Module 4: Cultural Rights – Traditional Rights vs. Human Rights
The conception of human rights dates back to the work of John Locke (1632-1704). In contrast to the reigning political philosophy of the time, he argued that political authority rests not the “divine rights of the kingdom” but instead with the individual who is endowed by “the creator” with certain inalienable rights. These transcendental or inalienable attributes form the foundation of human rights. His work could also be seen as one of the origins for secular liberalism. While he had strong religious beliefs, he argued in favor of the separation of church and state. Issues of religious consciousness could not be coerced by the state.
The British sociologist T. H. Marshall (1893–1981) further elaborated notions of rights and citizenship understood as basic human equality stemming from one’s membership to a group. Citizenship is broken down into three elements:
Civil rights (1700s): basic liberties/rights, i.e. freedom of speech, religion, own property, justice, equality before the law, sign contracts, and right to choose one’s own occupation. This relates to the work of John Locke.
Political rights (1800s): right to participate in politics, choose elected officials, vote, etc.
Social rights (1900s): right to a modicum of economic welfare, security, and share in social heritage as a civilized being according to the prevailing standards of society (i.e. access to education & social services).
In Marshall’s view, social citizenship ameliorates the inherent social inequalities embedded in the capitalist production system. While we may receive unequal pay we still achieve a certain level of equality based on our membership in a political community due to guaranteed access to education, social services, holiday time, etc. Cultural rights were thus embedded in his expansive notion of economic and social rights. Irrespective of our class position, we should have access to them.
Whereas citizenship rights à la Locke and Marshall emphasized sets of rights at the nation-state level, human rights have a distinct international flavor. Some scholars argue that human rights are merely an extension of citizenship rights to the global level. Typically, we associate human rights with gross human rights violations and human rights work withAmnesty International or Human Rights Watch. Their focus tends toward freedom from being tortured, imprisoned or killed by agents of the state. These are considered negative rights in that they define what states should not do to people. These include protections against torture, incarceration without due process, seizing property, freedom of religion, etc. But human rights also represent positive rights, or what states should do for their citizens. These positive rights are associated with the work of T.H. Marshall.
While there are indeed many similarities between human rights and citizenship rights, especially in terms of their claim-making, there are some key distinctions. Human rights tend to represent a universal moral code that transcends the nation-state and grounded in shared notions of human dignity found in all religions or secular moral codes, whereascitizenship is based rooted ideas of membership in a political community based around the idea of a nation-state. Citizenship is the relationship between the individual and the state and involves sets of rights and obligations. For example, you pay your taxes and participate in the political system. Human rights tend not to have the same set of duties by the state and obligations of the individual or group as citizenship rights since the operate a worldwide moral code.
In sum, we can call human rights as social claims for expanding human dignity.
Cultural rights are probably the most difficult to articulate and present unique challenges for rights activists. According to the Human Rights Resource Center, three distinct problems with defining and claiming cultural rights include the following:
“Addressing cultural rights can be contentious in part because cultural rights are intimately related to these values to what we believe is important and what unimportant, what is good and what bad. Furthermore, in order to understand cultural values in a specific context (and it is difficult to consider cultural values outside of a specific context), it is essential to understand the often subtle differences between cultural values and religious ideas.”
“Cultural values are intimately related to our sense of identity. Challenges to our culture thus become challenges to the integrity of each of us as a person and to the values that are closest to our hearts. They threaten our understanding of ourselves and of our world. As a result, challenges to culture generate strong, emotionally charged, survival responses.”
“[A]ddressing cultural rights is complex because culture has historically been bound up with questions of power. Throughout human history, dominant cultures in all parts of the world have imposed or tried to impose their own patterns of thought, speech and action on the peoples they have encountered or on weaker members of their own societies. As a result, issues of culture and cultural rights are often associated with historical grievances arising from these impositions.”
Article 27 of the 1948 Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights – A/RES/21/2200 provide definitions of cultural rights:
Article 27 of the Universal Declaration states:
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.
Article 15 of the ICESCR, adopted in 1966, is not much more expansive. It says in part:
1. 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.
Still, cultural rights can often be in conflict with other rights, including the rights of minorities, rights of self-determination, rights to housing, political and civil rights, social rights, rights to development, among others.
UN Human Rights Council
There are a number of United Nations’ bodies, organizations, and special rapporteurs who are responsible for proposing, reporting, and clarifying rights claims. Chief among them is the UN Human Rights Council, composed of 47 countries elected by the UN”s General Assembly meets at the UN’s offices in Geneva. The Council replaced the former United Nations Commission on Human Rights and is distinct from the Office of the High Commission on Human Rights, which works with the Council but is apart of the UN secretariat.
Special Procedures of the Human Rights Council include the appointment of special rapporteurs, or “independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective.” There is even a special rapporteur on cultural rights.
Traditional Values as a Human Right
Most recently, the Human Rights Council is considering a draft resolution (A/HRC/21/L.2) entitled Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind: best practices. The countries sponsoring this draft resolution include the following: Angola, Belarus, China, Cuba, Democratic People’s Republic of Korea, Ecuador, Kyrgyzstan, Malaysia, Myanmar, Pakistan (on behalf of the Organization of the Islamic Cooperation), Russian Federation, Sri Lanka, Syrian Arab Republic, Uzbekistan, Venezuela (Bolivarian Republic of), and Viet Nam. Specially, the resolution argues that “traditional values, especially those shared by all humanity, can be practically applied in the promotion and protection of human rights and upholding human dignity.” The Russian Federation argues the following:
We think that no state or group of states has the right to monopolize interpretation of human rights regulations. Attempts to advance one-dimensional interpretation under the guise of the versatile standard perilously tell on people’s attitude to the mere concept of human rights making it foreign for entire communities and population strata. On the other hand, human rights doctrine will only benefit if it absorbs elements of different cultures. It will become not only truly generally accepted.
Many human rights groups disagree and see the proposal as means to restrict rights.
The UN’s peak human rights body must unequivocally clarify that under no circumstances can human rights be restricted to protect so-called ‘traditional values’, the International Service for Human Rights said today.
“Traditional values often impose patriarchal, mono-cultural norms that discriminate against minority and marginalised individuals, be they indigenous people, persons with a disability, individuals with a non-conforming gender identity, or religious minorities,” said Heather Collister of ISHR.
If you were to Google “human rights and traditional values” you will find similar declarations from other human rights groups. Which side do you think is correct?
Brittany Kühn reviews some of the substantive issues related to issue of traditional rights vs. human rights. She explores the following cases:
1. Case Study: Polygamy—Women’s Rights vs. Traditional Practices
2. Case Study: Rites of Passage—Children’s Rights vs. Traditional Practices
3. Case Study: Faith Healers—Health Rights vs. Traditional Practices
“Everyone has a right to dignity, but universality is not a “one size fits all” Prescription (sic). Variations within each society demonstrate the need for a more adaptive framework that translates to each unique language and cultural setting…Instead of pushing against steadfast opposition, advocates must get to the root of why universal policy conflicts with traditional ideologies in the first place. By carefully, sensitively, and honestly deconstructing cultural priorities, human rights advocates can provide tools that allow individuals to implement their own methods of change.”
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