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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,
China

AusAID 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 18^th
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.

Last
updated 1 December 2001