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At a symposium on Tolerance, Cultural Diversity and Pluralism held at the University of Adelaide in April 1998 an address was given by Professor Hilary Charlesworth, Australian National University, an alumna of Sacre Coeur Melbourne. Hilary spoke about Human Rights and Reconciliation in International Perspective and she is happy for AMASC to publicize her address. The outline is as follows:
In this summary, the focus will be on cultural diversity in Section 2. In Section 1, Professor Charlesworth explains that the international law of human rights effectively came into being in 1945, when the United Nations Charter formally acknowledged the international community’s concern with States’ treatment of all individuals within their jurisdiction. The Charter of the United Nations contains the first explicit recognition in international law that an individual is entitled to the observance of fundamental rights and freedoms. "The Universal Declaration of Human Rights [UDHR], adopted unanimously by the General Assembly of the United Nations fifty years ago in 1948, gave content to the undefined notion of fundamental human rights in the Charter. The Declaration sets out a wide range of rights, from the right to life and freedom from torture, to the right to education and to an adequate standard of living. Together with the International Covenant on Civil and Political Rights [ICCPR] and the International Covenant on Economic, Social and Cultural Rights [ICESCR], which were adopted in 1966, the Universal Declaration forms the so-called International Bill of Rights. … It should be noted that while the international rights are often couched in general language, it is clear that there are limits on their assertion. For example, article 29 of the UDHR allows limitations on rights ‘for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of a democratic society.’ " In Section 2, Professor Charlesworth gives an enlightening analysis of the debate over cultural diversity in human rights law when it is considered within national societies rather than between different states. This debate is over the rights of culturally distinct communities to retain their own traditions and culture: to what extent do ethnic or religious minorities within a particular state have the right to maintain their particularity? In what follows I am quoting extensively from Professor Charlesworth’s address. "International human rights law provides some protection for minority groups. For example, article 27 of the ICCPR provides: In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. What does this right actually mean? The interpretation of article 27 by the Human Rights Committee, which monitors the implementation of the ICCPR, has been relatively expansive. The Committee has adopted an ‘objective’ test to decide whether ethnic, religious or linguistic minorities exist, refusing to accept individual States’ assessment of this issue. It has stated that ‘the survival and continued development of the cultural, religious and social identity of minorities… [enriches] the fabric of society as a whole.’ The Committee has decided that article 27 imposes a positive obligation of protection of minorities in order that the identity of a minority is preserved and that its members can enjoy and develop their culture and language. It has also endorsed the notion of special treatment for minorities if it is aimed at correcting conditions that impair the enjoyment of the rights in article 27. … In 1992, the UN General Assembly adopted a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. This document emphasises that States must take affirmative steps to ensure the rights of minorities to their particular identity. The Declaration requires States: to take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where…contrary to international standards. From these standards, it can be argued that depriving a person of the cultural context that provides the environment in which autonomy and independence may develop is a violation of human dignity. Another relevant provision for the issue of cultural diversity within national societies is the right to self-determination. The centrality of this right of the international legal order is signified by the fact that it is set out in article 1 of both the ICCPR and the ICESCR: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. There has been long and difficult debate in the international community about the definition of ‘peoples’, the groups that can claim self-determination. It is clear that most minorities could not claim to be a distinct people in international law. Although UN practice does not support a right for minority indigenous groups to claim the right to secession or independence from an existing State, there has been increasing discussion of the right of indigenous peoples to claim what has been termed ‘internal’ self-determination. ‘Internal’ self-determination means the right of a group to assert a measure of autonomy within the nation State. The precise scope of internal self-determination will depend on the national context, but, at a minimum, it includes the right of a people to be involved in decisions about themselves, particularly those that affect their economic, social and cultural future. This idea has been explained well by Rigoberta Menchu, the Nobel Prize-winning activist for indigenous rights [Harvard Human Rights Journal 33, p.40]: [The right to self-determination] is…the right to full political representation, without intermediaries, or limitations of any kind. This representation must be expressed at the local, regional and national levels, in each country with which indigenous peoples have a historical relationship. Without losing sight of the necessity of national unity, but with mutual respect. In this spirit, the Australian delegation to the UN General Assembly in 1992 made a statement equating the self-determination of indigenous peoples to national reconciliation. The notion of reconciliation was defined as meaning ‘the continuing right of all peoples and individuals within each national state to participate fully in the political process by which they are governed.’ [Ibid.,pp41-42] This concept of reconciliation seems to have given way more recently in Australia to a notion of reconciliation as resignation to the status quo and the reality of conquest. … A third set of human rights norms that are relevant to cultural difference within states are those relating to equality and non-discrimination. The Convention on the Elimination of All Forms of Racial Discrimination of 1966 deals with this right in detail. The more general right to non-discrimination is set out in article 26 of the ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour…or other status. The Human Rights Committee has interpreted the right to non-discrimination to impose an obligation of result-- in other words, discrimination is not measured simply by whether people are treated differently. Discrimination, or inequality, can occur if the results of apparently equal treatment are that one group does consistently better than another. In other words, international law is concerned with substantive, and not just procedural equality… … Despite the controversy surrounding the issue of ‘internal’ cultural diversity in international law, it is clear that, at the very least, international law supports a right of minorities to some forms of autonomy. Indigenous peoples in particular are accorded special status in international law on the basis that they were the original occupants of a geographical area and typically lost control of their land through unjust methods. International law gives respect to their traditions and special relationship with land. It acknowledges a right to a continuing relationship with lands and natural resources according to traditional patterns of use. In this sense, it is often said that indigenous peoples have become subjects, rather than objects, of international law. So, in summary, while the international community has been relatively wary of conceding that cultural differences on the international level can undermine the universality of human rights norms, it has shown considerable respect for cultural diversity within nation states. I do not mean to suggest that international law provides all, or even the best, answers to the complex issues of cultural diversity. My argument is rather that it provides a set of norms that have achieved some measure of international acceptance—a type of global vocabulary—that are a useful addition to fraught public debates on cultural difference." For those wishing to pursue further the relevance of international law to political debates about indigenous rights, the original address of Professor Charlesworth is available. Summary prepared by Mary Brennan RSCJ |
