The following essay was submitted on October 31, 2017 for my class PACS126: International Human Rights, taught by Professor Darren Zook at UC Berkeley.
Culture as a Liability to Human Rights
From the French headscarf ban to the Brazilian indifference toward infanticide, culture has been used across the world, in various situations, as a justification for denying human rights.[1] While any culture that does not cause harm or infringe upon others’ rights should be respected, not all cultural practices are created equal. Some are blatantly immoral: you don’t see many people defending slavery in the name of culture and tradition, and the few that do are usually heavily criticized by society. Ultimately, culture is a liability to the world of human rights, and regardless of localized traditions, all human beings deserve to be treated equally and fairly.
In this essay, I am using the term “culture” to describe traditional practices, attitudes, and behaviors that are considered to define a group. While culture exists in many forms, such as national culture, minority culture, religious culture, and political culture, all types of culture can be described as a group’s pattern of behavior. Sometimes not all members of the group are in agreement about the behavior, but it is something that has been practiced by members of the group for some time, and is believed by some members to be an essential part of their identity. Additionally, culture is an elective aspect of identity – this means that it’s something you can choose and change about yourself rather than an indelible part of your identity.[2] While this is my explanation of the term for the purposes of this paper, the exact significance of culture, and what constitutes culture, is very hotly debated in the world of human rights.
Culture should be protected only as it entails traditional practices, customs, and forms of self-expression that don’t involve controlling or harming another person. For example, human rights should protect Ayers Rock in Australia, which is an important sacred place to the Anangu people. The way they use it causes harm to no one, and limiting access to only the Anangu on certain days even helps preserve the natural wonder.[3] Although some would argue that having greater access to the rock makes the Anangu citizens “Australians-Plus,” the fact of the matter is that indigenous rights are meant “to address historical injustices perpetrated against indigenous peoples during Western colonialism,” and it’s fair for them to have extra permissions in this situation.[4] Additionally, indigenous rights are based on a people’s connection to the physical land – of which this rock is a perfect example.[5] Because land was taken from indigenous groups during colonization, they should have special access to their sacred places and practices in order to help preserve the beautiful parts of their culture and history that were damaged during colonization. Therefore, this is a fair example of what types of cultural practices should be protected. On the other hand, cultural practices that are blatantly harmful, such as infanticide, as indigenous groups in Brazil practice it, should certainly not be protected.[6]
Instances of infanticide perfectly exemplify the primary problem with human rights protections for minority cultures, including indigenous cultures: oftentimes, these “protections” actually lead to atrocious human rights violations. In Brazil, they allow this to continue by saying that the indigenous groups are “incapable of understanding the illicit nature of their acts.”[7] This justification is patronizing and untrue, and allows the murder of innocent children to continue. While indigenous cultures and histories should be protected and special land rights should be restored, they should not be allowed to commit heinous crimes in the name of culture.
Another instance of a “cultural protection” that actually creates horrible abuse is exemplified in the two Queensland cases in Australia in 2002 and 2007, both of which involved the rape of young aboriginal girls by “elder” aboriginal men as a cultural practice. While the courts of Australia were unable to issue a punishment because these atrocities were protected by indigenous rights, even indigenous rights activists began speaking up and saying that this is not what indigenous rights were meant to protect, that some things are immoral regardless of culture, and some traditions need to be changed.[8] Patriarchal practices such as these comprise a large portion of the abuses that are protected under Australia’s human rights treaties. Allowing these activities to continue goes against the idea of the “best interest of the child” that is endorsed by the CRC.[9] These traditions are blatant child abuse, as well as sexism and abuse of women. Other traditional practices, such as not allowing women to play the didgeridoo, are gender-based discrimination and are inconsistent with CEDAW.[10]
These problems don’t just exist in the indigenous groups of Australia, but in many other countries, cultures, and governments. In Nepal, widows cannot inherit property due to the country’s national legal code, Muluku Ain, which is based in Hindu culture. Essentially, the law takes the side of culture rather than equality, and denies women their human rights to own property because of the belief that a woman’s property belongs to the man to whom she belongs.[11] Injustices against women and children are also found in the Romani minority group, as evidenced by a court case involving a 10-year Romani girl in Spain. The child gave birth after being pulled out of school and her parents “found a suitable match” in the 13-year-old father of her child, who chose not to go through with the marriage afterward. While there was talk of child abuse, ultimately the Spanish government’s decision was that, when the girl was old enough, she could choose to leave her culture – but if she chooses to stay, she has to abide by the rules of her culture, which render her unmarriageable due to her single mother status.[12] This is an impossible choice that puts cultural rights at odds with both children’s rights and women’s rights.
Another problem with cultural protections in human rights is that it’s often very difficult to get the entire cultural group being discussed to agree upon the characteristics of their culture. In the instance of the Romani people and another court case in which parents married off their 12-year-old daughter in direct conflict with Romanian law, her parents insisted that it was normal and a cause for celebration, not a human rights violation. On the other hand, Robert Rustem, the Secretariat for European Roma and a member of the minority group himself, said that child marriage is not normal among the Romani, but that there are a few instances of it, which the community does not support.[13] If child marriage is not universally accepted as tradition by the Roma community, and additionally, is considered an abusive human rights violation by the country of Romania, then how can this practice justifiably be protected under the guise of minority rights? In instances such as these, outdated and unethical practices are allowed to survive while they continue to violate the rights of children and women.
National culture can also be a point of disagreement, as exemplified by ongoing controversy in France. By banning headscarves and insisting upon a universal French language, the French government attempted to create a homogenous France in the name of the principle of laïcité, the “fundamental value” of secularism. The French people are defined legally as “one people”, and in response to recent waves of immigration and cultural diversity, the French government has declared several forms of cultural expression, particularly religious practices and forms of dress, as violating the human rights of the French by denying their cultural right to laïcité. [14] This is a weak claim. Even before recent immigration waves, France has always been multicultural, as exemplified by the regions of Bretagne, Corsica, and Alseis, which are now pushing back against the idea of one type of “Frenchness.”[15] It’s impossible to get an entire group or nation to agree completely about what their culture is or means. Because of this, cultural freedom should definitively be allowed in France and all other countries. However, cultural rights should not be valued above equality and protections of other human rights.
At the most basic level, all traditions are just human ideas that have somehow survived through the years – and not every idea that any person has ever had is a good idea. Some are bad ideas; some are products of their time. Ultimately, some cultures need to change. This doesn’t mean giving up on one’s culture altogether, but rather preserving and celebrating the beautiful parts, and doing away with the parts that are blatantly cruel or discriminatory. As far as culture’s place in human rights, the right to freedom of expression, dress, and religion, which are all integral parts of culture, should certainly be protected – but only insofar as they don’t violate other human rights and the principle of nondiscrimination. As Anna Diamantopoulo, a former minister of the EU, said, “When fundamental human rights and past traditions collide, it is the traditions that must adapt and human rights that must prevail.”[16]
[1] Zook, Darren. “PACS126 Lecture.” 19 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[2] Zook, Darren. “PACS126 Lecture.” 3 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[3] Zook, Darren. “PACS126 Lecture.” 12 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[4] He, Baogang. “The Contested Politics of Asian Responses to Indigenous Rights.” International Journal on Minority and Group Rights, vol. 18, no. 4, Jan. 2011, p. 461.
[5] Zook, Darren. “PACS126 Lecture.” 5 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[6] Zook, Darren. “PACS126 Lecture.” 19 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[7] Zook, Darren. “PACS126 Lecture.” 19 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[8] Zook, Darren. “PACS126 Lecture.” 12 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[9] The United Nations. “Convention on the Rights of the Child.” Treaty Series 1577 (1989): 3.
[10] The United Nations. “Convention on the Elimination of All Forms of Discrimination against Women.” Treaty Series 1249 (1988):13.
[11] Poon, Pamela G., et al. “Nepali Widows’ Access to Legal Entitlements: A Human Rights Issue.” Human Rights Quarterly, vol. 38, no. 2, 2016, pp. 391-410.
[12] Zook, Darren. “PACS126 Lecture.” 3 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[13] Zook, Darren. “PACS126 Lecture.” 3 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[14] Zook, Darren. “PACS126 Lecture.” 17 Oct. 2017. Berkeley. Hearst Memorial Mining Building.
[15] Zook, Darren. “PACS126 Lecture.” 17 Oct. 2017. Berkeley. Hearst Memorial Mining Building
[16] Zook, Darren. “PACS126 Lecture.” 3 Oct. 2017. Berkeley. Hearst Memorial Mining Building.