossible. The Inter-American Commission on Human Rights now takes a similar stance and acknowledges that the function of indigenous land is not only to sustain communal life, but also to serve as ‘the geographical space necessary for the cultural and social reproduction of the group.’321 With the adoption of General Comment No. 21 of the cescr, the invocation of cultural grounds for the protection of indigenous land has become much clearer. For instance, paragraph 36 of General Comment No. 21 extends the 317 For more background on the Awas Tingni group, see Vuotto, ‘Awas Tingni v Nicaragua: International Precedent for Indigenous Land Rights?’ (n 306) 225–228. 318 Awas Tingni v Nicaragua, para 148. 319 Ibid para 164. 320 Ibid para 149. Emphasis added. For a more detailed analysis of this case, see e.g. Anaya and Grossman, ‘The Case of Awas Tingni v Nicaragua’ (n 317). 321 Mary and Carrie Dann v United States, Inter-Am chr Case 11.140, iachr Report No 75/02 (27 December 2002), para 128.

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understanding of culture to encapsulate the symbolic and emotional attachments that indigenous peoples invest in their land: Indigenous peoples’ cultural values and rights associated with their a­ ncestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity. States parties must therefore take measures to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources, and, where they have been otherwise inhabited or used without their free and informed consent, take steps to return these lands and territories.322 General Comment No. 21 further provides that ‘State parties must … respect the rights of indigenous peoples to their culture and heritage and to maintain and strengthen their spiritual relationship with their ancestral lands and other natural resources traditionally owned, occupied or used by them, and indispensable to their cultural life.’323 In essence, it is now acknowledged that land is especially crucial to indigenous peoples, not only because local livelihoods are crucially dependent on land, but also because their cultural values and identities are cultivated through their relationship with the land. To conclude, the rationale behind the protection of land is not the enjoyment of land per se, nor is it only a matter of ownership; rather, it acknowledges and recognises that the land provides the symbolic anchorage for the memories, values, spiritual relationships, beliefs and knowledge indispensable for the maintenance of the indigenous way of life—so that communities can continue to be who they are. General Comment No. 21 of the cescr is indicative of this conclusion, urging states not only to protect indigenous land, but also to ensure the availability of ‘nature’s gifts, such as seas, lakes, rivers, mountains, forests and nature reserves, including the flora and fauna found there, which give nations their character and biodiversity’.324 Together, these references provide the basis for the development of a group’s intangible cultural heritage, such as their ‘languages, customs, traditions, beliefs, knowledge and history, as well as values, which make up identity and contribute to the cultural

322 cescr, General Comment No 21, para 36. 323 Ibid para 49(d). 324 Ibid para 16(a).

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diversity of individuals and communities.’325 In other words, the jurisprudence of the treaty bodies does not only recognise the protection of participation in cultural practices, but also implies ‘the symbolic recognition and material support for the expression and preservation of [the community’s] cultural distinctiveness.’326 3.3.6 Cultural Identity The right to cultural identity is expressly recognised in the text of international human rights instruments. Article 29(1)(c) of the crc stipulates that the education of a child should be directed towards the development of respect for his or her cultural identity.327 Article 31 of the cmw provides that states must ensure respect for the cultural identity of migrant workers,328 who must not be prevented from maintaining their cultural links with their state of origin.329 Other treaties demand that the identity of minorities be officially recognised in national laws or policies.330 General Recommendation xxiv of cerd, for  ­instance, calls on states to recognise the identity of different minority groups in their censuses, and urges them to collect data pertaining to people’s ethnic and indigenous origins.331 The concept of cultural identity occupies a central place in both Article 15 of the icescr and Article 27 of the iccpr. In earlier works of the cescr, obligations in relation to cultural identity refer to respecting and protecting the ways in which minority groups choose to manifest their identities.332 One example noted in the concluding observations is the obligation to respect the use of names in indigenous languages in accordance with the group’s 325 Ibid. 326 Gilbert, ‘Custodians of the Land’ (n 234) 36. 327 Article 29(1)(c) crc. 328 Article 31 cwc. 329 Article 31 cwc. 330 cerd, Concluding Observations on Cambodia (30 March 1998) un Doc CERD/C/304/ Add.54, para 19; cerd, Concluding Observations on Peru (13 April 1999) un Doc CERD/ C/304/Add.69, para 18. 331 un Committee on the Elimination of All Forms of Racial Discrimination, ‘General Recommendation xxiv’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 August 1999) un Doc HRI/GEN/1/Rev.9 (vol 2) at 286 (2008) (‘cerd, General Recommendation xxiv’), para 3. 332 See 1990 Revised Guidelines. The 1990 Revised Guidelines require states parties to provide information on measures taken to promote the right of an individual to take part in the cultural life ‘which he or she considers pertinent, and to manifest his or her own culture.’

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­chosen  ­customs.333 Moreover, the cescr attaches great importance to the use of language as a means to assert identity.334 In its Concluding Observations on Guinea in 1996, the cescr remarked that by denying the right of the indigenous Amazigh population to use their mother tongue in official business the state was denying them their cultural identity.335 In this context, the cescr has on various occasions urged the preservation of minority and indigenous languages, particularly through their incorporation into formal education programmes.336 In fact, the lack of opportunities for education in a minority l­anguage has been a recurring issue for various treaty bodies.337 The general position is that states are obliged to respect and provide for minority 333 cescr, Concluding Observations on Libya Arab Jamahiriya (25 January 2006) un Doc E/C.12/LYB/C/2, para 42. See also un Committee on the Elimination of All Forms of Racial Discrimination, ‘General Recommendation xxx’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (19 August 2004) un Doc HRI/GEN/1/Rev.9 (vol 2) at 301 (2008) (‘cerd, General Recommendation xxx’), para 37: ‘[The Committee calls upon] … States parties to … [t] ake the necessary measures to prevent practices that deny non-citizens their cultural identity, such as legal or de facto requirements that non-citizens change their name in order to obtain citizenship, and to take measures to enable non-citizens to preserve and develop their culture’. 334 cescr, Concluding Observations on France (30 November 2001) un Doc E/C.12/1/Add.72; cescr, Concluding Observations on Algeria (30 November 2001) un Doc E/C.12/1/Add.71; cescr, Concluding Observations on Austria (14 December 1994) un Doc E/C.12.1994/16, para 9. Express acknowledgement of the links between language and cultural and linguistic identity can also be found in cerd, Concluding Observations on Libyan Arab Jamahiriya (10 May 2004) un Doc CERD/C/64/CO/4, para 15. 335 cescr, Concluding Observations on Morocco (4 September 2006) un Doc E/C.12/MAR/ CO/3, para 32: ‘[S]ince Arabic is the only official language in the State party, the Amazigh population, which makes up a large part of the Moroccan population, is denied the right to use its mother tongue in official business, and … the right of the Amazigh people to their cultural identity is not fully respected.’ 336 See cescr, Concluding Observations on Suriname (7 June 1995) un Doc E/C.12/1995/6; cescr, Concluding Observations on Austria (14 December 1994) un Doc E/C.12.1994/16, para 9; cescr, Concluding Observations on Bulgaria (18 May 2000) un Doc E/2000/22, paras 231 and 239. The right of minorities to establish their own schools was recognised prior to the instruments of the treaty bodies. 337 See also cerd, Concluding Observations on Suriname (28 April 2004) un Doc CERD/ C/64/CO/9, para 21: ‘… to encourage the learning of mother tongues … with a view to preserv[ing] the cultural and linguistic identity of the various ethnic groups.’ cerd, Concluding Observations on Venezuela (27 September 1996) un Doc CERD/C/304/Add.17, para 23; cescr, Concluding Observations on Japan (24 September 2001) un Doc E/C.12/1/ Add.67, para 32.

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­education institutions.338 In fact, the right of minorities to establish their own educational institutions pre-dates the existence of the core human rights treaties. In the Minority School in Albania case, the pcij held that the abolition of private schools for minorities constituted a violation of the rights protected under the minority treaties. The Court held that: In order to … [preserve the characteristics of the minority that ­distinguish them from the majority and to satisfy the minority’s special needs], two things were regarded as particularly necessary, and have formed the subject of provisions in these [minority] treaties. The first is to ensure that the nations belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their ­traditions and their national characteristics. These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority.339 The freedom to choose and establish educational institutions is also recognised in Articles 13(3) and (4) of the icesr.340 In the work of the treaty bodies, language, religion and cultural distinctiveness are often considered the core features constituting the identity of groups, and individuals as members of a group.341 This is reflected in ­General Comment No. 23 of the hrc on Article 27 of the iccpr, which specifies that ­‘Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, ­language or religion … The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned’.342 General Comment No. 23 of the hrc also calls upon states to put into place the necessary measures to protect the linguistic, religious and cultural identity of minorities.343 In this sense, the 338 339 340 341 342 343

See e.g. cescr, General Comment No 21, para 54(c). Minority Schools in Albania, para 48–52. Emphasis added. Articles 13(3) and (4) icescr. Article 27 iccpr; hrc, General Comment No 23, para 9. hrc, General Comment No 23, paras 6.2 and 9. Ibid para 6.2.

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hrc acknowledges that the preservation of cultural identity depends on the freedom and capacity of a group to manifest its cultural features, such as its ethnic character, religion or language.344 The observation that language, religion and cultural features constitute identity could not be more clearly reflected in the treaty bodies’ concluding observations. Apart from the numerous concluding observations that link language to identity, cited above, a considerable number link religion to minority identity.345 Moreover, cultural identity is also considered to be manifested in the minority’s distinctive way of life.346 When communities and groups are deprived of their right to manifest their identity through language, religion and their unique ways of living, they are deprived of their right to develop a sense of identity and belonging—that which binds the group together. Indeed, in the words of then-hrc member N’Diayne, the rights contained in Article 27 ‘are recognized in respect of individuals for their own sake … and above all for the survival of the minority as an entity … [T]he existence of minorities such as those defined in article 27 cannot be imagined after the disappearance of the single element which constitutes them, namely, their ethnic character, religion or, lastly, language.’347 The weakening of the communal sense of identity would ultimately entail the disappearance of the group. It is also for these reasons that cultural identity is often equated with a group’s distinctive manifestations of culture, i.e. its unique essence. The term 344 Prior to General Comment No 23, the reasoning behind the hrc’s view on what constitutes a minority within article 27 of the iccpr, and thus when one is able to invoke the right, was unclear. In Ballantyne, Davidson, McIntyre v Canada, the authors, being part of the English-speaking minority in the Canadian province of Quebec, sought to argue that the provincial laws in Quebec requiring all business signs to be in French constituted a violation of, inter alia, article 27. The hrc decided that a minority is a group that is ­numerically inferior within a state, but not within a province or region, and accordingly dismissed the article 27 claim, but nevertheless found the language restrictions to be a violation of the freedom of expression guaranteed under article 19. The reasoning adopted by the majority was challenged by other members of the hrc, who convincingly argued that whether the group was numerically inferior or not should not have been the sole basis for determining what constitutes a ‘minority’. See Ballantyne, Davidson, McIntyre v Canada, Communication Nos 359/1989 (5 May 1993) un Doc CCPR/C/47/D/359/1989 (‘Ballantyne v Canada’). 345 See e.g. cerd, Concluding Observations on China (27 September 1996) un Doc CERD/ C/304/Add.15, para 14; cerd, Concluding Observations on China (8 September 2001) un Doc A/56/18, para 244; hrc, Concluding Observations on Guatemala (3 April 1996) un Doc CCPR/C/79/Add.63, para 34. 346 See Section 3.3.5.4. 347 See Ballantyne v Canada, Individual opinion by Mr Birame Ndiaye (dissenting).

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is primarily used to refer to the collective dimension of culture348 embodying a form of group distinctiveness, and is seldom invoked individually. An exception is the Lovelace v. Canada case.349 In Lovelace v. Canada, the author invoked ­Article 27 as an individual right. The author of the communication lost her rights and status as an Indian in accordance with local legislation which provided that an Indian woman who married a non-Indian man would lose her status as an Indian. Deciding in favour of the author, and recognising the ­importance of cultural identity as a part of an individual’s enjoyment of culture, the hrc expressed the view that ‘The major loss to a person ceasing to be an Indian is the loss of the cultural benefits of living in an Indian community, the emotional ties to home, family, friends and neighbours, and the loss of identity.’350 The case of Lovelace v. Canada is explored further in Section 4.3.2.2. 3.3.7 Cultural Diversity The right to cultural identity implies a general moral obligation to respect other people’s identities, and therefore an obligation on the part of states to protect cultural diversity.351 This view is reflected in the cescr’s 1990 Revised Guidelines, noted above, where the Committee urged the ‘[p]romotion of cultural identity as a factor of mutual appreciation among individuals, groups, nations and regions.’352 A similar view is adopted in the 2008 Reporting Guidelines.353 General Comment No. 21 of the cescr dedicates a section to the relationship between cultural diversity and the right to take part in cultural  life. It clarifies that ‘[T]he concept of culture implies the coexistence of 348 Matthias Åhrén, ‘Protecting People’s Cultural Rights: A Question of Properly Understanding the Notion of States and Nations’ in Francesco Francioni and Martin Scheinin (eds), Cultural Human Rights (Martinus Nijhoff Publishers 2008) 107. It was argued that the hrc’s interpretation of article 27 ‘collectivised’ what was supposed to be an individual right. The hrc also acknowledged the rights of minorities under article 27 to identify themselves as a group in court proceedings. See hrc, Concluding Observations on Denmark (28 October 2008) un Doc CCPR/C/DNK/CO/5. 349 Sandra Lovelace v Canada, Communication No 24/1977 (30 July 1981) un Doc CCPR/ C/13/D/24/1977 (‘Lovelace v Canada’). 350 Ibid para 13.1. Similar facts arose in the case lsn v Canada; however, the case was withdrawn owing to Canada’s response to the Committee’s views in Lovelace. Alex Conte, ‘The Judicial Process’ in Richard Burchill and Alex Conte (eds), Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2nd edn, Ashgate 2009) 190. See lsn v Canada, Communication No 94/1981 (30 March 1984) un Doc CCPR/C/OP/2. 351 Marks, ‘Defining Cultural Rights’ (n 9) 304. See Section 3.3.5. 352 1990 Revised Guidelines, para 1(c). 353 2008 Reporting Guidelines, para 68.

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different cultures.’354 It points to Article 15(2) of the Covenant and calls on states to adopt measures ‘to protect and promote the diversity of cultural expressions, and enable all cultures to express themselves and make themselves known.’355 General Comment No. 21 highlights that states have a duty to ‘[adopt] policies for the protection and promotion of cultural diversity, and facilitat[e] access to a rich and diversified range of cultural expressions, including through, inter alia, measures aimed at establishing and supporting public institutions and the cultural infrastructure necessary for the implementation of such policies; and measures aimed at enhancing diversity through public broadcasting in regional and minority languages’.356 States also have an obligation to ‘[adopt] policies enabling persons belonging to diverse cultural communities to engage freely and without discrimination in their own cultural practices and those of others, and to choose freely their way of life’.357 In relation to minorities, General Comment No. 21 provides that ‘[M]inorities have the right to their cultural diversity, traditions, customs, religion, forms of education, languages, communication media (press, radio, television, Internet) and other manifestations of their cultural identity and membership.’358 Following on from respect for cultural diversity, participation in cultural life for every individual, regardless of his or her cultural and ethnic background, presupposes a commitment to pluralism and multiculturalism.359 A close examination of the concluding observations unveils multiculturalism as one of the underlying rationales and philosophies embraced by the cescr as part of the right to take part in cultural life, as explicitly mentioned on various occasions. In 1993, the Committee noted in its Concluding Observations on ­Australia ‘[The Committee] is encouraged by the development of programmes to promote multiculturalism and the recognition being placed on the racial and cultural differences in Australia.’360 On another occasion, the Committee elaborated that multiculturalism should include ‘a variety of religious and cultural groups and communities [living] together peacefully in a spirit of mutual respect and tolerance.’361 Towards this goal, the Committee encouraged states 354 355 356 357 358 359

cescr, General Comment No 21, para 42. Ibid para 43. Ibid paras 32 and 52(a). Ibid para 52(b). Ibid para 32. The words ‘multiculturalism’ and ‘pluralism’ are similar and have been used by academics almost interchangeably in discussions surrounding cultural rights. 360 cescr, Concluding Observations on Australia (3 June 1993) un Doc E/C.12/1993/9, para 5. 361 cescr, Concluding Observations on Mauritius (31 May 1994) un Doc E/C.12/1994/8, para  6; cescr, Concluding Observations on Norway (23 June 2005) un Doc E/C.12/1/

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‘to intensify [their] efforts to promote respect for the cultural values of ethnic communities in order to enhance mutual tolerance and understanding.’362 In other instances, the Committee reaffirmed the obligation of the state to ‘create favourable conditions to enable all groups, including minorities and ethnic groups, to express and develop their culture, language, traditions and customs’ and to ‘encourage knowledge of the history, traditions, language and culture of the various groups … existing within its territory.’363 The promotion of multiculturalism through education and the mass media364 is also a common concern for other treaty bodies.365 Acknowledging cultural diversity is important, as Áhrén correctly points out: ‘If a particular people have greater economic and political power, that people’s point of views and cultural assumptions is

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Add.109, para 7: ‘The Committee notes with appreciation the submission to Parliament, on 1 October 2004, of a new White Paper on Norway as a multicultural society that includes people of various backgrounds, ethnicities, religions, cultures, languages and ways of life.’ cescr, Concluding Observations on Serbia and Montenegro (23 June 2005) un Doc E/C.12/1/Add.108, para 65. cescr, Concluding Observations on Libya Arab Jamahiriya (25 January 2006) un Doc E/C.12/LYB/Co/2, para 43; cescr, Concluding Observations on Iraq (30 May 1994) un Doc E/C.12/1994/6, para 14. See e.g. article 7 cerd; cerd, Concluding Observations on Venezuela (Bolivarian Republic of) (17 August 2005) un Doc A/60/18, para 374; cerd, Concluding Observations on Poland (1 November 2003) un Doc A/58/18, para 164; crc, Concluding Observations on Croatia (3 November 2004) un Doc CRC/C/15/Add.243, para 35; crc, Concluding Observations on Panama (30 June 2004) un Doc CRC/C/15/Add.233, para 64. Article 29(1)(c) of the crc provides that a child’s education should be directed to, inter alia, ‘[t]he development of respect … for civilizations different from his or her own’. General Comment No 1 of the crc explains that ‘[E]ducation should be directed to a wide range of values … part of the importance of this provision lies precisely in its recognition of the need for a balanced approach to education … which succeeds in reconciling diverse values through dialogue and respect for difference.’ See Committee on the Rights of the Child, ‘General Comment No 1’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (17 April 2001) un Doc HRI/GEN/1/Rev.9 (vol 2) at 384 (‘crc, General Comment No 1’), para 14; un Committee on Economic, Social and Cultural Rights, ‘General Comment No 1’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008), un Doc HRI/GEN/1/Rev.9 (vol 1) at 1 (‘cescr, General Comment No 1’), para 2. See also crc, Concluding Observations on Romania (31 December 2003) un Doc CRC/124, para 253. On intercultural education, see e.g. cerd, Concluding Observations on Spain (28 April 2004) un Doc CERD/C/64/CO/6, para 10; cerd, Concluding Observations on Tajikistan (10 December 2004) un Doc CERD/ C/65/CO/8, para 22; cerd, Concluding Observations on Ireland (14 April 2005) un Doc CERD/C/IRL/CO/2, para 4.

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likely to become the norm. Allegedly culturally neutral liberal individualism, hence, in reality promotes assimilation.’366 3.3.8 The Survival of Culture Minority cultures are under the constant threat of assimilation.367 Moreover, cultures can disappear because of economic and social conditions.368 In its Concluding Observations on Canada in 1998, the cescr noted that ‘[C]oncrete and urgent steps [should be taken] to restore and respect an aboriginal land and resource base adequate to achieve a sustainable aboriginal economy and culture.’369 Furthermore, in its Concluding Observations on Mexico in 1994, the cescr reaffirmed positive obligations in relation to the preservation of indigenous ways of life: ‘Resources should be made available for indigenous groups to enable them to preserve their language, culture and traditional way of life, and at the same time to promote the economic, social and cultural rights provided for in the Covenant.’370 It is therefore clear that special care is called for to ensure the survival of cultures. On this topic, due attention should be paid to Article 27 of the iccpr. ­General Comment No. 23 of the iccpr on Article 27 states that ‘Article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the 366 Åhrén, ‘Protecting People’s Cultural Rights’ (n 349). 367 Thornberry argues that since ‘a right to participate in a culture can only exist if there is a culture’, it follows that minorities should be free from assimilationist pressures. See also cescr ‘Day of General Discussion: Right to take part in cultural life (article 15(1)(a) of the Covenant): Background paper submitted by Mr Patrick Thornberry’ (9 May 2008) un Doc E/C.12/40/15; Michael Kirby, ‘Cultural Rights: Some Developments’ (12 October 1998)

­accessed 1 February 2017. Kirby observes, ‘As peoples carry with them the cultures of their ancestors, and the passion, the appreciation and feeling that is necessary to preserve their legacy, the protection of peoples from the crime of genocide is itself essential to the survival of different cultures. It is difficult, if not impossible, for culture in its full variety to survive if the survival of peoples is not assured … They can be damaged just as surely by the obliteration of languages and traditions, of religions and ceremonies as by the smashing of temples or the looting of artefacts.’ 368 cescr, General Comment No.21, paras 41–43. 369 cescr, Concluding Observations on Canada (10 December 1998) un Doc E/C.12/1/Add.31, para 43. 370 cescr, Concluding Observations on Mexico (5 January 1994) un Doc E/C.12/1993/16, para 11.

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minorities concerned, thus enriching the fabric of society as a whole.’371 Construing ­Article 27 in light of the continuation and survival of culture demands not only that states protect the traditional economic activities of indigenous minorities,372 but also that they ensure that these minorities are free from assimilation and that their way of life is left undisturbed.373 As noted above, the notion of a ‘way of life’ is often construed as the way of living particular to a group, and is often associated with the use of land.374 The right of the group to maintain its way of life is in turn associated with the survival of its culture as a whole as well as its identity.375 Protecting the survival of culture also involves the obligation to consult minorities and indigenous groups on matters affecting their way of life. For instance, in the hrc Concluding Observations on Mexico in 1994, it was ­noted that ‘Consideration [should be given] to more equitable land distribution within the framework of agrarian reform and … the rights and aspirations of indigenous populations in that connection.… Indigenous populations should have the opportunity to participate in decision-making on matters that ­concern them.’376 In cerd’s Concluding Observations on Nigeria in 2005, the Committee expressed concerns about: 371 hrc, General Comment No 23, para 9. 372 hrc, Concluding Observations on Ecuador (18 August 1998) un Doc CCPR/C/79/Add.92, para 19. 373 cescr ‘Day of General Discussion: Right to take part in cultural life (article 15(1)(a) of the Covenant): Background paper submitted by Mr Christian Groni’ (9 May 2008) un Doc E/C.12/40/3. Groni argues that culture, seen as a way of life, implies a right to be free from an undesirable way of life. 374 See Section 3.3.5.3. In relation to indigenous people, the ilo points out that the Indigenous and Tribal Peoples Convention 1989 (No 169) adopts a broad understanding of culture. Article 13(1) attaches special importance to the use of the land and territories of indigenous people and the implications for their culture and spiritual values. Similarly, article 7(3) requires states to conduct studies on the social, spiritual, cultural and environmental impacts of development activities on indigenous peoples. 375 hrc, Concluding Observations on Suriname (4 May 2004) un Doc CCPR/CO/80/SUR, para 21. The hrc noted ‘commercial activities leading to the mercury poisoning of indigenous and tribal peoples, which seriously affected their life and health and the continuing habitability of the surrounding environment of their land.’ See also cerd, Concluding Observations on Brazil (28 April 2004) un Doc CERD/C/64/CO/2, para 16; cerd, Concluding Observations on Nepal (28 April 2004) un Doc CERD/C/64/CO/5, para 13; cerd, Concluding Observations on Suriname (28 April 2004) un Doc CERD/C/64/CO/9, paras 21–22. 376 hrc, Concluding Observations on Mexico (18 April 1994) un Doc CCPR/C/79/Add.32, para 18; cescr, Concluding Observations on Ecuador (7 June 2004) un Doc E/C.12/1/

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the adverse effects on the environment of ethnic communities through large scale exploitation of natural resources in the Delta Region and o­ ther River States, in particular, the Ogoni areas. It is concerned at the State party’s failure to engage in meaningful consultation with the concerned communities, and about the deleterious effects of the oil production activities on the local infrastructure, economy, health and education.… The Committee reiterates that along with the right to exploit natural ­resources there are specific, concomitant obligations towards the local population, including effective and meaningful consultation.377 Therefore, consultation in this context must be meaningful as opposed to a mere formality.378 The informed consent of indigenous populations must be sought.379 Likewise, General Comment No. 23 on Article 27 of the iccpr notes that the state has a responsibility to ensure effective consultation on matters affecting minorities, noting that the enjoyment of their way of life ‘may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.’380 In a similar vein, the treaty bodies have also stressed the importance of incorporating minority groups into the political framework (for example, by improving the representation of minorities in parliament)381 and of affording them a political platform through which political opinions can be effectively heard. cerd’s General Recommendation xxi provides that: Add.100, para 35. The right to take part in decision-making on matters affecting the indigenous population is also sometimes construed in terms of the right to self-determination. 377 cerd, Concluding Observations on Nigeria (1 November 2005) un Doc CERD/C/NGA/ CO/18, para 19. 378 The hrc has used the term ‘effective consultation’. See hrc, Concluding Observations on Colombia (26 May 2004) un Doc CCPR/CO/80/COL, para 20; hrc, Concluding Observations on Thailand (8 July 2005) un Doc CCPR/CO/84/THA, para 24. 379 cerd, Concluding Observations on Ecuador (20 March 2003) un Doc CERD/A/58/18, para 62, cescr, Concluding Observations on Ecuador (7 June 2004) un Doc E/C.12/1/ Add.100, para 35: ‘The Committee strongly urges the State party to ensure that indigenous people participate in decisions affecting their lives … [and] requests that the State party consult and seek the consent of the indigenous people concerned prior to the implementation of natural resources-extracting projects and on public policy affecting them’. 380 hrc, General Comment No 23, para 7. 381 cerd, Concluding Observations on New Zealand (22 August 2002) un Doc A/57/18, para 419; cerd, Concluding Observations on Hungary (22 August 2002) un Doc CERD/A/57/18, para 381.

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Governments should be sensitive towards the rights of persons belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the Government of the country of which they are citizens. Also, Governments should consider, within their respective constitutional frameworks, vesting persons belonging to ethnic or linguistic groups comprised of their citizens, where appropriate, with the right to engage in activities which are particularly relevant to the preservation of the identity of such persons or groups.382 In cerd’s Concluding Observations on Sweden in 1991, the Committee noted that ‘Rather than trying to assimilate [the Sami] into mainstream society, the Government should endeavour to preserve their specific cultural identity. To that end, members wished to encourage the possible establishment of a Sami parliament.’383 Likewise, in the hrc Concluding Observations on Finland, the Committee welcomed ‘[t]he existence of Advisory Boards for both Sami and Romani Affairs, mandated to advance the interests of these minority populations, and right of Sami since 1992 to communicate with the authorities in their native language and to be consulted through their representatives on matters affecting them closely.’384 From the same perspective, the political autonomy of minority groups w ­ ithin the constitutional framework of the state is considered an effective means of 382 un Committee on the Elimination of All Forms of Racial Discrimination, ‘General Recommendation xxi’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (17 April 2001) un Doc HRI/GEN/1/Rev.9 (vol 2) at 282 (‘cerd, General Recommendation xxi’), para 5. 383 cerd, Concluding Observations on Sweden (13 March 1991) un Doc CERD/A/46/18, para 222; cerd, Concluding Observations on Turkmenistan (27 March 2007) un Doc CERD/ C/TKM/CO/5, para 12. The Committee notes that ‘policies of forced assimilation amount to racial discrimination … [and] urges the State party to respect and protect the existence and cultural identity of all national and ethnic minorities within its territory.’ 384 hrc, Concluding Observations on Finland (8 April 1998) un Doc CCPR/C/79/Add.91, para 5; hrc, Concluding Observations on Sweden (24 April 2002) un Doc CCPR/CO/74/SWE, para 15. The Committee expressed its concern ‘at the limited extent … the Sami Parliament can have a significant role in the decision-making process on issues affecting the traditional lands and economic activities of the indigenous Sami people, such as projects in the fields of hydroelectricity, mining and forestry, as well as the privatization of land.… The State party should take steps to involve the Sami by giving them greater influence in decision-making affecting their natural environment and their means of subsistence.’ See also cerd, Concluding Observations on Sri Lanka (14 August 2001) un Doc CERD/A/56/18, para 335.

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ensuring the political participation of minorities: ‘The Committee notes the significant degree of autonomy enjoyed by the people of Greenland, which is evident in the existence of an elected parliament, with devolved powers over a wide range of issues, inter alia, education, health, taxation, trade, fisheries and hunting.’385 In cerd’s Concluding Observations on Hungary in 2002, the Committee expressed ‘its satisfaction at the promulgation and implementation of [local legislation] which recognizes 13 minorities and provides them with a degree of cultural autonomy, as well as a wide range of e­ ducational and linguistic rights, and sets up a system of minority self-governments.’386 These protections are reiterated in General Comment No. 21 of the cescr, which notes that states have an obligation to adopt specific measures aimed at respecting an individual’s right ‘to take part freely in an active and informed way … in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15 paragraph 1(a).’387 Moreover, states also have an obligation to ‘[enact] … appropriate legislation and [to establish] … effective mechanisms allowing persons … to participate effectively in decision-making processes, to claim protection of their right to take part in cultural life, and to claim and receive compensation if their rights have been violated’.388 It acknowledges that consultations should be held with the individuals and communities concerned in order ‘to ensure that the measures to protect cultural diversity are acceptable to them’.389 More importantly, as a minimum core obligation, General Comment No. 21 urges states ‘[t]o allow and encourage the participation of persons belonging to minority groups, indigenous peoples or to other communities in the design and implementation of laws and policies that affect them. In particular, States parties should obtain their free and informed prior consent when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk.’390 385 cescr, Concluding Observations on Denmark (14 May 1999) un Doc E/C.12/1/Add.34, para  6; cescr, Concluding Observations on Norway (6 December 1995) un Doc E/C.12/1995/13, para 9. 386 cerd, Concluding Observations on Hungary (22 August 2002) un Doc CERD/A/57/18, para 370; cerd, Concluding Observations on Costa Rica (18 March 1999) un Doc CERD/A/54/18, para 202. Stressing the importance of land to indigenous spiritual and cultural identity, the Committee commented positively on a bill passed by the Legislative Assembly providing for the autonomous development of indigenous people. 387 cescr, General Comment No 21, para 16(c). 388 Ibid para 54(a). 389 Ibid para 16(c). 390 The phrase ‘cultural resources’ does not only refer to land, but also to resources such as water, forests and biodiversity. See cescr, General Comment No 21, para 16(a). cescr,

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3.3.9 Three Dimensions of Culture The sections above have demonstrated the well-intentioned efforts of unesco and the treaty bodies to protect cultural rights. As we have seen, the expansion in the scope of protection has been dramatic: from protecting culture as high culture,391 to protecting culture as popular culture (which, among other implications, calls for the democratisation of cultural institutions)392 and eventually to acknowledging culture as a way of life (encompassing protections for a wide range of aspects including indigenous land, heritage and other forms of cultural expressions and manifestations).393 In line with this change, the protection offered by the treaty bodies also expanded, from ensuring access to material culture to addressing the daily and pressing issues which indigenous peoples face (the threat of being evicted directly or indirectly from the land which they traditionally occupy, for instance). Comprehensive protection is also offered through the articulation of concepts such as cultural identity and cultural diversity, as these too relate to a group’s very existence.394 From the legal perspective, cultural rights are gradually beginning to occupy a central position spanning different areas of international human rights law and discourse, cutting across other themes and categories including minority rights, indigenous rights and environmental law.395 To give a more systematic picture, it is useful to think of cultural rights in the instruments of the treaty bodies as embodying different dimensions of culture: culture in its material sense, culture as a process and culture as a ­system.396 Culture in the material sense includes the protection of high culture and forms of popular culture as ‘products’ in addition to the protection of tangible cultural heritage.397 The concept of culture in its material sense

391 392 393 394 395

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General Comment No 15 para 6 (on the right to water) acknowledges the relationship between the right to water and the right to take part in cultural life. See Section 3.3.3. Ibid; 2008 Reporting Guidelines, para 67. See Section 3.3.4. See Sections 3.3.5 and 3.3.6. cescr, Concluding Observations on Ecuador (7 June 2004) un Doc E/C.12/1/Add.100, para 35; Donald K Anton and Dinah Shelton, Environmental Protection and Human Rights (Cambridge University Press 2011). This view contains an expansion and elaboration of Stavenhagen’s work, which was subsequently adopted by Eide and Stamatopolou, among others. See Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ (n 133); Eide, ‘Cultural Rights as Individual Human Rights’ (n 16); Stamatopoulou, Cultural Rights in International Law (n 59). Note that although their contributions remain highly relevant, they no longer provide an accurate reflection of the present situation of the law. See Section 3.3.4.

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was not only adopted by Article 15 of the icescr in the earlier stages of its development, but was reaffirmed in General Comment No. 21 of the cescr and the cescr jurisprudence as including, inter alia, museums, libraries, theatres, cinemas, monuments and heritage sites.398 From this understanding, it is easy to measure culture in quantitative ways: the availability of books and publications, the growth of cultural services, the preservation of material heritage, the establishment of libraries and museums, and so on.399 In essence, the protection of material culture entails its provision (ensuring its availability), preservation, diffusion and dissemination. Protection in this regard is important, for it provides a solid basis on which cultural rights—with their aim of personal self-development—might be achieved.400 ‘Culture as process’ sees culture as dynamic and constantly ‘in the making’. In its narrow sense, it recognises culture as the ‘process of artistic and scientific creation’.401 A wider interpretation would identify culture as the process through which individuals engage in the creation of all forms of knowledge and in the assertion of identity through engaging with and participating in cultural life; in fact, culture as a process is implicit in a literal reading of the word ‘participation’. ‘Culture as process’ first gained recognition in the 1976 Recommendation on Participation in Cultural Life and is evident both in the 1976 Recommendation and subsequently in the cescr jurisprudence, which stress the democratisation of culture, i.e. improving the accessibility of cultural institutions and ­services, such as museums, libraries, minority schools and the media.402 The 1976 Recommendation on Participation in Cultural Life articulates three necessary conditions for protection in this regard, including: (1) ensuring access to culture, meaning the provision of ‘concrete opportunities … in particular through the creation of the appropriate socio-economic conditions, for freely obtaining information, training, knowledge and understanding, and for enjoying cultural values and cultural property’;403 (2) facilitating participation in cultural life, entailing, inter alia, guarantees for the right of individuals to freely express and engage in creative activities; and (3) ensuring the right to exchange information, ideas and knowledge, with a view to promoting d­ ialogue 398 399 400 401

cescr, General Comment No 21, para 70. Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ (n 133) 87–88. Chow, ‘Culture as Collective Memories’ (n 1) 611–613. Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ (n 133) 87–88; Eide, ‘Cultural Rights as Individual Human Rights’ (n 16) 291. 402 Ibid. 403 Ibid article 2(a).

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and fostering a sense of community.404 These obligations reappear in the jurisprudence of the cescr405 and are made explicit in General Comment No. 21 of the cescr, which similarly articulates three different elements of the right to take part in cultural life: (1) The element of participation, which covers, inter alia, the right of individuals to act freely and to choose their own identity according to their own preference, to take part in political life, to engage in cultural practices and to seek and develop cultural knowledge; (2) The element of access, which covers, inter alia, the right of individuals to understand their own culture through education and information, to receive education with due regard for their identity and to learn about and follow a way of life associated with their language, nature and other heritage; (3) The element of contribution to cultural life, which covers, inter alia, a community’s right to create spiritual, material and intellectual/­emotional expressions.406 All of these elements are now considered indispensable to Article 15(1)(a) of the icescr and are duly subject to protection. Furthermore, the emphasis on process is also highlighted in instances where the treaty bodies stress the rights of minorities to express themselves in their own language, to profess their ­religion and to enjoy their culture (Article 27 of the iccpr). This emphasis also presupposes respect for other rights such as freedom of expression, assembly, association and religion.407 Through participation in culture, the individual nurtures her personality. Seeing culture as a process has far-reaching implications for the rights of minorities and indigenous peoples. Article 11 of the 2007 United Nations Declaration on the Rights of Indigenous Peoples, for instance, provides that ­indigenous peoples have the ‘right to practice and revitalize their cultural traditional and customs.’408 The right of indigenous people to take part in their 404 Ibid article 2(c). 405 See Section 3.3.4.1. 406 cescr, General Comment No 21, para 15. See also article 7 of the Fribourg Declaration on Cultural Rights. 407 Ibid para 55(c). Respect for these rights is now considered one of the core obligations of article 15(1)(a) of the icescr. See also articles 4(b) and (j), 1976 Recommendation on the Participation in Cultural Life. 408 cf article 8, ilo Convention No 169, which provides that indigenous peoples ‘shall have the right to retain their own customs and institutions’.

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cultural life, and, in the process, to contribute to the culture of the community, is vital to the intergenerational transmission of knowledge and the protection of cultural continuity. As Das argues, the ‘very attempt to freeze and fix cultural traditions may jeopardize their survival.’409 Viewed from this vantage point, culture as a process also captures the temporal aspect of culture; it protects a community’s right to engage with its past and contribute to its future. It is useful to note the expanding scope of culture when it is conceptualised as a process. While earlier texts seem to stress the importance of the availability and accessibility of institutions (such as minority schools, religion, museums and the media) in making participation in culture possible, what constitutes culture has expanded dramatically under General Comment No. 21 of cescr, and includes, inter alia, ‘ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and … arts, customs and traditions.’410 Culture is therefore no longer viewed as something that we participate in on specific occasions, but something which plays an integral part in our everyday lives. In this manner, understanding culture as a process overlaps with the third understanding of culture, i.e. the system-oriented concept of culture, and is especially evident when culture is addressed as a way of life. The third understanding, a system-oriented concept of culture, sees culture as ‘a coherent self-contained set of values and symbols that a specific cultural group reproduced over time and which provides individuals with the required signposts and meanings for behaviour and social relationships in everyday life.’411 Culture in this sense embodies the ‘internal frame of reference of the society’ or the ‘society’s underlying and characteristic pattern of thought’.412 It is deeply related to the community’s worldview or cosmovision.413 409 Veena Das, ‘Cultural Rights and the Definition of Community’ in Oliver Mendelsohn and Upendra Baxi (eds), The Rights of Subordinated Peoples (Oxford University Press 1994) 123; unesco, Cultural Diversity: Common Heritage, Plural Identities (unesco 2002) 77: ‘“Tradition” and “heritage” suggest constancy, immutability and inflexibility. In actual fact, local knowledge is subject to a continuous process of reassessment, renewal and expansion. Each generation forges the cognitive tools and understandings required to live in a rapidly evolving world by tempering the knowledge of its forefathers with personal experience and opportunities.’ 410 cescr, General Comment No 21, para 13(a). 411 Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ (n 133) 91. 412 O’Keefe, ‘The “right to take part in cultural life”’ (n 128) 905. 413 unesco, ‘Investing in Cultural Diversity and Intercultural Dialogue: unesco World Report’ (2009) accessed 1 February 2017 (‘unesco World Report 2009’) 112.

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Eide  ­distinguishes ‘culture as process’ from ‘culture as system’ by reference to their implications for individual participation: ‘From the process-oriented perspective the individual is a producer of culture. From a system-oriented perspective he or she is a product of culture and reproduces it through his or her own activities.’414 As noted above, international legal protection in this regard first derived from the 1982 Mexico City Declaration, which acknowledges that culture should be understood as the ‘whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group [including its] modes of life … value systems, traditions and beliefs.’415 This understanding has made a significant impact on the protection of indigenous groups and traditional societies, which have ‘nurtured and refined systems of knowledge of their own, relating to such diverse domains as astronomy, meteorology, geology, ecology, botany, agriculture, physiology, psychology and health.’416 As Das remarks, ‘The demand for cultural rights … has here come to be articulated in a context where cultural symbols have been appropriated by the state, which tries to establish a monopoly over ethical pronouncements. The state is thus experienced as a threat by smaller units who feel that their ways of life will be penetrated if not engulfed by this larger unit.’417 In essence, the protection of culture as a system-oriented concept entails the protection of what is necessary for the group to maintain its way of life.418 In particular, it entails the protection of the indigenous community’s native land, because it is the land and the heritage connected with the land that provide communities with symbolic references which nurture their unique way of life—a view that the hrc is beginning to recognise419 and one that General Comment No. 21 of the cescr embraces.420 It has been argued that protecting culture in this respect has implications for the diversity of humanity, since some of these knowledge systems ‘harbour information as yet unknown to modern science … [and embody] other relationships between society and nature, and other approaches to the acquisition and construction of knowledge.’421 414 415 416 417 418 419 420

Eide, ‘Cultural Rights as Individual Human Rights’ (n 16) 291. Preamble, 1982 Mexico City Declaration. unesco World Report 2009, 112. Das, ‘Cultural Rights and the Definition of Community’ (n 410) 124. See Section 3.3.5. See Section 3.3.5.3. cescr, General Comment No 21, para 36; Jerry Firestone, Jonathan Lily and Isable Torres de Noronha, ‘Cultural Diversity, Human Rights, and the Emergence of Indigenous Peoples in International and Comparative Environmental Law’ (2004) 20 Am U Int’l L Re 219. 421 unesco World Report 2009, 112.

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The concepts of culture as a process and culture as a system overlap, because it is through participation in culture that individuals derive and contribute to symbolic meanings. General Comment No. 21 of the cescr expressly acknowledges the process through which individuals derive meanings through participation in culture: [The engagement in culture is a process] through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view r­ epresenting their encounter with the external forces affecting their lives. Culture shapes and mirrors the values of well-being and the economic, social and political life of individuals, groups of individuals and communities.422 In this sense, General Comment No. 21 of the cescr not only acknowledges the meaningful aspects of culture, but also sees our everyday participation in culture as the context in which meanings are derived.423 General Comment No. 21 of the cescr also notes that ‘[C]ulture is a broad, inclusive concept encompassing all manifestations of human existence. The expression “cultural life” is an explicit reference to culture as a living process, historical, dynamic and evolving, with a past, a present and a future.’424 This means that culture is not static, but must be sustained in daily life. In this respect, the renewed focus on ‘access to’, ‘participation in’ and ‘contribution to’425 culture also helps strengthen individual participation and thus the capacity of a community to sustain cultural knowledge and pass it on to future generations. Note that although the understanding of culture as a system is often associated with the rights of minorities and indigenous communities, an e­ merging understanding of cultural rights relates to cities, with these rights to be realised through the implementation of cultural policies aimed at promoting cultural inclusion in public space. In 2002, a draft Charter of Cultural Rights and C ­ ommitments in the City was proposed. Sponsored by the Interarts Foundation, the draft Charter aimed to articulate ‘cultural action and entitlement by recognizing the cultural dimension of urban space … and promoting participation, a sense of place, affiliation and belonging and social cohesion and 422 Ibid para 13. Emphasis added. 423 As noted in Section 3.3.5.4, an acknowledgement of the spiritual/meaningful dimension of culture is expressed in Hopu and Bessert v France before the hrc. See Hopu and Bessert v France. 424 cescr, General Comment No 21, para 11. 425 See 1976 Recommendation on Participation in Cultural Life.

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inclusion.’426 It was believed that the cultural dimension of the use of public space (through creating a sense of place, identity and affiliation) was essential to promoting broader political participation and concern for issues such as security, the environment, health and quality of life.427 This is not clearly expressed in the jurisprudence of the treaty bodies, although General Comment No. 21 of the cescr does stipulate that, as a state obligation, states parties should ensure the availability of ‘shared open spaces essential to cultural interaction, such as parks, squares, avenues and streets’.428 Following this holistic conception of culture, which stresses the use of public space, cultural rights are not just a category of rights, alongside civil, political, social and economic rights, but serve as the connection between these other rights: as Celenmajer argues, culture is ‘the organizing network within which [human rights] are held.’429 Consequently, the system-oriented understanding of culture could be conceptualised as one which addresses cultural space—i.e. the spatial dimension of culture—be it the cultural space of minorities and indigenous populations or the cultural space of a metropolitan city.430 As such, the system-oriented concept of culture ‘presents a solid base for forming a contemporary interpretation of cultural rights in terms of everyday social cohesion.’431 These three dimensions provide a useful framework by which to assess the development of the law. As the materialistic view was gradually replaced with 426 Annamari Laaksonen, ‘Measuring Cultural Exclusion through Participation in Cultural Life: Third Global Forum on Human Development: Defining and Measuring cultural Exclusion, Interarts Foundation’ (2005) accessed 1 February 2017; Interarts Foundation, ‘Draft Charter of Cultural Rights and Commitments in the City (Barcelona, 2002)’ accessed 1 February 2017. 427 Eduard Delgado, ‘Cultural Planning vs Arts Values’ (2001) Draft Paper for unesco 2001 Handbook (unpublished), Interarts Foundation. 428 cescr, General Comment No 21, para 16(a). 429 Danielle Celenmajer, ‘The Stolen Generation: Aboriginal Children in Australia’ (2005) 2 Hum Rts Dialogue 13. 430 This aspect of the law is reflected in General Comment No 21 of the cescr, which calls upon states to make publicly available and accessible ‘the shared open spaces essential to cultural interaction, such as parks, squares, avenues and streets’. See also unesco, ‘­Final Report, International Consultation on the Preservation of Popular Cultural Spaces—­ Declaration of the Oral Heritage of Mankind, Marrakesh, Morocco, 26–28 June 1997’ (unesco 1997) 9, where ‘cultural space’ is defined as ‘locations where cultural activities occur, having the characteristic of shifting over time and whose existence depends on the presence of these forms of cultural expression.’ 431 Laaksonen, ‘Measuring Cultural Exclusion through Participation in Cultural Life’ (n 427).

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a much more process-oriented understanding, culture could be seen as ‘an activity which individuals and peoples must be permitted to pursue.’432 This perspective does not simply acknowledge that individuals have an interest in accessing, enjoying and consuming types of cultural goods, but also positions individuals as the primary subjects of protection. It protects their freedom of language and religion, creativity and expression, and their rights to participate in and contribute to culture and to develop their character, personality and identity—or, the ability of individuals and peoples to produce cultures, and to produce them in a way that allows them to describe those cultures as their own.433 Thus, by addressing the cultural process, the treaty bodies have ­avoided treating culture as a commodity (as would be the case if one were to interpret culture as high culture and as constituted by ‘products’) or disconnecting culture from the people who create it.434 The long-term commitment is to enhance individuals’ capacity to express, develop and engage with culture, with less emphasis on the protection of specific rituals, symbols or objects.435 Meanwhile, the system-oriented understanding of culture seeks to enable individuals to express their thoughts and ideas and to develop their worldview, history and identity,436 by protecting the symbolic system of values, beliefs and references whose production and reproduction underlies the community’s way of life.437 This concept recognises that culture is ‘intimately linked to a territory, a locality, and the community that occupies it.’438 The protection of cultural space therefore forms the cornerstone of cultural rights protection and entails an understanding of culture and cultural activities as rooted in a specific time and locality. Thus, the changing understanding of the nature, scope and substance of culture has deeply affected how protection is articulated. The cescr’s conception of ‘access to culture’ prior to General Comment No 21 primarily referred to the provision of financial and physical access to cultural institutions,439 the freedom to access information without censorship440 and minorities’ right 432 Cindy Holder, ‘Culture as an Activity and Human Rights’ (n 277) 15. 433 Ibid. 434 Engle, The Elusive Promise of Indigenous Development (n 306) 142. 435 Cindy Holder, ‘Culture as an Activity and Human Rights’ (n 277) 15. 436 Ibid. 437 See Section 3.3.5. 438 Ahmed Skounti, ‘The Authentic Illusion: Humanity’s Intangible Cultural Heritage, the Moroccan Experience’ in Natsuko Akagawa and Laurajane Smith (eds), Intangible Heritage (Routledge 2009) 75. 439 cescr, General Comment No 21, para 28. 440 Ibid para 49(c).

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to institutions and education;441 in a way, this ‘institutionalised’ the concept of culture. However, a more nuanced understanding of culture in terms of a cultural system demands more holistic protection, including the protection of the manifestations of different ways of life, the protection of biological and ecological diversity from forms of economic exploitation and the protection of sites of symbolic anchorage.442 Furthermore, when culture is viewed both as a process and as a system, its protection entails not only the preservation or conservation of culture, but its constant use, engagement and revitalisation. More importantly, these perspectives have enabled (or required) a much more contextual understanding of the issues surrounding a given set of violations, as seen in the discussions contained in the hrc’s individual communications, particularly in the Hopu and Bessert v. France case.443 They have also enabled a more in-depth consideration of the interconnections between the ­economic, social and political factors affecting the survival of cultures and groups.444 Thus, although each of the three dimensions of culture gives rise to different state obligations, it is important not to understand them as yielding three isolated sets of rights; rather, the cultural rights deriving from each understanding together create three different overlapping layers of protection. For instance, protecting culture as a process does not rule out the protection of culture as a system of knowledge—ensuring older people’s access and contribution to culture, for example, is essential to enculturation and the passing on of cultural knowledge (in fact, in many indigenous societies, especially non-literate ones, when an old person dies, a wealth of knowledge disappears).445 The overlapping character of these protections avoids the ‘fossilisation’ or freezing of cultures.446

441 Ibid para 32. 442 See Sections 3.3.5.3 and 3.3.8. 443 See Hopu and Bessert v France. 444 Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ (n 133) 93: ‘[T]here is no denying the fact that the real world is comprised of a multiplicity of culturally distinct groups and peoples. Unless the debate on cultural rights acknowledges the particular issues relevant to each cultural group, we may only be talking about meaningless abstractions.’ 445 World Commission on Culture and Development, Our Creative Diversity: Report of the World Commission on Culture and Development (2nd edn, unesco 1996) 31. Indigenous leader Amadou Hampate Ba observes that ‘In Africa, when an old man dies, a library disappears.’ 446 Janet Blake, Developing a New Standard Setting Instrument for the Safeguarding of Intangible Cultural Heritage (unesco 2002) 39.

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Insights from Anthropology into the Work of the Treaty Bodies

The previous sections demonstrated the development of the jurisprudence of the treaty bodies on cultural rights. From seeing culture as being constituted by products (such as artworks) to seeing culture as composed of symbolically mediated expressions, the treaty bodies’ jurisprudence in this respect ­expanded its scope dramatically.447 The latter conception of ‘culture’ resembles that embraced by symbolic anthropologists such as Clifford Geertz, who argues that culture is best viewed as the symbolic realm with which individuals engage in their everyday lives.448 As General Comment No. 21 of the cescr affirms, culture for the purpose of Article 15(1)(a) encompasses the dimension of social life ‘through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence, and build their world view’.449 The shift to symbolic anthropology is important because it reaffirms that culture is integral to personhood, and that culture is the environment through which individuals interpret their experience and through which a meaningful life can be achieved—these aspects of culture correspond to the very purposes of cultural rights. However, upon a closer look, the transition towards culture as a ‘symbolic universe’ is not as straightforward as it seems. In fact, if we take culture to be the symbolic realm that underlies social life, culture is everywhere.450 Consequently, General Comment No. 21 of the cescr faced a difficult task in pinning down the content of culture. For instance, it provides several non-exhaustive lists of what might fall within the scope of ‘cultural life’. As noted earlier, these include: (1) ‘ways of life, language, oral and written literature, music and song, ­non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production or technology, natural and man-made environments, food, clothing and shelter and … arts, customs and traditions’;451 (2) ‘libraries, museums, theatres, cinemas and sports stadiums; literature, including folklore, and the arts in all forms; the shared open spaces 447 448 449 450 451

See Section 3.3.9. See Sections 2.4–2.4.1. cescr, General Comment No 21, para 13. See Sections 2.4–2.4.1. cescr, General Comment No 21, para 13.

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e­ ssential to cultural interaction, such as parks, squares, avenues and streets; nature’s gifts, such as seas, lakes, rivers, mountains, forests and nature reserves, including the flora and fauna found there, which give nations their character and biodiversity; intangible cultural goods, such as languages, customs, traditions, beliefs, knowledge and history, as well as ­values, which make up identity and contribute to the cultural diversity of ­individuals and communities. Of all the cultural goods, one of special value is the productive intercultural kinship that arises where ­diverse groups, minorities and communities can freely share the same territory’;452 (3) ‘traditional knowledge, natural medicines, folklore, rituals and other forms of expression’.453 In this sense, the shift towards a ‘symbolic’ understanding of culture implies not only a change in perspective, but also a radical expansion in the scope of cultural rights protection. The elusive quality of ‘culture’ in its symbolic sense brings us back to the questions raised in Chapter 1: can there ever be limits to cultural rights protection?454 If culture is everywhere, can culture ever qualify as a subject of human rights protection? 3.4.1 The Limits of Cultural Rights The ‘boundedness’ of a legal concept may have implications for its ­justiciability, as a concept that is vague may potentially compromise legal certainty.455 In the most general sense, legal certainty demands that the legal interpretation of a concept produce predictable results.456 In the context of international human rights law, conceptual vagueness may make it difficult for states to identify and implement the obligations required under specific treaty provisions. Therefore, if cultural rights are to have meaning and significance, obligations pertaining to cultural rights should to a certain degree be determinable, even if they cannot be listed exhaustively. As the concept of culture is deeply integral to the scope of cultural rights, what needs to be examined is whether the current concept of culture employed in the law can yield obligations that could be reasonably anticipated without being too broad or too vague. 452 Ibid para 16. 453 Ibid para 50(c). 454 See text accompanying supra n 129–148 in Chapter 1. 455 Aleksander Peczenik, On Law and Reason (Springer 2009) 14. 456 Ibid.

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As noted above, in the earlier development of cultural rights the cescr took the approach of setting out a list of items in its 1990 Revised Guidelines that the Committee considered part of the right to cultural life.457 Although subsequently expanded, the concepts of ‘culture’, whether as ‘popular culture’ or as a ‘way of life’, are also, arguably, ‘qualified’ to a large degree, although the treaty bodies never intended the use of the term ‘culture’ to be exhaustive. For instance, when culture is addressed as popular culture, the focus is primarily on the right to access cultural institutions such as libraries, museums, concert halls, the mass media, and so on.458 It is an obligation on the part of states to ensure that individuals have equal access to cultural institutions, and that forms of cultural production such as books and collections, plays, tv programmes and popular music are free from censorship.459 When culture is construed as a way of life, the texts of the treaty bodies primarily focus on the situation of indigenous peoples.460 Since the concept of culture construed as a ‘way of life’ is applied mainly in the context of indigenous populations,461 its application is also to a large extent restricted. Even so, the fluidity of the concept of ‘culture’ has arguably introduced a level of judicial ‘uneasiness’ for the hrc, as reflected in its individual communication Diergaardt v. Namibia (discussed above),462 in which the hrc articulated its ‘distinctive culture test’.463 In that case, the hrc dismissed the claim of the Rehoboth community that the privatisation of pastoral lands which the community traditionally had an exclusive right to use amounted to a violation of the right to enjoy culture under Article 27 of the iccpr.464 It did not accept the argument that the particular way of life of the indigenous community ‘has long been … closely bound up with particular lands in regard to both economic and other cultural and spiritual activities, to the extent that the deprivation of or denial of access to the land denies them the right to enjoy their own culture in all its aspects.’465 Rather, it highlighted the fact that the community had improperly defined ‘culture’ ‘solely in terms of the economic activity of grazing cattle’466 and that they did not enjoy a ‘distinct culture’ that was 457 See text accompanying supra n 63–65. 458 See Section 3.3.4. 459 See text accompanying supra n 167–177. 460 See Section 3.3.5. 461 See Section 3.3.5.4. See text accompanying supra n 240–278. 462 See text accompanying supra n 260–266. 463 Ibid. 464 Diergaardt v Namibia, Individual opinion of Elizabeth Evatt and Cecilia Medina Quiroga. 465 Diergaardt v Namibia, para 10.6. 466 Ibid.

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‘­intimately bound up with or dependent on the use of these particular lands, to which they moved a little over a century ago’.467 As noted in Section 3.3.5.4, the committee members did not specifically detail what they meant by a ‘­distinct culture’, or the criteria required to satisfy this test.468 Yet, the communication seems to reflect the hrc’s struggle to provide a basis on which ‘culture’ in the context of Article 27 could be adjudicated. Diergaardt v. Nambia presented the hrc with a dilemma: how far can the cultural rights of minorities under Article 27 of the iccpr (the right of minorities to enjoy their culture) extend without compromising the justiciability of the right? Eventually, the hrc chose to qualify ‘culture’ by stating that it must give rise to something ‘distinctive’, i.e. the land in question must give rise to or be intimately bound up with activities that are sharply different from those of the mainstream, an interpretation which might lead to undesirable outcomes, as argued in earlier sections.469 In the case of Hopu and Bessert v. France, where the hrc attempted to construe culture as a form of emotional or symbolic anchorage, the concept was also applied in the context of indigenous populations.470 As the term ‘indigenous peoples’ in international law largely refers to communities that may exhibit a historical continuity with the ancestral lands on which they reside, it is arguably easier to imagine their ‘cultural space’ because it is a symbolic space that is, at least conceptually, ‘confined’ to the territory that they occupy. However, in contrast to Article 27 of the iccpr, Article 15(1)(a) of the ­i cescr applies to individuals as well as groups. The situation would be very different if we applied a ‘symbolic’ understanding of culture to the context of the majority population living in cities, and there are two reasons for this. First, it would make little sense to apply the ‘distinctive culture test’ in addressing the cultural rights of the majority population. Second, if we adopt the symbolic understanding of culture in the context of majority populations, such an understanding is no longer confined to an area of land or territory, as would be the case for indigenous populations. Given these considerations, the question of the viability of the symbolic understanding of culture in the context of cultural rights could be construed as follows: is it viable in the legal context to speak of the cultural rights of individuals who live in cities?

467 Ibid. 468 See text accompanying supra n 260–266. 469 Ibid. 470 See text accompanying supra n 310–316.

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3.4.1.1

Testing the Viability of Cultural Rights in Cities: Sites of Collective Memory The above question is hardly hypothetical. In mid 2009, the Hong Kong government proposed a plan to construct a hk $66.9 billion (us $9 billion) express rail link crossing certain areas in the outskirts of urban Hong Kong. It was an attempt by the government to establish a ‘one-hour living circle’ connecting Hong Kong with other areas of greater China near the Pearl River Delta region (i.e. reducing the travelling time from Hong Kong to these areas to one hour) in order to promote social and economic integration between Hong Kong and mainland China.471 However, this proposal eventually led to the removal of Tsoi Yuen Tsuen (or Tsoi Yuen Village), a village that was home to about 500 inhabitants, most of them ‘non-indigenous’.472 Tsoi Yuen Village (now demolished) was an agricultural village with a poultry industry, recalling a way of life that was widespread prior to Hong Kong’s urbanisation. Besides the way their economic activities were organised, considered rare in the highly urbanised city, it has been observed that the villagers were connected by a special sense of ‘relatedness’, reflected in the use of Chinese kinship terms in the ‘­non-blood-tied community’.473 These features of the village ‘create[d] the [sense of] communal solidarity and a feeling of safety associated with place … emphasized in the memories of the area.’474 The issues surrounding the demolition of the village are various. First, the majority of the inhabitants of Tsoi Yuen Village (most of them non-land owners) were not consulted at the outset of the construction project. In fact, it was not until a very late stage that they found out about the government’s plans to demolish their village.475 Second, 471 See Hong Kong Mass Transit Railway, ‘Express Rail Link: Benefits’ accessed 1 February 2017. 472 The phrase ‘indigenous inhabitant’ in the context of Hong Kong takes on a unique historical and legal meaning. According to Hong Kong laws, an ‘indigenous inhabitant’ refers to (i) a person who was in 1898 a resident of any of the ‘indigenous villages’, or (ii) any person who is descended through the male line from (i) (1898 being the year Hong Kong was colonised). ‘Indigenous inhabitants’ in Hong Kong usually refers to the clans and communities who inhabit the New Territories (the northernmost parts of Hong Kong, bordering mainland China) and were conferred special rights by the British administration to preserve their customs, including certain land rights. See Section 2, Interpretation, Rural Representative Election Ordinance (Cap 576). 473 Yuk-kwan Fong, ‘Tsoi Yuen Resistance and Post-80s Generation: A New Wave of Domestic Social Movement’ (2011) accessed 1 February 2017, 41. 474 Ibid 44. 475 Ibid.

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although the ­government eventually agreed to provide some form of compensation, such as their lost income for the year due to the fact that they were unable to harvest their crops, the compensation that the villagers were able to claim was terribly low; all they were given were strips of land that were either infertile or unsuitable for farming. Third, the removal of the village meant the destruction of the community. It was in this context that the villagers argued for a new piece of land which they could farm and use to rebuild the village.476 This example illustrates an instance where a community of several hundred people living on the outskirts of a city faced forcible eviction owing to a city development initiative. The question could be asked: can they claim that their cultural rights were violated, particularly given that they do not qualify as an ethnic, religious or linguistic minority or an indigenous population? If we were to follow the reasoning of the hrc in Diergaardt v. Namibia, we could not conclude that the conduct of the Hong Kong government in the example of Tsoi Yuen Village was a violation of cultural rights under Article 27 of the iccpr, because the village would not have come within the definition of a ‘distinctive culture’, even if the inhabitants could have proven that the development projects would substantially impair their way of living. For example, in contrast to the Rehoboth Baster community, which occupied the disputed land for over a century, the villagers of Tsoi Yuen Village had inhabited their land for only a few decades.477 Moreover, the overwhelming majority of Tsoi Yuen villagers were not different from the majority of the Hong Kong population in terms of ethnicity or descent.478 Furthermore, even though they chose to make a living from agriculture, i.e. a different way of life to that of the ­majority of the population, the villagers were by no means the only community in Hong Kong who engaged in crop and poultry farming, and in any event it is difficult to perceive such farming activities as ‘unique’ or ‘distinctive’ in the sense understood by the hrc, even though the case may qualify as a potential violation of certain economic and social rights such as the right to adequate housing under the icescr.479 476 Ibid. 477 See text accompanying supra 260–266. 478 Fong, ‘Tsoi Yeun Resistance’ (n 474) 41. See supra n 473 on the definition of an ‘indigenous inhabitant’ under Hong Kong law. 479 un Committee on Economic, Social and Cultural Rights, ‘General Comment No 4’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (13 December 1991) un Doc HRI/GEN/1/Rev.9 (vol 1) at 11 (‘cescr, General Comment No 4’). The right to adequate housing provides that the state has an obligation to conduct genuine consultation with the individuals and communities affected by its housing policies.

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However, in light of General Comment No. 21 of the cescr, the government’s actions may constitute a violation of cultural rights.480 In addition to the fact that Article 15(1)(a) of the icescr applies to ‘individuals and communities’,481 meaning that its application is not restricted to minorities and indigenous populations, a symbolic view of culture demands acknowledgement of the community’s ‘cultural space’ where the land at issue embodies ‘a form of collective memory’ of a community.482 As the construction work had the impact of demolishing their village altogether, thus destroying their ‘cultural space’, General Comment No. 21 of the cescr provides that the community had the right to be meaningfully consulted in order to ensure that the remedies offered were acceptable to them.483 In the present case, the villagers would have liked to continue their communal life and to be able to engage in poultry and crop farming. The example of Tsoi Yuen Village demonstrates that even if we take ‘culture’ to denote a particular symbolic cultural space, this does not mean that obligations are unidentifiable. Certainly, for the people of Tsoi Yuen Village culture is everywhere. Nevertheless, this does not necessarily entail that the cultural space must be ‘preserved intact’.484 Although the availability of cultural space is important, culture, as a collection of symbolic meanings, resides in the individual and is capable of being transformed and sustained in other forms—as long as the community is able to continue to live together. Unlike the cases of indigenous populations, where territory may invoke memories/histories of ancestry,485 creating particular problems if they are evicted from the lands to 480 General Comment No 21 of the cescr goes beyond the scope of that envisaged by the jurisprudence of the hrc; the latter developed primarily through its views of individual communications. See e.g. the text accompanying supra n 495–500. 481 cescr, General Comment No 21, para 2. 482 See text accompanying supra n 495–500. 483 cescr, General Comment No 21, para 16(c). 484 Culture is not to be ‘preserved’ as if frozen in time. Among other measures, General Comment No 21 of the cescr demands that culture be preserved, developed, enriched and transmitted to future generations (cescr, General Comment No 21, para 50(a)). See also text accompanying supra n 256–259. 485 It has been noted that indigenous lands and landscapes embody narratives which are closely associated with the formation of myths and other folklore about the people’s origins and ancestry. Members of the community pass on these stories, which inform the young of the group’s past and history, nurturing group identity and enabling the continuation of the group. Tim Hall and Iain Robertson, ‘Memory, Identity and the Memorialization of Conflict in the Scottish Highlands’ in Niamh Moore and Yvonne Whelan (eds) Heritage, Memory and the Politics of Identity: New Perspectives on the Cultural Landscape (Ashgate Publications 2007).

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which they have a historical claim, it seems possible that the people of Tsoi Yuen Village would be able to construct a new village, in order to continue their way of living and to enjoy the same social relationships that they enjoyed in the past. What is important is that a symbolic understanding of ‘culture’ requires states to acknowledge these meaningful aspects of the social life of individuals and communities when formulating policies that may undermine them. Another example also took place in Hong Kong. In 2003, the Hong Kong government proposed the redevelopment of a street called Lee Tung Street, situated near the city’s central business district.486 The street was nicknamed ‘Wedding Card Street’, because it was home to shops in the traditional business of wedding card printing (and also funeral invitations, calendars, Chinese New Year envelopes, and so on.)487 It was a site full of symbolic meaning. Wedding cards and wedding invitations are an indispensable part of local weddings. From the way wedding messages are constructed,488 to how certain Chinese characters are chosen to form phrases or logographic patterns of blessing, these ‘products’ reflect traditional Chinese family values and display the skills of a traditional handicraft. The government’s plan was that part of the street would be privatised, with car parks and underground shopping malls built on the rest.489 By redeveloping and converting parts of the street into a shopping mall, the government hoped to enhance its economic value. While the majority of property owners accepted government compensation, many shopkeepers who merely rented their business premises were made to move out. Although the new developments will also have a wedding theme, it is unlikely that these traditional businesses will return, because the expected rise in rents would force these small

486 Shu-mei Huang, ‘A Sustainable City Renewed by a “People”-centered Approach? Resistance and Identity in Lee Tung Street Renewal Project in Hong Kong’ (2009) accessed 1 February 2017. 487 Ibid. 488 For example, a wedding invitation in Hong Kong typically contains sentences that stress traditional Chinese family values, such as this one: ‘By the authority of (name of parents from the male family and name of parents from the female family), we cordially invite you to the wedding banquet of our “immature” son (name of the groom) and daughter (name of the bride)’. The sentence above highlights that marriage is not just a matter for the couple but a union of families. It also highlights the (superior) status of parents and in-laws in the family and the fact that the young couple is expected to obey and respect them. 489 Huang, ‘A Sustainable City Renewed by “People”-Centered Approach?’ (n 487) 8–9.

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wedding card shops out of business.490 Preservationists and activists have therefore argued that the redevelopment project ‘eras[ed] the history and identity of the place’,491 replacing it with ‘superficial images of (purported) historical significance’ to which the local community is unable to relate.492 Again, this case would necessarily fail the ‘distinctive culture test’, because it is difficult to perceive the traditional wedding card printing industry as giving rise to a ‘distinctive culture’ in the sense of the hrc, even though it is often seen in the eyes of the locals as a ‘traditional business’.493 Moreover, these printing businesses are part of the mainstream culture and cannot be described as embodying an activity that is engaged in by minorities as recognised under ­Article 27 of the iccpr. Nevertheless, it does fall within the scope of cultural life envisaged in General Comment No. 21 of the cescr. Paragraph 43 of General Comment No. 21 provides that: States parties should also bear in mind that cultural activities, goods and services have economic and cultural dimensions, conveying identity, ­values and meanings. They must not be treated as having solely a commercial value.494 General Comment No. 21 of the cescr further provides that, as a state obligation, states parties should ensure the availability of the ‘shared open spaces essential to cultural interaction, such as parks, squares, avenues and streets’, as these cultural spaces may be rich in cultural meanings.495 The primary difference between General Comment No. 21 of the cescr and the ‘distinctive culture test’ articulated by the hrc in their respective understandings of ‘culture’ is that the former urges us to look at ‘cultural life’ from the perspective that the

490 See Joyce Ng, ‘Wedding Card Street in Wan Chai Vanishes Off Map for “High Street”’ South China Morning Post (Hong Kong, 26 June 2013) accessed 1 February 2017. 491 Ibid. 492 Ibid. Ironically, this is in stark contrast to the four principles which the Urban Renewal Authority espouses: rehabilitation, redevelopment, revitalisation and preservation. 493 Nevertheless, preservationists argue that to drive away these traditional businesses would be to ‘eradicate the last traces of an old life-style’. Leo O Lee, City Between Worlds: My Hong Kong (Harvard University Press 2008) 80–81. 494 cescr, General Comment No 21, para 43. See also Preamble, unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions; article 8, 2001 Universal Declaration on Cultural Diversity. 495 cescr, General Comment No 21, para 16(a).

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economic and cultural dimensions of certain ‘activities, goods and services’ are not mutually exclusive, and therefore, in their decision-making, states must be attentive (be it in the context of development, redevelopment, cultural preservation or otherwise) to the cultural dimensions of economic and social life, and must carefully evaluate whether their policies would erase or undermine the cultural value of these areas of life. This marks a sharp distinction with respect to the hrc’s decision in Diergaardt v. Namibia, where it ruled that the economic activity of cattle grazing practised by the indigenous tribe could not be said to amount to ‘culture’ in the context of Article 27 of the iccpr.496 ­General Comment No. 21 of the cescr further provides that expressions of culture should not be ‘taken out of context for the sole purpose of marketing’.497 It adopts a more liberal interpretation of ‘culture’ and understands that culture, despite the jurisprudence of the hrc, is not confined to a particular territorial space where a group of people enjoy a ‘distinctive culture’.498 It acknowledges that as a system of symbolic meanings, culture cannot be separated from other aspects of the social realm. The above example also demonstrates that, through the conception of ­culture as symbolic and thus as concerned with the meaningful expressions of everyday life, individuals or communities can potentially claim a violation of cultural rights in the event of the demolition of cultural spaces that are treasured by local communities as embodying a communal memory. However, General Comment No. 21 of the cescr does not demand that everything should be protected as part of the right to take part in cultural life. Rather, it provides that states parties should adopt measures to promote the diversity of cultural expressions.499 For example, what renders the use of urban space a cultural issue is that urban space, too, may embody the ‘collective memory’ of the local communities, meaning it is a potential site for the creation of values. Therefore, General Comment No. 21 of the cescr cautions against the redevelopment or radical transformation of these spaces and highlights their potential cultural value, i.e. the fact that these spaces may embody and contribute to cultural expression. The significance of General Comment No. 21 of the cescr is that it potentially requires states to redesign their cultural and development policies. It envisages that in order to fulfil the purposes of the right to take part of cultural life, states should revise and tailor their policies

496 497 498 499

See text accompanying supra n 260–266. cescr, General Comment No 21, para 43. See text accompanying supra n 260–266. cescr, General Comment No 21, para 52(a).

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in ways aimed at promoting participation and reinforcing a sense of place and ­belonging.500 This does not mean that development projects are necessarily violations of cultural rights, quite the contrary; cultural rights do not protect these ‘­collective memories’ in the abstract, as if they were ‘frozen’ in time.501 Rather, cultural meanings are capable of being transformed and altered, because it is in the minds of individuals that these collective memories reside. What truly matters is that individuals have the opportunity to participate in the formation and deliberation of these policies or, in the language of General Comment No. 21 of the cescr, ‘to contribute to cultural life’502 through democratic participation and genuine consultation.503 To conclude, although the symbolic understanding of culture does necessarily imply that culture is everywhere, as anthropologists such as Eriksen would argue,504 it is neither too vague nor too broad when it comes to the actual implementation of these rights. In essence, what Article 15 of the icescr seeks to protect is not necessarily the list of activities or things that one could deem ‘cultural’, an incorrect assumption of Eriksen’s argument.505 Rather, it protects the preconditions for the creation of meanings and expressions. As General Comment No. 21 of the cescr states: The right to take part in cultural life can be characterized as a freedom. In order for this right to be ensured, it requires from the State party both abstention (i.e., non-interference with the exercise of cultural practices and with access to cultural goods and services) and positive action (ensuring preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods).506 The goal is to ensure an individual’s access to, participation in and contribution to cultural life.507 It is undesirable for the law to give up the concept of 500 See text accompanying supra n 427–430. This view is consistent with recent perspectives on cultural rights at the level of discourse, i.e. that the understanding of culture in its symbolic sense relates not only to the rights of minorities and indigenous communities, but also to cultural rights in cities, and that these rights are to be realised through the implementation of cultural policies aimed at promoting cultural inclusion in public space. 501 See also text accompanying supra n 256–259. 502 cescr, General Comment No 21, para 15(c). 503 Ibid para 16(c). 504 See text accompanying supra n 129–148 in Chapter 1. 505 Ibid. 506 cescr, General Comment No 21, para 6. 507 Ibid para 15.

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culture altogether and instead focus on a list of ‘cultural’ activities or features, such as language, food habits and ritual practices,508 because this would generate obligations of narrow applicability. The fluidity and transfigurability of the notion of culture currently employed in the law makes it possible to develop legal reasoning that is coherent but not absolute. 3.4.2 Implications of Contemporary Anthropology Nevertheless, even if we view culture as the symbolic realm of everyday life, it is not difficult to perceive the difference between culture as understood by contemporary anthropologists and as conceived by the law. Contemporary ­anthropologists refer to culture as a set of internally diverse and contested ­perspectives that are often shifting and shaped by local interests.509 Individuals in communities do not share cultural knowledge equally.510 However, when the law addresses cultural rights, it seems to treat ‘culture’ as consisting of a core body of knowledge that is objectively identifiable by the local population. For example, General Comment No. 21 of the cescr views culture as the site and process ‘through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence’.511 It provides that culture is the medium through which ­individuals and communities ‘build their world view representing their ­encounter with the external forces.’512 The idea reflected in the language seems to be that cultural knowledge can be more or less agreed-upon and that it is commonly shared. Although General Comment No. 21 of the cescr from time to time uses ­wording such as the right to participate in and access cultural life ‘alone, or in ­association with others’,513 thus hinting at the possibility of individual dissent to certain cultural norms or practices and the right not to comply with cultural practices which an individual feels are improper or inappropriate, General Comment No. 21 is silent as to the possible different meanings that these ­practices may embody and only requires that individuals should not be compelled to conform. The same paragraphs provide that everyone ‘has the right to seek … cultural knowledge and expressions and to share them with others’ and has the right ‘to know and understand his or her own culture’, which again seems to suggest a degree of objectivity in cultural knowledge. 508 509 510 511 512 513

See text accompanying supra n 129–148 in Chapter 1. See Sections 2.5.2–2.5.3. See Section 2.4.2. cescr, General Comment No 21, para 13. Emphasis added. Ibid. Emphasis added. Ibid paras 15(a) and (b).

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Paragraph 15(c) of General Comment No. 21 also provides that the contribution to cultural life ‘refers to the right of everyone to be involved in creating the spiritual, material, ­intellectual and emotional expressions of the community.’514 Paragraph 16 urges states to make available ‘intangible cultural goods, such as languages, customs traditions, beliefs, knowledge and history, as well as ­values, which make up identity and contribute to the cultural d­ iversity of individuals and communities’,515 without mentioning how competing v­ ersions of ­beliefs, knowledge and history could be created for political purposes. Similar observations can be made when culture is described as a system of cultural references.516 The emphasis on ‘cultural identity’ could also contribute to this idea. For ­example, the hrc’s jurisprudence has sought to protect the ways in which ­indigenous populations conduct the economic activities forming the basis of their unique way of living.517 The ways that these groups conduct their daily affairs while expressing their identity became an important area of protection under Article 27 of the iccpr.518 Meanwhile, the treaty bodies have also articulated ways of protecting minorities’ right to ‘manifest’ cultural identity by protecting their language and religion. In fact, according to the hrc, the rationale for protecting minority cultural rights is to prevent the loss of those characteristics that the minority as a group seeks to preserve.519 However, the emphasis on ‘identity’ and culture as an ‘outward expression’ could easily prompt us to think of culture as that unique ‘essence’ that embodies what is ‘authentic’ to the local population.520 Culture is easily treated as embodying the ‘enduring features or characteristics’521 of a minority. When we adopt such 514 Ibid para 15(c). Emphasis added. 515 Ibid para 16. 516 See Section 3.3.5.4.2. 517 See Section 3.3.6. 518 Ibid. 519 Ballantyne v Canada; see Section 3.3.5. 520 An emphasis on the characteristics and other features of groups in defining the legal rights of minorities easily leads to the essentialisation of culture. This has been noted by many. See e.g. Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001); Jane K ­Cowan, ‘Ambiguities of an Emancipatory Discourse: The Making of a Macedonian Minority in Greece’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001). 521 Patrick Thornberry, Minorities and Human Rights Law (Minority Rights Group 1991) 6: ‘[International] law has not been concerned with every conceivable classification of

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an essentialised view of culture, the apparent sameness inevitably undermines the internal diversity of voices among local actors.522 Contemporary anthropologists have continually sought to emphasise that culture does not consist of a body of objective content. Rather, culture is messy, fluid, contestable and often made up of social relations that are predicated on power.523 Culture has much more to do with providing a symbolic reference to individuals, giving them meanings to guide their everyday lives. The way culture is practised, and how in the process it incorporates and nurtures cultural knowledge, for instance, could at the same time reinforce the reproduction of the social and political order.524 These different aspects of meaning-making complicate earlier conceptions of culture as consisting of traditions, practices, values and beliefs, which tend to depict their transmission as neutral or simply as a form of social heredity.525 It demonstrates that culture is underpinned by power tensions, which presupposes contradictions. For contemporary anthropologists, the question is not what culture ‘is’ but how culture, as the system of meanings, practices and symbols that constitute our realities,526 is produced and reproduced at specific times and in specific spaces.527 In fact, whenever there is a dispute over culture, it is seemingly impossible to dissociate the controversy from the meanings which one party seeks to impose on another. An example well known to international lawyers ­involves the Preah Vihear Temple, which has been a site of conflict between Thailand and Cambodia for decades. In addition to the fact that both states ­regard the temple as an important symbol of national identity and territorial ­sovereignty, the ­temple is a site of contested memories concerning the history of both ­nations.528 To Cambodians, the temple represents the past history of the glorious Khmer Empire, and the enduring conflict with Thailand was ­perceived by them as the latter’s attempt to ‘steal’ their territory and destroy ­ inority … but with cohesive groups, the characteristics of which endure, and who regard m themselves—or are regarded by others—as different to the mainstream of society.’ 522 Rita Dhamoon, ‘Shifting from “Culture” to “the Cultural”: Critical Theorizing of Identity/ Difference Politics’ (2006) 13 Constellations 354, 357. 523 See Sections 2.5.2–2.5.3. 524 Ibid. 525 Ibid. In particular, see Section 2.2.1 in Chapter 2. 526 Ibid. 527 Ibid; Jean Comaroff and John L Comaroff, ‘Occult Economies and the Violence of Abstraction: Notes from the South African Postcolony’ (1999) 26 Am Ethnologist 279. 528 Paul W Chambers and Aurel Croissant, ‘A Contested Site of Memory: The Preah Vihear Temple’ in Helmut Anheier and Yudhishthir R Isar (eds), The Cultures and Globalization Series 4: Heritage, Memory and Identity (Sage Publications 2011) 148–156.

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their ­identity.529 On the other hand, the history of the temple is, as Chambers and Croissant note, ‘registered in recent Thai memory’ as associated with the land that was taken by the West and as marking the era of the intrusion of Western concepts and ideologies.530 Moreover, to the Thai government the temple is a source of national and ­religious identity that stands against the separatist sentiments among Lao and Khmer-speakers in other parts of the country.531 Even after the ruling of the ­International Court of Justice on the ‘ownership’ of the disputed temple,532 small skirmishes have caused casualties and driven thousands of local people to flee their homes for fear of a potential full-scale armed conflict.533 This ­example provides an account of a situation in which historical events form powerful dominant ideologies disguised as ‘facts’ and self-evident truths.534 They reinforce political or social structures and related discourses (such as historical and nationalistic claims) while shaping specific place ­identities.535 In a similar manner, elements of ancestry including myths, narratives and historical claims of origin bear emotional and practical significance for individuals that in turn reinforces the identity of the group and the legitimacy of the ruling class.536 In essence, not only does cultural knowledge/ heritage provide individuals with meanings, but a closer look at the topic of heritage confirms that culture is often contested in the form of meaning. Moreover, these struggles and tensions are particularly intense when one group seeks to uphold a particular version of history against all other ­versions which threaten its validity.537 In other words, it needs to be realised that heritage 529 Ibid. 530 Ibid. 531 Ibid. 532 See Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] icj Rep 6; Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) [2013] icj Rep 281. 533 See bbc News, ‘Thai-Cambodia Clashes “Damage Preah Vihear Temple”’ (6 February 2011) accessed 1 February 2017. 534 Brian Graham, ‘Heritage as Knowledge: Capital or Culture?’ (2002) 39 Urban Studies 1003. 535 Ibid 1003. Evocations of ‘collective memory’—memories which often appear to have a historical relevance—often underpin the quintessential constructs of nationalism and legitimacy. 536 Roderick J McIntosh, ‘Social Memory in Mande’ in Roderick J McIntosh et al (eds), The Way the Wind Blows: Climate, History, and Human Action (Columbia University Press 2000) 141–143: ‘[S]ocial memory is ultimately culturally conditioned … [providing] the arena in which metaphors, symbols, legends, and attitudes crystalize social action.’ 537 Denis Byrne, ‘A Critique of Unfeeling Heritage’ in Natsuko Akagawa and Laurajane Smith (eds), Intangible Heritage (Routledge 2009) 230: ‘Like all heritage, history is a certain way of knowing. It is a living memory shaping and informing the present.’ See also David

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c­ annot be treated as a remnant of the past538 or as knowledge that is shared by all members of the community (and is therefore original, authentic and true to all members, as the legal approach would seem to suggest), but as the ­easily manipulated contemporary use of the past,539 a use that is heterogeneous, shifts with location and is constantly shaped by political aspirations.540 Another illustration was provided in Chapter 2—the Burmese government’s imposition of selective versions of the past in the name of conservation, in an attempt to assert nationalistic authority and shape local identities.541 The Burmese government initiated plans to reconstruct heritage sites that glorified a Burmese king who conquered the territories of ethnic minorities, while ­leaving the heritage sites of the minorities themselves to deteriorate. This was a calculated move to suppress the minorities’ expression of their distinctiveness and foster a sense of inferiority.542 Since cultural heritage requires a narrative to sustain it, conflicts arise over who gets to decide the meanings behind these narratives. While cultural meanings are always multivocal and heritage often forms a contested site among ­interested parties,543 tensions over how these sites should be remembered ­often fuel conflict and social division, as heritage can be used to ‘manipulate people’ by shaping public opinion.544 The understanding of culture in contemporary anthropology raises three crucial questions for cultural rights: (1) If culture is contested, as contemporary anthropologists would suggest, in the sense that it does not denote a core body of knowledge, does it still make sense to talk about ‘access to culture’? Lowenthal, The Heritage Crusade and the Spoils of History (Cambridge University Press 1998), xv: ‘[H]eritage clarifies pasts so as to infuse them with present purposes.’ Emphasis added. 538 Mary L Kenny, ‘Deeply Rooted in the Present: Making Heritage in Brazilian Quilombos’ in Natsuko Akagawa and Laurajane Smith (eds), Intangible Heritage (Routledge 2009) 151. 539 Graham, ‘Heritage as Knowledge’ (n 535); Kenny, ‘Deeply Rooted in the Present’ (n 539): the making of heritage is ‘deeply rooted in the present’. 540 Kenny, ‘Deeply Rooted in the Present’ (n 539) 151; Graham, ‘Heritage as Knowledge’ (n 535). a group’s history, or its heritage, is at best seen ‘as a more diverse knowledge in the sense that there are many heritages, the contents and meanings of which change through time and across space.’ 541 See Section 2.5.3 in Chapter 2. 542 Ibid. 543 Liz Ševcenko, ‘Sites of Conscience: Heritage of and for Human Rights’ in Helmut K Anheier and Yudhishthir R Isar (eds), The Cultures and Globalization Series 4: Heritage, Memory and Identity (Sage Publications 2011) 120. 544 Ibid.

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(2) Whose version of ‘culture’ is it that a community should have access to, or should every individual have access to her own version of ‘culture’? (3) In practice, what concrete obligations do the concept of culture as a set of contested narratives imply? 3.4.2.1 Culture as a Heuristic Device In fact, if ‘culture’ is taken to denote a set of contested narratives, as contemporary anthropologists would argue, it becomes quite impossible to speak of protecting someone’s ‘access to culture’, because it is virtually impossible for the treaty bodies to decide which version of the ‘truth’ to uphold. Firstly, ­committee members, being mostly from a legal background, are not themselves anthropologists and are not equipped with the knowledge to conduct ethnographic studies. Secondly, the treaty bodies are not endowed with the resources to engage in extensive field studies.545 Finally, even if the treaty bodies had the expertise and resources to engage in field studies, their participation in determining and upholding certain versions of cultural narratives would politicise their mandated role, which in most situations is to monitor the implementation of treaty obligations and to contribute technical advice in support of their realisation.546 However, these arguments do not mean that the idea of ‘culture as contested narratives’ is unhelpful; in fact, certain aspects of ‘culture’ can only be articulated if we observe and understand the discursive dimensions of cultural narratives (as demonstrated above).547 In these situations, the concept of culture should be taken as an analytical tool or ­heuristic device for highlighting how narratives and discourses are formed and how power plays a role in their formation. For example, the fact that culture is contestable has s­ ignificant ramifications for the protection of cultural ­heritage, as it raises ­issues in relation to conservation and preservation.548 Heritage conservation cannot be viewed simply as an issue of resource management and ­allocation, or ­‘either a technical or a management matter—a matter of 545 Sally E Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press 2006): ‘[O]bviously, committee members did not have time to read the ethnographic literature … [and conduct] interviews’. 546 See Section 3.2.2. 547 See Section 2.5.3 in Chapter 2. 548 Article 15 of the icescr calls upon states to conserve cultural heritage and to provide the necessary assistance to diffuse and disseminate cultural knowledge by ensuring the general public’s access to heritage. In its interpretation of article 15(1)(a) of the icescr, the cescr has from time to time commented on the importance of preserving cultural heritage and making it accessible. The importance of providing access to cultural heritage is likewise stressed in General Comment No. 21 of the cescr.

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a­ pplying the best or ­latest scientific solution or the appropriate management strategy to preserve or restore an artefact, monument or site.’549 A better way of understanding heritage is to view it as being formed of representations—­ representations that are sometimes contested.550 We need to be cautious about the power discourses that underpin the process of heritage production. This approach enables us to acknowledge the tensions behind policymaking as well as the dynamics associated with the conflicting discourses and narratives.551 What is then required is a genuine effort to interrogate the political dimensions of heritage preservation. The significance of the above observations for the work of the treaty ­bodies is manifold. As they begin to recognise the symbolic significance of heritage and to emphasise its protection through conservation and preservation ­(particularly through General Comment No. 21 of the cescr),552 the treaty bodies must ensure that the process of conserving heritage is conducted in a manner consistent with the dignity of the local population. Local communities should have the right to decide how to conserve their heritage and the message that cultural heritage represents. This may be done at the institutional level, by incorporating local communities into statutory bodies endowed with ­decision-making powers (and control over resources) on matters ­concerning heritage conservation.553 Moreover, as culture is a subtle process (as is the ­process through which a community’s dignity is potentially infringed), ­treaty bodies must also look beyond a state’s (self-proclaimed) cultural policies in considering whether it has discharged its treaty obligations. Treaty bodies should strive to reach a basic understanding of the cultural politics (­ including 549 Mairead N Craith, William Logan and Michele Langfield, ‘Intersecting Concepts and Practices’ in Mairead N Craith, William Logan and Michele Langfield (eds), Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice (Routledge 2010) 18. 550 Graham, ‘Heritage as Knowledge’ (n 535); James Clifford and George E Marcus (eds), ­Writing Culture: The Poetics and Politics of Ethnography (University of California Press 1986) 2. 551 Ševcenko, ‘Sites of Conscience’ (n 544) 120; Helmut K Anheier, Yudhishthir Raj Isar and Dacia Viejo-Rose, ‘Introduction’ in Helmut K Anheier and Yudhishthir R Isar (eds), The Cultures and Globalization Series 4: Heritage, Memory and Identity (Sage Publications 2011) 3: ‘The narrative that binds these societal decisions [such as the preservation, restoration and the rebuild of heritage] together also shapes the social meanings and symbols that are central to the construction of collective memories and identities.’ 552 cescr, General Comments No 21, paras 32, 47. 553 At present, the instruments of the treaty bodies recognise the right of minority groups to be consulted on matters affecting them. See e.g. cescr, General Comment No 21, paras 16(c) and 54(a).

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the s­ ociocultural background of local cultural conflicts) that may affect the ways in which cultural policies are implemented. Such an understanding might also extend to the wider conflicts between cultural groups and the state ­beyond the heritage at stake. At a minimum, this could be done by asking states: (1) to explain how the cultural policies in place are implemented in a manner ­consistent with the dignity of local communities, (2) to map the ­different constituencies which make up its cultural demographics (such as the composition of its ethnic, linguistic and religious minorities, diasporas and migrant workers and how they are geographically located within the state),554 (3) to furnish information on their cultural particularities (such as information relating to their religions, dietary requirements, ways of life, traditions and customs and tangible and intangible heritage)555 and (4) to identify the cultural policies which affect these groups—some such measures are already required by the current Reporting Guidelines.556 The intended effects of having states provide this information are that (a) the burden of proof is always on states parties to show that they have fully discharged their obligations to protect cultural rights in a manner that is culturally appropriate557 and (b) states parties would be prompted constantly to pay attention to how the implementation of policies might, in effect, provoke discontent and thus affect the local population in a negative way. This may also have the indirect effect of shaping state practices. Furthermore, the essence of ‘culture’ as a heuristic device is that it allows the treaty bodies to ask the ‘cultural questions’ when examining state and ngo reports and in sessions with state delegates, questions that are often easily left out if we accept culture as ‘uncontested’. These questions relate to (i) what gave rise to heritage, (ii) who plays a dominant role in shaping discourses, (iii) the parties who might have suffered a detriment as a result and (iv) the type of ­remedial action sought. In constructive dialogues with state delegates and in pre-sessional meetings with ngo representatives, treaty body members should ask: – What does the heritage at issue mean for different parties? For instance, is the heritage culturally or religiously significant to the parties, or does it represent certain historical claims/ancestral beliefs? 554 See e.g. 1990 Revised Guidelines, 108, requesting that states provide in their reports ‘information on the main geographic, ethnic, linguistic, demographic and religious characteristics of the country and its population.’ 555 Ibid. 556 Ibid, 108–109; 2008 Reporting Guidelines, paras 68 and 71(c). 557 See cescr, General Comment No 21, para 16(e) on cultural ‘appropriateness’ as an applicability test in fulfilling article 15(1)(a).

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– If there is indeed a different version to the official interpretation of the ­heritage in question, what are the different claims to the heritage? For ­example, is the case related to the manner in which certain heritage is preserved, maintained or ‘remembered’ (as in cases where the historical origins of an indigenous group are ‘misrepresented’ in textbooks)? Or do the different narratives ultimately concern rights related to interests in land (as in cases where indigenous groups dispute the area of land over which they are entitled to enjoy a certain degree of political autonomy)? – What do the parties perceive as the politics at play behind the contested narratives (i.e. why do local communities think that certain narratives have been imposed)? For instance, is the imposition of cultural narratives part of nation-building? Is this imposition designed to undermine local efforts to sustain a group identity? – Are the narratives recent inventions? Are parties able to show that certain claims have arisen only recently, and that the state or local community have in the past taken a different stance in interpreting the heritage in question? – What is the remedy sought? How might local communities’ views be ­respected and how, if at all, can any violations found be rectified, if possible, through the participation of the local community? Is it meaningful to urge the state party to refrain from intervening in local cultural affairs except to ensure that the proper resources are in place for local communities to conserve their heritage in the manner preferable to them? The reasoning behind these questions is that they would allow the treaty ­bodies to have a fuller grasp of the tensions at play in addressing cultural conflicts that may have implications for the realisation of the cultural rights of individuals and communities. It is not for the treaty bodies to determine state ­responsibility based solely on the statements of the different parties, but through this enquiry, the treaty bodies could better determine whether local communities have been given the opportunity to make their views heard and have their perspectives taken into account when cultural policies are put in place. As General Comment No. 21 of the cescr suggests, local communities have the right to participate in and contribute to local culture.558 The ­continuity of local culture is best protected through the participation of the local community. 3.4.3 Other Uses of ‘Culture’ In light of the above discussion, it is possible to dismiss two other uses of the word ‘culture’ as undesirable in the context of cultural rights. The first ­denotes 558 cescr, General Comment No 21, paras 15 and 50(b).

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‘­culture’ in its functional sense, embraced by anthropologists such as Malinowski, as a relatively self-sufficient sociopolitical system whose cultural features, such as cultural practices and traditions, can always be said to play a functional role.559 This conception of culture (which stresses self-­sufficiency) seems to ­resemble the prevailing definition of ‘indigenous populations’ (­ especially tribal populations with little contact with the outside world).560 In fact, this definition of ‘culture’ comes close to the working definition of ­‘indigenous people’ articulated by the Special Rapporteur of the ­Sub-Commission on ­Prevention of Discrimination and Protection of Minorities,561 and in the context of the rights of indigenous peoples it is potentially a strong one, b­ ecause it acknowledges the fact that indigenous populations (as groups who exhibit self-sufficiency and are determined to maintain their way of living) are entitled to survive as communities and, therefore, states have an obligation to ­respect their self-determination and freedom from assimilation.562 Obligations ­derived from this understanding would also have to acknowledge the importance of their land, territories and other resources crucial to their survival.563 However, there are a few reasons why this definition is problematic. ­Firstly, as noted in Chapter 1, this definition of culture is losing its appeal in an ­increasingly globalised world characterised by the connectedness of economies and the intimacy of human interactions. Secondly, it is difficult to ­apply in the context of majority populations, and it would not make sense to do so. Cultural rights in the instruments of the treaty bodies seek to promote the ­diversity of cultural expressions through cultural interaction,564 and, therefore, imagining ‘culture’ as a bounded sociopolitical entity may give rise to 559 See Section 2.3.1. 560 In fact, Malinowski came up with this definition of culture through his study of indigenous populations. 561 Note that there is currently no official definition of ‘indigenousness’. However, the un Secretariat of the Permanent Forum on Indigenous Issues has adopted a working definition which involves the following elements: (1) self-identification as an indigenous people; (2) historical continuity with precolonial societies; (3) historical and cultural links to the territory they inhabit; (4) the distinctive ways in which the society (social, economic or political) is organised; (5) the fact of constituting a non-dominant group in society and (6) a resolve to maintain their identity and way of life as a distinctive people and community. See un Secretariat of the Permanent Forum on Indigenous Issues, ‘The Concept of Indigenous Peoples’ accessed 1 February 2017. 562 See Section 3.3.8. 563 Ibid. 564 cescr, General Comment No 21, para 16(a).

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contradictions and inconsistencies, at least conceptually, as to the very nature of the ‘culture’ that cultural rights envision. Thirdly, although this construction may have implications for cultural diversity, as it potentially demands that states recognise minority communities’ forms of self-government, their legal or quasi-legal systems and, essentially, the ways that their lives are ­organised, the question remains: are all practices or quasi-legal traditions necessarily j­ ustified simply because they play a functional role? For example, female ­genital mutilation (fgm) is often justified as a rite signifying the initiation into adulthood, ­serving to incorporate a young woman into the social group.565 The strongly functionalist orientation seems to overlook the potentially conflictual relationship between the individual and the group. From another perspective, even if it is true that certain traditions may exist for functional purposes, it says little about the nature of these practices and whether they ought to be protected. The functionalist concept of culture often represents a group of individuals as living in a teleological manner, something which is to a large extent presumed (as noted in Chapter 2).566 This presumption may justify ­individual sacrifice and suffocate dissent. In fact, the above queries both point to questions of power: who has a say in what constitutes a cultural ‘function’? Who d­ etermines the ‘function’ of certain cultural features and practices? Who judges whether these conventions and practices are performing efficiently in terms of their ‘function’, and, therefore, who decides which traditions are to stay and which are to go? In this sense, this definition fails to reflect the political aspects of culture and cultural dynamics which contemporary ­anthropologists point out. Another use of the concept portrays ‘culture’ as primarily to do with v­ alues and beliefs (embraced by earlier anthropologists such as Benedict).567 If ­‘culture’ were to be primarily seen as consisting of values and beliefs, cultural rights would largely entail the preservation of certain practices, traditions and ­social, religious and political structures, i.e. elements that sustain cultural v­ alues and beliefs. This definition is also problematic. If we define ‘culture’ as a set of cultural values and beliefs, we reify the term and neglect the process through which values are created. In fact, it would be difficult to imagine how detailed state obligations would be possible if the concept of ‘culture’ in the context of cultural rights did not assist us in understanding the cultural ‘­process’ (i.e. the process through which meanings are created, acquired, transformed and challenged), because it is often in the context of this process that individuals and 565 Ellen Gruenbaum, The Female Circumcision Controversy: An Anthropological Perspective (University of Pennsylvania Press 2001). 566 See Section 2.3.1 in Chapter 2. 567 See Section 2.2.1 in Chapter 2.

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communities are vulnerable to violations of their cultural rights. For example, the cultural rights of minorities are often undermined in the process of nationbuilding, while the rights of an individual are often ­undermined when cultural meanings are attached to certain practices and ­traditions (this aspect will be addressed extensively in Chapter 4). To conclude, although both conceptions discussed above are much n ­ arrower in scope, and so might provide clearer boundaries for cultural rights protection, both fail to address the dynamics of culture and therefore the potential human rights implications associated with the cultural process. They are problematic, not necessarily because of what they include, but rather for what they exclude and deny. 3.5 Conclusions This chapter began by exploring the development of the conception of c­ ulture in the work of the treaty bodies. Initially understood as representing ‘high ­culture’, the scope of protection was quickly expanded to include popular ­culture (entailing, inter alia, the obligation to make cultural institutions such as museums, libraries and other cultural services accessible to everyone), and culture as a ‘way of life’ (providing holistic protection for culture including the protection of indigenous land and other sites of symbolic anchorage from commercial exploitation).568 Through an expanding understanding of culture, the approach of the treaty bodies was to encapsulate culture in its various manifestations and to articulate general principles for legal obligations in this ­regard. These manifestations include culture in its material sense, culture as a process and culture as a system.569 Culture in its material sense reflects culture as a form of artistic or intellectual creation. In the texts of the treaty bodies, this dimension of culture entails the obligation to make a range of cultural ‘products’ including books, publications, magazines, cultural ­heritage sites, artefacts and ‘masterpieces of art’ available through their dissemination and preservation.570 Culture as a process involves protecting the participation of the individual and community in cultural activities and sees, inter alia, the freedom from censorship and the obligation to ensure unimpeded access to cultural institutions such as libraries and museums as integral parts of

568 See Sections 3.3.5.4–3.3.5.4.2. 569 See Section 3.3.9. 570 See Sections 3.3.4.1 and 3.3.5.4.

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­cultural rights.571 Culture as a system views culture primarily as the cultural space wherein and whereby meanings are derived and without which cultural life is impossible.572 In envisaging culture as consisting of these dimensions, the treaty bodies have articulated both positive and negative duties, not only to ensure the opportunity to participate in cultural life, but to do so in a manner consistent with the individual’s identity573 or the community’s choice.574 This means that cultural rights not only aim to ensure that cultural goods and services are available and accessible to everyone (reflecting the right to enjoy and consume culture) but also to protect a community’s symbolic/meaningful realm; in the context of minority and indigenous groups, this entails protection against the eradication of cultural references and safeguards the social reproduction of cultural knowledge and values through participation in cultural life.575 As culture is taken to be the outward expression of the community, and is the process through which identity is derived and expressed,576 culture could also be viewed as representing ‘authentic reflections of the people that a population constitutes.’577 However, the shift towards ‘symbolism’ presents a paradox. If culture is everything that is endowed with symbolic meaning, then culture is theoretically everywhere. Can we conclude that cultural rights essentially protect ­everything? Would this compromise legal certainty? In turn, can cultural rights still fulfil their objectives? Does it still make sense to speak of ‘culture’ in the context of cultural rights? This chapter has argued that the transfigurability of culture as currently ­understood does not undermine the legal certainty of cultural rights. Rather, it facilitates the articulation of legal obligations that are coherent without being absolute. This is also because cultural rights do not propose to protect a set of activities deemed ‘cultural’; rather, they see ‘culture’ as a human condition, or a medium, through which one’s personality can be developed. Therefore, even when the law addresses the protection of ‘cultural space’ or the ‘collective memories’ embodied therein, cultural rights do not demand that these memories be ‘preserved’ in the abstract—i.e. as if ‘frozen’ in time—since individuals and communities are capable of creating and transforming meaning. 571 Ibid. 572 Ibid. 573 Ibid. 574 Ibid. 575 Ibid. 576 Ibid. 577 Holder, ‘Culture as a Basic Human Rights’ (n 1) 88.

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Rather, they demand that states devise their policies so that individuals and communities can participate in and contribute to the transformation and revitalisation of public space to create sites of meaning to which individuals and communities can relate. However, the symbolic concept of culture is inadequate to address ­subtler forms of cultural rights violation. Viewing culture as the system of symbolic meanings sustained by the individual’s memory and actions suggests the ­fluidity and malleability of culture, which make it resilient (adaptable to ­external influences) and vulnerable at the same time.578 As the treaty bodies understand culture as consisting of shared and (to a certain degree) ­objectively identifiable knowledge, they treat culture as a ‘text’.579 This is inconsistent with the contemporary anthropological view, which argues that culture c­ onsists of contested and conflicting narratives and discourses. This chapter has argued that, to mitigate their insensitivity to the politicised nature of culture, the ­treaty bodies should adopt the contemporary anthropological understanding of culture as a heuristic device. Once this concept is clarified, it enables us to ask questions that might not have been apparent. For instance, the understanding that cultural heritage is contentious and is the site where discourses of race, ancestry and nationalism compete for dominance enables and requires us to pay attention to the processes through which meanings are produced and ascribed.580 As Prott argues, ‘[T]he close connection between cultural symbols and practical politics is patent’.581 Since ‘no heritage is ­unconnected with controversy, dissonance and cultural/identity politics’,582 the tension between the state and minority communities or the indigenous population also depends on how these discourses are created for different purposes, and how ­effectively they occupy the cultural space (via which they become part of ­personal knowledge through daily interpretation and practice, forming part of living ­memory). In this regard, the work of the treaty bodies on cultural rights is not entirely satisfactory; in particular, it overlooks an important dimension of culture: that ‘culture’ is often political.

578 David Lowenthal, The Past is a Foreign Country (Cambridge University Press 1985). 579 See critique of Geertz’s understanding of ‘culture’, Sections 2.4.2 and 2.5.3 in Chapter 2. 580 Kenny, ‘Deeply Rooted in the Present’ (n 539) 151. Heritage is the site ‘where [the discourses of] race, ancestry, memory, and place are differentially employed to construct, maintain, and communicate a specific sense of heritage.’ 581 Prott, ‘Cultural Rights as Peoples’ Rights in International Law’ (n 212) 98. 582 Natsuko Akagawa and Laurajane Smith, ‘Introduction’ in Natsuko Akagawa and Laurajane Smith (eds), Intangible Heritage (Routledge 2009) 4.

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The key contribution that contemporary anthropological perspectives bring to the law is that they restore to legal analysis the messiness of cultural life,583 including the power dynamics at play behind apparently neutral ­cultural knowledge. Although the treaty bodies may not be equipped to investigate cultural politics, the new perspective has enabled them to ask the relevant ‘cultural­questions’, such as, what gave rise to the heritage? And what are the implications behind the different narratives which different parties perceive as giving rise to the heritage? Indeed, culture involves a struggle over meaning, and so has much to do with power: ‘Cultural discourses legitimate or ­challenge authority and justify relations of power.’584 The use of the ­contemporary ­anthropological understanding of culture in the context of the limits of cultural rights will be explored in the next chapter. 583 Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001) 21. 584 Merry, Human Rights and Gender Violence (n 546) 11.

chapter 4

Cultural Rights and the Human Rights Treaty Bodies: The Limitations on Cultural Rights The challenge is to ensure that the right to pursue, develop and preserve culture in all its manifestations is in consonance with and serves to ­uphold the universality, indivisibility and interdependence of all human rights. This includes the right not to be forced into participation. farida shaheed, Independent Expert in the Field of Cultural Rights1

...

[I]nternational human rights, including cultural rights, need to be contextualized within the culture, within the reality of each society, in order to be understood and implemented. This is the point of conceptual contact between culture and cultural rights. elsa stamatopoulou, Former Chief of the United Nations Permanent Forum on Indigenous Issues (unpfii)2

∵ 4.1 Introduction As early as the 1950s, specialised agencies within the un considered culture and religion to be the sources of traditional practices affecting the health of * An adapted version of this chapter was published in Human Rights Law Review. See Pok Yin S Chow, ‘Has Intersectionality Reached its Limits? Intersectionality in the un Human Rights Treaty Body Practice and the Issue of Ambivalence’ (2016) 16(3) Human Rights Law Review 453. 1 Farida Shaheed, ‘First Press Release of the Independent Expert in the Field of C ­ ultural Rights’ (23 November 2009) accessed 10 December 2013. 2 Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (Martinus Nijhoff Publishers 2007) 18.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004328587_005

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women.3 Originally developed to describe female genital mutilation (fgm),4 the term ‘harmful traditional practices’ is now widely recognised as describing a wide range of practices including ‘forced feeding of women; early marriage; the various taboos or practices which prevent women from controlling their own fertility; nutritional taboos and traditional birth practices; son preference [and infanticide]; early pregnancy; and dowry price.’5 Therefore, although the protection of cultural rights and minority rights is well recognised, as discussed in Chapter 3, ‘culture’ also lies at the heart of contemporary issues surrounding women’s rights, gender discrimination and gender violence.6 This observation is reflected in international human rights law, where culture is the subject of both protection and prohibition. While provisions such as Article 15(1)(a) of the icescr and Article 27 of the iccpr establish the right to take part in cultural life and the right of minorities to enjoy culture (as demonstrated in Chapter 3), Article 2(f) and Article 5(a) of cedaw oblige states to take measures to abolish practices attributable to customs and traditions which either are harmful to the well-being of women or sustain gender stereotypes.7 Since many of these practices are also predicated on religious beliefs, the potential conflict of rights also relates to the freedom to manifest religion. A further implication of religion in the context of cultural rights is that for 3 The first Special Rapporteur on Traditional Practices Affecting the Health of Women and Children was appointed in 1956. 4 Sally E Merry, Gender Violence: A Cultural Perspective: Introduction to Engaged ­Anthropology (Wiley-Blackwell 2009) 91–92: ‘[At the international level] genital cutting became the prototype of a practice justified by custom and culture and redefined as an act of violence and a breach of women’s human rights.’ For a more detailed account of how the concept of ‘­harmful traditional practices’ evolved, see Sheila Jeffreys, Denise Thompson and Bronwyn Winter, ‘The un Approach to Harmful Traditional Practices: Some Conceptual Problems’ (2002) 4 Int’l Fem J Polit 72. 5 un ohchr, ‘Fact Sheet No 23: Harmful Traditional Practices Affecting the Health of Women and Children ac­ cessed 1 F­ ebruary 2017; unchr (Sub-Commission), ‘Report by Special Rapporteur on Traditional Practices affecting the Health of Women and Children Halima E Warzazi 1995/6’ (23 ­October 1995) un Doc E/CN.4/Sub.2/1995/6; unchr (Sub-Commission), ‘Report by Special ­Rapporteur Halima E Warzazi 2005/36’ (11 July 2005) un Doc E/CN.4/Sub.2/2005/36. 6 unchr (Sub-Commission), ‘Report by Special Rapporteur on Traditional Practices affecting the Health of Women and Children Halima E Warzazi 1995/6’ (23 October 1995) un Doc E/CN.4/Sub.2/1995/6. Commenting on the common features of these customs and traditional practices, the Special Rapporteur remarked that ‘[I]t is clear that whatever the practice may be, and wherever it exists, the origins lie in the historical unequal economic and social relationships between men and women, resulting in a perceived inferior status of the woman.’ 7 Articles 2(f) and 5(a) cedaw.

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some ethnic groups the practice of religion is also integral to their ethnic and cultural identity.8 Religion and culture are not strictly separate entities; they mutually influence each other in the context of identity formation.9 In some communities, religion takes on a central role in maintaining ethnocultural identity.10 The issue of the circumstances under which limitations on the protection of cultural rights could legitimately be imposed raises difficult questions. ­Although certain traditions and customs are deemed harmful to the wellbeing of women, this may not be agreed upon by women themselves.11 Even though certain laws, when taken at face value, seem to protect women against ‘harmful’ cultural practices, Radhika Coomaraswamy, un Special Rapporteur on Violence against Women, its Causes and Consequences, remarks that the operations of human rights law may seem to minority women and women in some countries to be imperialist and racist.12 Moreover, she comments that 8

Fredrik Barth, Ethnic Groups and Boundaries: The Social Organization of Cultural Difference (Little, Brown and Company 1969). Although religion and culture can be distinguished conceptually, culture and religion are both integral to the construction of an ethnic identity. See also Marie Macey, ‘Ethnicity, Gender and Boundaries of Choice’ in Clare Beckett, Owen Heathcote and Marie Macey (eds), Negotiating Boundaries? Identities, Sexualities, Diversities (Cambridge Scholars Publishing 2007). 9 Sociologists and anthropologists call these ‘ethnoreligious groups’. See Barth, Ethnic Groups and Boundaries (n 9); Macey, ‘Ethnicity, Gender and Boundaries of Choice’ (n 9); Dominic McGoldrick, ‘Culture, Cultures, and Cultural Rights’ in Mashood Baderin and Robert McCorquodale (eds), Economic, Social and Cultural Rights in Action (Oxford University Press 2007), noting that in some societies, politics and religion are not as distinct as in the West. See Section 2.6 for an introduction on how discourses often shape identity. 10 ibid. 11 Veena Das, ‘Cultural Rights and the Definition of Community’ in Oliver Mendelsohn and Upendra Baxi (eds), The Rights of Subordinated Peoples (Oxford University Press 1994) 117, 137; Robert Post, ‘Between Norms and Choices’ in Joshua Cohen, Matthew Howard and Martha C Nussbaum (eds) Is Multiculturalism Bad for Women (Princeton University Press 1999) 66. The fact that women may not view themselves as ‘disadvantaged’ because they had ‘freely chosen’ their lives which they found ‘fulfilling’ presents unsettling difficulties for feminists coming across unfamiliar cultures that ‘fully and successfully normaliz[e] patriarchy’. 12 Academics have noted that Western concepts of female equality are often exclusionary and sometimes imperialist. See Radhika Coomaraswamy, ‘Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women’ (2002) 34 Geo Wash Int’l L Rev 483, 487; Isabelle R Gunning, ‘Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries’ (1991) 23 Colum Hum Rts L Rev 189; Tracy E Higgins, ‘Anti-Essentialism, Relativism and Human Rights’ (1996) 19 Harv Women’s L J 89, 91; Azizah Y al-Hibri, ‘Is Western Patriarchal Feminism Good for Third

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while there may be instances where women ‘have moved away from strong ties to the community of their birth, the vast majority feel a deep connection to group identity’13 and in this respect, the advocacy of human rights and the prohibition of certain cultural practices might offend their sense of identity and belonging.14 Ali echoes this claim and argues that, from the perspective of women belonging to religious minorities, who may think deeply about their religious identity, prohibitions on cultural practices and religious attire may be seen as offensive.15 Therefore, while human rights assert universal norms of gender equality, it is questionable whether the notions of equality and non-discrimination that are applied across the various human rights treaties are necessarily universally accepted by women.16 Moreover, it is doubtful whether international human rights law does justice to women who see their group identities as an integral part of their personal identity.17 Addressing the ‘­dilemma’ between protecting cultural identities on one hand and the rights of the oppressed on the other18 requires an examination of the motivations

World/­Minority Women?’ in Joshua Cohen, Matthew Howard and Martha C Nussbaum (eds), Is ­Multiculturalism Bad for Women? (Princeton University Press 1999); Sally E Merry, ‘Human Rights Law and the Demonization of Culture (And Anthropology Along the Way)’ (2003) 26 PoLAR 55. Culture is often demonised in both human rights law and ­discourse. In the context of fgm, see eg Ellen Gruenbum, The Female Circumcision Controversy: An Anthropological Perspective (University of Pennsylvania Press 2001) 202, citing Jean Comaroff: ‘To us it looks barbaric … Westerners are quick to be pejorative. But by and large women in nations where this is done are not in revolt against this.’ In the context of veiling, see Nancy J Hirschmann, ‘Western Feminism, Eastern Veiling, and the Question of Free Agency’ (1998) 5 Constellations 345. Hirschmann notes that ‘[M]any Muslim women not only participate voluntarily in veiling, but defend it as well, indeed claiming it as a mark of agency, cultural membership, and resistance.’ See also Sheila Jeffreys, Beauty and Misogyny: Harmful Cultural Practices in the West (Routledge 2005); Lila Abu-Lughod, ‘Do Muslim Women Really Need Saving? Anthropological Reflections on Cultural Relativism and its Others’ (2002) 104 Am Anthropol 783. 13 Coomaraswamy, ‘Identity Within’ (n 13). 14 ibid. 15 Shaheen Sadar Ali, ‘Women’s Rights, cedaw and International Human Rights Debate: Toward Empowerment?’ in Jane L Parpart, Shirin M Rai and Kathleen A Staudt (eds), Rethinking Empowerment: Gender and Development in a Global/Local World (Routledge 2002) 64. 16 ibid. 17 ibid. In her study, she ponders that for women who holds strong views about her religious identity, whether a secular approach could be seen as compatible to their attainment of equality and empowerment. 18 See eg Monique Deveaux, Cultural Pluralism and Dilemmas of Justice (Cornell University Press 2000) 81 on ‘a dilemma of reconciling sex equality rights with collective, ­cultural

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behind women’s engagement in these practices and raises questions of individual agency, choice and identity. As Niec observes, ‘[I]ndividuals seek preservation of a group’s culture which has shaped and defined their identity as a member of that collective’,19 and therefore, even though they might agree that certain cultural practices violate their rights, they would not choose to divorce themselves entirely from the group.20 The ambivalence faced by individuals in the context of their everyday lives (as opposed to the dilemma constructed by the law) also contributes to the complexity of the intellectual debate on the limits of cultural rights. It is in this context that the conflict between cultural rights and women’s rights ‘present[s] serious philosophical, legal, and political difficulties.’21 The present chapter primarily explores two questions: (1) whether the limitations on cultural rights as recognised by the treaty bodies are satisfactory, and in particular whether the law properly addresses the dilemma of women in the context of cultural practices, and (2) how the law could be improved through a consideration of insights from anthropology. One of the most important insights that anthropological approaches offer is the idea that answers to

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rights’; Martha C Nussbaum, Sex and Social Justice (Oxford University Press 1999) 81; Chandran Kukathas, ‘Is Feminism Bad for Multiculturalism’ (2001) 5 Public ­Affairs ­Quarterly 83, 83–98; Coomaraswamy, ‘Identity Within’ (n 13); Silvia Borelli, ‘Of Veils, Crosses and ­Turbans’ in Silvia Borelli and Federico Lenzerini (eds) Cultural Heritage, C ­ ultural Rights, ­Cultural ­Diversity: New Developments in International Law (Martinus ­Nijhoff ­Publishers 2012) 55, 56. Halina Niec, ‘Casting the Foundation for the Implementation of Cultural Rights’ in ­u nesco (ed), Cultural Rights and Wrongs: A Collection of Essays in Commemoration of the 50th ­Anniversary of the Universal Declaration of Human Rights (unesco Publishing 1998) 178. ibid; Jurgen Habermas, ‘Struggles for Recognition in the Democratic Constitutional State’ in Amy Gutmann (ed), Multiculturalism: Examining the Politics of Recognition (Princeton University Press 1994) 113: ‘A correctly understood theory of rights requires a politics of recognition that protects the integrity of the individual in the life contexts in which his or her identity is formed.’ Donna J Sullivan, ‘Gender Equality and Religious Freedom: Toward a Framework for ­Conflict Resolution’ (1992) 24 New York U J of Int’l L & Polit 795, 796. Nevertheless, even in serious discussions, the topics of culture, religion and gender can be highly rhetorical. Former Special Rapporteur on Freedom of Religion or Belief Abdelfattach Amor argues that ‘Culture, religion, and freedom of religion for belief are relative notions, while ­respect for life, human dignity, non-discrimination and women’s rights are invariants which can serve to unite humanity.’ This illustrates how rhetoric can be substituted for intellectual argument, and how such rhetorical arguments could potentially complicate our understanding of the subject. unhcr, ‘Report of the un Special Rapporteur on Freedom of Religion or Belief’ (2009) un Doc E/CN.4/2002/73/Add.2, para 64.

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the ‘conflict of rights’ dilemma lie not in the philosophical and meta-­ethical, but in the empirical. In other words, drawing on their experiences in the field, anthropologists seek to approach the issue by understanding how individuals feel about and act upon these cultural practices, which is deeply related to how identities are articulated and performed.22 One such work is Sally ­Engle Merry’s book, entitled Human Rights and Gender Violence: Translating ­International Law into Local Justice. Her basic argument is that the concept of ­culture pervasive in human rights discourse is essentialised to the extent that it o­ bscures local contexts.23 The same is true in human rights law, where ­universal principles are articulated in ways that are insensitive to local dynamics.24 On the issue of cultural practices, she observes that what is required is an ­effort to understand how identities are articulated in complex ways, and that individuals acquire multiple and shifting subjectivities that are sometimes ­contradictory.25 Merry’s observations remain insightful, and the relevant parts of her work will be examined in detail below, although note that, while her work seeks to contribute to human rights discourse and practice, this chapter aims to explore how anthropological approaches to identity and cultural practices could be framed in ways that are legally comprehensible.26 The purpose of the chapter is to review and reconceptualise ‘resistance and complicity’ in a legal context.27 Section 4.2 addresses the legal framework regarding the limitations on cultural rights. It starts by discussing the restrictions international law imposes on Article 27 of the iccpr and Article 15(1)(a) of the icescr and later examines the relevant provisions contained in cedaw and the crc. The principle 22 23

See Sections 2.6–2.6.1 and 4.3.2. Sally E Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press 2006). This book by Sally E Merry was also discussed in Chapter 1. 24 ibid. 25 ibid 184. 26 ibid. Merry’s insights are significant in many ways. By studying closely how local claims are advocated in international forums and, in the process, how these claims are reinvented or re-engineered to fit the global language of universal human rights, Merry highlights the stark disjunctions between local conceptions of rights and universal aspirations. She argues that in order for the global human rights movement to be sustainable locally—to become part of local consciousness—it is important to connect global language to local realities, i.e. to articulate human rights claims in local terms. The present author agrees with these arguments, although it should be noted that much of Merry’s work, including that related to discourse and practice, lies beyond the scope of this book. 27 See Sections 4.3.2–4.3.2.4.

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of non-discrimination that is built into the iccpr and the icescr serves as a guide, setting limits for articles providing for the protection of cultural rights.28 General Comment No. 28 of the hrc, for instance, expressly prohibits a list of cultural practices that could be considered violations of Article 3 of the iccpr on the equal enjoyment of rights for men and women.29 Numerous ­Concluding Observations produced by the cescr point in the same direction. ­General Comment No. 21 of the cescr on the right to take part in cultural life stipulates that cultural rights are to be limited where ‘negative practices’—i.e. practices that may harm the well-being of women or constitute an obstacle to the realisation of their rights—are involved.30 The law on the prohibition of harmful cultural practices is supplemented by the jurisprudence on Articles 2(f) and 5(a) of cedaw, which calls not only for the eradication of practices that may violate the equal enjoyment of rights, but also for the modification of the ­stereotypical social attitudes and patterns that sustain these practices. This section concludes by highlighting the fact that, despite clear legal ­obligations for the eradication of harmful practices and stereotypes, distinguishing cultural practices that are harmful from those that are worthy of ­protection remains a highly difficult task. To begin with, how can we come to the conclusion that certain cultural practices amount to gender discrimination if the notion of gender itself is deeply contextual? This is further complicated by the issue of consent—i.e. what if the individual chooses to comply with certain practices or norms? After all, General Comment No. 21 of the cescr provides that whether or not an individual participates in cultural life and identifies with a cultural community is a matter of ‘cultural choice’.31 Section 4.3 seeks to tackle these questions. First, it examines the jurisprudence on cultural rights, drawing insights from a combination of the existing 28 29

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See Section 4.2. un Human Rights Committee, ‘General Comment No 28’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 228 (‘hrc, General Comment No 28’), para 13. un Committee on Economic, Social and Cultural Rights, ‘General Comment No 21: Right of Everyone to Take Part in Cultural Life of the International Covenant on Economic, Social and Cultural Rights’ (21 December 2009) un Doc E/C.12/GC/21 (‘cescr, General Comment No 21’), paras 19, 25. Note, however, that the issue of consent is traditionally not a concern in the work of the treaty bodies, if the practice at issue is found to be discriminatory. See concluding ­observations and general comments cited in Sections 4.2–4.2.1. See also Section 4.3.2.3 on how this study approaches the concept of ‘choice’ from contemporary anthropological perspectives.

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literature and new observations. It begins by pointing out that the law in this respect essentialises and reifies both culture and gender and establishes both concepts as necessarily conflicting, thereby undermining the contexts which give rise to these practices. The reification of ‘culture’ in the legal context has been noted by other scholars.32 However, the issue is worth re-examining, because the ways that these concepts are constructed, particularly the ways that the nature of culture and gender are presumed, directly affect how one characterises cultural traditions and customs and how the law is applied. Accounts of local experience are often excluded as a result of the constructions employed in deciding whether certain practices should be deemed discriminatory. To understand how cultural practices shape individual identity and experience, this section turns to anthropology, drawing on insights from Chapter 2. Contemporary anthropologists observe that identities are deeply influenced by prevailing discourses, through which the individual acquires multiple identities. In fact, identity is often referred to as the ‘narrativisation’ of the self. Moreover, these identities converge in complex (and sometimes inconsistent) ways. Acknowledging the process through which identities are acquired is important, as prohibiting practices that individuals view as integral to their identities may have undesirable consequences. To mitigate the rigidity of the law and to better accommodate the experiences of individuals, this section explores the idea of ‘intracategorical intersectionality’.33 Through this concept, it re-examines the individual communication Lovelace v. Canada before the hrc and the concept of ‘choice’ in General Comment No. 21 of cescr, and illustrates how anthropological concepts of multiple identities and the ­notion of intracategorical intersectionality could come together to contribute to new insights for the work of the treaty bodies, particularly regarding the question of how to determine whether certain cultural practices should be prohibited.

32 33

Merry, ‘Human Rights Law and the Demonization of Culture’ (n 13); Merry, Human Rights and Gender Violence (n 24). Note that ‘intersectionality’ has been misunderstood as referring primarily to situations where an individual’s multiple identity results in a compound form of discrimination (eg a minority woman who is discriminated against on the basis of both her gender and her status as a member of a minority). Rather, this section illustrates how an intracategorical approach to intersectionality offers an opportunity to examine an individual’s subjectivity, without necessarily coming to the conclusion that the individual is being discriminated against on multiple grounds. See Chow, ‘Has Intersectionality Reached its Limits?’ (n 1).

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The Legal Framework around the Limitations on Cultural Rights

The international legal framework protects cultural diversity by way of minority rights and the right to take part in cultural life.34 As discussed in Chapter 3, Article 27 of the iccpr ‘contains the essence of minority rights as recognized by the international community’.35 It provides for the rights of minorities to use their language, to profess and practise their own religion and to enjoy their culture.36 Article 15(1)(a) of the icescr further elaborates on those rights, providing comprehensive coverage of the right to cultural identity and cultural heritage.37 In considering the rights of minority women, we should read provisions for the protection of minority rights together with the existing body of law that guarantees the rights of women.38 Within the framework of international law for the protection of women, equality is generally accepted as the guiding principle.39 Article 3 of the iccpr requires states parties to ‘undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights.’40 The icescr contains a similar article.41 Furthermore, the general comments acknowledge that historical, religious and sociocultural factors lie at the root of discriminatory practices and prejudicial stereotypes.42

34

35 36 37 38 39

40 41 42

Coomaraswamy, ‘Identity Within’ (n 13) 488; Donna J Sullivan, ‘Advancing the Freedom of Religion or Belief through the un Declaration on the Elimination of Religious Intolerance and Discrimination’ (1988) 82 ajil 487. Coomaraswamy, ‘Identity Within’ (n 13) 489. Article 27 iccpr. See Sections 3.3.5.4.1 and 3.3.6. Coomaraswamy, ‘Identity Within’ (n 13) 488. ibid 489; Anne F Bayefsky, ‘The Principle of Equality or Non-Discrimination in International Law’ (1990) 11 Hum Rts L J 1, 2. Equality is considered a ‘dominant and recurring theme’ in the works of human rights treaty bodies. See also Bertrand G Ramcharan, ‘Equality and Nondiscrimination’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press 1981) 246. Article 3 iccpr. Article 3 icescr. hrc, General Comment No 28, para 5 expressly acknowledges that inequality is ‘deeply embedded in tradition, history and culture, including religious attitudes.’ See also un Committee on Economic, Social and Cultural Rights, ‘General Comment No 16’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 113 (‘cescr, General Comment No 16’) paras 11–12, which explains that ‘Women are often denied equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom, or as a result of overt or covert discrimination.’

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The challenging issue is that, once it is recognised that certain practices and traditions constitute part of culture or are expressions of cultural identity, it becomes difficult to determine whether international human rights ought to protect these practices and traditions within the scope of cultural rights. ­Neither the iccpr nor the icescr can escape the need to address this ­paradox. Despite the fact that Article 27 does not contain any limitation clause, unlike many other provisions such as Article 18 (the right to freedom of r­eligion), ­Article 19 (the right to freedom of expression), Article 21 (the right to freedom of assembly) and Article 22 (the right to freedom of association), General Comment No. 23 of the hrc explicitly states that Article 27 should not be invoked in a manner inconsistent with other treaty provisions.43 This is also to be read in light of General Comment No.28 of the hrc on article 3 of the iccpr which provides a comprehensive review of the treaty articles that could be violated as a result of sex discrimination.44 According to this General ­Comment, practices such as female infanticide, the burning of widows and dowry killings are considered violations of both Article 3 (equal enjoyment of Covenant rights for men and women) and Article 6 (the right to life).45 Moreover, violence against women or girls, including forced abortion, forced sterilisation and genital ­mutilation, violates Article 3, Article 7 (freedom from torture, inhumane and degrading treatment) and Article 24 (the rights of the child).46 Articles 3 and 8 (freedom from slavery) are considered violated when a state fails to take measures to eliminate forced prostitution and the trafficking of women and girls.47 Moreover, polygamy is considered a violation of A ­ rticles 3 and 23 (the right to marriage), for it violates the dignity of women.48 Articles 3 and 26 43

44

45 46

47 48

un Human Rights Committee, ‘General Comment No 23’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 208 (‘hrc, General Comment No 23’) para 8; hrc, General Comment No 28, para 32; cf Manfred Nowak, un Covenant on Civil and Political Rights: ccpr Commentary (2nd edn, np Engel Publishers 2005) 666–667. hrc, General Comment No 28, para 32: ‘The rights which persons belonging to minorities enjoy under article 27 of the Covenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights.’ ibid para 10. ibid para 11; hrc, Concluding Observations on Senegal (19 November 1992) un Doc CCPR/C/79/Add.82, para 12. The hrc comments that fgm violates articles 6 and 7 of the iccpr on the freedom from torture and the right to physical integrity. hrc, General Comment No 28, para 12. ibid para 24; Dianne Otto, ‘Gender Comment: Why Does the un Committee on Economic, Social and Cultural Rights Need a General Comment on Women’ (2002) 14 Can J of Women & L 1, 27.

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(­equality before the law) are violated when ‘honour crimes’ (such as penalties inflicted on women for adultery) are not prohibited;49 the hrc also considers the commission of ‘honour crimes’ to have implications for Article 6 (the right to life). Articles 3 and 27 are considered violated when clothing requirements are imposed.50 The hrc has also from time to time declared certain cultural practices to be violations and demanded their eradication in its concluding observations.51 In the context of the icescr, General Comment No. 21 of the cescr aims to protect cultural expressions including traditional cultural practices.52 ­Paragraph 49(d) of General Comment No. 21 stipulates the obligation on the part of states to ensure that individuals and communities have ‘access to their own cultural and linguistic heritage and to that of others … In particular, States must respect free access by minorities to their own culture, heritage and other forms of expression, as well as the free exercise of their cultural identity and practices.’53 Moreover, it provides that ‘Indigenous peoples have the right to act collectively to ensure respect for their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.’54 Paragraph 55(c) affirms that the decision of a person or community to participate in cultural life is a choice and urges states to respect and protect the right of all individuals to engage in their own cultural practices.55 However, in line with the Universal Declaration on Cultural Diversity,56 General Comment No. 21 of the cescr stipulates that cultural diversity ­cannot be invoked in order to infringe individual rights.57 In arguing that ‘negative 49 50 51

52 53 54 55

56 57

hrc, General Comment No 28, para 31. ibid para 13. See eg hrc, Concluding Observations on India (4 August 1997) un Doc CCPR/C/79/ Add.81 (Sati, marital rape, feticide and infanticide); hrc, Concluding Observations on Senegal (19 November 1992) un Doc CCPR/C/79/Add.82, para 12 (fgm); hrc, Concluding Observations on Lesotho (8 April 1999) un Doc CCPR/C/79/Add.106, paras 10, 12 (fgm and customary laws and practices); hrc, Concluding Observations on Japan (19 November 1998) un Doc CCPR/C/79/Add.102, para 30 (marital rape). cescr, General Comment No 21, para 44. ibid para 49(d). ibid para 37. ibid para 55(c). See also 2001 Universal Declaration on Cultural Diversity (2 November 2001) clt-2002/WS/9 (‘2001 Universal Declaration on Cultural Diversity’), article 5: ‘[A]ll persons have the right to participate in the cultural life of their choice and conduct their own cultural practices.’ cescr, General Comment No 21, para 18; n 18; article 4 2001 Universal Declaration on Cultural Diversity. cescr, General Comment No 21, para 18: ‘[W]hile account must be taken of national and regional particularities and various historical, cultural and religious backgrounds, it is the

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practices’ constitute legitimate grounds for limiting the right to take part in cultural life,58 paragraph 19 of General Comment No. 21 provides that ‘­Applying limitations to the right to everyone to take part in cultural life may be ­necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions, that infringe upon ­other ­human rights.’59 Such circumstances include instances where the rights guaranteed under Article 3 of the icescr on gender equality are violated.60 ­Despite the fact that the relevant paragraphs do not provide clear guidance on what amounts to ‘negative practices’, such practices can be inferred from other general comments and concluding observations to include fgm,61 polygamy62 and early marriage.63 Likewise, General Comment No. 16 of the cescr provides that states should seek to remove ‘institutional barriers and other o­ bstacles, such as those based on cultural and religious traditions’ which obstruct women’s participation in cultural life under Article 15(1)(a).64 Although General Comment No. 21 of the cescr notes that limitations to Article 15(1)(a) may only be applied in a restricted manner,65 and must be for the sole purpose of promoting the ‘general welfare’ in a ‘democratic society’,66 it also clarifies that the failure to take steps to ‘combat practices harmful to the well-being of a person or group of persons … such as female genital mutilation

duty of States, regardless of their political, economic or cultural systems, to promote and protect all human rights and fundamental freedoms. Thus, no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.’ 58 ibid para 19. 59 ibid. 60 ibid paras 21, 25. See also cescr, General Comment No 16, para 31. 61 cescr, General Comment No 16, para 29. 62 cescr, Concluding Observations on Algeria (30 November 2001) un Doc E/C.12/1/Add.71, para 14; cescr, Concluding Observations on Gambia (31 May 1994) un Doc E/C.12/1994/9; cescr, General Comment No 16, para 27; cescr, Concluding Observations on Kyrgyzstan (1 September 2000) un Doc E/C.12/1/Add.49, para 16. 63 cescr, General Comment No 16, para 27; cescr, Concluding Observations on Sri Lanka (16 June 1998) un Doc E/C.12/1/Add.24, para 9; cescr, Concluding Observations on Cameroon (8 December 1999) un E/C.12/1/Add.40, para 33. 64 cescr, General Comment No 16, para 31. 65 Rights under the icescr, including article 15(1)(a), are only subject to limitations if the sole purpose is to promote the ‘general welfare in a democratic society’ (and must be strictly necessary for this purpose). Limitations must also be proportionate and contain the least restrictive measures needed to achieve their legitimate aim. cescr, General Comment No 21, para 19. See also article 4 icescr. 66 cescr, General Comment No 21, para 19.

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and allegations of the practice of witchcraft’ is an outright violation of the right to take part in cultural life.67 This statement suggests an element of urgency in the elimination and eradication of certain cultural practices that are harmful to the physical well-being of women. In relation to ‘negative practices’,68 General Comment No. 21 of the cescr pays special attention to the tension between the state, culture (as a whole) and the individual. In fact, it takes the approach that the right to take part in cultural life is both an individual and a collective right.69 It stipulates that the term ‘everyone’ in Article 15 (‘the right of everyone … to take part in c­ ultural life’) ‘may denote the individual or the collective; in other words, c­ ultural rights may be exercised by a person (a) as an individual, (b) in association with o­ thers, or (c) within a community or group, as such.’70 General Comment No. 21 elaborates that ‘The decision by a person whether or not to exercise the right to take part in cultural life individually, or in association with others, is a cultural choice and, as such, should be recognized, respected and protected on the basis of equality. This is especially important for all indigenous peoples, who have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms.’71 The idea of ‘cultural choice’ expressly acknowledges that the will of cultural communities and individuals must be respected and taken into account when measures are put in place to implement Article 15 of the icescr; i.e. states are not to impose their judgement on what they think is best for communities and individuals.72 This is in line with the spirit of earlier views of the treaty bodies73 as well as the rest of General Comment No. 21.74 By acknowledging 67 68

ibid para 64. ibid para 19. The terminology of the treaty bodies on cultural or traditional practices prejudicial to the well-being of women varies from ‘harmful practices’ and ‘harmful traditional practices’ to ‘negative practices’. 69 See hrc, General Comment No 23, paras 1, 3.1. 70 cescr, General Comment No 21, para 9. 71 ibid para 7. Emphasis added. 72 For instance, states have an obligation to consult indigenous peoples on matters affecting them. 73 This is also consistent with article 5 of the 2001 Universal Declaration on Cultural Diversity. 74 cescr, General Comment No 21, para 16(c) and (e), on the acceptability and appropriateness of cultural laws and policies: ‘[L]aws, policies, strategies, programmes and measures adopted by the State party for the enjoyment of cultural rights should be formulated and implemented in such a way as to be acceptable to the individuals and communities ­involved.’ Cultural rights should be realised ‘in a way that is pertinent and suitable to a

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individual autonomy in the realm of cultural activities, General Comment No. 21 also seeks to take into account the willingness of the individual and thus his or her freedom from coercion from both the state and the cultural group. Moreover, it notes that the element of ‘participation’ means that an individual should be able ‘to act freely, to choose his or her own identity, to identify or not with one or several communities or to change that choice, to take part in the political life of society [and] to engage in one’s own cultural practices’,75 thereby acknowledging that the right to take part in cultural life is only meaningful if exercised voluntarily. Individuals may or may not identify themselves with the group and may object to cultural customs and traditions.76 However, the construction of ‘cultural choice’ is potentially problematic. Firstly, it remains difficult to see how the treaty bodies could reconcile the existence of cultural practices which are deemed oppressive with instances where the individual genuinely consents to engage in these practices. The ­construction of a ‘choice’ does not assist us in distinguishing practices in which individuals are being compelled to take part from practices that seem to them to be morally compelling (and that they are therefore willing to perform).77 Secondly, the construction neglects the ‘emotional and social costs of an alternative’.78 Identifying oneself as belonging to a group is one thing; w ­ hether an individual could afford to leave the community is another.79 Individuals may succumb to economic and social pressure to conform.80 Therefore, it could be argued that framing participation in cultural practices as a ­voluntary choice ‘obscures agency through the language of choice’.81 In essence, the concept of given cultural modality or context, that is, respectful of the culture and cultural rights of individuals and communities, including minorities and indigenous peoples.’ 75 cescr, General Comment No 21, para 15(1)(a). 76 It also resembles the multiculturalist’s notion of voluntary self-ascription. See Seyla Benhabib, Claims of Culture: Equality and Diversity in the Global Era (Princeton University Press 2002). 77 This issue will be revisited in Section 4.3.2.3. 78 Anatasia Vakulenko, ‘Islamic Dress in Human Rights Jurisprudence: a Critique of Current Trends’ (2007) 7 hrlr 717, 726. 79 ibid. 80 ibid 725. 81 ibid. Jill Marshall, ‘Conditions for Freedom? European Human Rights Law and the Islamic Headscarf Debate’ (2008) 30 hrq 631, 636, 651. Marshall argues that veiling involves an individual’s ‘real right to personal autonomy’—to follow through personal choices in life. Agreeing with other feminists, she argues that more sophisticated versions of autonomy acknowledge that women’s capacity to make their own choices is influenced by the ‘role that social conditions play in the choices people make’.

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choice makes it difficult to take into account the experiences of the individuals at issue.82 The concept of choice will be studied further below.83 4.2.1 Gender Discrimination and Culture Although the iccpr and the icescr provide the framework for applying limitations to cultural rights, it is insufficient to consider only these instruments in order to understand the limitations imposed by the treaty bodies on culture in general. Of particular relevance is cedaw, which is the principal treaty within the framework of the un treaty bodies that addresses discrimination against women.84 The aim of the Convention is to prohibit laws and other customs and practices which have the ‘effect or purpose’ of impairing the enjoyment or exercise of fundamental rights by women.85 It demands that states parties provide for the complete equality of women in every field of life,86 including, inter alia, nationality, employment and family matters.87 Of particular relevance are Articles 2 and 5 of cedaw. Articles 2(e) and 2(f) urge states to ‘take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise’88 and ‘to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women’.89 The wording of Article 2 covers acts c­ ommitted by any ‘person, organization or enterprise’ and includes acts by non-state ­actors.90 In this respect, Article 2 also requires states to scrutinise the traditional practices of minority cultures in order to bring them into conformity with cedaw. ­Furthermore, the scope of protection offered to women under this formulation goes beyond the traditional public sphere to address the ­private domains of 82

83 84

85 86 87 88 89 90

The question that remains is whether we could find a better explanation of the nature of cultural practices and their relationship with cultural identity, which, in the context of cultural rights, is an integral element of the protection provided under article 27 of the iccpr and article 15(1)(a) of the icescr. See Section 4.3.2.3. cedaw emerged out of the concern that despite the presence of various un instruments promoting gender equality, ‘extensive discrimination against women continues to exist.’ Preamble, cedaw; Nowak, un Covenant on Civil and Political Rights (n 44) 77. Nowak comments that cedaw represents the pinnacle of earlier efforts in relation to gender equality within the un. Article 1 cedaw. Ali, ‘Women’s Rights, cedaw and the International Human Rights Debate’ (n 16) 63. Articles 9, 11 and 16 cedaw. ibid article 2(e). ibid article 2(f). ibid article 2(e).

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home and family91—the contexts in which women are most at risk of abuse and violence.92 Article 5(a) of cedaw deals with ‘an area traditionally quite distant from law.’93 It urges states parties ‘[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on … s­ tereotyped roles for men and women’.94 In other words, it requires states to modify social constructions of gender if such attitudes impede the achievement of equality and the enjoyment of rights.95 Cusack and Cook refer to the attempt to address systemic and structural inequality as ‘transformative equality’,96 ­ whereby ‘­features of existing cultures … and of legal, social and economic structures that obstruct the equality and human dignity of women are subject 91

92 93

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96

See eg un Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 19’, ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 2) at 331 (‘cedaw, General Recommendation No 19’), para 24(a); Ali, ‘Women’s Rights, cedaw and International Human Rights Debate’ (n 16) 72. Ali, ‘Women’s Rights, cedaw and International Human Rights Debate’ (n 16) 72. Ekaterina Y Krivenko, Women, Islam and International Law: Within the Context of the Convention on the Elimination of All Forms of Discrimination Against Women (Martinus Nijhoff Publisher 2009) 29. Krivenko comments that article 5 of cedaw is ‘innovative and significant’ in that it ‘deals with an area traditionally quite distant from law’. Article 5(a) cedaw. See eg rkb v Turkey, Communications No 28/2010 (24 February 2012) un Doc CEDAW/C/51/D/28/2010. The author’s employer dismissed her, accusing her of having an affair with a male colleague, but chose not to dismiss the male colleague. The employer also threatened to spread rumours about her relationships with other men in order to make her sign a document stipulating that upon termination all benefits had been duly paid. After pursuing the case in local courts and exhausting local remedies, rkb filed a complaint with the Committee alleging that her termination was based on gender discrimination. The Committee decided that the Turkish courts, by tolerating allegations of extramarital relationships against male employees but not female employees, had violated, inter alia, article 5(a) of cedaw. The Committee reiterated the obligations of the state to take practical measures to eliminate gender discrimination, such as implementing laws to improve gender equality in the workplace. Ann E Mayer, ‘Cultural Particularism as a Bar to Women’s Rights: Reflections on the Middle Eastern Experience in Women’s Rights’ in Julie Peters and Andrea Wolper (eds), Women’s Rights, Human Rights: International Feminist Perspectives (Routledge 1995) 176. Rebecca J Cook and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press 2010) 5; Rebecca J Cook and Simone Cusack, ‘Combating Discrimination on Sex and Gender’ in Catarina Krause and Martin Scheinin (eds) International Protection of Human Rights: A Textbook (Åbo Akademi University 2009) 205, 207.

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to ­fundamental change.’97 However, Article 5 of cedaw also poses difficulties for l­ awyers, for it fails to offer an objective assessment as to how Article 5 could be (or could be deemed to be) fulfilled.98 After all, modifying sociocultural patterns may not be within the expertise of legal practitioners. N ­ evertheless, Article 5 of cedaw is important because it offers protection against gender ­discrimination that goes beyond the scope offered by other treaties. For ­instance, non-discrimination clauses such as Articles 2 and 3 of the iccpr and the icescr only prohibit gender discrimination in relation to the other rights contained in the respective covenants, while cedaw proclaims that women are entitled to equality in all areas of life.99 It has therefore been argued that Article 5 of cedaw better addresses the needs of women compared with other un human rights documents.100 4.2.1.1 Harmful Traditional Practices In the context of the treaty bodies, and especially in the context of cedaw, special attention has been paid to a certain category of ‘cultural’ practices considered harmful to the health and well-being of women. It has been argued that fgm was the prototype for these ‘harmful traditional practices’101 whose eradication has been widely called for.102 At present, references to ‘traditional 97

Rikki Holtmaat, ‘The cedaw: A Holistic Approach to Women’s Equality and Freedom’ in Anne Hellum and Henriette S. Aasen (eds) Women’s Human Rights: cedaw in International, Regional and National Law (Cambridge University Press 2013) 95, 111; Rikki H ­ oltmaat and Jonneke Naber, Women’s Human Rights and Culture: From Deadlock to Dialogue (­Intersentia 2011) 26. 98 Krivenko, Women, Islam and International Law (n 94) 29. 99 Ali, ‘Women’s Rights, cedaw and International Human Rights Debate’ (n 16) 71. See eg hrc, General Comment No 28, para 5: ‘States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights.’ 100 Krivenko, Women, Islam and International Law (n 94) 29; Anne Hellum, Women’s Human Rights and Legal Pluralism in Africa: Mixed Norms and Identities in Infertility Management in Zimbabwe (Tano Aschehoug 1999) 22. In particular, cedaw provides ‘a socio-legal tool which within a single and unified framework is intended to help women fit into social, economic and political modernization processes in all parts of the world.’ (Ali, ‘Women’s Rights, cedaw and International Human Rights Debate’ (n 16) 61–62.). 101 Merry, Gender Violence (n 5). 102 The drive to prohibit fgm can be extensively noted in the works of the treaty bodies. See eg hrc, Concluding Observations on Nigeria (24 July 1996) un Doc CCPR/C/79/ Add.5, para 25; hrc, Concluding Observations on Senegal (19 November 1997) un Doc CCPR/C/79/Add.82, para 12. cedaw, in particular, has dedicated a comprehensive general recommendation to the topic of fgm. See un Committee on the Elimination of

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practices harmful to the health of women’,103 ‘harmful social or traditional practices’104 and ‘negative practices’105 have been widely employed in the texts of the treaty bodies. Despite the differences in terminology, they all refer to practices considered by the treaty bodies to be harmful or ‘negative’, as they present dangers to the physical and psychological health of women or are considered barriers to the full exercise of their rights.106 These practices range from polygamy,107 honour killings,108 witch-burning109 and forced pregnancy110 to inhumane rites undergone by widows111 and other widow practices.112 In addition, harmful traditional practices in the context of gender are closely related to gender-based violence. cedaw’s General Recommendation No. 19 (on violence against women) remarks that gender stereotypes ‘perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female

103 104

105 106

107 108 109 110 111 112

­ iscrimination against Women, ‘General Recommendation No 14’ in ‘Note by Secretariat, D ­Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 326 (‘cedaw, ­General Recommendation No 14’). crc, Concluding Observations on Sudan (18 February 1993) un Doc CRC/C/15/Add.6, para 4. un Committee on Economic, Social and Cultural Rights, ‘General Comment No 14’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 78 (‘cescr, General Comment No 14’), para 35. cescr, General Comment No 21, para 19. ibid para 64: ‘A violation also occurs when a State party fails to take steps to combat practices harmful to the well-being of a person or group of persons. These harmful p ­ ractices, including those attributed to customs and traditions, such as female genital mutilation and allegations of the practice of witchcraft, are barriers to the full exercise by the ­affected persons of the right enshrined in article 15, paragraph 1(a).’ cescr, Concluding Observations regarding Cameroon (8 December 1999) E/C.12/1/ Add.40, para 14. cedaw, Concluding Observations on Israel (25 July 1997) un Doc A/52/38/Rev.1 paras 163, 178. cedaw, Concluding Observations on South Africa (5 April 2011) un Doc CEDAW/ C/ZAF/CO/4, para 20. cedaw, Concluding Observations on the Netherlands (20 April 2001) un Doc A/56/38 Part ii, para 207. cedaw, Concluding Observations on Nigeria (7 October 1998) un Doc A/53/38/Rev.1, para 153. cedaw, Concluding Observations on Nigeria (18 March 2004) un Doc A/59/38, paras 288, 299 and 300.

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circumcision.’113 These practices are regarded by the treaty bodies as harmful practices attributable to culture/cultural values.114 Furthermore, the treaty bodies have also addressed the situation of girls. Discrimination against girls is considered ‘the entry-point of discrimination against women in society.’115 Moreover, many discriminatory practices that women experience are also experienced by girls, for example, fgm,116 early marriage117 and certain dowry practices.118 However, although girls have been mentioned in cedaw texts,119 it has been commented that cedaw has failed to adequately address the specific needs and experiences of girls.120 Unlike the situation of the women, discrimination against girls can also occur before and at birth.121 Son-preference and stereotypical attitudes towards girls often lead to selective abortions122 or infanticide123 or nurture discrimination during pregnancy, thus affecting the health of the female child.124 Another important distinction between discrimination against women and girls concerns the degree of harm. fgm conducted on women may be experienced differently to the same procedure conducted on a child, who may not 113 cedaw, General Recommendation No 19, para 11. 114 See Sections 4.3–4.3.1. 115 crc, Concluding Observations on Egypt (21 February 2001) un Doc CRC/C/15/Add.145, para 29. 116 cedaw, General Recommendation No 19, para 20. 117 crc, Concluding Observations on Zimbabwe (7 June 1996) un Doc CRC/C/15/Add.55, para 13. 118 ibid. 119 See eg cedaw, General Recommendation No 19, para 20; cedaw, Concluding Observations on South Africa (5 April 2011) un Doc CEDAW/C/ZAF/CO/4, para 20; cedaw, Concluding Observations on New Zealand (27 July 2012) un Doc CEDAW/C/NZL/CO/7, para 20. 120 The convention scarcely mentions the ‘girl’ as a category. Reference to the ‘girl’ is only made in relation to student drop-out rates (article 10). By focusing on the role of women as parents (articles 5, 9(2) and 16), it also fails to recognise the evolving capacities of the child. See Cynthia P Cohen, ‘The United Nations Convention on the Rights of the Child: A Feminist Landmark’ (1997) 3 Wm & Mary J Women & Law 29, 39; Nura Taefi, ‘The Synthesis of Age and Gender: Intersectionality, International Human Rights Law and the Marginalisation of the Girl-Child’ (2009) 17 Int’l J of Children’s Rts 345, 356. 121 Cohen, ‘The United Nations Convention on the Rights of the Child’ (n 121) 29. 122 crc, Concluding Observations on India (26 February 2004) un Doc CRC/C/15/Add.228, paras 33–34; crc, Concluding Observations on China (7 June 1996) un Doc CRC/C/15/ Add.56, para 15. 123 ibid. 124 Cohen, ‘The United Nations Convention on the Rights of the Child’ (n 121) 42; cescr, General Comment No 14, para 22.

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have the capacity to consent.125 Moreover, the psychological burden faced by a girl may arguably be greater than that faced by an adult woman. Likewise, early arranged marriages involve young brides who are at greater risk of domestic ­violence due to their lack of capacity to resist or seek assistance.126 Despite these arguments, it should be noted that ‘harm’ is itself a highly contested concept, as its interpretation may be deeply cultural.127 Furthermore, it has been argued that harm should be understood within a sociocultural context and that ritual initiation ceremonies (such as fgm) are examples where, although physical harm may be inflicted, children who have not undergone such practices ‘may experience significant social isolation and exclusion which could lead to them suffering significant psychological harm.’128 The crc addresses the tension between culture and the rights of girls. As noted in Chapter 3, Article 29(1)(c) of the crc acknowledges the importance of cultural identity and values to the development of the child by requiring states to ensure that the education of the child is ‘directed to … [t]he development of respect for the child’s parents, his or her own cultural identity, ­language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own’.129 Article 30 of the crc again acknowledges the value of traditional practices by providing, in similar terms to Article 27 of the ­i ccpr, that ‘in those States in which ethnic, religious or linguistic minorities or ­persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.’130 As in the wording of Article 15(1)(a) of the icescr, the child’s right to participate in cultural life is also recognised in the crc.131 Nevertheless, despite these provisions, much emphasis has also been placed on the negative effects of culture on the rights of the child. Article 24(3) of the

125 Sally Sheldon and Stephen Wilkinson, ‘Female Genital Mutilation and Cosmetic Surgery: Regulating Non-Therapeutic Body Modification’ (1998) 12 Bioethics 263. 126 Robert Jensen and Rebecca Thornton, ‘Early Female Marriage in the Development World’ (2003) 11 Gender & Development 9. 127 John Tobin, ‘The International Obligation to Abolish Traditional Practices Harmful to Children’s Health: What does it Mean and Require of States’ (2009) 9 Human Rights Law Review 373. 128 ibid. 129 Article 29(1)(c) crc. 130 Article 30 crc. 131 Article 31 crc.

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crc provides that ‘States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.’132 The strong wording (‘shall take all effective and appropriate measures’) reflects the drafters’ determination that the rights of the child should be prioritised.133 In its General Comment No. 4, the crc urges the eradication of traditional harmful practices ‘such as early marriages, honour killings and female genital mutilation’.134 General Comment No. 11 of the crc (on the rights of indigenous children) expressly states that: [C]ultural practices provided by article 30 of the Convention must be ­exercised in accordance with other provisions of the Convention and under no circumstances may be justified if deemed prejudicial to the child’s dignity, health and development. Should harmful practices be present, inter alia early marriages and female genital mutilation, the State ­party should work together with indigenous communities to ensure their eradication.135 Other examples of harmful practices conducted on girls include Trokosi (ritual enslavement of girls in Ghana),136 uvulectomy137 and child-pledging.138 The crc also considers that the deprivation of education is sometimes attributable to prevailing cultural norms that may be regarded as harmful traditional practices.139 Similarly to cedaw and other treaty bodies, the crc calls for the eradication of harmful practices as a matter of urgency.140 132 Article 24(3) crc. 133 Tobin, ‘The International Obligation to Abolish Traditional Practices’ (n 128). 134 un Committee on the Rights of the Child, ‘General Comment No 4’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 2) at 410 (‘crc, General Comment No 4’), para 39(g). 135 un Committee on the Rights of the Child, ‘General Comment No 11: Indigenous Children and their Rights under the Convention’ (12 February 2009) un Doc CRC/C/GC/11 (‘crc, General Comment No 11’), para 22. 136 crc, Concluding Observations on Ghana (18 June 1997) un Doc CRC/C/15/Add.73, para 42. 137 crc, Concluding Observations on Ethiopia (21 February 2001) un Doc CRC/C/15/Add.144, para 64. 138 crc, Concluding Observations on Zimbabwe (7 June 1996) un Doc CRC/C/15/Add.55, para 13. 139 crc, Concluding Observations on Yemen (21 September 2005) un Doc CRC/C/15/Add.267, para 58. 140 ibid.

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To conclude, the jurisprudence of the treaty bodies takes the position that cultural practices that reflect or sustain gender inequality should not be ­permitted.141 Both the hrc and the cescr have adopted general comments in order to address these issues. General Comment No. 28 of the hrc draws up a comprehensive list of possible violations of the rights of women in the name of culture.142 Similarly, the deliberations of the cescr also aim to make the cescr gender-inclusive and to impose limitations on Article 15(1)(a) should cultural practices violate gender equality.143 cedaw imposes a more stringent obligation on the part of states, demanding the modification of prejudicial ­sociocultural attitudes and patterns.144 The crc in this regard often supplements the instruments of the treaty bodies when it comes to addressing the needs of girls. 4.3

‘Culture’ in the Context of Limitations

Unlike instances where the law seeks to protect participation in culture, the concept of ‘culture’ in the context of limitations on cultural rights is not c­ learly defined. For example, while General Comment No. 21 of the cescr makes the scope of ‘cultural life’ explicit for the purposes of the right to take part in ­cultural life,145 no such attempt to define culture can be identified when the law addresses the limitation on cultural rights. Nevertheless, some important ­features can be inferred. Firstly, ‘culture’ is often equated with the value ­structure or belief system through which traditions and customs are sustained.146 141 cescr, Concluding Observations on Libya (20 May 1997) un Doc E/C.12/1/Add.15, para 13: ‘[The icescr] is predicated on the principles of absolute non-discrimination against women and their full enjoyment of all the rights enjoyed by their male counterparts.’ 142 See Section 4.3. 143 hrc, General Comment No 28. 144 Mayer, ‘Cultural Particularism as a Bar to Women’s Rights’ (n 96) 176, 179: ‘cedaw was premised on the notion that, where cultural constructs of gender were an obstacle to the achievement of women’s equality, it was the culture that had to give way—not that women’s rights should be sacrificed in situations where their realization would require modifying local social and cultural patterns.’ See also Kathree Fayeeza, ‘Convention on the Elimination of All Forms of Discrimination Against Women’ (1995) 11 South African J on Hum Rts 421. Fayeeza argues that the aim of cedaw is to create a society ‘where oppressive customs and prejudices will be questioned and replaced by egalitarian forms of behaviour’ in order to achieve the substantive equality of women. 145 See Section 3.4 in Chapter 3. 146 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 13); Ali, ‘Women’s Rights, cedaw and International Human Rights Debate’ (n 16) 64.

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For instance, General Comment No. 28 of the hrc notes that inequality is ‘deeply embedded in tradition, history, and culture, including religious attitudes.’147 In its Concluding Observations on Togo in 1994, the hrc stresses the impact of cultural values and customs on gender equality, and explicitly calls for administrative and educational measures ‘designed to break with … customs and traditional practices [and beliefs] detrimental to the well-being and status of women in Togolese society.’148 In other concluding observations which address the issue of gender inequality, it is generally the view of the hrc that traditions and customs,149 and underlying stereotypical attitudes and prejudices,150 are sources of discriminatory practices.151 In a similar manner, General Comment No. 16 of the cescr on Article 3 of the icescr explains that ‘Women are often denied equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom.’152 Like the hrc’s, the concluding observations of the ­c escr consider prevailing traditions, customs and stereotypes to be the source of discrimination against women and girls.153 Its Concluding O ­ bservations 147 hrc, General Comment No 28, para 5. 148 hrc, Concluding Observations on Togo (21 September 1994) un Doc CCPR/C/79/Add.33, para 8. 149 hrc, Concluding Observations on Senegal (17 November 1991) un Doc CCPR/C/79/ Add.82, para 4; hrc, Concluding Observations on Bolivia (1 May 1997) un Doc CCPR/C/79/ Add.74, para 21; hrc, Concluding Observations on Gabon (18 November 1996) un Doc CCPR/C/79/Add.71, para 3; hrc, Concluding Observations on Zambia (3 April 1996) un Doc CCPR/C/79/Add.62, para 3; hrc, Concluding Observations on Yemen (21 September 1994) un Doc CCPR/C/79/Add.51, para 5; hrc, Concluding Observations on Morocco (23 November 1994) un Doc CCPR/C/79/Add.44, para 4; hrc, Concluding Observations on Togo (21 September 1994) un Doc CCPR/C/79/Add.36, para 3; hrc, Concluding Observations on Cameroon (18 April 1994) un Doc CCPR/C/79/Add.33, para 3. 150 hrc, Concluding Observations on Uzbekistan (26 April 2001) un Doc CCPR/CO/71/UZB, paras 19–20; hrc, Concluding Observations on Mongolia (25 April 2000) un Doc CCPR/C/79/Add.120, para 8; hrc, Concluding Observations on United States of America (3 October 1995) un Doc CCPR/C/79/Add.50, para 5; hrc, Concluding Observations on Ukraine (26 July 1995) un Doc CCPR/C/79/Add.52, para 11; hrc, Concluding Observations on the Russian Federation (26 July 1995) un Doc CCPR/C/79/Add.54, para 14. 151 Wouter Vandenhole, Non-Discrimination and Equality in the View of the un Human Rights Treaty Bodies (Intersentia 2005) 116. 152 cescr, General Comment No 16, para 5. 153 cescr, Concluding Observations on Zambia (23 June 2005) un Doc E/C.12/1/Add.106, para 14; cescr, Concluding Observations on Chile (26 November 2004) un Doc E/C.12/1/ Add.105, para 15; cescr, Concluding Observations on Malta (14 December 2004) un Doc E/C.12/1/Add.101, para 11; cescr, Concluding Observations on Benin (5 June 2002) un Doc E/C.12/1/Add.78, para 8.

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on the Dominican Republic, for instance, criticises the persistence of a maledominated society and its adverse effects on gender equality.154 In light of the above, we can see that both the hrc and the cescr take the position that inequality experienced by women is largely due to prevailing cultural norms and values. In the context of cedaw, the conflation of ‘­culture’ with value systems is more evident, as academics such as Merry rightly ­observe.155 Article 5(a) of cedaw calls upon states to modify social and ­cultural patterns of behaviour that could be ascribed to traditions and customs based on gender stereotypes.156 The wording employed in the article claims a direct causal relationship between human behaviour and cultural values. Similarly, General Recommendation No. 21 of cedaw (on the right to marriage) is explicit in framing culture in terms of values. It calls upon states to recognise ‘the importance of culture and tradition in shaping the thinking and behaviour of men and women and the significant part they play in restricting the exercise of basic rights by women.’157 Likewise, General Recommendation No. 19 of cedaw, on violence against women, provides that ‘Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or c­ oercion such as family violence and abuse, forced marriage, dowry deaths, acid ­attacks, and female circumcision.’158 Furthermore, General Recommendation No.  23 of cedaw stipulates that among ‘the most significant factors inhibiting ­women’s ability to participate in public life have been the cultural framework of ­values and religious beliefs.’159 As in the construction adopted in Article 5(a) of cedaw, these beliefs and values are portrayed as dictating the social and ­cultural behaviour of men and women.160 A similar position can be found in General Comment No. 4 of the crc, which urges states to address ‘gender roles and stereotypes that contribute to harmful traditional practices … including early marriage and female genital mutilation.’161 As Merry correctly points out, the treaty bodies ‘[locate] the source of oppression for women largely in the domain of beliefs and values.’162 154 cescr, Concluding Observations on the Dominican Republic (28 December 1996) un Doc E/C.12/1/Add.6. 155 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 13). 156 Article 5(a) cedaw. 157 cedaw, General Recommendation No 21, para 3. 158 cedaw, General Recommendation No 19, para 11. 159 cedaw, General Recommendation No 23, para 10. 160 Article 5(a) cedaw. 161 crc, General Comment No 4, para 24. 162 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 13) 62.

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Moreover, when ‘culture’ (as a set of values) is juxtaposed with inequality, ‘culture’ or ‘cultural values’ often refer to (if they are not used as synonyms of) stereotypical gender roles. The concept of ‘gender’ in the work of human rights treaty bodies can be traced to the Report by the Secretary General on Integrating the Gender Perspective into the Work of United Nations Human Rights Treaty Bodies in 1998 (‘Report on Integrating the Gender Perspective’),163 which calls upon treaty bodies to address ‘women’s and men’s socially ­constructed ­realities … in the context of each of the human rights conventions with a view to preventing, or at least reducing, women’s disadvantages’164 through their concluding observations and general comments and by engaging in constructive dialogue with states parties.165 The Report on Integrating the Gender ­Perspective defines gender as ‘the socially constructed roles of women and men that are ascribed to them on the basis of their sex, in public and in private life.’166 It elaborates that: Gender roles are contingent on a particular socio-economic, political and cultural context and are affected by other factors, including age, race, class and ethnicity. Gender roles are learned and vary widely within and between cultures. As social constructs, they can change. Gender roles shape women’s access to rights, resources and opportunities.167 The above construct of gender is reflected in later treaty body documents. The hrc, for instance, has identified gender as consisting of social roles and ­responsibilities.168 Moreover, General Comment No. 16 of the cescr stipulates that ‘Gender refers to cultural expectations and assumptions about the behaviour, attitudes, personality traits, and physical and intellectual capacities of men and women, based solely on their identity as men or women.’169 This view 163 un Secretary-General, ‘Report on Integrating the Gender Perspective into the Work of United Nations Treaty Bodies’ (3 September 1998) un Doc HRI/MC/1998/6 (‘Report on Gender Mainstreaming’); The Report on Gender Mainstreaming is part of the initiative adopted by the un to ‘[mainstream] a gender perspective into all policies and ­programmes in the United Nations system.’ 164 ibid para 22. 165 ibid. 166 ibid para 16. 167 ibid. 168 hrc, Concluding Observations on Yemen (9 August 2005) un Doc CCPR/CO/84/YEM, para 8; hrc, Concluding Observations on the Russian Federation (26 July 1995) un Doc CCPR/C/79/Add.54, para 14; Vandenhole, Non-Discrimination and Equality (n 152) 116. 169 cescr, General Comment No 16, para 14.

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is also prevalent in cescr concluding observations when they address the ­economic and social position of women.170 In addition, the juxtaposition of gender/gender roles and culture is found most markedly in the texts produced by cedaw. Articles 1, 2 and 5 of the Convention situate gender discrimination in the context of stereotypical attitudes, norms and patterns of b­ ehaviour attributable to culture and traditions.171 General Recommendation No. 19 of cedaw constructs the relationship between gender violence and gender roles as dialectical. While traditional stereotypical attitudes perpetuate gender ­violence and other forms of coercion, gender-based violence in turn ‘maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.’172 Furthermore, the concept of gender roles is widely used in cedaw’s concluding observations.173 In fact, the conceptions of culture and gender ­described above reflect the understandings advocated by early anthropologists such as Ruth Benedict.174 According to their views, gender roles are ‘imposed’: learned during the process of socialisation, with sanctions for non-­compliance.175 These roles are first created by cultural norms and values, but, in turn, they sustain these norms and values through their persistent presence. ­Nevertheless, the concept of gender roles is no longer embraced by contemporary anthropologists, as explained in Section 2.6. 170 See eg cescr, Concluding Observations on Malta (26 November 2004) un Doc E/2005/22, paras 340, 358: ‘[P]ersistent cultural stereotypes of the role of women negatively affect the equal enjoyment of rights by both men and women.’ 171 See articles 1, 2 and 5 cedaw. See also article 10(c) cedaw. 172 cedaw, General Recommendation No 19, para 11. 173 cedaw, Concluding Observations on Trinidad and Tobago (7 May 2002) un Doc A/57/38, paras 147–149, 151 and 152; cedaw, Concluding Observations on Uruguay (7 May 2002) un Doc A/57/38, paras 192, 193, 200 and 201; cedaw, Concluding Observations on Sri Lanka (7 May 2002) un Doc A/57/38, paras 271, 288 and 289. The concept of gender roles can also be identified in the texts of the crc. General Comments No 4 and No 11 of the crc attribute harmful practices such as dowry practices to prevailing attitudes, gender roles and stereotypes, and strongly urge their eradication. Moreover, attention has been given to the effects of socialisation. For instance, its Concluding Observations on Grenada in 2000 urged the state to ‘address discrimination arising from the socialization of boys and girls into rigid gender roles and the resulting determination of family and social attitudes concerning children based on gender.’ See crc, General Comment No 4, para 24; crc, General Comment No 11, para 22; crc, Concluding Observations on Grenada (28 February 2000) un Doc CRC/C/15/Add.121, para 13. 174 See Section 2.2.1. 175 ibid.

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Consequences of Conflating Culture with Values, Beliefs and Stereotypical Roles The previous section described instances when the treaty bodies have ­construed ‘culture’ as encompassing patriarchal cultural values and religious beliefs; these beliefs and values often generate gender stereotypes that constitute an obstacle to women’s realisation of their rights.176 The consequences of equating culture with cultural values and gender roles are various. Firstly, when ‘culture’ is taken to refer to the cultural values which direct behaviour, the work of the treaty bodies on gender inequality scarcely acknowledges economic or political factors as being causes of, or contributing factors to, the ­cultural ­practices deemed discriminatory.177 Commentators have observed that, by focusing on the ‘cultural domain’ and neglecting the economic and ­political factors that give rise to these practices, approaches which reduce culture to values, beliefs and roles tend to ‘culturalise’ problems.178 Take customary marriage as an example. Bell observed that Aboriginal communities in Australia engage in ‘promised marriage’ and ‘infant bestowal’ in order to bind kin ‘in a web of reciprocal obligations, rights and responsibilities’.179 Although these practices violate international human rights norms, such as Article 23(3) of the iccpr180 and Article 16(b) of cedaw (concerning the right to consensual marriage),181 they do not arise simply because of 4.3.1

176 Article 5(a) cedaw; cescr, General Comment No 16, para 14: gender-based cultural assumptions ‘place women at a disadvantage with respect to substantive enjoyment of rights, such as freedom to act and to be recognized as autonomous, fully capable adults, to participate fully in economic, social and political development, and to make decisions concerning their circumstances and conditions.’ hrc, Concluding Observations on ­Cyprus (8 July 1994) un Doc A/49/40, paras 320 and 331. 177 One exception can be found in General Recommendation No 14 of cedaw (on female ­circumcision), where it acknowledges that economic pressures, as well as factors attributed to culture and tradition, help perpetuate harmful practices. cedaw, General Recommendation No 14. 178 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 13) 63. 179 Diane Bell, ‘Considering Gender: Are Human Rights for Women, Too? An Australian Case’ in Abdullahi Ahmed An-Na’im (ed), Human Rights in Cross Cultural Perspectives: A Quest for Consensus (University of Pennsylvania Press 1992). 180 Article 23 iccpr; un Human Rights Committee, ‘General Comment No 19’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 152 (‘hrc, General Comment No 19’), para 4. 181 Article 16 cedaw. See also un Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 21’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’

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certain traditional or cultural values, as the law often presumes.182 Moreover, she observes that polygamous relationships found in Aboriginal communities serve to offer young brides a sister/co-wife/ally to relieve the hardships faced in the early stages of marriage.183 This example illustrates that cultural practices, far from merely reflecting a set of values, may serve certain societal purposes (while such purposes may or may not justify the existence of the practice).184 In another study, Hellum observed that in Zimbabwe, polygamy helped relieve older women who were childless and in danger of being abandoned by their husbands. It also protected the interests of young women who were unable to give birth after suffering abuse by men.185 These instances reflect situations where ‘cultural values’ may not be the sole and primary reasons for the existence of such practices. The simple attribution of polygamy to discriminatory customs and traditions has the potential to downplay the complexity of local realities. (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 2) at 337 (‘cedaw, General Recommendation No 21’), para 4. 182 cf ibid para 16: ‘A woman’s right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being. An examination of States parties’ reports discloses that there are countries which, on the basis of custom, religious beliefs or the ethnic origins of particular groups of people, permit forced marriages or remarriages.’ cf iccpr Concluding Observations on Senegal (10 July 1993) un Doc A/48/40 (vol 1), para 105, in which the hrc expresses concerns over ‘the continued practice of polygamy in Senegal since, in actual practice, it is impossible for a man to treat his wives equally.’ Although the hrc uses the words ‘in actual practice’, it seems that the phrase is used to conceal the fact that the context is being ignored rather than respected. 183 Furthermore, Bell attributes the hostility of human rights to polygamous relationships to the concept of a ‘nuclear family’ (which assumes that a family consists of a husband, a wife and children), which is embedded in human rights provisions prohibiting polygamous marriages. She explains that in the Aboriginal communities which she studied, the wife does not usually spend her day with her husband or the family. In fact, the wife spends most of her time with other women in the community; to the wife, the most ‘natural’ configuration of social relationships is the community of Aboriginal women rather than the family. Therefore, Bell argues that while economic and political influences are undermined, certain forms of institutional arrangements are often presumed. 184 See Section 2.3.1 on the functional utility of culture. 185 Hellum, Women’s Human Rights and Legal Pluralism in Africa (n 101). It has also been noted that the decline in polygamy is not attributable to a change in cultural attitudes but to economic reasons: Aboriginal men find it more difficult to provide for a huge family. Anne Griffiths, ‘Gendering Culture: Towards a Plural Perspective on Kwena Women’s Rights’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001) 102, 114.

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Since the root causes of discriminatory practices are ‘culturalised’ and thus over-generalised, we might also ask whether human rights law offers appropriate remedies. The treaty bodies aim to combat discrimination and discriminatory cultural practices through (1) the adoption of administrative and ­legislative measures that forbid and outlaw harmful cultural practices186 and (2) the modification and transformation of cultural values and attitudes through education and sensitisation programmes.187 In essence, the strategy of the treaty bodies in relation to gender discrimination is aimed at modifying or replacing these stereotypical values and practices ‘with more egalitarian forms of behaviour’.188 Yet, by seeking to ‘replace’ social behaviours through legal and educational means, we may overlook the unintended side effects of these measures. For example, in Bell’s studies of Aboriginal communities mentioned above, she remarks that laws prohibiting polygamous relationships make local women more vulnerable.189 Another example that could be noted is that of fgm. It has been observed that fgm is conducted on girls with the consent of their families to increase their chances of marriage—and therefore is thought by their parents to be in their best interests. This is because in some areas fgm symbolises virginity.190 Although the motivations behind fgm may be attributable to symbolic values, it may be the economic consequences that truly hold sway.191 In this sense, legal measures prohibiting such practices seem to be either misplaced or insufficient.192 A similar comment could also be made regarding the 186 See eg cescr, General Comment No 14, para 35; hrc, General Comment No 28, para 11; crc, General Comment No 4, para 10. 187 See eg cedaw, General Recommendation No 14; crc, Concluding Observations on ­Australia (21 October 1997) un Doc CRC/C/15/Add.79, para 34; crc, Concluding ­Observations on Chad (24 August 1999) un Doc CRC/C/15/Add.107, paras 15, 29; ­c escr, ­Concluding Observations on Benin (5 June 2002) un Doc E/C.12/1/Add.78, para 32. 188 Ali, ‘Women’s Rights, cedaw and International Human Rights Debate’ (n 16). 189 Bell, ‘Considering Gender’ (n 180); Griffiths, ‘Gendering Culture’ (n 186). 190 Ellen Gruenbaum, ‘Sexuality Issues in the Movement to Abolish Female Genital Cutting in Sudan’ (2006) 20 Med Anthropol Q 121; Gruenbaum, The Female Circumcision Controversy (n 13); Aud Talle, ‘Female Circumcision in Africa and Beyond: The ­Anthropology of a Difficult Issue’ in Ylva K Hernlund and Bettina Shall-Duncan (eds), Transcultural Bodies: Female Genital Cutting in Global Context (Rutgers University Press 2007). 191 Gruenbaum, The Female Circumcision Controversy (n 13). 192 Martha R Mahoney, ‘Exit: Power and the Idea of Leaving in Love, Work, and the Confrontation Hearings’ (1992) 65 S Cal L Rev 1283. There are other factors at stake which prohibit women from leaving the community, such as concern for their livelihood. See also Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to

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treaty bodies’ calls for educational programmes to be put in place; if the causes of these practices are at least partially attributable to economic and political factors, or may entail economic or political consequences, it seems that educational measures may also be insufficient. In essence, when the law culturalises problems, the economic and political factors which contribute to the plight of women are often neglected. Secondly, in equating ‘culture’ with values and gender roles, ‘culture’ is being reified and essentialised as consisting primarily of a package of traits which determine behaviour.193 In this way, the concept of ‘culture’ is construed as a monolithic and static entity instead of a dynamic process that is fluid and internally contested.194 When cultures are imagined to be static and parochial ‘wholes’, social relationships are assumed to be organised in ways that reflect male dominance and female subordination.195 However, the concept of gender roles is misleading in several ways. Since gender roles are thought to be ‘ascribed’, it precludes issues of agency and choice; it downplays the woman’s agency and individuality.196 Consequently, while seeking to protect women, deterministic accounts of culture (paradoxically) have the side effect of downgrading women to mere bearers and c­ arriers of their culture. They imply that women in these settings could not have ­exercised their capacity to choose (or that even if they have, their choices are a result of the fact that they are socialised into accepting subordinating roles).197 Another reason why such descriptions are problematic is that they eliminate



International Law’ (1991) 85 ajil 613, 635: ‘Rights discourse is taxed with reducing intricate power relations in a simplistic way … In practice, however, the promise of rights is thwarted by the inequalities of power: the economic and social dependence of women on men may discourage the invocation of legal rights that are premised on an adversarial relationship between the rights holder and the infringer.’ See also Carol Smart, Feminism and the Power of Law (Routledge 1989). 193 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 13) 102. 194 ibid. 195 ibid. 196 Sawitri Saharso, ‘Feminist Ethics, Autonomy and the Politics of Multiculturalism’ (2003) 4 Feminist Theory 199, 209: ‘[It] seems very much like saying that, if a woman takes a decision that runs counter to the majority culture’s sense of what is right and just, it cannot be her decision. It must be imposed by an outsider source—her husband, her culture, her religion.’ 197 Some feminists describe the agency that women have developed through socialisation as ‘false consciousness’. See Macey, ‘Ethnicity, Gender and Boundaries of Choice’ (n 9); Nancy Kim, ‘Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism’ (1993) 25 Colum Hum Rts L Rev 49, 99.

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the possibility of seeing women as vehicles for cultural change198 and instead depict them as helpless victims, incapable of changing social norms.199 On the contrary, commentators have observed that women exhibit a high degree of agency in the face of rights violations, and are more resilient than portrayed by the law.200 The position taken by the law is therefore in danger of devaluing the worth of women, viewing them as the downtrodden victims of barbaric traditions.201 Thirdly, a monolithic construction of culture (as consisting of stereotypical values and prejudicial gender roles) sets up culture and the interests of women as fundamentally opposed to each other.202 In adopting this construction, the law establishes a dichotomy between the individual and the group and posits gender and culture as mutually exclusive.203 Therefore, this construction overlooks the fact that minority women may defend cultural practices that are, 198 Shannon Speed, ‘Gendered Intersections: Collective and Individual Rights in Indigenous Women’s Experience’ in Mark Goodale (ed), Human Rights: An Anthropological Reader (Wiley-Blackwell 2009). 199 Ratna Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’ (2002) 15 Harv Hum Rts J 1. 200 Gruenbum, The Female Circumcision Controversy (n 13) 202. 201 Bell, ‘Considering Gender’ (n 180). Kennedy notes that human rights law may not be a good catalyst for social transformation, as it may at times suffocate the imaginative space for alternative emancipatory solutions other than human rights. See David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harv Hum Rts J 101. 202 Leti Volpp, ‘Feminism Versus Multiculturalism’ (2001) 101 Colum L Rev 1181. Volpp argues that the stand-off between the protection of women’s rights and the protection of minority cultures is perpetuated by the general assumption that non-Western women are placed in a cultural context which demands their subservience. This assumption is ‘achieved by a discursive strategy that constructs gender subordination as integral to their culture’. However, this account of cultures assumes that cultures are monolithic and ‘comprised primarily of male articulations of gender-subordinating values.’ It also assumes that ­cultures are frozen and static entities: ‘Within these discourses, only minority cultures are considered traditional, and made up of unchanging and longstanding practices that warrant submission to cultural dictates.’ See also Anne Phillips, Multiculturalism without Culture (Princeton University Press 2007) 27; Seyla Benhabib, Claims of Culture: Equality and Diversity in the Global Era (Princeton University Press 2002) 102: these accounts ­assume that cultures are ‘unified structures of meaning’. 203 Anne Phillips, ‘Dilemmas of Gender and Culture: The Judge, the Democrat and the Political Activist’ in Avigail Eisenberg and Jeff Spinner-Halev (eds), Minorities within Minorities: Equality, Rights and Diversity (Cambridge University Press 2005) 122–123; Volpp, ‘Feminism Versus Multiculturalism’ (n 203).

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in terms of international human rights norms, harmful and discriminatory.204 When the oppression of women is attributed to prevailing cultural norms and values, it becomes inconceivable why women in these situations would defend these practices and claim them as authentically theirs. As Speed correctly argues, ‘[While] binaries such as individual/collective rights or cultural rights/women’s rights … exist on a conceptual and definitional level … [these binaries] are not always so clearly defined in the women’s lived experience.’205 Furthermore, Moore points out ‘The intriguing fact about such dominant representations or categorizations is that they have only the most tangential relation to the behaviours, qualities, attributes and self-images of individual women and men.’206 Therefore, one of the consequences of the binary logic adopted by the ­treaty bodies is that it denies that women who engage in or consent to certain c­ ultural practices are legitimate participants in culture or religious life under Article 27 of the iccpr and Article 15(1)(a) of the icescr.207 In fact, a careful examination of General Comment No. 21 of the cescr reveals the assumption that the category of practices deemed ‘harmful’ is irreconcilable with the ­attainment of personal development. When addressing the protection of ­cultural diversity, it is understood that culture ‘shapes and mirrors the values of well-being … of individuals, groups of individuals and communities.’208 However, this understanding is absent from General Comment No. 21, which introduces limitations on cultural rights and calls for the prohibition and elimination of ‘negative practices’.209 In this sense, General Comment No. 21 ­divides cultural practices into those that are worthy of protection (in the context of cultural diversity) and others that are subject to prohibition (in the context of n ­ egative ­practices), on the logic that the former are integral to the development of the individual while the latter have a negative impact on well-being. This d­ ichotomy 204 Hirschmann, ‘Western Feminism, Eastern Veiling’ (n 13); Coomaraswamy, ‘Identity Within’ (n 13). 205 Speed, ‘Gendered Intersections’ (n 199); Kim, ‘Toward a Feminist Theory of Human Rights’ (n 198) 88. 206 Henrietta Moore, A Passion for Difference: Essays in Anthropology and Gender (Polity Press 1994) 50. 207 For example, MacLeod observes that in Cairo veiling is sometimes construed as a sign of resistance by Muslim women. Arlene E MacLeod, ‘Hegemonic Relations and Gender Resistance: The New Veiling as Accommodating Protest in Cairo’ (1992) 17 Signs 533; Dominic McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Hart Publishing 2006); Kim, ‘Toward a Feminist Theory of Human Rights’ (n 198) 90. 208 cescr, General Comment No 21, para 13. 209 ibid para 19.

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­ ndermines the fact that whether cultural practices are beneficial or harmful u is difficult to discern outside of their sociocultural contexts, especially when the performance of practices relates to the development of individual identity and personhood.210 A minority woman may not view her identity as a woman as being in conflict with her identity as part of the cultural/religious group.211 General Comment No. 21 therefore risks objectifying women by defining their reality.212 To conclude, the concepts of culture and gender are being essentialised, reified and constructed as monolithic and static entities whenever ‘culture’ is conflated with values which are then identified as sources of oppression.213 Such constructions ‘culturalise’ human rights violations and neglect local complexities. The ‘culturalisation’ of violations obscures efforts to identify the root causes of discriminatory practices and to locate appropriate remedies. ­Moreover, essentialised understandings of culture and gender set up cultural rights and the rights of women as being in opposition. The gender/culture ­dichotomy is questionable, for it undermines the complexity of minority women’s feelings about engaging in certain cultural practices. Contemporary anthropologists have challenged deterministic accounts of culture which argue that culture determines behaviour, as discussed in ­Chapter 2.214 Deterministic accounts of culture, whether adopted by early ­anthropologists or in law, rely on essentialised notions of culture which p ­ ortray it as static and monolithic; as contemporary anthropologists would argue, such 210 Merry, Gender Violence (n 5) 10–15. 211 Ali, ‘Women’s Rights, cedaw and the International Human Rights Debate’ (n 16); Coomaraswamy, ‘Identity Within’ (n 13). 212 Patricia H Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (2nd edn, Routledge 2009) 70–72; bell hooks, Talking Back: Thinking Feminist, Thinking Black (South End Press 1989) 42: ‘As subjects, people have the right to define their own reality, establish their own identities, name their history. As objects, one’s reality is defined by others, one’s identity created by others, one’s history named only in ways that define one’s relationship to those who are subject.’ 213 unhrc ‘Report of the Special Rapporteur on Violence against Women, its Causes and Consequences’ (2007) un Doc A/HRC/4/34, para 68: ‘Essentialized interpretations of culture are used either to justify violation of women’s rights in the name of culture or to categorically condemn cultures “out there” as being inherently primitive and violent towards women. Both variants of cultural essentialism ignore the universal dimensions of patriarchal culture that subordinates, albeit differently, women in all societies and fails to recognize women’s active agency in resisting and negotiating culture to improve their terms of existence.’ 214 See Sections 2.2.1 and 2.6–2.6.1.

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approaches put culture ‘beyond the reach of critical analysis’.215 Nevertheless, several questions linger: how might we properly understand an individual’s engagement in culture/cultural practices? How might we conceptualise her resistance and complicity216 and take into account her motivations and state of mind as she takes part in these cultural practices? Furthermore, how might the law move beyond the rigid culture/gender categorisation that seems to have become so powerfully entrenched? To understand an individual’s participation in cultural practices, contemporary anthropologists look to issues of identity and subjectivity.217 Understanding the Experiences of Women through the Concepts of Identity and Subjectivity: Anthropological Perspectives Sally Engle Merry observes that anthropological perspectives on the experiences of women have undergone major shifts over the past three ­decades, during which ‘new conceptions redefined the [intellectual] movement in very ­significant ways.’218 In essence, the change is comprised of three notable stages.219 The first involved the shift from ‘sex to gender’,220 i.e. the move away from understanding the differential social statuses of men and women through their differences in biological makeup (sex)—for example, the fact that ­women are biologically more fitted for childrearing—to understanding the effects of socially constructed perceptions of sexual differences on social statuses (gender).221 4.3.2

215 Terence Turner, ‘Anthropology and Multiculturalism: What is Anthropology that Multiculturalists should be Mindful of It?’ (1993) 8 Cultural Anthropology 411, 412. 216 Moore, A Passion for Difference (n 213) 49. 217 Richard H Robbins, ‘Identity, Culture, and Behavior’ in John J Honigmann (ed), Handbook of Social and Cultural Anthropology (Rand McNally College Publishing Company 1973) 1200. Identity links abstract ‘culture’ to human behaviour. Robbins explains that studies of social and cultural phenomena eventually need to address the relationship between ‘culture’ and human behaviour. While explanations for behaviour may be biological—i.e. rooted in human needs—or psychological, what is lacking is a ‘theory of human motivation’: ‘[M]otivation … must be accounted for if culture is to be viewed as a product of human behavior and social life or as a concomitant of human nature rather than solely as a determinant of behaviour … [It is important that] motivation for cultural behavior be accounted for in some manner. The identity concept is presented … as such a motivating concept.’ See Section 2.6.1. 218 Merry, Gender Violence (n 5) 8. 219 ibid. 220 ibid 9. 221 ibid.

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The second involved the shift from ‘role to performance’.222 As anthropologists turned to look at gender, anthropological studies came to rely heavily on the view that gender entailed social roles imposed by social norms. However, this view was later thought to be insufficient to describe the complexities and power dynamics within social relationships. Viewing gender as a set of social roles and expectations presumes that identities somehow exist outside of the individual, rather than forming part of the individual’s subjective experience. The concept of performance refers to the ways in which ‘identities are ­produced through dynamic interaction and performance.’223 It challenges the traditional view of gender roles by pointing out that there is no identity which exists ontologically outside of the individual.224 Gender should not be seen as constituted by the static roles and expectations externally ‘imposed’ by society; rather, identities are actively acquired through the performance of roles.225 The third involved the shift from ‘essentialism to intersectionality’.226 This shift entails that women across different social strata should no longer be viewed as essentially the same, simply because of their gender; rather, the ­experiences of women must be understood in relation to the multiplicity of each individual’s background. Contemporary anthropologists observe that identity is deeply shaped by prevailing discourses and narratives.227 Identity, as some argue, is the narrativisation of the self,228 and is formed at the ­moment when narratives of ‘who I am’ and ‘who I ought to be’ are ‘internalised’ to become personal knowledge.229 In this way, discourses and discursive practices provide subject positions (for example, a woman’s views on her gender, race or ethnicity).230 As an individual is exposed to a wide array of narratives, it is illogical to view someone through a single lens (such as understanding an individual as primarily a woman or primarily a member of an ethnic group). 222 ibid. 223 Denise A Segura, ‘Chicanas in White-Collar Jobs: “You Have to Prove Yourself More” in Louise Lamphere, Helena Ragoné and Patricia Zavella (eds), Situated Lives: Gender and Culture in Everyday Life (Routledge 1997) 293. 224 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990); Sara Salih, ‘On Judith Butler and Performativity’ in Karen E Lovaas and Mercilee M Jenkins (eds), Sexualities and Communication in Everyday Life: A Reader (Sage Publications 2007). 225 See Section 2.6.1 on ‘performance’. 226 Merry, Gender Violence (n 5) 12. 227 See Sections 2.6–2.6.1. 228 ibid. 229 ibid. 230 ibid.

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Rather, an individual is situated at the ‘intersection’ of multiple discourses which constantly shape and reshape her sense of self.231 The multiplicity of experience is reflected in the lives of minority women. For instance, in Speed’s study of indigenous women in Nicolás Ruíz, Mexico, she found that the conflict between indigenous communities’ collective right to maintain their culture and the rights of individual indigenous women was often presumed.232 In Nicolás Ruíz, the Zapatista uprising, an armed movement of the indigenous population, continued for more than a decade. During the struggle, the interests of the indigenous movement were primarily defined in masculine terms. Nevertheless, while the personal autonomy of indigenous women—including their right to marriage, their reproductive rights, their ability to travel freely and their right to inherit property—was widely thought to be disrespected by the indigenous community, the women continued to show strong expressions of their identity as part of the indigenous group.233 Through embracing themselves as both women and members of the indigenous group, they brought their voices and unique experiences into the social struggle at various levels, ‘in the community, in their [political or social] organisations and with the state.’234 Speed’s observation is that indigenous women live at the intersection of multiple local experiences that traditional rights discourses fail to capture. Contemporary anthropologists therefore argue that individuals do not necessarily align themselves with categorical descriptions. In this sense, the gender/culture distinction made by the treaty bodies is incompatible with the concept of culture adopted by contemporary anthropologists. It is also a false distinction, since an individual does not comprehend herself as either a ­woman or a member of the minority group, but as a combination of both (in conjunction with other aspects which form the totality of her identity and ­subjective experience). The negative consequences of the gender/culture ­distinction are twofold. Firstly, it entails a rigid prioritisation of rights. In the practice of the treaty bodies, gender (and women’s rights) is prioritised over culture (and ­minority/cultural rights), as the latter is limited by the ­former. 231 Carolyn Pedwell, Feminism, Culture and Embodied Practice: Rhetorics of Comparison (Routledge 2010) 56: ‘What [Butler’s work on performativity] offers to a process of thinking through how race, nation and cultural difference intersect and mutually constitute sex/gender and sexuality in the production of bodies and embodied subjectivities is an understanding of how embodied subjects are constituted in part through relational processes of “othering”.’ 232 Speed, ‘Gendered Intersections’ (n 199) 227. 233 ibid. 234 ibid.

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However, since the individual does not experience culture and gender as separate from each other, when this kind of ‘either/or’ logic is imposed on ­individuals, it is like ­asking a minority woman to give up one aspect of her ‘self’, i.e. her cultural affiliation. Secondly, and as a result of the first point, this distinction perpetuates the idea that third-world or minority women who take part in cultural ­practices deemed harmful or discriminatory cannot be full participants in their culture. As Cowan et al. argue, the human rights discourse ‘has had complex and contradictory implications for individuals and groups whose claims must be articulated within its terms.’235 The overall result is the need for a ­better theory in human rights, in which the complex experiences of the individual could be conceptualised without yielding to binaries. It would also need to encapsulate the experience of individuals as constructed through multiple discourses. The idea of ‘intersectionality’ is one concept that has been articulated as a means of mitigating these difficulties. 4.3.2.1

Single-axis Differentiations and Intersectionality: Accommodating Multiple Identities in Law It has often been argued that discriminatory laws view social relationships through ‘single-axis differentiations’ or ‘single-axis binaries’.236 This means that when the law addresses gender inequality, it demarcates groups of individuals along gender lines, undermining the differences within gender as a category.237 Moreover, when the law addresses the relationship between the minority and the majority, emphasis is placed on cultural affiliation (without paying heed to other identities such as gender identity). Although this observation oversimplifies the jurisprudence of the treaty bodies—as they do, for example, address discrimination on multiple grounds, and to a limited extent acknowledge the multiple aspects of the individual—the statement is largely accurate when applied to the tension between culture and gender as studied in the previous sections.238 The term ‘intersectionality’, first coined by Crenshaw,239 was introduced into legal literature to describe a form of analysis that purports to enable a

235 Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: A ­ nthropological Perspectives (Cambridge University Press 2001) 1. 236 Madhavi Sunder, ‘Piercing the Veil’ (2003) 112 Yale L J 1399, 1433. 237 ibid. When we view the issue of cultural practices as one of male versus female, it is easy to overlook the differences among women. 238 See Section 4.3. Madhavi Sunder, ‘(Un)disciplined’ (2003) 26 PoLAR 77, 79. 239 Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989)

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better understanding of the distinctive experience of minority women in these circumstances. Attempting to remedy the single-axis mentality prevalent in anti-racism laws, intersectionality seeks to challenge the ‘either/or’ thinking that is pervasive in single-axis differentiations—i.e. male or female, minority or majority.240 As others have commented, the ‘fragmentary nature of discrimination law meant that it was impossible to even accurately translate what had happened or how the individual herself felt about it into a legally intelligible picture.’241 Rather than seeing categories of difference such as race, gender and class as parallel axes of differentiation, intersectionality suggests that they ‘­intersect and confirm each other’,242 dynamically shaping forms of oppression and how oppression is experienced. Intersectionality ‘signif[ies] the complex, irreducible, varied, and variable effects which ensue when multiple axes of differentiation—economic, political, cultural, psychic, subjective and ­experiential—intersect in historically specific contexts.’243 Two types of intersectionality can be distinguished for the purpose of the present discussion:244 an interlocking model (which, as will be explained,

240 241

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U of Chicago Legal Forum 138; Kimberle Crenshaw, ‘Mapping the Margins: I­ ntersectionality, Identity Politics, and Violence Against Women of Color’ (1991) 43 Stan L Rev 1241. Lisa A Crooms, ‘Indivisible Rights and Intersectional Identities or, “What Do Women’s Human Rights Have to Do with the Race Convention?”’ (1996) 40 Howard L J 632. Anatasia Vakulenko, ‘Gender and International Human Rights Law: the Intersectionality Agenda’ in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar 2010) 211; Holtmaat and Naber, Women’s Human Rights and Culture (n 98) 63. Yen Le Espiritu, Asian American Men and Women: Labor, Laws and Love (Alta Mira Press 2000) 132; Vakulenko, ‘Gender and International Human Rights Law’ (n 242) 211. Avtar Brah and Ann Phoenix, ‘Ain’t I a Woman? Revisiting Intersectionality’ (2004) 5 J of Int’l Women’s Studies 75, 76; Vakulenko, ‘Gender and International Human Rights Law’ (n 242). In recent years, different versions of intersectionality have emerged, to the extent that the concept, though mostly illuminating, is at times obscured. For example, some may see intersectionality as simply a matter of adding up different forms of oppression. O ­ ther ­disagree, arguing that the very premise of intersectionality is a form of non-additive thinking. Other phrases such as ‘additive intersectionality’ and ‘transversal intersectionality’ have been coined to describe different conceptual models of the theory. Choo and Ferree summarise three styles of intersectional practices: group-centred, process-centred and system-centred; the variations reflect different theoretical concerns. Therefore, intersectionality is best viewed as a theory that has been modified and revised over time. As Nira Yuval-Davis observes, ‘[A]nalytical attempts to explain intersectionality … are confusing.’ The present study retains some of the phrases adopted by earlier theorists of the concept (such as Collins and Crenshaw) but adopts McCall’s approach to ­analysing

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is based on an intercategorical methodology), and a model based on an ­intracategorical method.245 ‘Interlocking intersectionality’ refers to the way that discrimination occurs on multiple levels, with a cumulative effect on the ­individual.246 Conceptualising discrimination at the structural level,247 the interlocking model suggests that the overlapping character of multiple axes of oppression forms a ‘matrix of domination’,248 or ‘interlocking systems of domination’.249 The interplay of multiple axes of identity categories gives rise to a compound form of discrimination which is not intelligible through the lens of single-axis differentiations. Examples of the interlocking model can be found in the texts of the treaty bodies. The individual communication regarding Silva Pimentel v. Brazil before cedaw250 describes a pregnant woman of African descent who suffered ­severe intersectionality. This will be explained further in the main text below. See Hae Y Choo and Myra M Ferree, ‘Practicing Intersectionality in Sociological Research: A Critical ­Analysis of Inclusions, Interactions, and Institutions in the Study of Inequalities’ (2010) 28 Sociol Theory 129, 129–131; Leslie McCall, ‘The Complexity of Intersectionality’ in Davina Cooper et al (eds), Intersectionality and Beyond: Law, Power and the Politics of Location (Routledge-Cavendish 2009) 49; Nira Yuval-Davis, ‘Intersectionality and Feminist Politics’ (2006) 13 Eur J of Wom Stud 193, 196. 245 The phrase ‘intracategorical’ is adopted from McCall, who argues that there are three ­different methodologies embedded in the ‘complexity of intersectionality’: a­ nticategorical complexity, intercategorical complexity and intracategorical complexity. See McCall, ‘The Complexity of Intersectionality’ (n 245) 50–52. 246 ibid. Some refer to this as multiple or compound discrimination; see Vandenhole, Non-Discrimination and Equality (n 169). 247 Collins, Black Feminist Thought (n 213). 248 ibid 18; Trina Grillo, ‘Anti-Essentialism and Intersectionality: Tools to Dismantle the ­Master’s House’ (1995) 10 Berkeley Women’s L J 16. Accordingly, by applying intersectionality we acknowledge that the minority or third-world woman does not identify herself only as a woman and a member of her own race or cultural group, while also recognising the mutually constitutive character of the two elements, which could give rise to unique and distinct claims. In terms of equality, the idea of intersectionality acknowledges the mutually constitutive character of multiple forms of oppression. 249 Sherene Razack, ‘Speaking For Ourselves: Feminist Jurisprudence and Minority Women’ (1990) 4 Can J of Women & L 440. Scholars have in the past utilised different phrases to describe this situation; see also Collins, Black Feminist Thought (n 213) 18 (on the matrix of domination); Ladelle McWhorter, ‘Sex, Race, and Biopower: A Foucauldian Genealogy’ (2004) 19 Hypatia 38, 55 (on systems of hostility and depreciation); Nancy Ehrenreich, ‘Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems’ (2002) 71 umkc L Rev 251. 250 Alyne da Silva Pimentel Teixeira v Brazil, Communication No 17/2008 (10 August 2011) un Doc CEDAW/C/49/D/17/2008 (‘Silva Pimentel v Brazil’).

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nausea and abdominal pain in her sixth month of pregnancy. She was ­initially given some anti-nausea drugs by a health care centre and when the pain worsened and she returned to the health care centre, doctors confirmed that the foetus had no heartbeat and that medication should be given to induce a stillbirth. After surgery, she continued to suffer from disorientation and severe haemorrhaging, and was vomiting blood. The doctors contacted both public and private hospitals to secure a place for her, and only the municipal hospital had space available. That hospital refused to send their only ambulance, so she was left to wait for eight hours in critical condition, having entered a coma, before being transferred to the hospital. She was placed in a makeshift area of the emergency department because there were no available beds and she later died. The hospital sent her mother to collect her medical records at the medical centre, which refused to provide them. Subsequent attempts by the ­family to seek redress through various government departments failed.251 cedaw ­decided that by failing to ensure appropriate medical treatment in connection with pregnancy, and not providing timely emergency obstetric care, the state had violated Articles 2 (the obligation to eliminate discriminatory policies) and 12 (non-discrimination in the field of health care and the obligation to ensure appropriate health care during pregnancy).252 The Committee noted that: [Since the] State party also acknowledged that the convergence or ­association of the different elements described by the author may have contributed to the failure to provide necessary and emergency care to her daughter, resulting in her death … the Committee concludes that Ms da Silva Pimentel Teixeira was discriminated against, not only on the basis of her sex, but also on the basis of her status as a woman of African ­descent and her socio-economic background.253 In other words, might the result have been different if the deceased had not been of African descent? Would she have been placed in the makeshift area of the emergency department if she had not been of African descent? Would the deceased’s mother have been able to obtain her medical records if it had not been for the family’s ethnic background? Although definite answers to these questions may not have been available, cedaw’s comment acknowledges that a woman from a minority group may suffer greater socio-economic disadvantages. 251 ibid para 2.13. 252 ibid para 3.2. 253 ibid para 7.7.

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In a similar vein, General Recommendation No. 28 of cedaw expressly ­endorses the concept of intersectionality and states that: Intersectionality is a basic concept for understanding the scope of the general obligations of States parties contained in article 2. The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity. Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree or in different ways to men. States parties must legally recognize such intersecting forms of discrimination and their compounded negative impact on the women concerned and prohibit them. They also need to adopt and pursue policies and ­programmes designed to eliminate such occurrences.254 General Comment No. 28 of the hrc provides that ‘[D]iscrimination against women is often intertwined with discrimination on other grounds such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status.’255 As pointed out in its Concluding Observations on Israel, this type of discrimination can be identified in ­instances where Arab women are excluded from political participation on the basis of both their gender and their status as members of a minority.256 Similarly, General Comment No. 16 of the cescr notes that ‘Many women ­experience ­distinct forms of discrimination, due to the intersection of sex with such factors as race, colour, language, religion, political and other opinion, national or social origin, property, birth, or other status, such as age, ethnicity, disability, marital, refugee or migrant status, resulting in compounded disadvantage.’257 ­General Comment No. 20 of the cescr expressly addresses 254 un Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 28: On the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’ (16 December 2010) un Doc CEDAW/C/GC/28, para 18. 255 hrc, General Comment No 28, para 30. 256 hrc, Concluding Observations on Israel (18 August 1998) un Doc CCPR/C/79/Add.93, para 15; cedaw, Concluding Observations on Chile (24 October 2012) un Doc cedaw/ C/CHL/CO5–6, para 16 (on women being discriminated against on multiple grounds including gender and indigenous origin). 257 cescr, General Comment No 16, para 5. On other occasions, the cescr has recognised that an individual may be disadvantaged on the basis of age or disability, in combination with other grounds such as gender. See un Committee on Economic, Social and

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the topic of ‘­multiple ­discrimination’, defining the concept as involving ‘individuals or groups of individuals [who] face discrimination on more than one of the prohibited grounds, for example women belonging to an ethnic or religious minority.’258 It argues that ‘Such cumulative discrimination has a unique and specific ­impact on individuals and merits particular consideration and remedying.’259 General Recommendation xxv of cerd (on the gender-­related dimensions of racial discrimination) recognises ‘circumstances in which ­racial discrimination only or primarily affects women, or affects women in a different way, or to a d­ ifferent degree than men.’260 Moreover, extensive use of the i­nterlocking model can be found in the work of the treaty bodies on disability.261

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Cultural Rights, ‘General Comment No 6’ in ‘Note by Secretariat, Compilation of General ­Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 1) at 27 (‘cescr, General Comment No 6’), para 20; un Committee Economic, Social and Cultural Rights, ‘General Comment No 5’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc hri/GEN/1/Rev.9 (vol 1) at 17 (‘cescr, General Comment No 5’), para 19. un Committee on Economic, Social and Cultural Rights, ‘General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights’ (2 July 2009) un Doc E/C.12/GC/20 (2009) (‘cescr, General Comment No 20’), para 17. ibid paras 17 and 27. un Committee on the Elimination of All Forms of Racial Discrimination, ‘General ­Recommendation xxv’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (20 March 2000) un Doc HRI/GEN/1/Rev.9 (vol 2) at 287 (2008) (‘cerd, General Recommendation xxv’), para 1; Nira Yuval-Davis, ‘What is “Transversal Politics”?’ (1999) 12 Soundings 94, 194. It has been noted that ‘intersectionality’ has become a popular term in various un and ngo forums. See unhrc, ‘Integrating the Human Rights of Women throughout the United Nations System’ un Doc A/HRC/RES/6/30 (2007), which notes that the hrc has ‘recognized the importance of examining the intersection of multiple forms of discrimination, including their root causes from a gender perspective.’ See eg un Committee on the Rights of the Child, ‘General Comment No 9’ in ‘Note by Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (27 May 2008) un Doc HRI/GEN/1/Rev.9 (vol 2) at 497 (‘crc, General Comment No 9’), para 8: ‘In many cases, forms of multiple ­discrimination—based on a combination of factors, ie indigenous girls with disabilities, children with disabilities living in rural areas and so on—increase the vulnerability of certain groups.’ See eg crc, Concluding Observations on Mozambique (3 April 2002) un Doc CRC/C/15/Add.172, paras 25 and 48 (girls with disability may suffer multiple forms of discrimination).

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These texts highlight the fact that resistance to one type of oppression is more difficult if one is also the subject of other forms of oppression,262 by ­emphasising the compound effect of discrimination on multiple grounds. However, the interlocking model must be applied with care. McCall argues that the word ‘intersectionality’ ‘immediately suggests a particular ­theoretical paradigm based on identity categories.’263 In this context, ­intersectionality is often reduced to an additive model,264 one which suggests that forms of ­discrimination ‘link together to make a double, a triple, multiple, a many ­layered blanket of oppression.’265 Accordingly, an individual is ‘a composition of (discrete) identity elements, such as gender, race, sexuality, religion [and] class’,266 as opposed to the unity of these experiences. Additive models suggest that multiple axes form ‘overlapping, if not cumulative, identity categories.’267 Although the additive model acknowledges that individuals have multiple identities, the type of discrimination brought into focus through this lens does not escape the essentialist thinking which single-axis differentiations ­commit—firstly, it also views identity categories as discrete, and secondly, it presumes that the axes of oppression ‘have an existence apart from the ways in which they combine.’268 It fails to account for ‘the complexities of both identity and social relations’269 and reduces experience to fragmented identities (such as race, gender and disability) which are not individually ­comprehensible.270 Failing to interrogate ‘social positions as effects of power’,271 the a­dditive 262 Ehrenreich, ‘Subordination and Symbiosis’ (n 251) 283–284. 263 McCall, ‘The Complexity of Intersectionality’ (n 245) 72. 264 ibid. Intersecting experiences are usually seen as additive when phrases such as ‘double’, ‘compound’, ‘additive’, ‘cumulative’ and ‘multiple’ are used. An example of such an oversimplified view of intersectionality can be found in Vandenhole, Non-Discrimination and Equality (n 169) 36, 42, 61. 265 Quoted in Yuval-Davis, ‘Intersectionality and Feminist Politics’ (n 245) 196; Vakulenko, ‘Gender and International Human Rights Law’ (n 242) 206–207. 266 Vakulenko, ‘Gender and International Human Rights Law’ (n 242) 207. 267 ibid 206. 268 Davina Cooper, Challenging Diversity: Rethinking Equality and the Value of Difference (Cambridge University Press 2004) 48. 269 Crooms, ‘Indivisible Rights and Intersectional Identities’ (n 242) 619–622. 270 Diana Fuss, Essentially Speaking: Feminism, Nature & Difference (Routledge 1989) 103: ‘Locating difference outside identity, in the spaces between identities, [ignores] the radicality of the poststructuralist view which locates differences within identity. In the end, I would argue, theories of “multiple identities” fail to challenge effectively the traditional metaphysical understanding of identity as unity.’ 271 Emily Grabham, ‘Taxonomies of Inequality: Lawyers, Maps, and the Challenge of Hybridity’ (2006) 15 Social & Legal Studies 5; Vakulenko, ‘Gender and International Human Rights Law’ (n 242) 211.

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­ odel is left to presume the restrictive and oppressive nature of these ­identity m ­categories.272 What it suggests is that the intersection of identities necessarily contributes to multiple disadvantages for women.273 Accordingly, this view presumes that minority women necessarily suffer as a result of both their ­culture and gender in any given context, which may operate as yet ­another form of victimisation. In this sense, the additive model diminishes, if not ­contradicts, the purpose of intersectionality, which is to argue that multiple types of marginalisation not only intersect but interact to produce distinctive and unique forms of oppression which are different to those experienced by members of the same gender or men from the same minority group.274 The potential conflation of the interlocking model with the additive model may be attributed to two factors. Firstly, the interlocking model relies on existing analytical categories to describe inequality,275 as it seeks to understand the intercategorical effects of discrimination and inequality. However, the complexity of subjectivity inevitably raises the question of how to categorise.276 Butler, for instance, cautions that: [T]heories of feminist identity that elaborate predicates of color, s­ exuality, ethnicity, class and able-bodiedness invariably close with an embarrassed ‘etc.’ at the end of the list. Through this horizontal trajectory of adjectives, these positions strive to encompass a situated subject, but invariably fail to be complete.277 Similarly, Ehrenreich argues that interlocking intersectionality may end up in an infinite regression.278 From another angle, as identities and subjectivities 272 Deborah K King, ‘Multiple Jeopardy, Multiple Consciousness: The Context of a Black Feminist Ideology’ (1988) 14 Signs 88, 42–72. 273 ibid. 274 ibid 186. 275 McCall, ‘The Complexity of Intersectionality’ (n 245). 276 ibid. 277 Judith Butler, ‘From Parody to Politics (1990)’ reprinted in Lucy Burke, Tony Crowley and Alan Girvin (eds), The Routledge Language and Cultural Theory Reader (Routledge 2003) 175. 278 Ehrenreich, ‘Subordination and Symbiosis’ (n 251) 254. See also Pedwell, Feminism, Culture and Embodied Practice (n 232) 38; Grillo, ‘Anti-Essentialism and Intersectionality’ (n 250) 21. Some have even taken the argument a step further, arguing that a­ nti-essentialism and intersectionality critiques are dangerous in that ‘[I]f carried to their furthest conclusions, they make it impossible to talk of any oppression. If each woman, if each Black, has a different experience, how can one say that women as women, or Blacks as Blacks, are oppressed?’

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are irreducibly complex, the question of whether we should categorise at all must be asked.279 These remarks highlight the dilemma inherent in the concept of intersectionality: as a theory which aims to capture the lived experiences of individuals, intersectionality always embodies an anticategorical tendency, yet it also relies on the adoption of existing categories to articulate its theoretical claims.280 Secondly, the interlocking model emphasises the analysis of the intersecting influences of structural hierarchies of power. However, seeking to understand the experiences of women through overwhelming structural forces may serve to obscure agency rather than to clarify their experience.281 To address these issues, it is useful to note that personal narratives usually begin at a particular point of intersection, ‘rather than at the intersection of the full range of dimensions of a full range of categories.’282 What this means is that, while intersectionality recognises the individual as the unity of identities, the situation to which the individual responds brings to the fore some features of the individual that are particularly relevant and through which identities are invoked.283 Individuals situate themselves at ‘a set of intersecting social relations, [rather than] social relations in their entirety’.284 As contemporary anthropologists would argue, the performance of identities is situational, i.e. it depends on the context.285 Therefore, intersectionality should be reconceptualised in a way that does not take existing categories for granted (as the interlocking model might), nor presume the oppressive nature of categorical identities. However, such an approach should highlight the purpose of intersectionality—to deconstruct analytical categories without demolishing them altogether, utilising existing

279 280 281 282

McCall, ‘The Complexity of Intersectionality’ (n 245). ibid; see also Ehrenreich, ‘Subordination and Symbiosis’ (n 250) 254. Vakulenko, ‘Gender and International Human Rights Law’ (n 242) 209. McCall, ‘The Complexity of Intersectionality’ (n 245) 57; Grillo, ‘Anti-Essentialism and Intersectionality’ (n 249). 283 Grillo, ‘Anti-Essentialism and Intersectionality’ (n 249) 17: ‘Each of us in the world sits at the intersection of many categories … At any one moment in time and in space, some of these categories are central to her being and her ability to act in the world. Others matter not at all … The situation in which she reacts brings to the fore some features … but not others.’ For example, in Lovelace v Canada (to be discussed in detail in Section 4.3.2.2), what was being challenged was Lovelace’s identities as a woman and as a member of the indigenous population, rather than the other identities that combined to define the ­totality of her experience, such as her religion, occupation or marital status. 284 McCall, ‘The Complexity of Intersectionality’ (n 245) 57. 285 See Sections 2.6–2.6.1. See also Grillo, ‘Anti-Essentialism and Intersectionality’ (n 249) 17.

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categories as useful points of entry.286 An alternative approach is what M ­ cCall describes as an ‘intra-categorical methodology’. On the one hand, this acknowledges that discourses shape the experiences of individuals, as an ­interlocking model would. On the other hand, the emphasis is placed not on the structural level, but on how these discourses actually play out in affecting the i­ ndividual. In McCall’s words, ‘The point is not to deny the importance—both m ­ aterial and discursive—of categories but to focus on the process by which they are produced, experienced, reproduced, and resisted in everyday life.’287 This ­approach, proposed in this section, will be referred to henceforth as the ‘intracategorical approach’. 4.3.2.2

The Application of Intracategorical Intersectionality in the Context of the un Human Rights Treaty Bodies The concept of intracategorical intersectionality can be applied in the case of Lovelace v. Canada before the hrc.288 Sandra Lovelace is an indigenous Canadian of the Maliseet tribe (called ‘Indian’ in the relevant Canadian l­egislation at the time, though now generally referred to in Canada as one of the ‘First ­Nations’). She was born in the Tobique Reservation in New Brunswick, C ­ anada, and had been living with her parents up until her marriage to a n ­ on-indigenous man. However, their marriage did not last. Lovelace returned to the reservation to live with her parents, but she was not able to obtain a home. According to the Canadian Indian Act, an indigenous woman who marries a non-­indigenous man loses her indigenous status, as well as access to federal government ­programmes for indigenous people in areas such as education, housing and social assistance. Instead, she and her children were entitled to provincial government benefits. In Lovelace’s case, the local council did not grant her request to purchase a home on the reserve using the budget set aside, because in the view of the council the provision of these resources should be prioritised for indigenous people. In 1977, Lovelace filed an individual communication before the hrc, alleging a violation of her rights under Articles 2(1) (the right to nondiscrimination), 3 (the equal rights of men and women to all Covenant rights), 23(1) and (4) (the right to family and the equality of ­spouses in marriage), 26 (the right to equal protection of law) and 27 (the right of ­minorities to enjoy 286 McCall, ‘The Complexity of Intersectionality’ (n 245) 57: an approach where ‘Traditional categories are used initially to name previously unstudied groups at various points of intersection, but [which]… is equally interested in revealing—and indeed cannot avoid— the range of diversity and difference within the group.’ 287 ibid 58. 288 For more details on Lovelace v Canada, see Section 3.3.6.

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their culture). The government submitted that the ­Indian Act was necessary to protect its resources as well as to preserve the identity of the people. The hrc decided that although the Optional Protocol had entered into force for Canada after Lovelace was denied her indigenous status, and t­ herefore it did not have the competence to decide whether there had been a violation of Articles 2, 3, 23 and 26, the alleged violations of Article 27 of the iccpr (on the right to enjoy culture) had continued after the Optional Protocol had come into force. On Article 27, the hrc decided in favour of Lovelace on the basis of (1) her unique situation, i.e. her marriage dissolution and her wish to return to the reserves as a result, and (2) the fact that the Act was unjustified because the denial of her right to reside on the reserve was not reasonable nor necessary to preserve the identity of the tribe.289 At first sight, the fact pattern in Lovelace v. Canada presents a case where there is a conflict between the author’s rights as a woman and the right of the indigenous population to preserve its identity. The Indian Act is potentially discriminatory, and thus may violate the rights of woman, because it is defined in masculine terms. Firstly, when an indigenous woman marries a non-indigenous man, she loses all the rights and privileges she was entitled to, including her legal status as an indigenous person (i.e. she is considered to have ‘married out’). This does not occur to an indigenous man marrying a nonindigenous woman, in which case the non-indigenous woman is considered to have ‘married in’. Secondly, whenever an indigenous person marries a nonindigenous person, the legal status of any children follows that of the father but not the mother. From the perspective of the indigenous group, the Indian Act purports to afford indigenous people living on the reserve a mechanism to control their membership, so that the collective identities of the group may be preserved. However, as one looks closer, the assumption that there is a conflict of rights seems artificial, because such a view does not reflect the experience of Lovelace. Rather, Lovelace stands at the intersection of her identities, a position reflected in her claims: (1) she treasures her identity and relationship with others as an indigenous person—as she claimed in her submission, ‘The major loss to a person ceasing to be an Indian is the loss of the cultural benefits of living in an Indian community, the emotional ties to home, family, friends and neighbours, and the loss of identity’290—and (2) she was also claiming her rights as woman by challenging a law constructed in a patrilineal manner, by invoking discrimination.291 The hrc remarked that, 289 ibid para 17. 290 ibid para 9. 291 ibid para 6.

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The author of the communication … disputes the contention that ­legal ­relationships within Indian families were traditionally p ­ atrilineal in nature. Her view is that the reasons put forward by the Canadian ­Government do not justify the discrimination against Indian women in Section 12(1)(b) of the Indian Act. She concludes that the Human Rights Committee should recommend the State party to amend the provisions in question.292 As she does not consider her two identities to be in conflict, it is impossible to understand Lovelace in traditional terms, i.e. from the perspective of a conflict of rights. To understand Lovelace, we must understand how she is uniquely positioned as an indigenous woman. Indigenous women are often brought into discourses concerning the preservation and re-creation of group identities because they give birth to future members of the group and often play a dominant role in childrearing.293 These discourses seek to justify controls over ‘with whom and on what terms they should undertake their childbearing and childrearing functions’294 so that the issue of sexuality and marriage becomes not only a private matter between an indigenous woman and her partner, but also a matter for the wider group. Bamforth et al. observe that: [From the perspective of indigenous groups and communities], it ­becomes a critical matter that women should enter into their most ­intimate relationships and functions in a way that preserves the membership boundaries and identity of the whole community. For all these reasons, the control of women—especially in areas such as sexuality, marriage, divorce and in relation to their children—is a recurring feature of traditional cultural and religious communities. Women are also often given the status of passing on the particular collective history of tradition and its social, cultural and religious norms to the next generation. Women become a public symbol of the group as whole. This explains why traditional communities focus on family law when they demand accommodation.295

292 ibid. 293 Nicholas Bamforth, Maleiha Malik and Colm O’Cinneide, Discrimination Law: Theory and Context: Text and Materials (Sweet & Maxwell 2008) 552–555. 294 ibid. 295 ibid.

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Therefore, the identity of Lovelace was not defined by her upbringing and emotional attachment, nor did she have a right to define herself. Rather, her identity was defined by the law on the basis of her reproductive ‘function’ and childrearing ‘function’, which in turn were symbolically related to the continuation or preservation of the group’s collective identity. In this way, the ­dominant discourse deemed Lovelace a mere bearer and carrier of her ­ethnic identity. These ideas are reproduced through the Canadian Indian Act as it ­defines the changing status of indigenous women as they marry and as they give birth. The experience of Lovelace, being defined out of the group, affected her both emotionally and practically, as is evident in the claims she made in the ­communication, including the loss of entitlement to her indigenous rights and the loss of emotional support.296 She refused to be determined by the prevailing legal framework. By claiming her right to define herself, she resisted the prevailing discourses without giving up either of her identities as a member of the indigenous group and a woman. In other words, what was being resisted may not simply have been the fact that the law favoured her cultural identity to the detriment of her gender identity, or solely the way that an ‘in-group’ or ‘out-of-group’ individual was defined, but the rhetoric of preserving the membership of the First Nations as perpetuated through the existing legislation, which operated to suppress her right to enjoy her cultural life as an indigenous woman. The application of intracategorical intersectionality examines the relationship between the individual and culture by asking questions which correspond to four different aspects of cultural life. Firstly, by understanding the production of discourse, we are better able to grasp the context which underlies a particular dispute. Identifying discourses sets the scene for the dispute and allows a contextual assessment of the potential violation of rights. In identifying the production of discourse, it is important to understand not only what certain practices stand for, but also why and under what circumstances certain discursive practices exist. Accordingly, in Lovelace v. Canada it is not sufficient to simply acknowledge that the Indian Act represents an effort by the government to maintain the indigenous population’s group membership. It requires us to appreciate the discursive context which gave rise to the law. This would allow us to appreciate how Lovelace is situated within a web of relationships and discourses.297 Secondly, the reproduction of discourses ­ ­usually speaks to how discourses are manifested. This often involves the subject matter of the dispute, such as a law, a tradition or a cultural practice. In Lovelace v. Canada, the dominant discourse was not only reproduced through 296 Lovelace v Canada, para 13.1. 297 Pedwell, Feminism, Culture and Embodied Practice (n 232) 38.

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the law (i.e. the ­Indian Act), but was also deeply integral to local marriage traditions. In other situations, it could involve particular policies which advance narratives seeking to undermine the right to cultural/religious expression for certain groups (see the headscarf examples below).298 Thirdly, examining the ­experience of the individual involves understanding and acknowledging the practical ­consequences of the dominant discourse, i.e. how it affects the life of the ­individual. It asks whether an interest has been lost, which in legal terms is very close to the question of whether a right has been violated. However, this test demands that we look further, because whether or not a right has been violated is usually articulated in legal terms.299 For example, in Lovelace v. Canada, the hrc focused primarily on the question of whether the denial of her right to reside on the reserve had led to the impairment of the author’s ability to live and connect with her indigenous family and community, and whether such a restriction was ‘reasonable or necessary to preserve the identity of the tribe.’300 In light of intracategorical intersectionality, this focus is too narrow and excludes other facts which may be deemed relevant, such as how laws, traditions and dominant discourses seek to restrict or regulate an indigenous woman’s marriage options and reproductive preferences.301 Fourthly, the manner in which the individual resists dominant discourses not only demonstrates her level of willingness to comply with the law or tradition at issue, but could also be seen as evidence of her multiple identities. This is because individuals tend to resist laws and traditions in a manner which is consistent with their identities. This step is arguably the most crucial one because it is the essence of intracategorical intersectionality, i.e. a concept which seeks to make visible how multiple discourses actively construct and shape identity,302 and which, differing from the approach embodied in traditional legal analysis, treats the individual as comprising of her identities as a whole without breaking them into fragments.303 Combining these aspects, it is clear that what the intracategorical approach demands is a deeper contextual analysis of the situation. What it offers is an approach that enables cultural issues (which are by nature complex, fluid 298 See Section 4.3.2.3 below. 299 ibid. 300 Lovelace v Canada, para 17. 301 See Section 4.3.2.3 below. 302 Pedwell, Feminism, Culture and Embodied Practice (n 232) 38. 303 Anastasia Vakulenko, ‘“Islamic Headscarves” and the European Convention on ­Human Rights: An Intersectional Perspective’ (2008) Social and Legal Studies 183, 186; unhrc ‘Report of the Independent Expert in the Field of Cultural Rights’ (2010) un Doc A/HRC/14/36, para 23: ‘Each individual is the bearer of a multiple and complex identity, making her or him a unique being.’

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and messy) to be reasoned out with a sufficient level of clarity. In particular, it ­requires us to draw on a more articulated way of looking at how discourses of power shape individual identity and experience, which enables us to look beyond legal dichotomies. This approach strongly resonates with the contemporary anthropological understanding of how identities and subjectivities are acquired, i.e. the view that individuals are situated at an intersection of ­multiple discourses which continuously shape and reshape the ways they view and experience their selves. Although through this approach the hrc may have arrived at the same conclusion in Lovelace v. Canada, that there was a violation on the part of the state, it offers a better analysis of cultural issues. Further applications of this approach are explored below. 4.3.2.3

Intracategorical Intersectionality and the Concept of Choice in the Work of the Treaty Bodies As we begin to recognise the impact of prevailing narratives and how they shape identities in unique ways, as contemporary anthropologists would ­argue, we become able to better appreciate the notion of ‘choice’. General Comment No. 21 of the cescr establishes the difference between cultural h ­ eritage and practices that ought to be protected under Article 15(1)(a), and ‘negative practices’ which ought to be eliminated, and indicates that whether or not to engage in cultural practices or to associate oneself with a group is a ‘cultural choice’. The right to take part in cultural life, therefore, necessarily implies the right not to take part in certain cultural activities.304 General Comment No. 21 of the cescr deems ‘choice’ an important element in determining whether certain cultural practices, traditions and customs ought to be prohibited.305 Nevertheless, read in light of intracategorical intersectionality, the concept of choice should acknowledge not only that individuals have a right to resist certain norms and practices, but that they should be able to resist them in their own ways, i.e. ways that are consistent with how they define themselves. In other words, the concept of choice must not be read only as a pretext for prohibiting certain practices, but should be construed as an opportunity for examining the agency of minority women. One clear state obligation that results from this is the obligation to refrain from blanket bans on cultural practices, especially when such practices could be identified as deeply integral to cultural identity. Blanket bans on cultural practices necessarily overlook the ‘choice’ of cultural participants. For ­instance, in 2010, France passed a law to ban the wearing of religious symbols in public 304 cescr, General Comment No 21, para 7. 305 ibid.

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spaces. Advocated on the grounds of gender equality and national security, it was reported that the blanket ban led to the ‘confinement’ of many Muslim women who were unwilling to step outside their houses without the burqa/ niqab.306 The ban ignores the multiple identities of Muslim women, who are made to either abandon their identities and beliefs or stay indoors in order comply with the law (the latter option would have a severe impact on their social and professional lives; for example, they would no longer be able to work). In fact, the treaty bodies have been sceptical about such blanket bans, a­ lthough they are hesitant to take a position on their validity. In ­Hydoyberganova v. U ­ zbekistan before the hrc, a university student was ­excluded from her studies because she refused to remove her headscarf due to her beliefs.307 Although the freedom to manifest one’s religion is a qualified right under ­Article 18(3) of the iccpr, the hrc decided that there was a violation of this freedom, on the grounds that the state was not able to justify its actions by ­offering a precise ­explanation of what type of religious attire would fall within the scope of p ­ ermissible restrictions, thereby placing the burden of proof on the state to specify why Article 18(3) would apply in specific instances.308 D ­ espite the fact that the hrc has been very cautious not to prejudge the right of the state to limit religious expressions, it seems that the hrc was also reluctant to ­conclude that a particular form of religious expression would necessarily be a legitimate subject of restriction,309 even though the Committee was not able to offer a coherent explanation as to why.310 In hrc’s Concluding Observations on France in 2008, it noted that: The State party has made only limited provisions … for students who feel that, as a matter of conscience and faith, they must wear a head ­covering such as a skullcap (or kippah), a headscarf (or hibjab), or a turban. Thus, observant Jewish, Muslim and Sikh students may be excluded from ­attending school in company with other French children … [Moreover, 306 See Angelique Chrisafis, ‘French Ban: “Women are Effectively Under House Arrest”’ The Guardian (Paris, 19 September 2011) accessed 1 February 2017. 307 Raihon Hudoyberganova v Uzbekistan, Communication No 931/2000, un Doc CCPR/ C/82/D/931/2000 (2004) (‘Hudoyberganova v Uzbekistan’). 308 ibid para 6.2. 309 See also hrc, General Comment No 28, para 13. The hrc considers it a violation of article 3 of the iccpr (equality of rights between men and women) ‘when women are ­subjected to clothing requirements that are not in keeping with their religion or their right of self-expression.’ 310 Hudoyberganova v Uzbekistan, para 6.2.

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the] respect for a public culture of laïcité [the absence of religious involvement in government affairs] would not seem to require forbidding wearing such common religious symbols.311 In the same spirit, the crc expressed concern that legislation which p ­ rohibits the wearing of religious symbols in public schools may have the effect of ­undermining the best interests of children and their right to access education.312 Clearly, the crc has sought to look beyond the legal technicalities of limitations on the freedom to manifest religion, and has determined that children’s right to education is at stake.313 From another perspective, the ban on wearing religious symbols in state schools is inconsistent with Article 29(1)(c) of the crc, which stipulates that the education of the child should be directed towards, inter alia, ‘the development of respect for … his or her own cultural identity, language and values’.314 Even if measures taken to limit cultural or religious expression are purportedly for the benefit of the child, such justifications should not be accepted without a thorough examination of the child’s willingness to comply with those measures and a consideration of children’s multiple identities. A better approach to testing the appropriateness of limitations on cultural or religious practices is to apply intracategorical intersectionality. Take the i­ssue of veiling in France, for example. It is important to note that the headscarf does not wholly relate to gender, nor is its meaning solely religious. ­Individuals who wear the headscarf are often caught in a web of prevailing discourses (as contemporary anthropologists would argue), such as nationalism, fundamentalism and the rhetoric of secularism advanced by the government (the fact that the latter also reflects discourses of power is often neglected).315 For example, some argue that the practice was traditionally a means to control bodies and sexualities, and therefore it should not be imposed on women 311 hrc, Concluding Observations on France (31 July 2008) un Doc CCPR/C/FRA/CO/4, para 23. 312 crc, Concluding Observations on France (30 June 2004) un Doc CRC/C/15/Add.240, para 25. 313 Dominic McGoldrick, ‘Muslim Veiling Controversies in Europe’ in Samim Akgönül et al (eds), Yearbook of Muslims in Europe Vol i (BRILL 2009). 314 Article 29(1)(c) crc. 315 Dominic McGoldrick, ‘Religion in the European Public Square and in European Public Life: Crucifixes in the Classroom?’ (2011) 11 Human Rights Law Review 451. McGoldrick also notes that how states interpret and apply secularism in fact varies significantly.

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and girls.316 However, this discourse claiming that the practice contributes to the subjugation of women may only be a pretext, disguising wider nationalist ­narratives. Gökariksel and Mitchell remark that in France, ‘[I]n recent years veiling has been cast as a problem generally associated with Muslim m ­ aghrebin immigrants and their failure or refusal to integrate into French culture and society. French secularists see it as a practice brought in from outside the state’s territorially defined borders; it is a practice that many perceive as a threat to the nation’s cultural values.’317 In this sense, assimilationist and i­ntegrationist tendencies are also behind the discourse surrounding the ban on wearing the veil in public. In fact, we can quickly appreciate how women in these ­circumstances become sites where competing discourses of power struggle for ­dominance, and that veiling is deeply associated with ‘social meanings, the wider political context and spatial regimes that govern everyday life, as well as individual experiences.’318 Intracategorical intersectionality demands that we pay attention to the ­production of these discourses—how and why they are generated, how they ­interact and for whose benefit—and how the individual’s experiences are thereby affected, without prejudging the outcomes of such intersections— for example, without presuming that Muslim women are necessarily disadvantaged both in terms of their gender and their religion. In the present situation, the experience of Muslim women is that those who feel it is their duty to wear the hijab are made to choose between their religious identity and their public life. This burden is undoubtedly harsh; as McGoldrick notes, ‘[F]or some w ­ omen the headscarf-hijab is a sign of deep personal and religious conviction.’319 ­Furthermore, the headscarf is sometimes also worn by Muslim women as a statement against Western values and ‘oppression’.320 The experience of individuals who are deprived of the practice of veiling is that they are being denied the right to express their identities and convictions in the public realm. The reproduction of these discourses of power may take a variety of forms. One might argue that the headscarf reproduces gender inequality, hence 316 Hirschmann, ‘Western Feminism, Eastern Veiling’ (n 13). 317 Banu Gökariksel and Katharyne Mitchell, ‘Veiling, Secularism, and the Neoliberal Subject: National Narratives and Supranational Desires in Turkey and France’ (2005) 5 Global Networks 147. 318 Banu Gökariksel, ‘Beyond the Officially Sacred: Religion, Secularism and the Body in the Production of Subjectivity’ (2009) 10 Social & Cultural Geography 657. 319 McGoldrick, Human Rights and Religion (n 208) 61. 320 ibid 62–63. Some have argued that veiling is used as a means to revive the political subjectivity of Muslim women.

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the need for legislation to ban it in the public domain. What might easily be overlooked is that legislation and regulations which purport to be secularist may be used as tools to advance assimilationist precepts, and should therefore not be left unexamined. Rather than being neutral, the law in these situations may serve political purposes. The final step is to examine how these discourses of power are resisted. In the French context, some Muslim women have defied the law by wearing the veil in public spaces as an act of civil disobedience.321 These acts are evidence of their grievance against the blanket ban imposed in their name. While it may be true that certain traditional practices can entail the submission of Muslim women, Muslim women may resist oppressive practices in their own ways, i.e. ways that enable them to enjoy their identities as Muslims and are consistent with Islamic principles. To acknowledge their multiple identities in these circumstances is to respect their identities as both women and members of the Muslim community. For the reasons outlined above, it is clear that France’s blanket ban on ­religious symbols should be found to be in violation of human rights. Firstly, blanket bans fail to acknowledge the ‘choice’ of individuals, by failing to take into account their multiple identities. Secondly, the law operates to suppress religious freedom, sometimes leaving individuals in desperate positions. To conclude, the treaty bodies should be careful to invoke the concept of ‘choice’ in the context of cultural practices. As individuals acquire multiple identities, ‘choice’ not only refers to the right of individuals to resist certain cultural norms, but also to their right to do so in their own ways. In trying to understand the impact of prevailing discourses on individual identity and subjectivity, intracategorical intersectionality provides an analytical tool ­ through which complex cultural issues can be analysed in a manner which ­accommodates an individual’s multiple identities. 4.3.2.4

Intracategorical Intersectionality, Culture as Discourse and Implications for Limitations on Cultural Rights As demonstrated above, the purpose of intracategorical intersectionality as a legal tool is to provide a non-additive way of analysing322 the relational ­dynamics underlying identities and categories of difference by focusing on 321 See Brian Love, ‘French Full Veil Ban goes into Force’ Reuters (Paris, 19 S­ eptember 2011) accessed 1 February 2017. 322 Vakulenko, ‘“Islamic Headscarves” and the European Convention on Human Rights’ (n 304) 185. Intersectionality aims to capture the ‘uniqueness and “messiness” of human ­experience’ which is produced by the interaction of multiple discourses.

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the individual as the site where multiple discourses of identity intersect and interact.323 The individual’s experience of his or her multiple identity is not simply an additive one; these discourses mutually constitute each other, dynamically shaping the subjective experience of the individual.324 This perspective has important implications for our study of the limitations on cultural rights. In considering cultural practices, legal analysis tends to invite a simple dichotomy between those practices that are permissible and those that are not, thereby neglecting the relationship between culture and the individual. For instance, General Comment No. 28 of the hrc provides a non-exhaustive list of cultural practices the hrc considers to be in violation of human rights.325 Similar efforts have been attempted by other treaty bodies through their general comments and concluding observations.326 Contemporary anthropologists caution time and again that ‘Culture and self are complementary concepts that have to be understood in relation to one another in order to avoid the reification of one or the other.’327 In keeping with the observations of anthropologists, intracategorical approaches require us to focus on an examination of subjectivity, without losing sight of the broader picture of how multiple discourses affect experience and shape identity. They demand that we view culture as consisting of narratives, discourses or representations, and give close scrutiny to how culture as a set of discourses is being produced, reproduced, experienced and resisted.328 As anthropologists ­Bonnell and Hunt comment: [N]arrative provides a link between culture as system and culture as practice. If culture is more than a predetermined representation of a prior social reality, then it must depend on a continuing process of deconstruction and reconstruction of public and private narratives. Narrative is an arena in which meaning takes form, in which individuals connect to the public and social world, and in which change therefore becomes possible.329 323 Choo and Ferree, ‘Practicing Intersectionality in Sociological Research’ (n 245) 130–131; Vakulenko, ‘“Islamic Headscarves” and the European Convention on Human Rights’ (n 304) 185. 324 Collins, Black Feminist Thought (n 213). 325 See Section 4.2. 326 See Section 4.2.1.1. 327 Martin Sökefeld, ‘Debating Self, Identity, and Culture in Anthropology’ (1999) 40 Current Anthropol 417, 429–430. 328 See section 4.3.2.1. 329 Victoria E Bonnell and Lynn Hunt, ‘Introduction’ in Victoria E Bonnell and Lynn Hunt (eds), Beyond the Cultural Turn: New Directions in the Study of Society and Culture (University of California Press 1999) 17.

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In other words, in considering cultural practices, we should ‘reach beyond texts to contexts of power, resistance, institutional constraint and innovation.’330 It is only through an understanding of the discursive aspects of cultural representations that we can understand their relations of production.331 Note that the concept of culture adopted in the context of ­intracategorical intersectionality is the same as that explored in Chapter 3, i.e. culture as a collection of discourses and competing narratives.332 Intracategorical intersectionality is applied by first identifying the production and reproduction of culture, as demonstrated in the previous sections.333 Indeed, this is an important step, because unlike Lovelace v. Canada, not all controversies over cultural practices are brought before the treaty bodies as individual communications. Therefore, unlike in Lovelace v. Canada, treaty bodies may not in all cases have adequate information to explore how individuals experience and resist forms of cultural practice. Nevertheless, like Chapter 3, this chapter argues that the treaty bodies should take full advantage of the benefits of viewing culture (as a set of discourses) as a heuristic device in the context of limitations on cultural rights.334 When issues concerning cultural practices come before the treaty bodies (for instance, during official discussions with state delegates or in ­pre-session meetings with ngo delegations), they should strive to ask stakeholders the relevant ‘cultural questions’: (1) Under what historical and political circumstances do certain discursive practices exist?335 (2) Who (which party) has constructed these practices and beliefs?336 (3) ‘[W]hose cultural view and values are being privileged and why?’337 (4) What is the meaning and significance of cultural practices to the individuals who engage in them (if possible, in their own words)? (5) How are cultural meanings acquired?338 330 James Clifford and George E Marcus, Writing Culture: The Poetics and Politics of Ethnography (University of California Press 1986) 2. 331 James Clifford, The Predicament of Culture: Twentieth-Century, Ethnography, Literature, and Art (Harvard University Press 1988) 13. 332 See Section 3.4.2.1. 333 See Section 4.3.2.2. 334 See Section 3.4.2.1. 335 See Section 4.3.2.2. 336 Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson, ‘Introduction’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: A ­ nthropological Perspectives (Cambridge University Press 2001) 21. 337 ibid. 338 Richard A Wilson, ‘Representing Human Rights Violations: Social Context and Subjectivities’ in Richard A Wilson (ed) Human Rights, Culture and Context: Anthropological

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In examining the answers to these questions, the treaty bodies should bear in mind that states are major actors in the struggle over meaning, and so ­official arguments or justifications for restricting cultural practices must be scrutinised,339 as is also discussed in Chapter 3.340 Treaty bodies should compare the different answers given by the relevant parties and investigate further into any differences that might arise. The task is to understand, as far as possible, the impact of cultural practices on the individuals who engage in them in light of their multiple identities. 4.4 Conclusions At the beginning of Chapter 4, two primary goals were set out: (1) to explore the question of whether the un human rights treaty bodies’ jurisprudence on the limits of cultural rights is satisfactory and (2) if not, whether anthropological insights might contribute to its development. The jurisprudence on the limits of cultural rights is unsatisfactory in the sense that legal categorisations and classifications based on essentialised notions of culture and gender have led to the exclusion of experience.341 ‘Culture’ and ‘women’ are established as mutually exclusive categories.342 This undermines women’s multiple identities and subjective experience.343 Once agency is obscured, simplistic and reductionist versions of culture can easily lead to the demonisation of culture.344 Contemporary anthropology may contribute to the discussion by offering a number of insights. Firstly, individuals acquire multiple identities. Moreover, individual and collective identities converge and are articulated in subtle and delicate ways.345 The essentialisation of culture and gender overlooks this ­process. Secondly, identity is deeply shaped by prevailing discourses. As P­ erspectives (Pluto Press 1997) 139. Wilson correctly argues that through the study of ­context, we are able to ‘piece together contradictory fragments of information’. 339 eg in Lovelace v Canada, legislation defining indigenous membership was said to exist in order to preserve the cultural distinctiveness of the indigenous population. In the ­headscarf cases in France, bans on veiling are said to exist for public security reasons and to prohibit gender discrimination. However, these justifications need to be scrutinised carefully. See Section 4.3.2.2. 340 See Section 3.4.2.1. 341 See Section 4.3.1. 342 ibid. 343 ibid. See also Section 4.3.2.1. 344 Merry, ‘Human Rights Law and the Demonization of Culture’ (n 13); Pedwell, Feminism, Culture and Embodied Practice (n 232) 110. 345 Fredrik Barth, ‘The Analysis of Culture in Complex Societies’ (1989) 54 Ethnos 120, 130: ‘People participate in multiple, more or less discrepant, universes of discourse; they

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i­ndividuals engage in a variety of narratives in everyday life, these discourses influence them to varying degrees. Thirdly, as individuals acquire different identities, they are placed at the intersection of these discourses, in the sense that these multiple and sometimes conflicting discourses interact to create unique subject positions. To adequately address the relationship between culture and women as they engage in cultural practices, this chapter proposes a four-step approach, to identify how discourses are produced, reproduced, experienced and resisted. Discourse production refers to the process through which narratives are invoked in order to sustain local ‘realities’ (or upon which ‘social realities are fabricated’).346 In identifying discourses, it is useful to ask ‘cultural questions’, such as, why and under what circumstances do certain discursive practices exist? Who has constructed these practices and beliefs? And, whose view is being privileged?347 In Lovelace v. Canada, for instance, where an indigenous woman was not allowed to settle in the reserve where she was born because she had married a non-indigenous man, discourse was produced to control her marriage and reproductive activities in order to preserve the group’s ­collective identity. This idea was reproduced in the Indian Act, which worked to Lovelace’s detriment. As we look closely at Lovelace’s experience through analysing her claims, including the loss of cultural attachment and emotional support, we can appreciate how she sought to resist the dominant discourse (reproduced by the law) by seeking to define herself, rather than being defined by the law (as a bearer and carrier of the group identity).348 Contemporary anthropology has also enabled a novel interpretation of the concept of ‘choice’ articulated in General Comment No. 21 of the cescr. If we are to respect the multiple identities that individuals acquire, they must be a­ llowed to resist oppressive norms and practices in their own ways. This implies that blanket bans on cultural practices could almost be considered violations of the right to take part in cultural life, because such measures are too extreme and inevitably overlook the subjectivity of women.349 This chapter therefore argues that the jurisprudence in this area is not ­satisfactory, and it has explored how insights from contemporary ­anthropology could contribute to the jurisprudence of the treaty bodies, by (a) suggesting how c­ onstruct different, partial and simultaneous worlds in which they move; their cultural construction of reality springs not from one source and is not of one piece.’ 346 See Section 2.6. 347 See Section 4.3.2.4. 348 ibid. 349 See Section 4.3.2.3.

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individual communications might be better analysed through contemporary anthropological perspectives, (b) arguing that blanket bans on c­ ultural practices are incompatible with the concept of ‘choice’ viewed through the lens of contemporary anthropology and (c) proposing a list of ‘cultural q­ uestions’ that treaty bodies should be asking in deciding whether certain practices should be prohibited. In summary, the perspectives of contemporary anthropology both enable and require us to look beyond legal dichotomies of g­ender and culture to explore the relationships between culture and the self. The question of which practices to prohibit and which to protect should not be an abstract one, but should be grounded in empirical evidence and an investigation into women’s agency that takes their multiple identities into account. The observation that the law is abstract potentially points to a wider ­critique, left unexplored in this chapter. The law’s preoccupation with the question of which practices to prohibit and which to protect may be attributable to the fact that law is primarily seen as a tool for adjudication. Therefore, the abstractness of the law may not be entirely attributable to the fact that it is built upon e­ ssentialised notions of culture, but also to its pragmatic instrumentalism. This will be demonstrated in Chapter 5 as it concludes the book.

chapter 5

Conclusions: Cultural Rights and Insights from Anthropology The premise that culture pervades all areas of human life—from the conventional anthropological perspective of symbolic reproduction of collective and personal identity, to broader understandings of culture’s role in economic growth, governance and security—is today a worldwide commonplace. george yudice, Cultural Diversity and Cultural Rights1

∵ 5.1 Introduction The question that this study seeks to answer is whether anthropology could contribute to the understanding and development of cultural rights in the work of the un human rights treaty bodies. This question has two primary ­aspects: what cultural rights currently entail, from the perspective of law, and how the law relating to cultural rights could be improved, from the perspective of anthropology. Chapters 2 to 4 addressed several issues, including: (1) how anthropologists conceive of culture, (2) how the instruments of the treaty bodies protect culture as a right and (3) how treaty bodies impose limitations on the exercise of cultural rights. Drawing upon insights from anthropology, these chapters examined the effectiveness of the current law on cultural rights from three perspectives: (a) the multiple dimensions of the protection of cultural rights, (b) the transfigurability of ‘culture’ and its implications for jurisprudence and (c) the conflict between culture and gender and its implications for choice and identity. The focus of analysis has been the various conceptions of ‘culture’ in both disciplines, and how these varying understandings influence the application of the law. In Sections 5.2 to 5.4, this chapter seeks to summarise the findings of the previous chapters and to set out the lessons for the un human rights treaty 1 George Yudice, ‘Cultural Diversity and Cultural Rights’ (2009) 5 Hispanic Issues Online 110.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004328587_006

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bodies which can be drawn from them. Section 5.5 comments on the methodological implications of this study. 5.2

Theories of Culture in Anthropology: From Linear Evolutionism to Culture as a System of Narratives and Discourses

Theories of anthropology have undergone several paradigm shifts, as set out in Chapter 2. Initially, ‘culture’ took on a meaning very close to that of ‘­civilisation’, denoting, inter alia, the technological, scientific and political advancement of human groups.2 Cultural differences were explained on the basis of the ­different stages of cultural progress.3 This view was disputed by later anthropologists, who saw cultures as unique (rather than similar), as the products of history and as particular to the local context.4 ‘Culture’ was subsequently used to describe the specific ways of life pertaining to human groups, ­reflecting certain value orientations and personality traits.5 However, this view was also discarded by later anthropologists who sought to explain the ­relationship ­between culture and society.6 They suggested that cultural features always have a functional aspect, and understood culture as an integrated and self-­sustained entity existing to fulfil social needs and functions.7 This ­understanding subsequently gave way to explanations of culture as the symbolic realm that underlies social life,8 referring to the meanings invested in one’s environment that are conferred and transmitted by way of symbols.9 This provided a theoretical explanation of how individuals interact with the ­community and the surrounding cultural environment to acquire cultural knowledge and meanings.10 From this perspective, culture is all around us. These ‘older’ approaches to culture—viewing culture as a body of v­ alues, as behavioural patterns or as an entity that has an objective presence, both bounded and ascertainable—are no longer defended by contemporary ­anthropologists. Instead, they have gradually been displaced to accommodate a far more nuanced understanding of ‘culture’. My analysis in this study shows 2 See Section 2.1. 3 Ibid. 4 See Section 2.2.1. 5 Ibid. 6 See Section 2.3.1. 7 Ibid. 8 See Section 2.4. 9 See Sections 2.4 and 2.4.1. 10 See Section 2.5.

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that the contemporary anthropological understanding of culture has several implications. First, since the meanings behind symbols are ascribed to them, it can be recognised that culture is malleable and fluid.11 Culture is a d­ ynamic process—a process that is constantly in the making. Second, as interested parties seek to impose different versions of meanings on traditional practices, symbols become contested. Individuals, even if they are from the same community, do not share identical cultural knowledge.12 Third, the contestable nature of culture reflects its discursive dimension—i.e. its dependence on the power to impose different versions of facts or the ability to uphold one version of the truth over others.13 Therefore, underlying the apparently neutral traditions and forms of cultural knowledge are different discourses of power, all struggling for dominance.14 Culture implicates power and struggles over meanings.15 Fourth, cultural knowledge is often unconsciously acquired through the continual signification and resignification of meanings. Culture forms part of the individual’s subjectivity and agency (habitus).16 During this process, cultural knowledge (including discourses of standards and values as well as discourses which legitimise the existing social order and political ­arrangements) is reproduced. Fifth, culture as a set of discourses has the power to shape identity, because identity is the ‘narrativisation’ of the self.17 Because the individual is exposed to multiple discourses, he or she can be viewed as the locus where multiple discourses intersect. This approach enables us to appreciate how individual and group identities are articulated in complex ways.18 In other words, contemporary anthropology is premised on the idea of culture as a process, or more precisely, a process associated with meaning-making. ­Actors make meaning, transform meaning and challenge meaning. Understanding how culture affects individuals, therefore, requires us to pay close attention to how discourses are produced and practised: ‘Culture is now understood as a process, developing and changing through actions and struggles over meaning, rather than as a static shared system of beliefs and values.’19 This shifting 11 Ibid. 12 See Section 2.4.2. 13 See Sections 2.5.2–2.5.3. 14 Ibid. 15 See Section 2.5.2. 16 See Section 2.5. 17 See Section 2.6. 18 Ibid. 19 Sally E Merry, ‘Changing Rights, Changing Culture’ in Jane K Cowan, Marie-Bénédicte Dembour and Richard A Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge University Press 2001) 39.

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nature of ‘culture’, embodied in its contemporary understanding, significantly complicates conventional understandings of the concept. The reason why contemporary anthropological approaches to ‘culture’ ought to be preferred over ‘older’ approaches is that they enable us to appreciate the individual as embodying a form of situated and mediated experience upon which her social reality is constructed.20 Contemporary anthropology provides an analytical bridge between culture (i.e. the external body of information), and the individual (i.e. the comprehension and internalisation of that information), or what Chapter 2 referred to as the ‘objectivity/­subjectivity’ ­divide.21 This means that it is futile to understand culture simply as culture and the individual as the individual without seeking to interrogate the relationship between the two.22 An understanding of the link between culture and the ­individual is exactly what is missing in legal analysis, as ­demonstrated in C ­ hapters  3 and 4; culture and the individual are linked through cultural narratives.23 5.3

The Multiple Dimensions of ‘Culture’ in the Context of Cultural Rights: From Arts and Institutions to Process and Symbols

Chapter 3 detailed the scope of cultural rights in the work of the treaty ­bodies. The primary function of cultural rights is to create legal obligations that guide the implementation of cultural policies, with the objective of respecting, ­protecting and fulfilling the universal right to access, participate in and contribute to cultural life.24 The chapter discussed the expanding scope of the protection of cultural rights—from protecting culture as high culture, to protecting culture as popular culture and to protecting culture as a way of life— and the ­significance of this expansion.25 It explored how the current law views culture as the system of expressions from which individuals d­ erive value and meaning.26 It argued that culture is increasingly viewed by the treaty ­bodies as a realm or space that embodies knowledge and shapes identity, and is ­revitalised through the constant interaction of cultural k­ nowledge, ­traditions 20 21 22 23 24 25 26

See also Section 3.4.3. See Sections 2.4, 2.5–2.5.2. See Sections 2.4.1–2.6.1. See Sections 3.4.2–3.4.2.1, 4.3.2–4.3.2.4. cescr, General Comment No 21, paras 6, 15. See Sections 3.3.3 and 3.3.4. See Section 3.3.4.

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and customs.27 The current understanding of culture has moved away from a commodified notion of culture (as a collection of products and services to be consumed and enjoyed) to a vibrant one, which takes into a­ ccount the ­relationship between the individual and the cultural process and cultural space.28 In light of this expanded understanding, I went on to argue that ­culture is no longer seen as restricted to those activities in which one takes part on specific occasions (such as going to a library or museum) but as an integral part of everyday life.29 In my analysis of the work of the treaty bodies I have shown that cultural rights reflect three different manifestations of the concept of culture: culture in the material sense (as a collection of products), culture as a process and ­culture as a system (as a symbolic/meaningful space encompassing, for example, indigenous land and other sites of symbolic anchorage).30 By articulating culture as a process, the treaty bodies seek to ensure that culture is not dissociated from the community that creates it.31 By articulating the overlapping protection of culture as a process and as a system, they ensure that the protection of culture as a system does not mean its fossilisation, but that culture is transmitted and enriched through its constant revitalisation.32 I demonstrated that this expanding understanding of culture has substantially shaped cultural rights in two areas: cultural heritage and land. First, cultural heritage can no longer be defined as either tangible or intangible. As symbolic anthropologists observe, tangible heritage always has an intangible aspect to it, which renders it culturally significant.33 Second, a community’s (especially an indigenous population’s) claim to land is no longer based on the fact that it was the first to inhabit it, but on the fact that land is a site of ­symbolic anchorage; i.e. it embodies the ‘collective memory’ of the community at issue.34 In fact, this understanding of culture closely resembles that embraced by symbolic anthropologists such as Clifford Geertz. I concluded that the merit of expanding the construction of ‘culture’ to encompass the symbolic/­meaningful realm that underlies social life is that the law now ­better reflects the purpose of cultural rights: to protect an individual’s access 27 Ibid. 28 See Section 3.3.9. 29 Ibid. 30 Ibid. 31 Ibid. 32 Ibid. 33 See Sections 3.3.5.2 and 3.3.5.4.1. 34 See Section 3.3.5.4.2.

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to ­culture as an indispensable part of her personal development. This purpose cannot be fulfilled if cultural/meaningful references are destroyed. 5.3.1 The Transfigurability of Culture and Its Jurisprudential Implications Nevertheless, seeing culture as consisting of symbolically mediated expressions implies that culture is everywhere, because meaning is everywhere.35 This raises the conceptual question of whether the effectiveness of cultural rights protection would be undermined if such a broad and elusive concept were to be adopted, as anthropologist Eriksen has strongly argued.36 I took the view that central to Eriksen’s arguments was a concern about the legal certainty of ‘cultural rights’ if a concept as fluid as a symbolic understanding of ‘culture’ were to be adopted. It relates to whether legal obligations could reasonably be anticipated or whether this understanding would entail the ­protection of everything because meaning is everywhere. In the latter case, ‘cultural rights’ would either become meaningless (because reasonable ­obligations could not be ascertained with sufficient predictability and therefore could not be enforced or implemented) or unattainable (because it would generate obligations which states could not realistically be expected to fulfil).37 To test the viability of the symbolic concept of culture, I attempted to ­envisage what legal obligations with respect to individuals residing in cities would be like if it were adopted (in contrast to the situation of indigenous populations, whose cultural space is, at least conceptually, confined to the land they ­historically occupy). Through examples of urban redevelopment projects in Hong Kong, I argued that the symbolic concept of culture does not undermine the effectiveness of cultural rights protection.38 Rather, the ­conceptual ­framework that it offers provides a better basis for the application of cultural rights, i.e. one that provides protection for the ‘cultural space’ of local ­communities, if such space can be seen as representing their ‘collective memories’. Since individuals are the creators of meanings and symbols, what cultural rights should aim to protect is the process through which individuals and communities participate in the transformation of cultural space, whether through democratic participation or genuine consultation. Instead of protecting ‘culture’ (i.e. the symbolic meanings themselves), cultural rights should protect the right of individuals and the communities to participate in cultural life. Although it is true that culture is everywhere because symbolic ­meaning is 35 See Section 1.1. 36 Ibid. 37 See Section 3.4.1. 38 See Section 3.4.1.1.

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everywhere, such an understanding does not render the application of ­cultural rights unfeasible. Furthermore, this approach avoids reducing ‘culture’ to a set of ‘cultural activities’ (as Eriksen suggested), a construction which is too ­narrow to capture the very purpose of cultural rights, i.e. to protect the individual’s and the community’s access to, participation in and contribution to cultural life. Nevertheless, viewing culture in the symbolic sense is not sufficient to ­address the more subtle forms of violation. One example considered in this book was the employment of cultural narratives in the process of heritage ­creation and preservation in order to achieve specific purposes, such as to stir up nationalistic sentiments or induce a sense of inferiority among ­minority communities.39 This suggests that the protection of the cultural rights of ­minorities will be insufficient if the treaty bodies continue to treat culture as a neutral body of knowledge, identifiable and objectively shared by the local population.40 In this context, I argued that the contemporary anthropological conception of culture as a set of conflicting narratives and discourses should be used as a heuristic device to acknowledge the power dynamics behind struggles over meaning. However, being aware of the institutional shortcomings and resource implications, including the facts that committee members do not have anthropological expertise and treaty bodies are usually not financially equipped to undertake field studies, I do not argue that the treaty bodies should seek to resolve these conflicts or to decide in favour of a particular narrative. What the treaty bodies should do instead is to raise a number of ‘cultural questions’ to be answered by the state and the communities involved. These include: – What gave rise to the heritage? – What are the different versions of the stories/narratives pertaining to the heritage? – What are the different claims? – What are the politics or other underlying issues at play behind the narratives?41 The purpose of asking these questions is to evaluate whether the views of ­local communities can be respected without the need to make an ­‘objective’

39 40 41

See Section 2.5.3. See Sections 3.4.2–3.4.2.1. See Section 3.4.2.1.

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j­ udgement as to the ‘truth’ of these narratives.42 In fact, it is difficult to see how judgements relating to cultural narratives could ever be objective. ­Moreover, any ­ attempt to make such a judgement may undermine the ­ perceived ­impartiality of the treaty bodies.43 Viewing culture as a set of symbols and discourses ­implies that culture can to be invented and transformed. This means that in situations involving the radical transformation of cultural space (as in the context of urban redevelopment initiatives), it is possible for states, communities and individuals to work together to protect heritage on a basis of ­inclusive participation and genuine consultation. The role of the treaty ­bodies is to ensure that the right of individuals and communities to contribute to ­cultural life is not undermined. 5.4

Limitations on Cultural Rights: Notions of Choice and Identity

Chapter 4 explored the limitations that treaty bodies impose on the exercise of cultural rights. I demonstrated that the construct of culture which the treaty bodies adopt in the context of limitations is different from that used when they address the scope of cultural rights protection.44 Whereas the law on the protection of cultural rights stresses culture as a dynamic process, the law on the limits of cultural rights views culture as consisting primarily of values, ­social expectations and roles.45 This ‘static’ construction of culture neglects the ­power dynamics and internal diversity of communities and groups. Moreover, the ways in which notions of culture and gender are essentialised lead to their polarisation, setting them up as diametrically opposed to each ­other.46 This has given rise to an overly rigid categorisation of identity and human ­experience, potentially forcing minority women, for example, to give up one of their multiple identities.47 In light of the above, I argued that the law on the limits of cultural rights fails to take into account the experience of the individual, as the site where competing discourses intersect and interact in profound ways, as c­ ontemporary

42 Ibid. 43 Ibid. 44 See Section 4.3. 45 Ibid. 46 Ibid; Uma Narayan, ‘Essence of Culture and a Sense of History: A Feminist Critique of Cultural Essentialism’ (1998) 13 Hypatia 86. 47 See Section 4.3.2.

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­anthropologists suggest.48 In essence, what constitutes local concepts of the self cannot be disassociated from ‘the process within which identity is articulated through discursive practice’.49 It is also through these narratives and discourses that ‘individuals engage in the process of recreating their identities by continually reflecting upon their lived experience’.50 However, the ­‘assimilation’ of multiple discourses is often full of inconsistencies and contradictions, such that the discursive construction of identity is not as ‘seamless’ as it appears. I took the view that if cultural rights are about an individual’s right to engage in or disengage with cultural practices, understanding these contradictions becomes important, because it enables us to better appreciate an individual’s state of mind in engaging in these practices. Cultural practices can be emancipatory and enabling to the individual or they can be restrictive. The goal is to understand the paradoxes and dilemmas associated with an ­individual’s practice of culture. Seeking a way to capture the workings of multiple discourses on identity formation, I applied the concept of intracategorical intersectionality expounded by McCall as a conceptual tool to accommodate the complexity of individual experience.51 What intracategorical intersectionality eventually translates into is a way of comprehending the unique situations of each individual—through understanding the production and reproduction of discourses, and how they are experienced and resisted—without resorting to legal dichotomies.52 To demonstrate this, I examined the case of Lovelace v. Canada, applying the ­intracategorical intersectionality approach.53 I noted that discourses are often ­produced in order to undermine the right of indigenous women to marry and give birth, as they are expected to act in a manner which ‘preserves the membership boundaries and identity of the whole community’,54 reducing them to the carriers and bearers of ‘culture’.55 Such discourses are reproduced through the Canadian Indian Act, as it denies an indigenous woman her indigenous identity if she marries a non-indigenous man. The experience of Lovelace should have been taken into account, as the law and this discourse impinged upon 48 49

See Sections 2.6–2.6.1. Ibid; Michael Pickering, ‘Experience and the Social World’ in Michael Pickering (ed) Research Methods for Cultural Studies (Edinburgh University Press 2008) 18. 50 Ibid. 51 See Section 4.3.2.1. 52 See Section 4.3.2.2. 53 Ibid. 54 Nicholas Bamforth, Maleiha Malik and Colm O’Cinneide, Discrimination Law: Theory and Context: Text and Materials (Sweet & Maxwell 2008) 552–555. 55 See Section 4.3.2.2.

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her life by denying her the shelter and emotional support of her indigenous family and community after her divorce from a non-indigenous man. Lovelace resisted by challenging the legislation, refusing to have her identities defined by the law.56 Although the hrc might still have arrived at the same ­decision, i.e. to rule in f­avour of Lovelace, I argued that the i­ntracategorical intersectionality approach enables a deeper analysis of the agency and s­ ubjectivity of ­individuals, which would improve the hrc’s reasoning in line with contemporary anthropological perspectives. This a­ pproach better e­ ncapsulates anthropological ­perspectives on identity formation and provides a more nuanced way of understanding the motivations, for example, of minority women who engage in certain cultural practices, thus enabling us to recognise minority women as legitimate participants in culture and to respect their right to take part in cultural life.57 I also argued that contemporary anthropological perspectives (such as the observation that identity is deeply shaped by discourses and narratives which in turn affect individuals in unique ways) contribute to a better understanding of the idea of ‘choice’, now embraced by General Comment No. 21 of the cescr.58 ‘Choice’ should not be taken to imply only that individuals should be allowed to resist cultural norms and practices, but must also mean that they should be able to resist them in their own ways. This means that the state is not in a position to judge whether certain cultural practices are harmful or discriminatory if those engaging in these practices do not share the same view.59 One immediate state obligation which can be derived from this is that states should refrain from blanket bans on certain cultural practices such as veiling, especially if it can be shown that the practice at issue is deeply integral to cultural identity. Through the example of France, I highlighted that the law banning the wearing of headscarves in public space fails to acknowledge the experiences and multiple identities of women who wear them and how, as a result, many feel that they have to stay indoors.60 In essence, states and the treaty bodies cannot be placed in a position to prejudge the nature of cultural practices, and the voices of those engaging in these practices should be properly taken into account. Lastly, I argued that, like the conception of culture advocated in ­Chapter 3, the understanding embraced by the intracategorical intersectionality a­ pproach 56 Ibid. 57 Ibid. 58 See Section 4.3.2.3. 59 Ibid. 60 Ibid.

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refers to culture as a system of discourses and narratives. When i­ssues concerning cultural practices come before the treaty bodies, they should strive to ask the relevant stakeholders ‘cultural questions’ regarding the historical and political circumstances under which certain discursive practices exist and the meaning and significance of these cultural practices to the individuals who engage in them (if possible, expressed in their own words). Finding answers to these questions is in fact part of the process of deciding whether a violation of cultural rights has taken place. 5.5

Further Implications: Beyond Legal Narratives

This study has at least two other implications, one institutional, the other methodological. The argument for accommodating anthropological perspectives raises ­institutional concerns: do the committee members of treaty bodies, who are mostly legally trained and not anthropologists, have the necessary expertise to adjudicate on matters pertaining to culture? As argued in earlier chapters, the answer is likely to be no. Nonetheless, in this book I have not argued that committee members should undertake fieldwork, nor that they should start reading ethnographic studies in order to determine the nature and meaning of certain cultural customs. Instead, I have argued that contemporary anthropological perspectives should be used as a heuristic device to facilitate an ­understanding of culture as fluid, malleable and contested. All this requires of the treaty bodies is, firstly, that they acknowledge that culture is malleable and contested and, secondly, that they ask the relevant ‘cultural questions’.61 Asking ‘cultural questions’ is important not only because they foster an empirical understanding of how culture actually operates in the lives of individuals, but also because they challenge legal epistemology (i.e. the way legal knowledge is produced and constructed). As our understanding of the social world often limits our objects of enquiry (thus the relevant questions to be asked), universal principles often generate legal tests, questions and criteria which are abstract and absolute. This knowledge both shapes and informs ­judicial reasoning (or in the present context, the legal reasoning of the treaty body committee members). Legal reasoning typically takes on a particular form. First, when a dispute arises, the lawyers involved seek to identify the body of law that tends to 61

See text accompanying supra n 41.

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g­ overn the dispute.62 This body of law will ‘determine what legal principles should guide the resolution of the dispute’.63 With that in mind, the typical lawyer then tries to determine the relevant factual information to which a ­legal rule or principle can be applied. Facts and rules are mutually constitutive, in the sense that the facts of the case determine the legal context in which rules are ­invoked, which in turn determines how facts are sorted into those deemed ­‘material’ and those deemed ‘irrelevant’.64 In this way, facts are not just ‘out there’ to be discovered, but are filtered through our understanding of the rules.65 An example of how this traditional mode of legal analysis is applied in the context of the un human rights treaty bodies can be found in the individual communications. In the case of Lovelace v. Canada (studied in detail in C ­ hapter 4), the hrc began by examining the facts before it. Then it asked itself, how does this case fit within the legal framework, i.e. which articles should apply?66 Having determined that Article 27 of the iccpr applied, the hrc asked itself, what is the content of the legal principles; i.e. what does the law say?67 Having determined the legal rules and tests, the hrc turned to the facts that might have constituted Lovelace’s legal enjoyment of culture under Article 27 of the iccpr, and considered whether a right to reside on the reserve constituted ‘enjoyment of culture’ and whether the membership restrictions pursuant to the Indian Act were reasonable or necessary for the preservation of the tribe’s identity.68 In the case of Hydoyberganova v. Uzbekistan, a similar logic was ­followed: first, the hrc asked, which article does the case involve?69 Next, ­having determined that Article 18 (on freedom of religion) applied, the hrc determined the content of the legal test (i.e. although the right to religious belief is an absolute right, limitations apply to the manifestation of religion).70 Finally, this test was applied to the facts of the case when the hrc asked, does 62 Katharine T Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harv L Rev 829, 836. 63 Ibid. 64 Kim L Scheppele, Legal Secrets: Equality and Efficiently in the Common Law (University of Chicago Press 1988) 95: ‘The mutual construction of facts and rules is an iterative process in which the facts of the case determine the legal categories that will be invoked, which in turn determine how the facts will be sorted into those that are relevant and those that are irrelevant, which in turn determines which rules are to be invoked.’ 65 Ibid. 66 Lovelace v Canada, para 11. 67 Ibid para 14. 68 Ibid para 17. 69 Hydoyberganova v Uzbekistan, para 6.2. 70 Ibid.

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the wearing of the hijab constitute a manifestation of religion under Article 18(2) of the iccpr? If it does, is the limitation on the manifestation of religion being legitimately imposed?71 When legal rules are applied, legal reasoning focuses on ‘distilled events’72 and effectively shuts itself off from all other considerations (such as the fact that an indigenous woman’s right to marry is being deeply constrained by dominant discourses sustained through the Indian Act).73 Through its very understanding of the subject, legal reasoning then pushes the lawyer into ­engaging in a highly abstract mode of enquiry. Paradoxically, the process of legal ­reasoning often gives the law an ‘aura of objectivity’ or ‘analytic integrity’, which allows the arbiter to distance him or herself from value judgements.74 Nevertheless, this intellectual process—this legal narrative—substantially conditions the committees’ very perception of how social realities operate, and how social realities are lived and experienced, as demonstrated in earlier chapters.75 Contemporary anthropologists argue that culture cannot be disassociated from politics and power.76 Culture in this sense is interconnected with broader issues of class, race, ethnicity, nationalism and gender, and so ­cannot be ­adequately understood without also examining the social relations that ­underpin it. Yet, by applying the law in an abstract manner, the legal system can often ‘depoliticise human rights violations by drawing attention away from structural processes of class or ethnic power’,77 reducing violations to a set of technical problems to do with the application of the law. I argue that asking ‘cultural questions’ in this context is similar to asking the ‘woman question’ in feminist legal thinking. While the purpose of the latter is to expose features of male-dominated legal thinking and how they operate, the purpose of ‘­cultural questions’ is to expose the subtle dynamics of culture (which are often predicated on power relations) and how politics always play an important part in ­issues concerning culture. As these questions are continuously and ­persistently asked, they will gradually become a method.78 71 Ibid. 72 Scheppele (n 66) 95. 73 See Section 4.3.4.2. 74 Ibid. 75 See Sections 3.4.2–3.4.2.1, 4.3.2–4.3.2.4. 76 See Sections 2.5.2–2.5.3. 77 Richard A Wilson, ‘Representing Human Rights Violations: Social Context and Subjectivities’ in Richard A Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives (Pluto Press 1997) 148. 78 Bartlett, (n 62) 829: ‘A question becomes a method when it is regularly asked.’

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In essence, this book argues that it is important to acknowledge political factors in this area of law, and in doing so the treaty bodies do not n ­ ecessarily need to adjudicate on politics. Posing ‘cultural questions’ is a way to confront  the complacency that the current law seemingly suffers from and to challenge the purported objectivity embedded in legal epistemology, in order to ‘restore  the  richness of subjectivities and chart the complex fields of social relations, contradictory values and the emotional accompaniment to ­macro-structures that human rights accounts often exclude’.79 This is particularly important as ‘[H]uman rights are not acted out in a vacuum: it is the social position and political realities in which people find themselves and their specific relation to international standards that give human rights their substance and meaning.’80 In this respect, insights from anthropology not only contribute to the law on cultural rights, through providing a theoretical or empirical understanding of culture, but also have the potential to challenge legal epistemology.

79

80

Richard A Wilson, ‘Human Rights, Culture and Context: An Introduction’ in Richard A Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives (Pluto Press 1997) 15; Wilson (n 77) 151. Jennifer Schirmer, ‘Universal and Sustainable Human Rights’ in Richard Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives (Pluto Press 1997) 181.

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Index Aboriginal 122, 126, 128, 132, 146, 212–214 arts 132 economy 146 Access to culture 6, 11–12, 16, 89, 99, 102, 112–113, 115–116, 152, 158, 175–176 access to knowledge 110 archaeological sites 15, 119, 123 architectural monuments 88, 109, 119, 152 art 26, 28, 36, 85, 88, 90, 104, 110–113, ­116–119, 123, 132–133, 154, 160, 249 books and periodical 108, 110, 113, 152, 160, 179, 182 literature 2, 104, 106, 109–110, 113, 117, 123, 133, 154, 160, 176 Adulthood 181 Aesthetic meanings 121 Agency 5, 7–8, 18, 23, 34, 62, 75–82, 189–190, 199, 215–216, 230, 236, 245–248, 255 Ancestry 56, 166, 174, 184 ancestral lands or territories 166 beliefs about ancestry 56, 174 historical claim 174, 178–179 Anthropology (see also Culture) 4–9, 17–22, 24–27, 29, 30–84, 122, 133, 160, 171, 175, 190, 193, 243–249, 259 American Anthropology Association 18–19 Statement on Human Rights 18 anthropological theories functionalism 43–46 historical particularism 37 linear evolutionism 35–36, 247 symbolism 7, 52, 122, 183 social functionalism 44–46 the habitus 62–72, 75–77, 79, 248 components of anthropology contemporary anthropology 60–84, 171–178, 243–249 cultural anthropology 35–40, 47–47 ethnography 19–21, 35–63, 61, 82, 176, 256 feminist anthropology 66, 79 social anthropology 42–43, 46–47, 53–54

prominent anthropologists Barth, Frederick 60, 76, 188 Benedict, Ruth 38–41, 50, 117, 181, 211 Boas, Franz 30, 36–38 Bourdieu, Pierre 62–65, 79 Eriksen, Thomas H. 27–29, 76, 170, 251–252 Geertz, Clifford 23, 31, 44, 52–57, 60–61, 160, 184, 250 Malinowski, Bronislaw 42–47, 59, 180 Radcliffe-Brown, Alfred 44–49, 59 Turner, Victor 32, 53, 56–60 Tylor, Edward 35–37, 50 Wolf, Eric 27, 60–61, 66–67, 75 Armed conflict 119, 174, 221 Assimilation 33, 73, 146–149, 180, 239, 240, 254 Belonging (see also Identity) 11, 72, 76, 114, 120, 129, 141–144, 149–150, 156, 170, 189, 195, 199, 205, 226–227 Biodiversity 118, 123, 138, 150, 161 Blanket bans 8, 236–237, 240–245, 255 Buddhism 72 Burma 72, 175 Convention of the Rights of Persons with ­Disabilities 88, 93 Article 30 of crpd 88 Convention on the Rights of the Child 91, 93, 205–207, 238 Article 24(3) of crc 206 Article 29(1)(c) of crc 89, 139, 145, 238 Article 30 of crc 205 Article 31(1) of crc 88, 205 Cultural life 6, 8, 10, 11, 13, 161–167, 34, 59, 85–90, 97–96, 108–118, 130–131, 138–139, 143–144, 146, 150–154, 156, 160, 162, 168–172, 181–183, 185, 187, 192, 194, 196–198, 205, 207, 234, 236 elements of cultural life communities 1–6, 10, 16, 19, 20, 26, 34, 55, 70, 73–74, 87, 90, 99, 104, 108, 112, 116– 227, 120, 123, 124–139, 144–184, 188–189, 192, 196–199, 205–206, 212–214, 217, 221, 232–233, 235, 240, 247–248, 250–255

282 Cultural life (cont.) cultural affiliation, associations and ­attachments 156–157, 222, 244 cultural choice 8, 41, 63, 81–82, 103, 114, 183, 188, 190–193, 196, 198–199, 200, 215, 236, 240, 244–246, 253, 255 cultural expressions and ­manifestations 3–4, 12, 36–37, 70–71, 102, 106, 120–123, 132, 142, 144, 151, 153, 156, 160, 169–172, 180, 186, 195–196, 221, 249–251 cultural framework 64, 209 cultural heritage 3, 11, 17, 25, 28, 32, 34, 55, 66, 68–75, 82, 87, 91, 98, ­103–105, 107–108, 117–223, 130–132, 138, 151–155, 157, 174–179, 182, 184–185, 190, 194, 196, 236, 250–253 cultural identity and identification (see also identity) 2, 3, 8, 14, 70–73, 80, 99, 139–144, 149–151, 172, 184, 188, 194–196, 200, 205, 234, 236, 238, 255 cultural information 55, 64, 98, 109, 112, 115, 130–131, 152, 249 cultural institutions and ­infrastructure 98, 104–105, 110, 113–116, 144, 151–152, 158, 162, 182 cultural knowledge 4, 23, 32–36, 39–42, 51–55, 59, 62–67, 70, 75–77, 80–81, 91, 110–112, 118, 132, 152–156, 159, 161, 171, 174–176, 183–185, 247–249, 252 cultural norms 7–8, 26, 34, 46–47, 51, 56, 58, 60, 62, 65–66, 80, 171, 189, 192 cultural performances 88, 114 cultural practices(see also traditional practices) 2, 4, 5, 8, 21, 33, 55, 64–65, 78, 102, 115, 127, 132, 139, 144, 153, 170–171, 180, 188–193, 196, 198–200, 202, 207, 212–214, 216–219, 222, 234, 236, 240–245, 254–256 cultural processes 59, 74, 121, 158, 182, 250 cultural products 63, 110, 112, 162 cultural progress and development 17, 36, 98, 108, 112, 247 cultural purpose 1 customs 18, 32, 34, 36–38, 41, 44, 55, 81, 87, 99, 114, 120, 123–124, 133, 

Index 137–138, 140, 144–145, 153–154, 160–161, 164, 172, 178, 187–188, 193–194, 197, 199–200, 203, 207–209, 212–213, 233, 250, 256 folklore 15, 55, 120–121, 160–161, 166 interactions 39, 41, 45, 53, 79–80, 180 kinship 42, 44–46, 135, 161, 164 marriage 12, 42, 167, 187, 195, 197, 203–206, 209, 212–214, 221, 231–233, 235, 244 mass media (see also mass ­communications) 26, 78, 111–115, 144–145, 152, 154, 162 monuments 56, 68–70, 88, 109, 119, 152, 177 museum 88, 98, 114–115, 152, 154, 160, 162, 182, 250 myths 35, 44, 46, 56, 120, 166, 174 religions, rituals, and spiritual ­activities 1–3, 10, 12, 26, 28, 32, 42, 44–46, 54–58, 72, 86, 93, 101, 105, 116–120, 122–123, 127–128, 133, 136–138, 141–146, 153–154, 158, 160, 172, 178, 186–190, 194–195, 205, 215, 226, 228, 230, 237–239, 257–258 traditions (see also traditional ­practices) 5, 32, 34, 37–38, 41, 49, 55, 60, 70, 72, 74, 81, 87, 104, 114, 116–118, 123–125, 131–133, 138, 141, 144, 146, 154–155, 160–161, 172–173, 178, 180–182, 187–188, 193, 195, 197, 199, 203, 207–209, 211, 213, 216, 235–236, 248–249 participation in cultural life 6, 16–17, 56, 88, 102, 105, 109, 110–115, 131, 144, 152–154, 156, 183, 197, 199, 207, 219 Cultural policies 2, 103, 118, 144, 149, 150, 156, 169, 170, 177–179, 184, 198, 235, 249 Cultural property 112, 119, 130–131, 152 Cultural relativism 18, 22, 37 Cultural rights (see also Access to culture and Civil and political rights) acceptability 101, 104, 198 accessibility 104, 114, 152, 154 appropriateness 101, 104, 178, 198 distinguishing cultural rights and the protection of culture 14–16 limitations on cultural rights 186–245

Index general welfare 197 relationship of cultural rights and other freedoms freedom from assimilation 73, 146–147, 149, 190, 239–240, 254 freedom from censorship 113, 158, 162, 182 freedom of assembly and association 12, 105, 117, 153, 195 freedom of expression including the freedom of cultural expression 2, 12, 70,  102, 105, 113, 121–122, 131–132, 142, 144,  150–151, 153, 157, 168–169, 180,  195–196 freedom of information 109, 114–115 freedom of religion including the freedom to manifest one’s religion and of religious expression 12, 187, 190, 194–195, 235,   247–248, 257 freedom of travel 221 right to cultural identity 87, 105, 139, 143, 194 right to take part in cultural life/right to participate in cultural life 10, 13, 16, 29,   60, 87–89, 99, 100–101, 105–108, 110,   112, ­115–116, 143–144, 146–148, 150–151,   153, 167, 170, 187, 192, 194, 197–199, 207,   236, 244, 255 Cultural services 21, 56, 63, 67, 159, 197 Culture elements of culture artefacts 48, 53, 109, 123, 146, 182 artistic expressions and ­productions 28, 36, 50, 85–87, 97, 108, 112–113, 119, 122, 152, 182 artwork 160 cosmovision and worldview 23, 32, 53, 82, 133, 154, 158 cultural institutions 104–105, 110, 113–116, 151–152, 158, 162, 182 customs 17, 32, 34, 36–38, 41, 44, 55, 81, 87, 99, 114, 123–124, 133, 137–138, 140, 144, 145, 160–161, 164, 172, 178, 187–188, 193, 197, 199, 200, 207–209, 213, 236, 250, 256 discursive dimensions (see Culture, theoretical constructions of culture, as discourses) 176, 216, 220, 231, 234, 141

283 history 55, 65, 69–72, 78, 91, 123– 124, 135–136, 138, 145, 158, 161, 166, 168, 172–175, 194, 208, 218, 233, 247 internet 114, 144 memory 60, 68–71, 73–74, 138, 164, 166, 169, 170, 173–174, 183–184, 250–251 monuments 56, 68–69 narratives 4–5, 7, 8, 18, 23, 34, 55, 60, 70–75, 77, 81, 83, 91, 166, 174–177, 179, 184–185, 220, 230, 235–236, 239, 241–242, 244, 247, 249, 252–256 rituals 1, 55–56, 72, 120, 158 sets of values and beliefs 6, 32, 38, 40, 48–50, 83, 173, 181 social life and social processes 32–33, 40, 45, 53, 56–57, 59–50, 66, 77, 81, 88, 160, 167, 169, 219, 247, 250, 256–257 temporal aspects of 6, 33, 35, 57, 59, 64, 70, 154 the cultural space/spatial dimension of culture 6, 35, 64, 73, 83, 118, 122, 130, 137, 156–158, 160, 163, 164, 168–170, 173, 174, 183–184, 216, 225, 228, 230, 237, 239–240, 249–255 the social reproduction of knowledge and of culture/cultural ­discourses  4, 34, 44–45, 60, 62, 64, 65–66, 80, 82, 137, 158, 173, 183, 234, 239, 242, 246, 254 traditions and norms 5, 7, 15, 26, 32, 34, 37–38, 41–42, 47, 49, 51, 55–56, 58, 60, 62, 65–66, 70, 72, 74, 80–81, 87, 104, 114, 116, 117, 118, 123–125, 131–133, 138, 141, 144–146, 154–155, 160–161, 171–173, 178, 180–182, 187–189, ­192–193, 195, 197, 199, 202–203, 206–209, 211–213, 216–217, 220, 233, 235–236, 240, 244, 248–249, 255 features of culture construction/reconstruction of ­meaning 23, 57, 69, 72, 76, 77, 80, 82, 133, 155, 177, 188, 201, 241, 244, 254 contestation 23, 34, 67, 75, 82–84 contingency 84 contradictions 75, 77–78, 82, 84, 173, 181, 254

284 Culture (cont.) culture, behaviour and thought  36–39 deterministic 215, 218 essentialisation 40–41, 172, 243 fluidity 5, 33, 162, 171, 184 hybridity 22, 27, 84 material culture 3, 6, 17, 32, 48, 51, 53–55, 69–70, 73, 76, 85, 88–90, 108, 115–118, 122, 130, 137–139, 151–153, 155, 157, 172, 182 multivocality 33, 58, 75 reification 33, 40, 41, 53, 76, 193, 241 the politicised nature of culture 59 the teleological nature of culture 47, 51, 63, 83, 181 on defining culture 26–29 the anthropological definition of ­culture 26, 117 the legal definition of culture 26 culture as a medium 171, 183 culture as a way of life/ way of living  1, 3, 28, 32, 37–38, 50, 53, 81, 90, 100, 106–107, 110, 116, 118–119, 122–130, 133–134, 138, 142, 144, 146–149, 150–155, 158, 162, 164–165, 172, 180, 182, 249 culture as an internal frame of reference 116 culture as human condition 37, 183 culture as process 152–155 culture as product 6, 158, 160, 182, 250 high culture 106–110, 113, 119, 151, 158, 182, 249 popular culture 87, 90, 106–107, 109–110, 113, 116–117, 151, 162, 182, 249 three dimensions of culture 151–159 the transfigurability of culture 7, 171, 183, 246, 251 theoretical constructions of culture as a heuristic device or tool 7, 24, 91, 176, 178, 184, 242, 252, 256 as a system 6, 8, 20, 21, 26, 28, 39, 43, 156–160, 169, 172–173, 180, 182–184, 197, 207, 209, 224, 241, 247–250, 256 as abstraction 32, 41, 46–50, 81, 159 as an analytical concept 24, 28, 32, 47–51, 61, 81–82, 176

Index as an epiphenomenon 32, 47 as capacity to learn 27 as civilisation 6, 31, 36, 46, 50, 247 as discourses 4, 7–8, 20, 25, 34, 60, 67–68, 71, 73, 75–81, 83, 91, 174, ­176–178, 184–185, 188, 193, 216, 220–222, 231, 233–236, 238–241, 243–244, 247 as discursive practice 69, 79–80, 220, 234, 244, 254, 256 as ideology 28, 61, 70, 74 as meanings 4, 7, 12, 18, 20, 26–27, 33, 37, 39, 41, 42, 48–63, 65–77, 81–84, 89–90, 106, 120–122, 133, 135, 154, 156, 160, 166–171, 173–175, 177, 181–185, 216, 239, 241–243, 247–252, 256 as personality traits 27, 39–40, 50, 210, 247 as power/power relations (see also Power dynamics) 4, 7, 21, 27, 31, 34, 58–62, 64–66, 68, 70–75, 77, 82, 83, 145, 173–174, 176–177, 181, 185, 215, 219–220, 228, 230, 236, 238–240, 242, 248, 252–253, 258 as strategies 63–64, 82 as symbols/symbolic/symbolism 6, 7, 17, 21, 26–28, 32–34, 52–62, 64–68, 72–75, 77, 80–81, 83, 90, 106, 118, 121–122, 128, 133–135, 138–139, 154–156, 158–161, 163–164, 166–167, 169–171, 173–174, 177, 182–184, 214, 233–234, 236, 238, 240, 246–253 as system of values and beliefs 6, 26, 28, 83, 106, 158, 248 Democratisation of culture and democratic participation 110–113, 151–152, 170, 251 Demonization of culture 25, 189, 243 Diasporas 2, 178 Dietary requirements 178 Disability 226–228 Discrimination (see also inequality) 10, 21, 88, 91, 94, 101–102, 104–105, 111, 115, 144, 149, 180, 187, 189–190, 192–195, 200–202, 204, 207–208, 211, 214, 222–229, 231–233, 243 gender discrimination 187, 192, 200–206, 211, 214, 243

285

Index racial discrimination 88, 91, 94, 124, 139–140, 149 systemic and structural inequality 201 Dissemination of culture 12, 98, 111, 114–115, 152, 182 Distinction between minority and cultural rights 14–16 Distinctive culture test 127–130, 134–136, 162–165, 168–169 Diversity (see also pluralism) 1, 15, 27, 39, 51, 52, 61, 73, 75, 83, 103–104, 107, 109, 112, 117, 120–122, 128, 132, 139, 143–146, 150–151, 159, 161, 169, 172–173, 180–181, 194, 196–197, 217, 231, 246, 253 Dominance 184, 215, 239, 248 Dynamic 57, 59, 61, 70, 74, 79, 80, 82, 121, 152, 156, 177, 181–182, 185, 191, 215, 220, 223, 240–241, 248, 252–253, 258 Early pregnancy (see also Forced pregnancy) 187 Economic, Social and Cultural Rights 86, 97–103, 106–107, 114, 146 enforceability 3, 90 minimum core obligations 24, 101–102 progressive realizations 24, 101 right to adequate housing 165 right to education 12, 105, 108, 238 the justiciability of esc rights 90, 101, 161, 163 Economic survival 128, 137 Ecosystems 118 Education 2, 12, 14, 26, 89, 102, 105, 108, 110–101, 115, 119, 139–141, 144–145, 148, 150, 153, 159, 205–206, 208, 211, 214–215, 231, 238 Effective consultation 148 Empirical evidence 245 Environment 17, 36, 39, 40, 46, 49, 52, 55–57, 73, 81 Epistemology 256, 259 Equality/inequality (see also non-­ discrimination) 10, 88, 141, 188–189, 194,  196–198, 200–202, 207–210, 212–213, 222, 224, 229, 231, 237, 239 Ethnocentric/ethnocentrism 128 Exploitation 103, 148, 159, 182 Expropriation 126

Family violence 203, 209 Forced abortion 195 Forced pregnancy 203 Forced prostitution 195 Gas exploration 125 Gender 8, 41, 60, 66, 78–80, 190, 192–193, 201, 203, 107, 210–211, 216, 218–223, 226, 227–229, 234, 238–239, 243, 245–246, 253–258 Gender-inclusive 207 Gender roles 78, 80, 209–212, 215–216, 220 Gender violence 21–22, 25, 187, 191, 211–212 Globalisation and vernacularisation 20–21, 23, 28, 61 Group identity 72, 74, 76, 166, 179, 189, 233, 244, 248 Harmful practices (see Traditional Practices)  187–188, 192, 197–198, 202–206, 209, 211–212, 214, 217–218, 222, 255 birth practices 187 infanticide 187, 195–196, 204 selective abortions 204 son preference 187, 204 child-pledging 206 dowry and associated practices and crimes 187, 195, 203, 204, 209, 211 early marriage 187, 197, 204, 206, 209 female circumcision/female genital ­mutilation (fgm) 181, 187, 189, 195–197,   202, 204–205, 214 forced marriage 203, 209, 213 forced sterilisation 195 honour crimes and honour killings 196, 203, 206 inhumane rites 203 taboos 187 traditional attitudes (see also Stereotypes) 209 Trokosi 206 uvulectomy 206 widow practices 195, 203 witch-burning 203 Hegemony 61 Hierarchical political structures 44, 230 Holistic protection 118, 159, 182

286 Human behaviour 17, 26, 32, 35–36, 38–43, 46–51, 56, 62–63, 74, 80–83, 96, 106, 116, 154, 207, 209–212, 214–218 Human rights discourse 17, 19–20, 22, 42, 191, 222 Identity/identities 1–4, 6, 10, 18, 25, 31, 34, 45, 61, 67–68, 70–71, 73–82, 87, 89, 99, 103–105, 107–115, 117, 120–125, 127, 130–132, 135, 138–144, 146–147, 149–154, 157–158, 161, 166–168, 172–175, 179–180, 183–184, 188–191, 193–196, 199–200, 205, 210, 218–224, 226, 228–230, ­232–241, 243–246, 248–249, 253–235, 257 Features of identities  the fragmentary nature of ­identities 77–78, 223, 228, 233, 235 the intersectional nature of ­identities (see Intersectionality) the ­narrativisation of the self 75–77, 193, 220, 248 the relational nature of identities  77, 221, 240 the situational nature of identities  58, 230 multiple identities 193, 222, 228, 235, 237–238, 240, 243–245, 253, 255 performativity and the performance of  identities 62, 79–80, 218, 220–221, 230 Indigenous communities 1, 87, 123–124, 126, 128, 133–137, 155–156, 162, 170, 206, 221 Amazigh population 140 Awas Tingni 136–137 custodianship of land 123, 130 First Nations 129, 231, 234 indigenous children 206 indigenous populations 116, 118, 121, 123–124, 134, 147–148, 157, 162–163, 165–166, 172, 180, 184, 221, 230, 232, 234, 243, 250–251 indigenous way of life (see Culture, as a way of life) Maliseet Tribe 231 Rehoboth Baster 126–128, 162, 165 Romani 2, 149 Sami 126, 129–130, 149 territorial rights (see also Land and ­property rights) 118–119 Zapatista 221

Index Individual individuality 40–41, 63, 77, 215 personal autonomy (see also Agency) 40, 199, 215, 229 state of mind 78, 219, 254 subconscious 64 subjective experience 55, 61, 79–80, 220–221, 241, 243 Inequality (see also Discrimination) 194, 201, 207–210, 212, 222, 229, 239 Institutional barriers 197 Intellectual property 87, 100, 105 Interdisciplinary 5, 9, 24, 27, 29 Interethnic conflicts 74 Intergenerational relationships and transmission of cultural knowledge 123, 154 International Covenant on Civil and Political Rights 89, 91, 97, 192, 195, 200 Article 1 of iccpr 128 Article 2 of iccpr 202 Article 3 of iccpr 192, 194–195, 202, 237 Articles 18(2) and (3) of iccpr 237, 258 Article 19 of iccpr 142 Article 23(3) of iccpr 212 Article 27 of iccpr 9, 11, 90, 93, 125–126, 134, 136, 139, 141–142, 146, 148, 153, 162–163, 165, 168–169, 172, 187, 191, 194, 200, 205, 217, 232 Article 41 of iccpr 93 International Covenant on Economic, Social and Cultural Rights 16, 25, 86–87, 89,   97, 99, 108–109, 165, 192, 194–197,  200, 207 Article 2(1), (2) and (3) of icescr  101, 202 Article 3 of icescr 101, 194, 197, 202, 208 Article 4 of icescr 197 Article 7(a) and (b) of icescr 97 Article 8 of icescr 97 Article 9 of icescr 97 Article 10 of icescr 93 Article 11 of icescr 97 Article 12 of icescr 97 Article 13(3) and (4) of icescr 141 Article 15(1)(a) and (c) of icescr 11, 13, 86–87, 90, 98, 100–101, 105, 107, 109, 115, 130, 139, 152–153, 163, 166, 170, 176, 187, 191, 194, 198, 205, 217

287

Index International Labour Organisation ­Convention on Indigenous and Tribal Peoples Convention 1989 (No. 169) 26,   123, 134, 147, 153 Intersectionality 193, 220, 222–242, 254–245 anticategorical 224, 230 intersectionality (general) 193, 220, 22–31, 234–242, 254–255 matrix of domination 224 the additive model 223, 228–229, 240–241 the intercategorical model 224, 229 the interlocking model 228–229, 230–231 the intracategorical model 193, 224, 231, 234–236, 239–242, 254–255 Khmer Empire 173–174 Land 103, 105, 107, 118, 122–129, 132–134, 136–138, 146–147, 149–151, 155, 162–166, 174, 179–180, 182, 250–251 Land and property rights 133–134, 137, 164, 221, 226 Language 1–2, 10–11, 22, 26, 28, 30, 52, 65, 70, 74, 78, 80, 88–89, 93, 99, 101, 105, 114–115, 118, 120, 123–124, 132–134, 138–142, 144– 146, 149, 153–154, 158, 160–161, 170–172, 191, 194–195, 199, 205, 226, 238 Laos 174 Legal certainty 7, 161, 183, 251 Legal dichotomies 216–218, 236, 241, 245, 254 Legitimacy 18–19, 60, 72, 174 Liberal democracy 97 Marginalise/marginalisation 2, 23, 104, 131, 229 Masculine 221, 232 Mass communication 109 Meaningful consultations 148 Minorities (including ethnic, religious and linguistics minorities) 1–3, 9–12, 25,  70, 72–73, 87, 90, 93, 95, 99, 104–108, 114, 116, 118, 121, 125–126, 130, 136, 139–150, 153, 156–158, 161, 163, 166, 168, 170, 172, 175, 178, 205, 236, 252 Minority rights (see also Civil and Political Rights) 9, 11–12, 118, 187, 194 minority rights protection under the League of Nations 9

Minority treaties 141 Mobilise/mobilisation 21, 23, 33, 56–57, 59–60, 71, 74–75, 77, 82 Monolithic 82, 215–216, 218 Mother tongue 2, 140 Motivations 41, 59, 78, 117, 189, 214, 219, 255 Multiculturalism (see also Pluralism)  144–145 Multiplicity 159, 220–221 Nation-building 72–73, 179 Non-discrimination 9–10, 101–102, 105, 111, 114, 189–190, 192, 194, 202, 207, 225 National identity 72–73, 173 National security 237 Objectivity/subjectivity divide 50–52 Oppression 20, 209, 217–218, 223–224, 228–229, 239 Ownership 119, 123, 130, 137–138, 174 Paradigm shifts 19, 30, 247 Patriarchal values 22, 212, 218 Patrilineal 232–253 Performance 27, 55, 56, 61–63, 69, 74, 79, 88, 95, 114–145, 218, 220, 230, 232–233 Permanent Court of International ­Justice 10, 141 Personhood (see also Self, Agency) 7, 19, 23, 34, 61, 80, 160, 218 Persons with disabilities 88–89, 91, 99, 104, 114, 131, 227 Pluralism 112, 144 Political life 133, 153, 156, 199 Political or cultural autonomy 149, 150, 179 Political participation 11, 111, 150, 157, 211, 226 Popular participation 105, 110, 113 Power dynamics 185, 220, 252–253 Praxis 61, 78 Preah Vihear Temple 173 Preservation 17, 51, 71, 98, 108, 115, 120, 122–124, 130–131, 139–142, 146, 149–150, 152, 159,176–177, 181–182, 190, 233–234, 252, 257, 268–270 Privatisation of land, goods and ­services  103, 126, 133, 162, 167

288 Proportionality test 130 Psychological health 203 Psychology 33, 38, 155 Quasi-legal procedures, systems and ­traditions 44, 96, 181 Radical historicization 77 Redevelopment 167–169, 251, 253 Religious attire 189, 137 Religious symbols 58, 236, 238, 240 Remedy 94, 179, 223, 227 Representations 23, 33, 48–50, 61, 64, 67, 69–70, 77–80, 148, 177, 217, 241–242 Reproductive rights 221, 234–235, 244 Resistance 78, 191, 217, 219, 228, 242 Restitution of land 123, 133–134 Rule of law 86 Rules and norms 47, 56, 62, 65–66 Self-determination 11–12, 29, 118–119, 128, 148, 180 Self-development 152 Self-governments 150–181 Self-otherness 60, 82 Sense of self 7–8, 61, 67, 78–79, 221 Sexuality 66–67, 221, 228–229, 233 Single-axis differentiations 222–224, 228 Social life 6, 7, 45–46, 77, 86, 88, 160, 167, 169, 219, 247, 250 collective action 56–59, 60 social arrangements 67 social construction 80, 201 social expectations 79, 253 social experience 66, 79 social pressure 199 social processes 32–33, 40, 53, 56–57, 59–60 social realities 73, 244, 258 social strata 109, 220 social structure 33, 43, 45, 47, 51, 53, 59, 82, 174 socialisation 34, 39, 41, 42, 50, 211, 215 Society 3, 18, 22, 31, 32, 35–40, 42–46, 51, 53, 58–59, 65–66, 77–78, 81, 104, 112, 116–117, 122, 125, 131, 145, 147, 149, 154–155, 175, 180, 186, 199, 204, 207–209, 220, 239, 247 Soft documents 24

Index Sovereignty 10, 173 Sports 63, 88, 106, 132, 160 State-owed enterprises 124 Stereotypes 41, 60, 187, 192, 194, 201, 203, 208–209, 211–212 Strategy/Strategies 22–23, 25, 63–64, 73, 82, 177, 198, 214, 216 Structural relationships and hierarchies 60, 77, 230 Subjectivity 8, 34, 50–52, 61, 78–79, 81, 193, 219, 229, 239–241, 244, 248–249, 255 Subordination 215–216 Thailand 148, 173–174 Third-world 222 Traditional practices (see Harmful ­practices) 129, 186–187, 198, 200,  202–203, 205–206, 208–209, 240, 248 niqab/headscarf/burqa/veiling 189, 199, 217, 235, 237–239, 243, 255 polygamy 195, 197, 203, 213 Trafficking of women 195 Transformative equality (see also Discrimination) 201 un Charter 14, 86 un Human Rights Treaty Bodies 5–9, 12, ­15–17, 22, 24–25, 83, 85, 87, 89–93, 95–98, 101, 106–107, 112, 125, 127, 133, 139–142, 145, 148, 151, 153, 157, 158, 160, 162, 172, 176–186, 190, 192–194, 198–200, 202–204, 206–207, 209–210, 212, ­214–215, 217, 221–222, 224, 227, 231, 236–237, 240–246, 249–250, 252, 255–257, 259 Commission on Human Rights 18, 85–86, 107–108, 137 Committee against Torture (cat) 94 Committee on Economic, Social and ­Cultural Rights (cescr) 8, 10–12, 16–17,   26, 89, 92, 97–104, 106, 113–115, 117, 123–   124, 131–134, 137–141, 143–148, 150–158,   160, 162, 165, 168–171, 176–180, 192–194,   196–199, 203–204, 207–210, 214, 217,   226–227, 236, 244, 249, 255 1990 Revised Guidelines 98, 100, 105, 113, 143, 151, 178 2008 Reporting Guidelines 100, 105, 113, 143, 151, 178

Index Day of General Discussion 16, 26, 99, 108, 146–147 General Comment No.5 of the ­c escr 99, 114 General Comment No.6 cescr 114 General Comment No.16 of the ­c escr 197, 208, 210, 226 General Comment No.17 of the cescr 100 General Comment No.21 of the cescr 16–17, 100–101, 103–104, 114–115, 123–124, 131–134, 137–138, 141, 143–144, 146, 150, 152, 153–158, 160, 166, 168–172, 176–177, 179, 192–193, 196–199, 207, 217–218, 236, 244, 255 Committee on Migrant Workers 89 Committee on the Elimination of ­Discrimination Against Women (cedaw) 21, 25, 201–204, 206, 209,   211–214, 224–225 General Recommendation No.14 of cedaw 203, 212, 214 General Recommendation No.19 of cedaw 201, 204, 209 General Recommendation No.21 of cedaw 213, 209 General Recommendation No.23 of cedaw 209 Committee on the Elimination of Racial Discrimination (cerd) 94, 114–115, 124, 130, 132–134, 139–140, 142, 145, 147–150, 227 General Recommendation xxi of cerd 148–149 General Recommendation xxv of cerd 227 General Recommendation xxiv of cerd 139 General Recommendation xxiii of cerd 124, 133–134 General Recommendation xxx of cerd 140 Committee on the Rights of the Child (crc) 89, 95, 99, 145, 203–204, 206–207,   209, 211, 214, 227, 238 General Comment No.1 of crc 145 General Comment No.4 of crc 206, 209, 211, 214

289 General Comment No.8 of crc 96 General Comment No.9 of crc 227 General Comment No.11 of crc  206, 211 constructive dialogue 92, 178, 210 Early warning procedures 94–95, 133 enquiry procedure 94 Human Rights Committee 10–11, 89–90, 93, 125–130, 133–136, 141–143, 147–149, 155–156, 159, 162–163, 165–166, 166–169, 172, 192–196, 198, 202, 207–210, 212–214, 218, 226–227, 231–232, 235–238, 241, 255, 257 General Comment No.19 of hrc 212 General Comment No.23 of hrc ­10–11, 93, 125, 136, 141, 147–148, 195, 198, 202 General Comment No.28 of hrc  192, 194–196, 207–208, 214, 226, 237 individual communications 14, 24, 93, 96, 99, 125, 127, 129, 133, 159, 162, 166, 193, 224, 231, 242, 245, 257 interstate communications 93 optional protocol 25, 91, 93, 99 periodic reports 93, 98 periodic review 92, 95 preventive procedure 94 shadow reports 92 significance of the work on state practice 95–96 urgent actions 94–95, 133 working methods 92–96 un Independent Expert in the Field of ­Cultural Rights 186, 235 un Permanent Forum on Indigenous Issues (unpfii) 180, 186 un Special Rapporteur on Traditional ­Practices Affecting the Health of Women and Children 187 un Special Rapporteur on Violence against Women, its Causes and ­Consequences 188, 218 un Sub-Commission on Prevention of ­Discrimination and Protection of ­Minorities 3, 9, 118, 180 un Working Group on Indigenous ­Populations on the Situation of Human Rights and Fundamental Freedoms of Indigenous People 123

290 United Nations Declaration on the Rights of Indigenous Peoples 9, 123, 153 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 9 United Nations Education, Science and ­Culture Organisation (unesco) 3, 13–17,   19, 24, 27, 28, 86, 108–113, 116–117,   119–112, 151, 168 1954 Convention for the Protection of ­Cultural Property in the Event of Armed Conflict 119 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Export, Import and Transfer of ­Ownership of Cultural Property 119 1966 Declaration on International Cultural Cooperation 16, 110 1968 unesco Conference of Experts on Cultural Rights 109, 116 1976 Recommendation on ­Participation in Cultural Life 16, 109–112, 152–153, 156 1982 Mexico City Declaration 111, 116–117, 120, 155 1989 Recommendation on Traditional Culture and Folklore 120–121 2001 Universal Declaration on Cultural Diversity 11, 112–113, 117, 121–122, 132, 168,   196, 198

Index 2003 Convention on Intangible Cultural Heritage 120–121 2005 Convention on Cultural Diversity  121–122 Our Creative Diversity 3, 27, 117, 159 Universal Declaration of Human Rights (udhr) 6, 1–4, 18, 85–86, 91, 97–98, 107,   109, 111 Universalism 18–19, 22 Value orientations 32, 53, 76, 81, 247 Violence against women 188, 195, 203, 209, 218 Violence and coercion 40, 94, 187, 188, 191, 195, 199, 201, 203, 205, 209, 211 Violent conflicts 59–60 Vulnerable groups 21, 88–89, 91, 100, 114 Water 100, 123, 128, 150–151 Women 7, 21, 53, 78, 88, 91, 104, 114, 187–190, 192, 194–204, 207–224, 226–227, 229–231, 233–234, 236–240, 243–245, 253–255 Women’s rights (see also Convention on the Elimination of All Forms of Discrimination Against Women) 7, 187, 190, 202,   207, 216–218, 221