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Pok Yin Stephenson Chow

Contact Details

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Research Topic

The Concept of Culture in International Human Rights Law

Introduction

“Cultural rights’ derive from the word ‘culture,’ an overworked concept with little semantic precision.” Asbjorn Eide,  Economic, Social and Cultural Rights: A Textbook, (2001)

“The right to culture, in its overall development… must in any case be characterized by a constant advance toward the theoretical substance of culture, and the road will then lead back from there to the practical content or enrichment of the content of the right to culture.” Imre Szabo, Cultural Rights,(1974).

International protection on cultural rights began with the protection of minorities. The post-WWI protection on minorities depended on the concept of reciprocity (i.e. if country A undertakes to respect the rights of their national minorities in country B, so that country B would do the same). Minority rights protection has been replaced by the UN Charter and subsequent UN human rights treaties. Kymlicka proposes that the UN minority rights protection is premised on the concept of liberal multiculturalism which seeks to protect minorities and indigenous groups against the imposition of a national culture by the dominant group represented by the State. 

The protection on cultural rights has expanded through the right to take part in cultural life (article 15(1)(a) ICESCR) which protects not only the rights of minorities but the cultural rights of every individual. Instead of having a clear scope, the former, however, relies on an abstract concept – “culture.” Thus, the new focus on the right to take part in cultural life immediately prose the following question: what does “culture” mean? The Committee on ESC-rights as well as other UN agencies, including UNESCO, began to articulate the concept of culture. An examination of the travaux preparatoire and the concluding observations of the Committee on ESC-rights reveals that the concept of culture in article 15(1)(a) shifted from addressing culture as high culture (such as fine arts) to popular culture (such as the mass media). In the Day of Discussion 2008, members of the CESCR seemed to have favoured the definition of culture as “a way of life,” – i.e. the “set of distinctive spiritual, material, intellectual and emotional features of society or a social group” which encompasses “in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs.” This definition was regarded by many as “the anthropological definition.” The latest position on the concept of culture is reflected in the General Comment no.21 on article 15(1)(a) which expresses that culture is the “interactive process whereby individuals and communities, while preserving their specificities and purposes, give expression to the culture of humanity,” culture is one “through which individuals, groups of individuals and communities express their humanity and the meanings they give to their existence, and build their world view representing their encounter with the external forces affecting their lives.” 

Despite the repeated attempts to clarify the concept, there seemed to be a discomforting disjunction between the scope of protection as well as the significance of such activities rendering the article difficult to understand. This thesis submits that the current protection on cultural rights lacks conceptual clarity and coherence. The pre-occupation in searching for a legal definition of culture might not be the best way to articulate and develop culture as a concept. Important conceptual questions are left attended. These are among others: (1) The nature of culture (i.e. Does “culture” refer to values, knowledge or identity? Does “culture” refer to specific form of a way of living? Or does “culture” refer to specific meanings derive from a form of living?)    (2) The means in which culture operates (i.e. How culture transmitted and passed down from generations to generations); (3) The relationship between culture and the individual (i.e. How does culture affect the ways in which an individual feels and acts? In what ways is culture emancipatory and in what ways is culture a restrain? The words “cultural identity” appears quite frequently in the context of cultural rights but what is cultural identity?).

Proposition and Methodology

The purpose of the thesis is to examine the notion of culture in international human rights law. It seeks to explore the meaning of culture in law and whether “culture” is adequately accommodated in the law. To address the latter question, this thesis turns to anthropology for inspiration. However, this thesis does not only turn to anthropology in hope of a workable legal definition. In contrast, this thesis submits that an over-emphasis on definitions would deem to miss theoretical underpinnings which are relevant and useful to the interpretation of the law. Thus, this thesis sets out to look into cultural theories in order to understand how culture as a concept is conceived and constructed in anthropology. Through the process, this thesis will also study how culture is transmitted and sustained as well as its significance and influence on the individual. Moreover, it will examine how the concept of culture is being subsequently critiqued and problematised within the discipline. From the anthropological input, this thesis will then revisit the notion of culture in law by drawing out the implications and insights from anthropology that are valuable to both developing a better understanding of culture as well as articulating legal rights and obligations. This thesis will only focus on the human rights treaty-body jurisprudence.   

Research Supervisors

Professor Mary Footer & Professor Robert McCorquodale 

 

Primary Funding Source

School of Law Scholarship 

Academic Qualifications

Academic Qualification	Awarding Institution
LLB	Hong Kong University
LLM Human Rights	University of Nottingham

Conference Papers Given