Cultural Diversity and Cultural Identity in Human Rights

Yvonne Donders, Amsterdam

The Concept of Culture

Culture is a concept of which the dynamics and complexity do not easily translate into legal (human rights) norms. It is not an inactive notion, but something that can develop and change over time. Cultures are not static, but dynamic; they are not end products, but processes, without well-defined boundaries and influenced by internal and external interactions. The concept of culture can refer to many things, varying from cultural products, such as arts and literature, to the cultural process or culture as a way of life. Culture has an objective dimension reflected in visible characteristics such as language, religion, or customs, and a subjective dimension reflected in shared attitudes, ways of thinking, feeling and acting. In addition, cultures have both an individual and a collective dimension. Cultures are developed and shaped by communities. Individuals identify with several cultural communities – ethnicity, nationality, family, religion, etc. – and in that way shape their personal cultural identity (Donders, 2010, p. 15).

Culture is considered to be important for both individuals as well as communities, as an important aspect of their identity, existence and dignity. Or, to put it in the words of the World Commission on Culture and Development: ‘culture shapes all our thinking, imagining and behaviour. It is the transmission of behaviour as well as a dynamic source for change, creativity, freedom and the awakening of innovative opportunities. For groups and societies, culture is energy, inspiration and empowerment.’ (World Commission, 1995, p. 11)

At the same time, culture is not an abstract or neutral concept: it is shaped by its instrumentalisation, in which negotiation, contestation and power structures play a role. Culture is not necessarily an intrinsically dignified concept. It may be a mechanism for exclusion and control. Culture may harm people or be oppressive to them and hinder their personal development. Some harmful aspects of culture reflected in cultural practices are very questionable from a human rights perspective (Donders, 2010, p. 15–16).

The broadness, complexity and sensitivity of the concept of culture have been the crucial challenges in the transformation of this concept into legal human rights norms. An important question in this respect is who decides to what extent cultural diversity should be promoted and which cultural aspects should be protected? As cultures are not static but dynamic, which interpretation of a certain cultural practice or activity, should be accepted? The creation and evaluation of cultural laws and policies requires a multi-stakeholder process, involving not only state actors but ensuring also proper representation and participation of cultural communities and individuals.

Cultural Diversity and Cultural Pluralism

Cultural diversity is defined in Article 2 of the UNESCO 2005 Convention as ‘the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies. Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used.’ It is worth noting that states have chosen to include and define cultural diversity in an international instrument that has primarily an economic feature, not a human rights one (Donders 2015). It does not give rights to individuals and communities, but is intended to ‘reaffirm the sovereign rights of states to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory’ (Article 1h).

Cultural diversity describes the factual situation of existing cultural differences. It is an umbrella notion that might cover different levels: between individual states, regions, communities and individuals, but also within states, regions and communities.

Cultural diversity should be distinguished from the related notion of cultural pluralism. The difference and the connection between cultural diversity and cultural pluralism are explained in the Universal Declaration on Cultural Diversity. Article 2 states that ‘cultural pluralism gives policy expression to the reality of cultural diversity’. In other words, cultural diversity, also termed ‘plurality’, reflects a factual situation. Cultural pluralism refers to the way cultural diversity is appreciated and translated into laws and policies. The term ‘pluralism’ is also used to describe differences in legal systems and procedures, or in institutional structures between and within states. Cultural pluralism implies that cultural diversity is considered to be a desirable and socially and politically beneficial condition (Donders, 2012, p. 9).

The →ECtHR has systematically maintained that pluralism is crucial for democratic societies. It has stated that ‘the existence of minorities and different cultures in a country is a historical fact that a democratic society has to tolerate and even protect and support according to the principles of international law’ [SIDIROPOULOS, 1998, paras. 41 and 44). It has furthermore stated that the state should not oppose possible tension between different communities by eliminating pluralism, but should ensure that different communities tolerate each other [SERIF, 1999, paras. 39, 45 and 50).

Pluralism implies that individuals and communities are given the opportunity to maintain their specific →cultural identity, provided that it is consistent with the laws, policies and values of the wider society. Consequently, although cultural diversity is the term mainly used in relation to human rights, what is often meant is cultural pluralism.

Cultural Diversity within Universalism

Human rights and cultural diversity have been discussed extensively in the context of the →universalism and cultural relativism debate. Moving beyond the traditional deadlock between these two extremes, the idea has taken hold that respect for cultural diversity can very well be consistent with the notion of the universality of human rights. Cultural relativism, in the sense of asking for respect for cultural diversity, not of challenging the legitimacy of international human rights norms as such, and universalism do not have to mutually exclude each other.

Firstly, formal universalism, or the universality of the subjects of human rights, does not present problems. The idea that human rights should be universally enjoyed – by all persons on the basis of equality – is not very controversial. No one will argue that some people in the world do not have any human rights at all. International human rights instruments clearly endorse this universal approach. The UDHR, for example, not only refers to universalism in its title, but also states in Article 1 that ‘all human beings are born free and equal in dignity and rights.’ The UDHR as well as the international human rights treaties speak of ‘everyone’, ‘all persons’ or ‘no one’, affirming that all human beings have these rights and freedoms, no matter where they were born or to which community they belong.

The universal value and application of human rights does, however, not necessarily imply the uniform implementation of these rights. In other words, while human rights apply universally to everyone on the basis of their human dignity, the implementation of these rights does not have to be uniform. The ECtHR has adopted this approach by stating that, while the purpose of the ECHR was to lay down international standards, ‘this does not mean that absolute uniformity is required’ [SUNDAY TIMES, 1991, para. 61]. Scholars have called this ‘the universalisation of human rights’ (Advisory Commission, 2008), the ‘relative universality of human rights’ (Donnelly, 2007), ‘inclusive universality’ (Brems, 2004) or the ‘culturalization of human rights’ (Lenzerini, 2014); the main idea being that while human rights apply universally, they do not have to be implemented in a uniform way. Human rights promotion and protection imply respect for and advancement of cultural diversity and cultural identities.

Cultural Diversity within Equality

Respect for cultural diversity has always been part of the human rights discourse. However, in developing international human rights law, states at first mainly emphasised the principle of →equality. Equality between them as sovereign states and equality as the basis for the enjoyment of rights by different individuals and communities within states. Although diversity was recognised as a fact, it was maintained that human rights should first and foremost promote and protect equality. This emphasis on equality formed the starting point for the UDHR (Donders, 2002, p. 163–166).

During the drafting processes of the various human rights treaties adopted afterwards, cultural diversity was increasingly emphasised as a value to be respected and promoted. This was broadly done in two ways: by developing the equality concept, acknowledging that it also implies the right to be different, and by adopting specific rights promoting and protecting cultural diversity.

Firstly, it was recognised that respect for cultural differences can be fully in line with the principle of equality. Having equal rights is not the same as being treated equally. Indeed, equality and non-discrimination not only imply that equal situations should be treated equally, but also that unequal situations should be treated unequally. International treaty bodies have maintained that ‘the enjoyment of rights and freedoms on an equal footing...does not mean identical treatment in every instance’ (HRCee, General Comment 18, 1989, para. 8; [THLIMMENOS, 2000, para. 44]; [D.H. AND OTHERS, 2006, para. 44]). Legal doctrine distinguishes in this regard between ‘differentiation’, ‘distinction’ and ‘discrimination’. Differentiation is difference in treatment that is lawful; distinction is a neutral term which is used when it has not yet been determined whether difference in treatment is lawful or not; and discrimination is difference in treatment that is arbitrary and unlawful (Bossuyt, 2002, para. 91). Consequently, only treatment that results in discrimination is prohibited. Difference in treatment is allowed as long as the criteria for differentiation are reasonable and objective and serve a legitimate aim.

Difference in treatment may also involve affirmative or positive action to remedy historical injustices, social discrimination or to create diversity and proportional group representation (HRCee, General Comment 18, 1989, para. 10). This also follows from Article 1(4) of the International Convention on the Elimination of Racial Discrimination, in which it is stated that ‘special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’

Cultural Diversity and Cultural Rights

Apart from respect for diversity within the equality principle, many international human rights instruments include rights that specifically promote and protect cultural diversity. These rights are broadly classified as ‘cultural rights’. Cultural rights are human rights that directly promote and protect cultural interests of individuals and communities and that are meant to advance their capacity to preserve, develop and change their cultural identity. While cultural rights may have particular interest and relevance for certain communities, such as minorities and indigenous peoples, and special regimes including cultural rights for these communities have been established, cultural rights as human rights are in principle for all. As such they truly echo the importance of cultural pluralism in international human rights law. They are rights protecting and promoting cultural objects as well as cultural subjects, including communities and individuals. Cultural rights accordingly represent the indivisibility and interrelationship of all human rights and they are individual as well as collective rights (Donders, 2012, p. 15).

But which rights are cultural rights? Although cultural rights are mentioned in the title of the ICESCR, the text of this treaty does not make clear which provisions in the treaty belong to the category of cultural rights. In fact, none of the international legal instruments provides a definition of ‘cultural rights’. Consequently, different lists could be compiled of international legal provisions that could be labelled ‘cultural rights’. Such provisions can be found in human rights instruments, but also for instance in international instruments on cultural heritage. The link between cultural heritage and human rights is increasingly recognised, for instance in the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003). Here we focus on cultural rights in international human rights instruments.

Firstly, cultural rights include international human rights provisions that explicitly refer to ‘culture’. Examples are the right of everyone to participate in cultural life (Article 27 UDHR and Article 15(1)(a) ICESCR) and the right of members of minorities to enjoy their own culture, practise their own religion and speak their own language (Article 27 ICCPR). Explicit cultural rights can also be found in various instruments on the rights of minorities and indigenous peoples. Secondly, cultural rights include those human rights provisions that have a direct link with culture. It might be defensible to claim that almost every human right can be linked to culture. However, the rights with the most obvious link are the right to self-determination, the rights to freedom of religion, freedom of expression, freedom of association, and the right to education. The ECtHR has, for instance, recognised that artistic or →literary expressions such as novels, poems and paintings fall within the scope of freedom of expression [MÜLLER AND OTHERS, 1988; VEREINIGUNG BILDENER KÜNSTLER, 2007; ULUSOY, 2007; KAR AND OTHERS, 2007; EKIN ASSOCIATION, 2001; AKDAS, 2010] and that the right to freedom of association also protects cultural organisations [SIDIROPOULOS AND OTHERS, 1998; STANKOV AND THE UNITED MACEDONIAN ORGANISATION ILINDEN, 2001; GORZELIK AND OTHERS, 2001].

Apart from human rights explicitly or directly related to culture, it appears that many human rights have a strong cultural dimension. Although some human rights may at first glance have no direct link with culture, most of them have important cultural implications. The right to health, for instance, may have important cultural connotations as far as certain treatments, the use of certain (traditional) medicines or the availability of male and female doctors is concerned. Culture also plays a decisive role in sexual and reproductive health, in which information and education are crucial. The Committee on Economic, Social and Cultural Rights has recognised in its General Comment 14 that the right to health includes that ‘all health facilities, goods and services must be...culturally appropriate, i.e., respectful of the culture of individuals, minorities, peoples and communities.’ Another example is the right to adequate →food. The preparation and consumption of food have a clear cultural connotation. The importance of the cultural dimension of food is also shown by the fact that several food traditions, such as French cuisine, the Mediterranean diet, and the traditional Mexican kitchen, have been recognised as intangible cultural heritage under the UNESCO Convention. The Committee on Economic, Social and Cultural Rights has stated in its General Comment 12 that guarantees concerning the right to food should be culturally appropriate and acceptable.

Many civil and political rights also have a cultural dimension. For instance, the right to a fair trial includes the right to be informed of the charges in a language that one can understand, as well as the right to free assistance of an interpreter if a person cannot understand or speak the language used in court and such translation needs to be adequate. Specific ways of living related to culture, such as living in a caravan, which is the traditional way of living of →Roma or gypsies, may fall within the scope of the right to respect for private life and home [BUCKLEY, 1996; CHAPMAN, 2001; WINTERSTEIN, 2014). In respecting and protecting these rights, states have to actively find ways to accommodate cultural diversity, while at the same time balancing the different interests of individuals, communities and society at large. It is crucial that states make such processes transparent and inclusive, by informing and closely involving the affected individuals and communities.

Cultural Diversity and the Margin of Appreciation

States are allowed and are sometimes required to take national, cultural circumstances into account when they implement international human rights law, to accommodate cultural diversity between states, but also to balance different cultural interests within states. However, giving states unlimited freedom to interpret and implement international human rights law in totally different ways, would undermine the universal character and application of the norms and would lead to unacceptable differences in rights protection for different individuals and communities. Therefore, the states’ discretion in implementing international human rights law is supervised by national and international bodies that have various mechanisms at their disposal and use various techniques to define the boundaries within which international human rights law should be implemented. One example is the doctrine of the margin of appreciation.

The →margin of appreciation or margin of discretion refers to the room for manoeuvre national authorities have in fulfilling their obligations under international human rights law. It is most developed in the European context by the ECtHR. The Court expressed this position for the first time in the [HANDYSIDE, 1976] case, arguing that there is no uniform European conception of morals and that the view on this in states parties varies and may change. Therefore, the Court found that ‘state authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the necessity of a restriction’ [HANDYSIDE, 1976, para. 49). The ECtHR should only intervene if it clearly finds that the state party has failed in that effort.

Some see the margin of appreciation doctrine as a danger to the universality of the norms (Benvenisti, 1998–1999). Others (Sweeney, 2005; Donders, 2012) consider the margin of appreciation as a valuable means for international supervisory bodies to allow states to diversify in the implementation of international human rights. This should, as is also emphasised by the bodies themselves, always go hand in hand with international supervision, to make sure that national implementation and supervision meet minimum standards. Also, the supervisory bodies should ensure that the use of the margin of appreciation does not merely protect majority interests in a state (Benvenisti 1998–1999, Brems, 2010).

Cultural Diversity and Harmful Cultural Practices

While international human rights law promotes and protects cultural diversity, it cannot serve as an excuse to justify harmful (cultural) practices that are in conflict with or limit the enjoyment of human rights. Cultural practices are very diverse, which makes it impossible to make general, abstract statements about their acceptability in relation to human rights. However, it should be emphasised that respect for cultural diversity cannot be a justification for systematic denial of human rights (Donders, 2010, p. 31; Donders, 2012, p. 23). This was also clearly laid down in the Universal Declaration on Cultural Diversity (Article 4) and the UNESCO 2005 Convention (Article 2(1)): no one may invoke cultural diversity in order to infringe upon human rights as guaranteed by the UDHR and by international law, or to limit the scope thereof.

It should however be noted that harmful cultural practices are often formally prohibited by national laws. Even so, they may be practised, and sometimes even condoned by states. This shows that law alone cannot solve all issues and cannot by itself change cultural practices. Changes in cultural practices are most successful if they arise within the cultural community itself and are not imposed from outside, by law or by the state. This does of course not relieve states from the responsibility to find ways to promote such changes, in close cooperation with cultural communities.

Several human rights treaties emphasise the role of the state in eradicating harmful cultural practices. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), for example, states in Article 5 that ‘States Parties shall take all appropriate measures: (a) To 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 the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.’ The Convention on the Rights of the Child (CRC) contains in Article 24(3) that ‘States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.’

Several →UN Treaty Bodies with monitoring tasks have also emphasised the role of the state in eradicating cultural practices that are against human rights. The HRCee has listed a number of harmful cultural practices as violations of human rights, including female infanticide, widow burning and dowry killings as violations of the right to life; forced abortion, forced sterilisation and forced genital mutilation as violations of the right not to be subjected to inhumane and degrading treatment; and forced male guardianship as a violation of the freedom of movement (HRCee, General Comment 28, 2000, para. 5). The treaty bodies on the rights of women and children have adopted a joint recommendation on harmful practices, in which they list FGM, child and forced marriages, polygamy and honour crimes as such. This recommendation also reiterates that the adoption of laws prohibiting harmful cultural practices may be necessary, but that it is not the only nor always most effective way to get rid of them: gathering data and prevention via education and awareness-raising are also important (CEDAWand CRC, 2014).

Cultural Diversity and Cultural Identity Define Humanity

Various international instruments confirm that cultural diversity is a defining characteristic of humanity that fosters human capacities and is essential to the full realisation of human rights. They confirm the importance of cultural diversity as a value to be promoted and protected and endorse the link between cultural diversity and human rights.

Human rights provide a moral and legal framework for promoting and preserving not only the diversity between cultures, but also the diversity within cultures. The universal human rights system offers many entry points to accommodate and promote cultural diversity. While applying universally, human rights norms include the necessary flexibility to be receptive to and to promote cultural pluralism, among and within states, communities and individuals.

Individuals and communities can use international human rights law to develop and maintain cultures and promote and protect their cultural identities. At the same time, cultural rights cannot be enjoyed unlimitedly and cannot be invoked or interpreted in such a way as to justify the denial or violation of other human rights or the exclusion of certain categories of persons, such as women, from the enjoyment of human rights.

Human rights and cultural diversity may have a mutually beneficial relationship, but this does not mean that, as in all relationships, there will be no complexities or (unexpected) issues that will continue to demand respect, flexibility and adaptability of one and/or the other. While states play a crucial role in this regard and should, indeed, secure conditions, or help to maintain infrastructures, that enable the →participation of everyone in a multifaceted cultural life, there cannot be merely top-down approaches. Cultures are determined and developed by individuals and communities, who should always be involved and consulted in cultural laws and policy processes, thereby making these laws and policies more human rights proof.

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