The recognition of distinct cultural rights in international law
Paper presented by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner of the Australian Human Rights and Equal Opportunity Commission at the Ethnic Minorities Workshop on Cultural Rights, 11 - 17 June 2000, Lanzhou, Gansu, ChinaAusAID China Human Rights Technical Assistance Programme
Introduction
In championing the cause of universality (of human rights) I should emphasise that universality does not negate cultural diversity; on the contrary, I believe that it reinforces and protects cultural diversity.
Mary Robinson, United Nations High Commissioner for Human Rights[i]
The purpose of this paper is to explain the principles that are encapsulated in the above quote by the United Nations High Commissioner for Human Rights. In particular, I will focus on the principles of non-discrimination and equality before the law, and minority group or cultural rights as they are recognised in Article 27 of the International Covenant on Civil and Political Rights. These principles allow, and in some circumstances require, that States recognise and protect the distinct cultural characteristics of minority groups.
In explaining these principles I will refer to the experience of the Indigenous peoples of Australia - Aborigines and Torres Strait Islanders.
At the outset I must make it clear that the cultures of Indigenous peoples worldwide are protected within the framework of minority or cultural rights, but they are not limited to such a characterisation. Indigenous peoples have expressed significant resistance at having their rights equated with the rights of cultural minorities within a State's boundaries. Indigenous peoples maintain that, as the first peoples of a territory, with a specific history and relationship to that territory including one of forced colonisation, they have distinct rights in the context of cultural, social, economic and political protection.
While the distinction between Indigenous peoples and other minority groups is significant, there are still lessons to be learnt from the experiences of Indigenous peoples in clarifying the extent to which human rights standards provide recognition and protection for the distinct cultural characteristics of other minority groups.
I will commence this presentation by providing a brief overview of Australia's Indigenous populations, and a description of the role that I have, as Social Justice Commissioner, in promoting the recognition and protection of Indigenous rights within Australia.
I will then discuss the principles of equality before the law and non-discrimination. These fundamental principles of the international human rights system are central to the recognition of cultural minority rights. I will then discuss the specific protection of minority rights as encapsulated in Article 27 of the International Covenant on Civil and Political Rights and other documents.
1. Australia - Aborigines and Torres Strait Islanders
The nation that is today known as Australia originated in the latter part of the 18th century. On the voyage of Captain James Cook in 1770, the United Kingdom asserted sovereignty over the East Coast of Australia. In 1788 the first fleet of British subjects arrived to settle the land as a penal outpost of the British Empire.
As you yourself come from a country that is steeped in thousands of years of history, I am sure you can appreciate how young this modern nation of Australia is.
But there was a history to this land long before the arrival of the British. Aboriginal and Torres Strait Islander peoples are recorded as having lived in what is now known as Australia for at least 60,000 years. Indeed, the existence of Indigenous societies and cultures in Australia is amongst the earliest and most longstanding anywhere in the world:
Long before colonisation, according to Indigenous religious beliefs about the Dreaming, ancestral human and animal beings had moulded the landscapes and their populations, and had established the ways n which life could be sustained in often inhospitable environments. When these spiritual ancestors had performed these tasks, they became transformed into significant features of the landscape. Successive generations of Aboriginal and Torres Strait Islander peoples maintained their group identity and connection to land by respecting and continuing the names and activities of the Dreaming through stories, songs, dances and ceremonies....
Across the continent and its surrounds, Aboriginal and Torres Strait Islander groups exchanged goods and resources through complex networks of social, ceremonial and economic connections. These networks confirmed groups' identities with places, were a source of ritual and tradition and a means of communication ...
By the time the United Kingdom asserted its sovereignty over the east coast in 1770 most of the continent and many of its islands were owned and occupied by diverse indigenous groups who lived by complex customary laws, practised various forms of land tenure and resource management and who protected their traditional estates and sacred sites.
The colonisation of Australia deprived these indigenous peoples of their lands and other resources without negotiation and without compensation. Their consent was not, and has never been, sought.[ii]
Despite 210 years of colonisation and dispossession, many Aboriginal and Torres Strait Islander communities and societies have survived. Indigenous people in 1996 constituted 2% of the Australian population, or 352,000 people. But survival has come at a heavy price.
There are clear disparities between Indigenous and non-Indigenous Australians across all indicators of quality of life. The following statistics from the 1996 Census illustrate this disadvantage[iii]:
- Indigenous males have a life expectancy of 56.9 years, 18.3 years less than non-Indigenous males;
- Likewise, Indigenous females have a life expectancy of 61.7 years, almost twenty years less than non-Indigenous women;
- 11% of Indigenous adults hold a post-school educational qualification compared to 31% of non-Indigenous people;
- The median income for Indigenous males in 1996 was $189 compared to $415 for non-Indigenous males;
- For Indigenous females it was $190 compared to $224.
The level of disparity between Indigenous and non-Indigenous people is similar across all other areas of health, education, employment and economic status. This disadvantage is also reflected in contact with welfare services and correctional services. As the Australian Bureau of Statistic has noted:
Although there are differences by State and Territory, Indigenous children are more likely than non-Indigenous children to be the subjects of substantiated cases of abuse and neglect (with rates about 2-8 times higher in most jurisdictions in 1997-98), under care and protection orders (about 4 times higher in 1998) and on out-of-home placements (almost 6 times higher in 1998). Indigenous children are also over-represented in the juvenile justice system, with about 40% of children in 'corrective institutions for children' identified as Indigenous in the 1996 Census. Indigenous adults are more likely to have contact with legal and correctional services, with almost 19% of the adult prison population in 1997 being identified as Indigenous. The imprisonment rate for Indigenous adults was over 14 times that for non-Indigenous adults.[iv]
The tragedy that is reflected in these statistics led to the creation of a position within the Australian Human Rights and Equal Opportunity Commission - the Aboriginal and Torres Strait Islander Social Justice Commissioner - with the purpose of monitoring and reporting annually on the status of the enjoyment and exercise of human rights by Indigenous Australians. As the Attorney-General at the time stated:
There continues to exist a need for us as a nation to regularly focus on the extent to which Aboriginal and Torres Strait Islander people are able to exercise the basic human rights that the rest of the nation take for granted.[v]
I am the third person to fill this role. I am required to:
- Report annually on the exercise and enjoyment of human rights by Indigenous Australians;
- Promote discussion and awareness of human rights in relation to Indigenous people in Australia;
- Undertake research and educational programs for the purpose of promoting respect for, and enjoyment and exercise of, human rights by Indigenous people; and
- Examine and report on legislation and proposed legislation to ascertain whether or not they recognise and protect the human rights of Indigenous Australians.
In addition, I am also required to report annually on the effect of the Native Title Act 1993 on the exercise and enjoyment of human rights by Indigenous Australians
2. The principles of equality before the law and non-discrimination
One of the basic aims of the United Nations, as proclaimed in the Charter of the United Nations (1947) and the Universal Declaration of Human Rights (1948), is to promote and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language, religion, ethnic origin or other status. As the preamble of the Universal Declaration of Human Rights states, 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.'
There are two core principles that underlie these aims. Namely, the principles of non-discrimination and equality before the law. These principles are recognised in every major international human rights treaty, convention and declaration, including:
- Universal Declaration of Human Rights (UDHR), Articles 2, 7;
- International Covenant on Civil and Political Rights (ICCPR), Articles 2, 26
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Articles 1,2, 5; and
- Convention on the Rights of the Child (CROC), Article 2.
One of the great challenges in my role as Social Justice Commissioner is to promote understanding of these principles and of how they apply to Indigenous people in Australia.
One key aspect of these principles is that they provide scope for the recognition of cultural differences of minority groups. Put differently, the promotion of equality does not necessitate the rejection of difference.
In the decision of the International Court of Justice in the South West Africa Case, Judge Tanaka explains this principle:
The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal... To treat unequal matters differently according to their inequality is not only permitted but required.[vi]
Such an understanding of equality, often referred to as 'substantive equality', takes into account 'individual, concrete circumstances'. It acknowledges that racially specific aspects of discrimination such as socio-economic disadvantage and historical subordination must be taken into account in order to redress inequality in fact.
A different approach, often referred to as 'formal equality', relies on the notion that all people should be treated identically regardless of such differences. Such an approach 'denies the differences which exist between individuals and promotes the idea that the state is a neutral entity free from systemic discrimination.'[vii]
The Human Rights Committee, which oversees implementation of the ICCPR, and the CERD Committee, has adopted a substantive equality approach to the meaning of non-discrimination. The Human Rights Committee has indicated that equality 'does not mean identical treatment in every instance', and that the Committee is concerned with 'problems of discrimination in fact' not just discrimination in law.[viii]
Generally speaking, there aretwo types of differential treatment that are permissible in order to achieve equality, or puts differently, are non-discriminatory. These are affirmative action (or 'special measures') and actions that legitimately recognise cultural difference. I don't intend to discuss special measures or affirmative action here today.
In relation to actions that legitimately recognise cultural difference, the critical issue is to identify those differences that justify a differentiation in treatment. Judge Tanaka in the South West Africa Case stated that differences which minority groups may choose to protect are the relevant differences, rather than oppressive distinctions ascribed in order to justify the reduction of rights. There must be a reasonable, objective and proportionate nexus between the relevant difference with its legal recognition to achieve equality of treatment.
Judge Tanaka explained this in the context of the protection of minority groups as follows:
a minority group shall be guaranteed the exercise of their own religious and education activities. This guarantee is conferred on the members of a minority group, for the purpose of protection of their interests and not from the motive of discrimination itself. By reason of protection of the minority this protection cannot be imposed upon members of minority groups, and consequently they have the choice to accept it or not.[ix]
An example in the Australian context of an appropriate recognition of difference that is non-discriminatory is native title.
In their 1992 decision of Mabo, the High Court - which is the highest judicial body in Australia - uncovered the discriminatory practices against Indigenous Australians that were veiled by the legal fiction of terra nullius. The doctrine of terra nullius - or land belonging to no one - formed the basis for the legitimate taking of the land by the British. For the first time in Australian law, the Court in Mabo recognised that prior to British colonisation the land now known as Australia was owned and occupied by Aborigines and Torres Strait Islanders.
The recognition of native title by the High Court in 1992 was a recognition that law did govern Aboriginal societies when sovereignty was acquired by the British in 1788. In deciding whether to recognise that Indigenous law, the Court considered that it was no longer necessary to find that the Indigenous relationship to land bore a resemblance to those already known to the common law. In fact to require as such would be discriminatory. As Justice Brennan stated:
The theory that the indigenous inhabitants of a 'settled' colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principal to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher 'in the scale of social organisation' than Australian Aborigines whose claims were 'utterly disregarded' by existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.[x]
The choice in Mabo was thus between perpetuating the discrimination of the past or to recognise the cultural identity of Indigenous Australians. The Court, consistent with the principle of equality as it exists in international law, chose the latter.
3. Article 27, International Covenant on Civil and Political Rights (ICCPR) There are additional sources of protection for minority groups to be found in international human rights treaties. The most significant of these is Article 27 of the ICCPR. Article 27 states that: Members in ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The Human Rights Committee has stated that the cultural rights guaranteed by Article 27 are rights that are: conferred on individuals belonging to minority groups ... distinct from, and additional to, all other rights which, as individuals in common with everyone else, they are already entitled ...[xi]The obligation that is imposed on states by Article 27 is expansive. As the Human Rights Committee has explained:
A State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself ... but also against the acts of other persons within the State party ... (P)ositive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and to practise their religion, in community with the other members of the group.[xii] In this passage the Committee makes clear that in order to ensure that such rights are able to be enjoyed, not only are negative forms of discrimination prohibited, but that a substantive approach to non-discrimination may be required through the introduction of positive measures of protection. The Committee also makes a clear link between recognition of these rights, the requirement of positive legal measures and a requirement of the decision-making participation of the minority group: The enjoyment of these 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.[xiii] Several cases involving the situations of Indigenous peoples and alleging breaches of Article 27 have been considered by the Human Rights Committee. The Committee has established the following principles about Article 27. For it to be valid and not breach Article 27, a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole.[xiv] The right of a member of a minority group to enjoy their own culture must be considered within the relevant socio-economic context. Economic activities may come within the ambit of Article 27 where they are an essential element of the culture of the group.[xv] In considering whether the economic activities of the minority group are being interfered with in such a way as to threaten the way of life and culture of the community, the Committee will take into account historical inequities in treatment.xvi] The types of economic activities of the minority group that are relevant are not limited to activities that support a traditional means of livelihood. They may be adapted to modern practices.[xvii] A countervailing consideration will be the role of the State in encouraging development and economic activity.[xviii] In doing so, the State is under an obligation to ensure that such activity has, at most, only a 'limited impact on the way of life of persons belonging to a minority.' Such a 'limited impact' would not necessarily amount to a 'denial' of the rights under Article 27.[xix] The Committee will consider whether the State has weighed up the interests of the complainant with the benefits of the proposed economic activity. Large scale activities, particularly involving the exploitation of natural resources, could constitute a violation of Article 27.[xx] In assessing activities in the light of Article 27, State parties must take into account the cumulative impact of past and current activities on the minority group in question. Whereas 'different activities in themselves may not constitute a violation of this Article, such activities, taken together, may erode the rights of (a group) to enjoy their own culture.'[xxi] The Committee will consider whether the State has undertaken measures to ensure the 'effective participation' of members of minority communities in decisions that affect them.[xxii] Article 27 has formed the basis of recent developments in standards for peoples of national, ethnic, linguistic or religious minorities. In particular, the United Nations Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, was adopted by the General Assembly of the United Nations on 18 December 1992. While it has the status of a declaration and not of a treaty, it represents consensus on emerging standards relating to minority groups.The Declaration provides, among other things, that: States shall protect the existence and the identity of minority groups within their respective territories and shall encourage the conditions for the promotion of that identity. States are required to adopt legislative and other measures to achieve these ends (Article 1); Peoples from minority groups have the right to profess their language and enjoy their culture. It also provides that people from minority groups have the right to participate effectively in decisions that affect them (Article 2); and States shall take positive measures to ensure that people from minority groups are able to exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. Such measures extend to opportunities to learn in the mother tongue of the group, as well as education initiatives and measures to participate fully in economic progress and development (Article 4). Concluding comments What I have provided here today is a thumbnail sketch of international principles for the protection of the cultural characteristics of minority groups. I think you would agree that the protection that currently exists is significant and extensive in scope. It is also quite complex - turning as it does on what appear at first to be the competing claims of 'equality' on the one hand, and 'difference' on the other. What must be borne in mind is that what is sought in the end is true equality for all people. The fine balancing between these concepts must be determined with this goal in mind. Article 27, and the substantive approach to equality, requires that States provide equal respect and protection to all cultures. [i] Robinson, M., The Universality of Human Rights, Statement, Bonn, 11 November 1999. [ii] Council for Aboriginal Reconciliation, Addressing the key issues for Reconciliation, AGPS Canberra 1993, pp6-7. [iii] Australian Bureau of Statistics, The health and welfare of Australia's Aboriginal and Torres Strait Islander Peoples, ABS, Canberra, 1999, p2. [iv] ibid. [v] The Hon. Michael Duffy, Attorney-General, Second Reading Speech - Human Rights and Equal Opportunity Legislation Amendment Bill (No.2) 1992 [vi] South West Africa Case (Second Phase) {1966} ICJ Rep 6, pp303-304, p305. [vii] Race Discrimination Commissioner, Alcohol Report, p25 [viii] Human Rights Committee, General Comment XVIII, Non-discrimination (1989), paras 8, 9, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1, p26. [ix] South West Africa Case (Second Phase) {1966} ICJ Rep 6, p305. [x] Mabo v Queensland (No.2) (1992) 175 CLR 1, per Brennan J, p40. [xi] Human Rights Committee, General Comment 23 on the rights of minorities (Article 27) (1994) para 1, in Compilation of General Comments and General Recommendations adopted by the Human Rights Treaty Bodies UN Doc HR/GEN/1/Rev.1 (1994) p. 40. [xii] ibid, paras 6.1, 6.2. [xiii] ibid, para 7. [xiv] Kitok v. Sweden, Communication No. 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), para 9.2.[xv] Ibid., para 9.3.
[xvi] Chief Ominayak and the Lubicon Lake Cree Band v Canada. Communication No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990).
[xvii] Lansman et al v Finland No. 1 (24 March 1994) CCPR/C/49/D/511/1992.
[xviii] ibid, para 9.4.
[xix] In this case the Committee found that the economic activity proposed was of limited impact and did not operate as a denial of the cultural rights of the Sami.
[xx] Lansman et al v Finland No. 2, (25 November 1996) CCPR/C/58/D/671/1995, paras 10.5, 10.7.
[xxi] ibid, para 10.7.
[xxii] ibid.
