Incorporating Cultural Dynamism into International Human Rights Law: A Solution from Anthropology

See generally, Donders, Y. M. 2002. Towards a Rights to Cultural Identity? 1st ed. Intersentia; Thornberry, P. 1991. International Law and the Rights of Minorities. 1st ed. Clarendon Press; Francesco, F., and Scheinin, M. Cultural Human Rights. 1st ed. Martinus Nijhoff; Scheinin, M. 2000. The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of Land. In The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach, edited by Orlin, T. et al. Åbo Akademi University; Stamatopoulou, E. 2007. Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond. 1st ed. Brill. See Stamatopoulou, E. 2012. Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and the Response of Cultural Rights. Human Rights Quarterly 4:34; Castellino, J. 2013. No Room at the International Table: The Importance of Designing Effective Litmus Tests for Minority Protection at Home. Human Rights Quarterly 1:35.

See generally, Cowan, J. K. et al. (eds) 2001. Culture and Rights: Anthropological Perspectives. 1st ed. Cambridge University Press; Cowan, J. K. 2006. Cultural and Rights after Culture and Rights. American Anthropologist 1:108; Morgan, R., and Turner, B. S. 2009. Interpreting Human Rights: Social Science Perspectives. 1st ed. Routledge; Goodale, M. and Merry, S. E. (eds) 2007. The Practice of Human Rights: Tracking between the Global and the Local. 1st ed. Cambridge University Press.

See Kovacich, J. 1995. The Legal and Social Construction of “Culture”. Legal Studies Forum 3:19.

Fitzpatrick, P. 2005. The Damned Word: Culture and Its (In)Compatibility with Law. Journal of Law, Culture and the Humanities 1:1.

For a discussion on an African view of culture. See Ibhawoh, B. 2000. Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State. Human Rights Quarterly 3:22.

Donders, Y. 2010. Do Cultural Diversity and Human Rights Make a Good Match? International Social Science Journal 61:199, 15.

However, see Makkonen, T. 2000. Identity, Difference and Otherness: The Concepts of “People”, “Indigenous People” and “Minority” in International Law. 1st ed. Forum Iuris; Clapham, A., and Marks, S. 2005. Human Rights Lexicon. 1st ed. Oxford University Press.

See generally, on both schools, Wright, S. 1998. The Politicization of “Culture”. Anthropology Today 7:14.

See generally, Brettrell, C. B. 2002. The Individual/Agent and Culture/Structure in the History of the Social Sciences. Social Science History 3:26; Overing, J. and Rapport, N. (eds) 2000. Social and Cultural Anthropology: The Key Concepts. 1st ed. Routledge.

For an anthropological view on the standing of the relationship, see Merry, S. E. 2006. Anthropology and International Law. Annual Review of Anthropology 35.

Preis, A. B. S. 1996. Human Rights as Cultural Practice: An Anthropological Critique. Human Rights Quarterly 2:18, 287.

Morgan note (2) 3.

Eg An-Na ‘Im, A. 1992. Human Rights in Cross-Cultural Perspectives: A Quest for Consensus. 1st ed. University of Pennsylvania Press.

American Anthropological Association. 1947. Statement on Human Rights. American Anthropologist 4:49.

Engle, K. 2001. From Skepticism to Embrace: Human Rights and the American Anthropological Association. Human Rights Quarterly 3:23.

Vienna Declaration and Programme of Action, U.N Doc. A/CONF.157/24 (1993) para 5.

Eg Leve, L. 2007. Secularism is a Human Right!: Double-Binds of Buddhism, Democracy, and Identity in Nepal. In The Practice of Human Rights: Tracking between the Global and the Local, edited by Goodale, M. and Merry, S. E. Cambridge University Press; Merry, S. E. 2010. Law from Below: Women’s Human Rights and Social Movements in New York City. Law and Society Review 1:44; See also, Goodale, M. 2009. Surrendering to Utopia: an Anthropology of Human Rights. 1st ed. Stanford University Press.

Eg Harris, M. 1979. Cultural Materialism: The Struggle for a Science of Culture. 1st ed. Random House.

Eg Geertz, C. 1973. The Interpretation of Cultures. 1st ed. Basic Books.

The approach taken here is to be mindful of the legal audience. Therefore, only areas that, in the author’s view, are of interest to the human rights discussion are addressed.

See eg Boas, F. 1911. The Mind of Primitive Man. 1st ed. MacMillan.

Tylor, E. B. 1871. Primitive Cultures. 1st ed. Harper Torch, 1.

Samson, C. 2009. Indigenous Peoples’ Rights: Anthropology and the Right to Culture. In Interpreting Human Rights: Social Science Perspectives. 1st ed. Routledge, 73.

See eg Asad, T. (ed) 1973. Anthropology and the Colonial Encounter. 1st ed. Humanity Books; Hymes, D. (ed) 1974. Reinventing Anthropology. 1st ed. Vintage.

Eg Asad, T. 1979. Anthropology and the Analysis of Ideology. Man 4:14; Gough, K. 1968. New Proposals for Anthropologists. Current Anthropology 5:9. However, see Chanock who highlights an earlier discussion. Chanock, M. 1985. Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia. 1st ed. Cambridge University Press.

Eg Hannerz, U. 1992. Cultural Complexity: Studies in the Social Organisation of Meaning. 1st ed. Columbia University Press; Hannerz, U. 1980. Exploring the City. 1st ed. Columbia University Press.

Outside of anthropology, see eg Said, E. 1978. Orientalism. 1st ed. Pantheon.

Merry, S. E. 2001. Changing Rights, Changing Culture. In Culture and Rights: Anthropological Perspectives, edited by Cowan, J. K. et al. 1st ed. Cambridge University Press, 41.

In particular see the volume by Rosaldo, R. et al. 1993. Creativity/Anthropology. 1st ed. Cornell University Press; Ortner, S. 2006. Anthropology and Social Theory: Culture, Power and the Acting Self. 1st ed. Duke University Press. For a human rights discussion on cultural agency, see Merry, S. E. 1998. Law, Culture and Cultural Appropriation. Yale Journal of Law & the Humanities 10.

Rapport note (9) 9.

See eg Cowan, J. K. 1990. Dance and the Body Politic in Northern Greece. 1st ed. Princeton University Press.

Eg Kymlicka, W. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. 1st ed. Clarendon Press. However, see also these communitarian approaches to culture. MacIntyre, A. 1981. After Virtue: A Study in Moral Theory. 1st ed. Duckworth; Sandel, M. 1998. Liberalism and the Limits of Justice. 1st ed. Cambridge University Press.

Eg Symonides, J. 2000. Cultural Rights. In Human Rights: Concept and Standards, edited by J. Symonides. 1st ed. UNESCO.

Donders note (6)15.

UN Doc. E/C.12.GC/21.

Un Doc. GA Res. 47/135(1992).

Lovelace v Canada, UN Doc. CCPR/C/OP/1 (1995).

General Comment 23, UN Doc. CCPR/C/21/Rev.1/Add.5 (1994) para 6.1; Minorities Declaration note (36) art 1.

Goggin, S. 2011. Human Rights and “Primitive” Culture: Misrepresentations of Indigenous Life. The International Journal of Human Rights 6:15. One prominent example came in General Comment 23 from the Human Rights Committee: “With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them”. Ibid para 7.

Through her ethnographic study, the eminent anthropologist Merry questions the approach to culture in human rights law. Merry, S. E. 2003. Constructing a Global Law: Violence against Women and the Human Rights System. Law and Social Inquiry 4:28. For a relevant domestic study, see Povinelli, E. A. 2002. The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism. 1st ed. Duke University Press.

Samson note (23)70.

Eg Cerna, C. M. 1994. Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts. Human Rights Quarterly 4:16.

See the statement on human rights and cultural diversity by a group of UN experts on the World Day for Cultural Diversity for Dialogue and Development. OHCHR, 21 May 2010.

See Kirsch, S. 2001. Lost Worlds: Environmental Disaster, “Culture Loss,” and the Law. Current Anthropology 2:42.

For a domestic example of litigating post-modern culture. See Fishbayn, L. 1999. Litigating the Right to Culture: Family Law in the New South Africa. International Journal of Law, Policy and the Family 2:13.