Article 6 of the 1948 Universal Declaration of Human Rights enshrines a “right to recognition everywhere as a person before the law.” The Universal Declaration further asserts that full recognition includes cultural rights considered “indispensable” for the maintenance of “dignity” and development of one’s “personality” (Article 22), a minimum condition for which is a right to participate in “the cultural life of the community” (Article 27). This assertion remains the baseline for subsequent statements of cultural rights concerned with determining the extent and kind of participation in cultural life necessary to ensure the fullest definition of “personhood” as the rightful subject to which human rights should apply.
This argument for the necessity of cultural rights is more recently reflected in the American Anthropological Association’s Declaration on Human Rights of 1999, which understands the “capacity for culture” to be “tantamount to the capacity for humanity.” These statements convey the fundamental belief that to disregard the cultural context of a person’s life amounts to a denial of one’s full personhood, regardless of differences among specific cultures. The recognition of “cultural identity” is thus a necessary precondition for the exercise of human rights. As Danielle Celermajer stresses in her essay in this section, culture is not something to be tacked on to an otherwise complete range of human rights, but is in fact “the organizing network within which those rights are held.” If globally diverse in its expression, culture is a universally present matrix shaping the range and kinds of choices people make. Any failure to recognize cultural experience as intrinsic in this way amounts to a limit upon individual freedoms. Cultural rights as individual freedoms are thus also collective rights.
David Nersessian’s discussion of “cultural genocide” helps to frame the other cases in this section. Nersessian calls for the restoration of Raphael Lemkin’s concept of genocide, which originally encompassed cultural genocide and was subsequently reduced to physical or biological genocide in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The other cases document the struggle for cultural survival and identify the conditions necessary for that survival through a defense of cultural experiences or institutions central to the social reproduction of the collective cultural group.
For the Yiaaku people of Kenya, as Muthee Thuku explains, guardianship of their ancestral forest is not just fundamental to their livelihood, but to their very identity as a people. A relationship to the Mukogodo forest is intrinsic to the Yiaaku concept of life, spirituality, language, economy, and ancestral heritage. Already reduced to just under 1000 people, the displacement of the Yiaaku from the forest would literally mean their collective disappearance. For the Guarani of Bolivia, the historical imposition of the Spanish language was a negation of Guarani personhood and of their right to exist as culturally distinct from the Bolivian nation. As Bret Gustafson argues, for the Guarani, and many others, speaking their own language is a crucial symbolic resource for cultural membership in a particular group. The case of the “stolen generation” of Australia’s aboriginal people, described by Danielle Celermajer, drives home the point that recognition of cultural identity requires its transmission across generations. If there is no “one-size-fits-all” approach to cultural rights, defense of a right to territory, language, and generational continuity are each important means for advancing cultural rights claims.
With the exception of David Nersessian’s essay, all of the cases in this section—of the Yiaaku, Guarani, and Aboriginal Australians—represent cultural survival of so-called “first peoples.” This is not accidental. Indigenous peoples pose the issue of collective cultural rights in a uniquely compelling way. Historically they have been the most dramatic casualties of the global consolidation of the nation-state, the groups most clearly set apart by their distinctiveness, and the first groups to begin to advance cultural claims in human rights terms, a process underway in earnest by the late 1980s. These three cases demonstrate how cultural rights claims are largely negotiated between specific groups and particular nation-states. They also show how the policies of nation-states—particularly such assimilationist goals as, in the words of one of our authors, the “unification of one people occupying one territory and speaking one language”—have historically posed an immediate threat to the survival of diverse peoples.
At the same time, these cases provide a basis for comparison of how states
are now confronting the fact of their own internal diversity using the legal
tool of cultural rights. An emphasis on culture as a means of political
representation and citizenship is seen, for example, with greater recognition
given to customary law through revised national law. To use Latin America as one
bell weather, starting with Colombia’s 1991 Constitution, sixteen countries have
now officially recognized their “multiethnic and pluricultural” character.
Gustafson’s discussion of Bolivia’s bilingual intercultural education reform of
1994 is one chapter in this hemispheric development. A clear lesson derived from
these cases is that cultural rights are not incompatible with the sovereignty of
states so much as they prompt a redefinition of the exclusivity of the state’s
proprietary and sovereign interests.