Cultural Rights Research Paper

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The term cultural rights refers to a claimed entitlement on the part of identity groups—typically based on religion, ethnicity, language, or nationality—to be able to express and maintain their traditions or practices. Such an entitlement usually implies some form of political or legal recognition. Cultural rights have developed as a distinct set of rights claims particularly since the 1960s, and then largely in light of the experience of cultural minorities—such as indigenous peoples, substate nationalities, and immigrant groups—living in a state or society that is characterized by a dominant culture. “Cultural rights” thus figure prominently in discussions of national minority rights and multiculturalism. Nevertheless, cultural rights are commonly understood as a universal human right, one that recognizes the fundamental importance of a sense of cultural identity, membership, and shared values to human wellbeing and flourishing.

The political and legal recognition associated with cultural rights may take various forms. Such recognition may be symbolic, as when a state includes the symbols of one or more of its minorities in the national flag or observes a minority holiday as a public holiday. It may involve accommodation of specific minority cultural practices, such as granting exemptions from generally applicable dress codes to members of religious minorities who wish to wear their special clothing. It may concern the public subsidization of cultural groups—through direct grants or tax relief—so that they might better preserve their cultural heritage and community life. It may encompass intellectual-cum-cultural property rights that compensate groups for the use of their artifacts, land, or participation. Recognition may also include allowing citizens to hold dual or multiple citizenships, admitting cultural defense in criminal proceedings, or granting cultural or linguistic autonomy to particular groups to run their own educational and cultural institutions in their own languages. Finally, cultural recognition may be overtly political in the sense of granting special political representation or even political autonomy or self-government to particular cultural groups.

As these examples suggest, cultural rights should be distinguished from rights to nondiscrimination and affirmative action policies, which also relate to group membership. Where antidiscrimination legislation seeks to preclude, and affirmative action seeks to redress, the prejudicial denial of offices and opportunities to individuals on the basis of their background group characteristics, cultural rights are concerned with enabling cultural groups or their members to express and maintain their cultural attachments. Nevertheless, an important historical and conceptual connection between antidiscrimination legislation and cultural rights has been the growing recognition among human rights bodies and governments since the 1970s that generally applicable laws can adversely affect members of cultural minorities unintentionally. So some antidiscrimination provisions implicitly recognize the right to cultural liberty by seeking to remove unintended obstacles to cultural observance.

Cultural rights remain controversial in political theory and practice. A major reservation historically has been that cultural rights undermine the cultural unity of the nation-state and threaten its political integration. In fact, very few nation-states are culturally homogeneous, and not recognizing cultural minorities often promotes political conflict and instability. Another widespread concern is that cultural rights sanction cultural relativism or the notion that all cultural practices are equally valuable or legitimate. A related worry is that cultural rights compromise the individual rights of the cultural group’s members, especially those most vulnerable, such as women and children. Such criticisms have force where cultural rights are asserted or recognized in the name of preserving cultural identity. However, cultural rights also have been formulated as human rights on the basis of liberal principles of individual liberty and equality and, in this case, oppose cultural relativism. For example, an individual right to the free exercise of culture does not sanction cultural practices such as female genital mutilation that seriously harm particular members, or that are imposed on members against their will, as in the case of coercive or even arranged marriages. In any case, cultural rights claims are subject to the laws and governing public values of the state, as adjudicated by state authorities. In the case of liberal democracies, this qualification typically means that the fundamental rights of the individual are protected over the claims of the group.

Cultural rights have been recognized in various international protocols and legal instruments. The 1948 Universal Declaration of Human Rights states that “everyone, as a member of society” is entitled to “cultural rights indispensable for his dignity and the free development of his personality” (Article 22). Article 15 of the International Covenant on Economic, Social, and Cultural Rights (1966) recognizes the right to “take part in cultural life,” and Article 27 of the International Covenant on Civil and Political Rights (1966) asserts the right of “persons belonging” to “ethnic, religious, or linguistic minorities” to “enjoy their own culture, to profess and practice their own religion, or to use their own language.” The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities (1992) stipulates further that such persons have the right to enjoy their own culture “in private and in public,” and that states “shall take measures to create favourable conditions to enable” individuals to exercise their cultural rights (Articles 2 and 4). Although not binding, a major United Nations research report, The Human Development Report 2004: Cultural Liberty in Today’s Diverse World, helpfully addresses the major issues and concerns surrounding cultural rights by incorporating them into a broader human development framework.

Bibliography:

  1. Kymlicka, Will, ed. 1995. The Rights of Minority Cultures. Oxford, U.K.: Oxford University Press.
  2. Shweder, Richard, Martha Minow, and Hazel Rose, eds. 2002. Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies. New York: Russell Sage Foundation.
  3. United Nations. 1948. Universal Declaration of Human Rights. www.un.org/Overview/rights.html.
  4. United Nations. 1992. Office of the High Commissioner for Human Rights. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities. http://www.ohchr.org/english/law/minorities.htm.
  5. United Nations Development Programme. 2004. The Human Development Report 2004: Cultural Liberty in Today’s Diverse World. New York: Author.
  6. United Nations Treaty Body Data Base. http://www.unhchr.ch/tbs/doc.nsf.

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