Cultural Rights; Under the Microscope; CERD Member Launches Analysis

Much to my delight I tripped over a remarkably insightful paper by a (CERD) COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS: "Cultural rights and universality of human rights*.

Right away I was excited with this insightful essay and analysis. So of course I have to present to you my favorite "part" of Professor Thornberry's paper:
"Cultural Rights and Other Rights"
"These last observations take us to another aspect of the substance of the right. On the one hand, we may say that culture is complex, and that the right must be stated in an equally complex manner in order that potentially important aspects are not deleted from consciousness. We also observe that a right to culture must depend upon, influence, and intersect with, a range of other human rights, including general rights to education, language, freedom of thought, conscience and religion, freedom of expression and association etc., as well as rights envisaged as applying to specific communities such as minorities and indigenous peoples. On the other hand, as McGoldrick observes, ‘some argue that the use of culture is usually misleading and that it would be better and more accurate to identify specific rights, for example, to expression, association, religion, specific minority rights, etc.’20 McGoldrick cites Eriksson who argues that instead of ‘invoking culture, if one talks about, say, 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 equivalent terms instead of covering them up in the deceptively cosy blanket of culture.’21 The argument as I read it is that we should apply a version of conceptual ‘subsidiarity’ to bring the concepts closer to base, closer to the essence of what is required in order to address a situation in terms of human rights. The present author has addressed similar arguments in the context of claims of a right to autonomy in international law, questioning the extent to which the concept was useful if what is required is more minority schools, or cultural facilities, or approaches to the public administration through minority languages: if that is what is needed, why not say so, instead of making vague, unfocused, and perhaps undeliverable and political demands. 22 Similar observations might also be applied to other ‘spacious’ concepts of international law, such as self-determination, a concept of greater emotive force than autonomy.
In response, apart from the obvious point that the concepts are with us in international law and doubtless here to stay, we may counter that human rights language does not have the precision of tax legislation and that its concepts are ‘open’ to a great extent. Hence the statements of treaty bodies and others that the convention in question is a living instrument which should be understood in line with changing circumstances which include fresh developments in human rights often the result of uncovering new situations, demands, or foci of oppression. The principle of effectiveness in the interpretation of treaties can also be called into play as a demand that we give instruments the best reading we can in order to achieve their purposes effectively. Human rights have to be worked through: solutions to human rights problems do not usually suggest themselves immediately, and even in the long term treaties are subject to ongoing processes of clarification. Even the more spacious concepts of human rights – take self-determination again - have a role such that their ‘deconstruction’ would leave holes in the fabric of international human rights which would not easily be ‘filled’ by smaller-scale alternatives. So complexity and conceptual scale in the case of cultural rights could be addressed through attention to their multiple aspects, through keeping alive the ongoing programme of furthering understanding of the right rather than ‘deconstructing’ it at every opportunity. In any case, a human rights strategy often has to make choices among norms as to which best addresses the essence of the case, choosing intelligently between the specific and the general norm. The specific Erikssen critique of ‘culture’ as an umbrella concept might of course also relate to cases where ‘culture’ is claimed as a justification for practices unlikely to be consistent with human rights."



Eloquently stated , but to simplify some key points of this translation first off I like the point he is making regarding :"The argument as I read it is that we should apply a version of conceptual ‘subsidiarity’ to bring the concepts closer to base, closer to the essence of what is required in order to address a situation in terms of human rights."

Where he is headed in my opinion is that the human rights community in terms of dealing with specific cultures that might not exactly fall in line with international law, there is a need to be more specific to not have all cultures fall under an umbrella of human rights so to speak. Otherwise "all" cultures practices that have "hints" of human rights abuse, will be labeled not as "cultural practices" but as "human rights abuses". He would like to see this avoided if possible! This is my interpretation of his well put together paper; or at least this portion of his message, in a nutshell.
He really wishes to legitimize the fact that cultures do exist and that they are indeed relevant to a particular society. Remember he works for CERD correct? So he is obligated to not allow discrimination against economic or social or cultural rights! So there will be times when he has to stand up in the gigantic dilemma he has with human rights rhetoric on a consistent basis and have his arguments make sense and sound legitimate! This is kind of like a United Nations checks and balances type of system which I think is a good thing. They have got the right man on the job. For once I am not in disagreement with an authors point of view can you believe it? Its true, you can disagree, without being disagreeable. In this case that wont even apply. I hope you enjoy this post.

William