The Right to Cultural Diversity

1. The Right to Cultural Diversity Shannon B. Lyons International Ocean and Environmental Policy

2. Outline • Definitions of Cultural Diversity • Origin and history of Cultural Diversity • Hard and soft law sources • Treaties and Declarations • Major Players • Recent issues and applications • UDCD, Johannesburg, Cultural Expression • Example: Makah Gray Whale Hunt • Pros and Cons

3. Cultural Diversity • Definitions: • Culture: that complex whole which includes knowledge, belief, art, law, morals, custom, and any other capabilities and habits acquired by man as a member of society (Tylor, 1971) • Culture: a set of rules, or standards that, when acted upon by the members of a society, produce behavior that falls within a range of variance that the members consider proper and acceptable (Haviland, 1975)

4. Cultural Diversity • Definitions of Cultural Diversity are…Diverse • “Culture is a set of distinctive spiritual, material, intellectual and emotional features of society or a social group. It encompasses, in addition to art and literature, lifestyles, ways of living together, values systems, traditions and beliefs. Respecting and safeguarding culture is a matter of Human Rights. Cultural Diversity presupposes respect of fundamental freedoms, namely freedom of thought, conscience and religion, freedom of opinion and expression, and freedom to participate in the cultural life of one's choice.” • UNESCO

5. Origin and History of Cultural Diversity • Historically international environmental law was state centered • Did not consider rights of indigenous peoples • Democratic is not the same as Equality • Tendency for a democratic majority to dominate a cultural minority • Universal Declaration of Human Rights, 1948 • Recent focus on Linguistics

6. Treaties addressing Cultural Diversity • International Covenant on Economic, Social, and Cultural Rights (ICESCR), Article 15, 1966 • International Covenant on Civil and Political Rights (ICCPR), Article 27, 1966; 1975 • American Convention on Human Rights, 1969 • Convention Concerning the Protection of the World Cultural Heritage, 1972 • African Charter on Human and People’s Rights, 1981 • ILO Convention 169, 1989 • Convention on Biological Diversity, 1992 • Council of Europe’s Framework Convention for the Protection of National Minorities, 1995 • Charter of Fundamental Rights of the European Union, 2000 • Andean Charter for the Promotion and Protection of Human Rights (2002) • Draft Convention on Cultural Diversity, UNESCO, 2003 http://www.carnegiecouncil.org

7. Declarations addressing Cultural Diversity • Universal Declaration of Human Rights, 1948 • American Declaration of the Rights and Duties of Man, 1948 • Declaration on the Principles of International Cultural Cooperation, UNESCO, 1966 • Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 • Recommendation on Participation by the People at Large in Cultural Life and their Contribution to it, 1976 • Mexico City Declaration on Cultural Policies, 1982 • Limburg Principles on the Implemental of the International Covenant on Economic, Social, and Cultural Right, 1986 • Vienna Concluding Document, OSCE, 1989 • Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities, 1992 • Vienna Declaration and Program of Action, 1993 • Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, 1997 • Universal Declaration on Cultural Diversity, UNESCO, 2001 • Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005 http://www.carnegiecouncil.org

8. Major Players • Primary Organizations • UNESCO • United Nations Education, Scientific, and Cultural Organization • Office of the UN High Commissioner for Human Rights • Countries • France and Canada spearheading current movements

9. UNESCO Universal Declaration on Cultural Diversity “Cultural rights are an integral part of human rights, which are universal, indivisible and inter-dependent. The flourishing of creative diversity requires the full implementation of cultural rights as defined in Article 27 of the Universal Declaration of Human Rights and in Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights. All persons have therefore the right to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue; all persons are entitled to quality education and training that fully respect their cultural identity; and all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms."

10. Universal Declaration on Cultural Diversity • Adopted unanimously at the 31st UNESCO General Conference, 2001 • Triggered by September 11 • Focuses on humanizing globalization and making it more culturally sensitive • Encourages inter-cultural dialogue • Supports cultural diversity, the rights and the role of culture in development • Promotes multilingualism through education and fostering language at a young age

11. Universal Declaration on Cultural Diversity • Article 1 - Cultural diversity: the common heritage of humanity • Article 2 - From cultural diversity to cultural pluralism • Article 3 - Cultural diversity as a factor in development • Article 4 - Human rights as guarantees of cultural diversity • Article 5 - Cultural rights as an enabling environment for cultural diversity • Article 6 - Towards access for all to cultural diversity • Article 7 - Cultural heritage as the wellspring of creativity • Article 8 - Cultural goods and services: commodities of a unique kind • Article 9 - Cultural policies as catalysts of creativity • Article 10 - Strengthening capacities for creation and dissemination worldwide • Article 11 - Building partnerships between the public sector, the private sector and civil society • Article 12 - The role of UNESCO

12. Johannesburg Declaration on Sustainable Development • September, 2002 • “respect for cultural diversity, indigenous peoples’ access to economic activities and natural resources, and indigenous peoples’ participation in developing resource management systems are fundamental prerequisites for poverty eradication and sustainable development.”

13. Convention on the Protection and Promotion of the Diversity of Cultural Expressions • Supported by 148 countries during the UNESCO General Assembly in Paris, October, 2005 • Sponsored by France and Canada • Affirmation of countries' "sovereign right" to promote diversity in "cultural expressions" to counter demands that they renounce the use of subsidies, quotas, and other measures to support domestic cultural products such as movies, broadcasting, and publications. • Opposed by the U.S.A. • Limits on imports • Government censorship • Potential for abuse in terms of trade

14. International Convention on the Regulation of Whaling (ICRW) • Treaty obligation to permit subsistence whaling, 1946 • The taking of gray whales from the Eastern stock in the North Pacific is permitted, but only by aborigines or a Contracting Government on behalf of aborigines, and then only when the meat and products of such whales are to be used exclusively for local consumption by the aborigines whose traditional aboriginal subsistence and cultural needs have been recognized), • Makah gray whale hunt • Alienation within American society • Anderson v. Evans, 371 F.3d 475, 483-84 (9th Cir. 2004).

15. Pros and Cons of Cultural Diversity • Pros: • Human welfare • Encompasses minority views and rights • Others? • Cons: • Difficult to define • Difficult to measure • Others?

16. References • Anderson v. Evans, 371 F.3d 475, 483-84 (9th Cir. 2004). • Firestone, J, Lilley, J., and Isabel Torres de Noronha. 2005. Cultural Diversity, Human Rights, and the Emergence of Indigenous Peoples in International and Comparative Environmental Law. American University International Law Review: 20(210). • United Nations Background Note: The Challenge of Human Rights and Cultural Diversity by Diana Ayton-Shenker: http://www.un.org/rights/dpi1627e.htm • www.un.org/esa • www.unesco.org • www.ohchr.org