"The Director of the Balsillie School, Ramesh Thakur, warmly congratulates Laura Reidel on the publication of her article on cultural rights in the Journal of Human Rights. It is a fabulous achievement to have a major article by a graduate student published in a leading scholarly international journal and a validation of the quality of our graduate program. I am even more thrilled to learn that Laura's article formed the basis for a discussion at the University of Connecticut (where the Journal's editorial offices are currently housed) and was praised by the group for its stimulating powers. The article has now been uploaded to the Balsillie School's website.

Journal of Human Rights, 9:65-80, 2010
Copyright © 2010 Taylor & Francis Group, LLC
ISSN: 1475-4835 print / 1475-4843 online
DOI: 10.1080/14754830903530342

This article explores the notion of cultural rights and argues for a particular way of conceiving of them. Cultural rights are mentioned in several international human rights covenants and declarations but these o not provide a detailed conception of what cultural rights are. It is argued that the best way to protect cultural groups is by conceiving of cultural rights as primarily individual rights and using this determination as the key to balancing between the interests of individuals and groups when working to protect culture. The protection of culture entails safeguarding an individual's ability to form, to maintain, to reinterpret, and even to leave a cultural group. The protection of the traditions and institutions that are the expressions of a culture is secondary to this goal. By making individual autonomy the center of the preservation of culture, it is possible to avoid the risks associated with reifying culture and possibly preventing it from evolving naturally.

This argument will proceed in three parts. First, the use of the term "cultural right" in international human rights documents will be discussed. Second, some of the key concepts underlying cultural rights will be examined, including the meaning of culture and the distinction between individual and group rights. Finally, the conceptual and substantive meaning of cultural rights will be considered and discussed.

Introduction

This article explores the notion of cultural rights and argues for a particular way of conceiving of them. Cultural rights are mentioned in several international human rights covenants and declarations including the Universal Declaration of Human Rights 1948 (UDHR), the International Covenant on Civil and Political Rights 1966 (ICCPR), and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), but these do not provide a detailed conception of what cultural rights are. Without resolving many important questions about the meaning of cultural rights, they establish them as important elements of the international human rights regime.

Cultural rights occupy an awkward position in the existing scholarship on human rights, mainly because of their role in protecting cultural groups from within the realm of human rights, which are generally believed to be rights that protect individuals. As Jack Donnelly puts it quite bluntly, "If human rights are the rights that one has simply as a human being, then only human beings can have human rights. . . . Collectivities of all sorts have many and varied rights. But these are not-cannot be-human rights, unless we substantially recast the concept" (2003: 25). As such, debates about the best way to protect cultural groups

The author would like to thank Rhoda Howard-Hassmann, Andrew Robinson, and the two anonymous reviewers for their suggestions and comments on this article. Address correspondence to Laura Reidel, Balsillie School of International Affairs, Wilfrid Laurier University, Waterloo, Ontario, Canada. E-mail: lreidel@balsillieschool.ca

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have focused on the question of whether group rights must be employed, and whether the unit of the group should be the holder of human rights.  I argue that the best way to protect cultural groups is by conceiving of cultural rights as primarily individual rights, and using this determination as the key to balancing between the interests of individuals and groups when working to protect culture. Essentially, I argue that despite the fact that culture is experienced as part of a group, individual members of cultural groups are always the gatekeepers to protecting the value of culture. However, this is not to say that cultural rights are not partly group rights. Some aspects of culture simply cannot be experienced without a group. The distinction between group and individual rights should be altered such that group rights are seen as those rights that can only be claimed and exercised by individuals as part of a group, rather than those that that are intended to protect a group per se. Thus the distinction is a functional one, not a normative one, and it is more feasible to conceive of individual rights as capable of protecting groups.

The protection of culture entails safeguarding an individual's ability to form, to maintain, to reinterpret and even to leave a cultural group. The protection of the traditions and institutions that are the expressions of a culture is secondary to this goal. By making individual autonomy the center of the preservation of culture, it is possible to avoid the risks associated with reifying culture and possibly preventing it from evolving naturally. Culture is experienced as part of a group, but the value of culture is rooted in individual autonomy and dignity. As such, cultural rights, for the most part, are individual rights. The debate between those who emphasize individual rights or group rights is focused on a false dichotomy, because it is not true that individual rights must prioritize the individuals and group rights must prioritize groups above individuals.

This argument will proceed in three parts. First, the use of the term "cultural right" in international human rights documents will be discussed. Second, some of the key concepts underlying cultural rights will be examined, including the meaning of culture and the distinction between individual and group rights. Finally, the conceptual and substantive meaning of cultural rights will be considered and discussed.

Cultural Rights in International Law

The articulation of cultural rights in international law has not captured their complexity; rather, the covenants and declarations that mention cultural rights describe them extremely vaguely or recommend measures that are not sensitive to the need to balance the protection of cultures with respect for individual rights.

Article 27 of the UDHR states that "Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author" (UN General Assembly 1948). Such a description does not specify what participating in cultural life entails beyond profiting from and enjoying artistic and scientific advances, which is a rather superficial conception of culture. In addition, "the article does not say, as it might have, that everyone has a right 'to participate in the cultural life of his or her community" (Morsink 1999: 269; emphasis in original). Therefore, it does not acknowledge that a person may be a member of a state but not a member of the majority cultural group of that state. This pushes to the side much of the controversy and difficulty of reconciling cultural rights and individual rights.

The ICESCR essentially repeats the UDHR's articulation of cultural rights and adds strength to it without clarifying what such rights consist of:

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15(1) The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from any scientific, literary or artistic production of which he is the author. (2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. (United Nations 1966a: Art. 15.1-2)

By declaring that states should take those steps that are necessary to protect cultures, the covenant does not exclude actions that could harm people inside the group, or other groups. It implies that cultural groups are of fundamental importance without elaborating on the definition of culture.

The ICCPR departs from the UDHR and ICESCR by emphasizing the protection of minorities: "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 the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language" (United Nations 1966b; Art. 27). This differs from the UDHR and ICESCR by mentioning a group rather than guaranteeing cultural rights to "everyone." The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, despite establishing "persons" as the referent in the title of the declaration, proceeds to charge states with the protection of minorities, rather than persons belonging to minorities. Article 1.1 proclaims that "States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity" (United Nations General Assembly 1992). Yet every reference to a rights-holder in the declaration is to a "person belonging to a minority." This reflects the ambiguity about whether cultural rights are individual or group rights, and whether they should protect individual members of groups or groups themselves. Regardless of the fact that such questions remain unresolved, these covenants and declarations nevertheless call for respect for cultural rights without clarifying the definition of what exactly they are and how they should be carried out.

These references to the protection of cultural groups do not contribute much to the clarification of what cultural rights are. They reflect the tension between individual and group rights, but they do very little to resolve it. Instead, they can be interpreted by signatory states in a variety of ways. The UDHR may provide justification for privileging the dominant culture in a state by emphasizing the importance of culture without specifying any protection for minority groups, and the Declaration on the Rights of Persons belonging to Minorities may provide justification for privileging the needs of minorities over that of the dominant cultural group. Nowhere is the question of conflicts between rights addressed nor is the relationship between individuals and groups broached. While it is not the role of international covenants and declarations to explain how rights should be implemented, it is striking how unclear the concept of cultural rights is in these documents.

Key Concepts

The Concept of Culture

Culture must be clearly defined before the notion of cultural rights can be entertained; yet the concept of culture is often underexamined or its meaning is assumed and not explained.

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Culture is a term that is often used loosely. Any group or organization can be described as having a culture. It is not uncommon to hear about a bureaucratic culture in institutions, or culture associated with a particular social group or movement, such as the gay rights movement. In the context of cultural rights, culture must be more than just "a way of being." Cultural rights imply that a more precise understanding of the concept of culture is necessary; clearly the idea of protecting the broadest interpretation of culture is not feasible.

Insight into the meaning of culture can be drawn from the scholarly literature on this subject, and drawing on this I propose the following definition of culture: A set of shared meanings, norms, and practices that form a comprehensive world view that serves to unite a group and contribute to the identity of its members. Cultures grow and change over time due to the interaction of group members with each other, and with the surrounding conditions-including other cultures. Important elements of cultures include: shared history, shared belief (and often religion), shared identity, language, traditions, and practices. However, there is no checklist for elements that combine to form a culture; different cultures may emphasize and include different elements.

The fact that different cultures contain different elements and often evolve over time likely explains the vagueness with which culture is often defined. Clifford Geertz's wellknown discussion of culture aimed to limit the definition of culture and was most likely a response to definitions that existed at that time that were not concerned with setting any boundaries on the concept. He emphasized the idea that culture is about shared meanings. He argued that cultures are structures formed by people that consist of shared meanings that are created and sustained by continued interactions between them. He explained: "Believing with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs" (Geertz 1973: 5). Culture is not constituted by the content of a particular cultural tradition. Instead, he argues "culture is not a power, something to which social events, behaviors, institutions or processes can be causally attributed; it is a context, something within which they can be intelligibly . . . described" (Geertz 1973: 14).

An example of the type of definition that Geertz's definition can be contrasted with is the Statement on Cultural Rights as Human Rights by the United Nations Education Scientific, and Cultural Organization (UNESCO) in 1970, which declared the following: "[W]e recognize [culture] as the totality of ways by which men create a design for living. It is the process of communication between men; it is the essence of being human" (1970: 105). A more vague definition cannot be conceived of. However, if UNESCO's 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expression is any evidence, this conceptual vagueness has not been remedied. Rather than providing a refined definition of culture, this convention begins by defining cultural diversity as "the manifold ways in which the cultures of groups and societies find expression"; it defines cultural expressions as "those expressions that result from the creativity of individuals, groups and societies that have cultural content" (UNESCO 2005: Art. 4, 1; Art. 4, 3). In other words, the convention is circular in its definitions and leaves the definition of culture quite open. It is very problematic to declare protection and promotion of something that is not defined.

Like Geertz, Bikhu Parekh emphasizes people's interpretations of the significance of their lives is a key aspect of culture. He describes culture as "the beliefs or views human beings form about the meaning and significance of human life and its activities and relationships [that] shape the practices in terms of which they structure and regulate their individual and collective lives" (2000: 142). These descriptions suggest that the core of what defines culture is the significance that people attribute to their experiences, the way they interpret them, and the role these interpretations play in influencing the way people

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behave and interact with each other. The role of individual members of cultural groups in mediating the shape of those groups is crucial in order for the groups to maintain this significance and relevance. These shared meanings shape the practices and institutions that people participate in, but because people are raised and socialized in the context of these cultural structures they will in turn be influenced by these contexts.

Whereas Geertz and Parekh's discussions of culture imply that shared meaning and significance are keys to the meaning of culture, Charles Taylor's defense of the value of community provides an example of an argument that attributes much of the value to the group as a basic unit of analysis. He uses conversation as an analogy to demonstrate the contention that such groups have value that is more than the sum of their parts. The intersubjective action of the conversation is more than the aggregation of the acts of two people; it is a separate entity that results from this interaction (1995: 189). The value that arises from such common actions rests partly on the fact that it is reached through a dialogical interaction that would not be possible without a group that shares common meanings, communicative signs, and practices. Communitarian perspectives, such as this one, seem to suggest that cultural rights should protect the structure of the group itself. However, such perspectives leave open several questions such as: How are groups able to evolve naturally and remain relevant to their members if the structure of the group rather than the capacity of group members to participate in these groups is protected; and how is it possible to decide which groups are worthy of protection and which should be ruled out?

In contrast, perspectives that emphasize the idea that the crux of culture is shared meanings and interpretations are able to provide a more precise understanding of culture and one that limits it to those that are more worthy of the protection of cultural rights. Human rights are those that protect those things that are necessary for a life of dignity, or for a "richer and more fully human" life (Donnelly 2003: 14). Thus while it may be useful to understand that people tend to form groups and cannot be understood without acknowledging the role that these groups play, this is not sufficient to justify a right to protect all groups. Cultural rights protect particular groups that are expressions of meaning and significance, and the ability of people to freely participate in them. Cindy Holder argues that culture is the act of

participating in a group of persons negotiating, articulating, changing and expressing who and what they are, collectively and in relation to one another. [And] an assault on a group's capacity to use, access, produce, or maintain the materials of that participation is an assault on their capacity to pursue the activity at all, and as such it is an assault on each of them as a human being." (2006: 91)

This perspective also seems to place emphasis on the agency of members of the group and to emphasize the idea that the freedom to do so is of key importance.

If we accept that cultures consist of shared meaning between people and are mediated by members of a cultural group, then how are cultural groups separated from other groups that share ideas and beliefs? Will Kymlicka provides a step in this direction by specifying that culture "provides its members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres" (1995: 76; emphasis added). Importantly, a culture provides a comprehensive world view rather than a portion of it.

Thus, cultural rights should not be aimed at protecting merely things such as traditional practices and institutions of cultural groups. Since culture is, at its core, about the significance that people draw from the collective experience of participating in a culture, cultural

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rights should be sensitive to the possibility that such structures may change over time as the group evolves naturally. A cursory definition of culture as art, food, or institutions may miss the value of culture and instead protect history without ensuring the ability of cultures to remain vital and relevant to their members on a continuing basis. The definition of culture that I propose, in addition to placing the emphasis on shared norms, meaning, and practices also stipulates that those cultures that are eligible for protection by cultural rights are those that express a comprehensive world view. This provides a way to limit the cultures that are worthy of protection, and it bases the distinction on the idea of what culture provides to its members. Culture that is worthy of protection is not merely that which characterizes the way people tend to form groups with distinctive characteristics, but those that are valuable to their members and enrich their lives.

What Distinguishes Individual Rights from Group Rights?

Another conceptual confusion that must be addressed in any discussion of cultural rights is the distinction between individual and group rights. The argument here is that culture can be protected primarily by individual rights. This seems somewhat counterintuitive given that culture is something that is experienced as part of a group. The proposition that individual rights can protect culture is based partly on the idea of what culture is, and the degree to which individual members of cultural groups are essential to maintaining this, and partly on the idea of how exactly individual and group rights function.

Group rights are not dismissed as unimportant or unnecessary, but when it comes to the protection of cultural rights, group rights are secondary to individual rights. As many commentators such as Jones and Holder, point out, group rights are no more susceptible to cases of conflicts between rights than individual rights, but cultural rights make it necessary for individual rights be primary when resolving conflicts that arise in the course of attempting to protect cultural groups.

There is a rich literature that debates the merits of group and individual rights. Much of this literature conceives of the distinction between these two types of rights as a normative one; group rights are seen as those that are intended to protect groups as a basic unit. As such, this debate often boils down to two camps: those who defend the worth of groups themselves, such as Charles Taylor, Douglas Sanders, or Emmanuel Adler, and those who argue that individuals are the only unit that can hold human rights, such as Jack Donnelly or Marlies Galenkamp. I argue that this is a false dichotomy. Group rights can be more usefully thought of as those that are claimed and exercised by a group, rather than only as those that are intended to protect a grouping and it is possible that individual rights can contribute in important ways to protecting groups.

The two camps in this debate do not necessarily speak to each other. Instead, neither side is inclusive enough of the insights provided by the other. Those who argue in favor of group rights successfully show that groups are important contributors to people's lives, but they do not prove that individual rights cannot be used to protect rights. They also fail to address some of the risks associated with group rights, such as the possibility of protecting oppressive groups. Those who argue in favor of individual rights often neglect to consider the benefits that individuals draw from membership in groups.

Those who promote group rights are often suspicious of the capacity of individual rights to protect groups. Jennifer Jackson-Preece argues that liberal human rights philosophy is hostile to group rights and that minority groups must be protected in order to safeguard individual well-being (2003: 51). In her words: "cultural pluralism is an essential feature of humanity and a necessary precondition for individual liberty" (2003: 69) and individual

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human rights are not capable in and of themselves of supporting cultural pluralism. She points out that historically individual rights to equal treatment have served as a way of avoiding the claims of minority groups.1 However, while she does show quite convincingly how individual rights have not successfully protected ethnocultural groups in the past, her argument does not rule out the possibility that they might be able to do so if interpreted and applied differently. Instead, such arguments seem to suggest that the vague way in which cultural rights are currently articulated leave open the possibility of failing to genuinely protect culture. This underscores the need for a more precise definition of what cultural rights are and how they should be implemented.

In fact, Jackson-Preece's argument appears to allow for the possibility of individual rights playing an important role in the protection of cultural groups because she asserts that the value of cultural pluralism is essentially a matter of individual autonomy: "[T]he fundamental value at stake in these endeavors remains that essential liberal concern for the autonomy of the individual and his or her ability to define, pursue, and realize his or her conception of the good life" (2003: 68). Rather than making a strong case for group rights, her argument suggests that at the root of the concern for protecting minorities is the value of individuals' freedom to choose their own cultural loyalty. It is not clear why individual rights cannot play an important role in this.

Douglas Sanders similarly argues that without special protection, the survival of minority groups will be at risk: "[C]ultural rights cannot be vindicated solely by upholding individual rights. The rights may well be lost unless the collectivity is either protected or has the autonomy to protect itself" (1991: 382). This is a common concern raised by many who defend group protection. Nathan Glazer argues that those groups that are clearly distinguished from each other and firmly established by law and custom will not easily avoid intergroup conflict and therefore must receive special protection (1995: 136). Such arguments often assume that all minority groups are worthy of protection and do not consider how protection of the group may impact individuals within the group. Many, like Sanders, seem to assume that cultural survival is always a legitimate goal; in his discussion of the balancing between competing rights, the underlying goal is consistently the maintenance of the group rather than the well-being or autonomy of its members. Sanders, Glazer, and Jackson-Preece all provide good arguments why groups need protection but they do not seem to leave open the possibility of this protection being flexible enough to account for the fact that individual autonomy and agency is a critical part of what makes cultural groups valuable. A more constructive way of protecting culture may in fact require acknowledging the need to protect cultural groups while also taking steps to protect the role of individual members of cultural groups in negotiating and causing the evolution of these groups. Protecting the group itself in isolation may prevent this natural evolution, and there may also be valid reasons for failing to protect a group or for accommodating claims of the group  within certain limits. This would be so especially in the case of groups that are routinely oppressive or abusive of people inside or outside the group.

Arguments that prioritize the protection of groups, sometimes even above individuals, are often unable to answer some important criticisms. Communitarians argue that communities are intrinsically valuable and their protection is a legitimate justification for limiting individual rights. Emanuel Adler explains that "a communitarian approach assumes that individuality and subjectivity depend on the social context" (2005: 5). In other words, communities provide individuals with an essential context in which to have subjectivity, and "if community is seen as a constituent of individual identity, then the former need not diminish the latter" (Johnston 1995: 181). In this interpretation, group rights are necessary because groups are essential elements of the substance of human dignity.

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However, such claims are vulnerable to challenge from any evidence that people are able to live meaningful lives without attachment to a particular culture. As Rhoda Howard asserts, individuals in modern societies are increasingly inclined to rely on multiple sources of identity rather than the security of single traditional cultures. Instead of being an expression of identity, many defenders of traditional ways of life are motivated by a reaction against the shift to modern society. However, Howard argues that it is not only possible but desirable to embrace the diversity and complexity of modern society: "It is possible in a world of human rights to reduce the extent of alienation in modern society . . . when citizens are possessed of all their human rights, they can act to better not only their own lives, but also the lives of others" (Howard 1995: 222). In other words, there is a viable alternative to relying on attachment to a single cultural group, and an individualistic human rights philosophy does not necessarily lead to social isolation and meaninglessness.

Similarly, Michael Hartney argues that individual subjectivity is not dependent on embeddedness in a culture. He points out that "Many people who undergo a radical change of community-e.g., by emigrating from their native land and leaving behind the society into which they were born, or by undergoing a religious conversion-experience the change as a liberation and think themselves better off for it" (1995: 206). He also notes that "[p]roponents of collective rights for minority groups often seem to move in a rather cursory way from the claim that communities are a good thing to the claim that communities have rights" (1995: 203). Others like Avigail Eisenberg criticize communitarian perspectives for failing to open up the idea of group membership and recognize that there are different ways that groups can impact the development of individuals. She identifies three types of associative ties (voluntary, nonvoluntary, and involuntary) and points out that without acknowledging these different relationships between individuals and groups, communitarian perspectives lead "to the uncritical acceptance and celebration of given social roles. Selfdevelopment is thus reduced to mere socialization" (Eisenberg 1995: 183). Such examples highlight the role that individual autonomy plays in the value of culture. Communitarian perspectives rightfully alert us to the fact that people are social and shaped by their social context to a great degree-but they need to take into account the fact that people are also able to exert agency from within these social contexts and to make decisions about how they will interpret their surroundings, even if this means reconciling with multiple sources of identity and changes in their environment.

At the other extreme are scholars who argue that group rights are unnecessary. Marlies Galenkamp argues that the substance of group claims for special protection is usually nothing more than individual rights:

The vast majority of contemporary minority complaints could thus be resolved through the full and effective implementation of international human rights norms such as the right to equality before the law, to personal security, to privacy, to non-discrimination, to participation in government, and to the freedom of association, education and religion. (1998: 513)

Jack Donnelly (2003) agrees that groups can be protected by individual rights and argues that what is needed is more effective implementation of them.

Chandran Kukathas takes this a step further and argues that liberalism-which emphasizes individualism-is actually better suited to protect groups than communitarian perspectives: "[F]ar from being indifferent to the claims of minorities, liberalism puts concerns for minorities at the forefront. Its very emphasis on the individual rights or individual liberty bespeaks not hostility to the interests of communities but wariness of the power

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of the majority over minorities" (1995: 230; emphasis in original). He argues that rather than thinking in terms of cultural rights, the protection of culture should be safeguarded by appealing to the individual right to freedom of association. In fact, he proposes that this must go along with the right of group members to choose to disassociate from the group. In this interpretation, groups themselves are afforded no protection other than the protection their members give them by virtue of their consent to remain in the group.

In Kukathas' view, freedom of association (and disassociation) is a powerful way to either protect the existence of cultural groups or to safeguard their members against possible abuses by the group by providing them with a protected means of exiting from it. He sees this as a means of protecting groups without imposing any value judgments on different cultures; as such, the vitality and existence of cultures are entirely dependent on the loyalty of their members. This argument suggests that the individual can have a powerful role in the form and lifespan of the groups they identify with. This highlights the usefulness of including the unit of the individual in any scheme for protecting culture but this also raises the question of whether it makes sense to rely entirely on individual rights to do so. Others point to the value in seeking a balance between individual and group rights in the protection of culture.

Peter Jones opens up the idea of group rights and defends the idea that group rights can conceivably be human rights only if they are understood in a particularway. He distinguished between corporate conceptions of group rights, which gives moral standing to the group, and collective conceptions of group rights, which instead "ascribes moral standing only to the individuals who jointly hold the group right" (Jones 1999: 86). This is an important distinction because it moves away from the stark dichotomy between individual and group rights that is often assumed to exist.

Such perspectives suggest that rather than thinking of cultural rights as either individual or group rights, it may be more feasible to look instead for a way of balancing between the two.2 Perhaps the most well-known theory of how to balance the interests of groups and individuals in the protection of cultural diversity is that of Will Kymlicka. He seeks to reconcile the two and attempts to articulate a way of respecting and encouraging cultural groups within a liberal framework. His rationale for respecting cultural groups is based on their role in supporting individual autonomy:

For meaningful individual choice to be possible, individuals need not only access to information, the capacity to reflectively evaluate it, and the freedom of expression and association. They also need access to a societal culture. Group differentiated measures that secure and promote this access may, therefore, have a legitimate role to play in a liberal theory of justice. (Kymlicka 1995: 84)

Here, he promotes the explicit protection of groups, but he does so because these groups allow individual autonomy.

He dismisses the debate over the ultimate value of either individuals or communities and asserts that "most such rights are not about the primacy of communities over individuals. Rather, they are based on the idea that justice between groups requires that the members of different groups be accorded different rights" (Kymlicka 1995: 47). His argument about how to balance between the interests of the group and that of individuals is that liberal societies should strive for equality between groups and freedom within minority groups: In other words, cultural diversity should be supported by liberal states but internal restrictions, "the demand by a minority culture to restrict the basic civil or political liberties of its own members" (1995: 152), should not be tolerated or supported. Kymlicka's theory is built

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around the idea that cultural diversity is valuable and worth maintaining because it supports individual autonomy, and, as such, diversity that does not do so is counterproductive. Others, like Kukathas, criticize Kymlicka for extending tolerance only to liberal cultural groups, and Kukathas (1995) argues that not all cultural groups necessarily facilitate the development of individual choice and autonomy.

What this debate reveals is the particular risks and benefits of supporting cultural diversity and the ever-present reality that cultural groups are vastly different from one another and even from their own historical forms. Culture is not merely a structure that characterizes the way groups live together, it is also an expression of the significance group members draw from living together in a particular context and the signs and signals they use to communicate with each other and express this shared meaning. As such, while culture is inescapably about groups, it is also intimately tied up with the agency of individuals. As Kymlicka's theory shows, any attempt to protect these groups will collide with the need to incorporate concern for the individual as well-thus his argument that the limit of tolerance for diversity should be delineated by the existence internal restrictions in minority groups. What I suggest is that, as counterintuitive as it may be to theorists like Kymlicka, cultural rights should be primarily individual rights because individuals are the gatekeepers not only to justice within the group (which is what Kukathas approaches by arguing for groups to be limited by the ability of their members to leave) but they are also the key to the shape that cultural groups will take in the course of their evolution over time.

Cultural rights, as human rights, are embedded in and must be balanced with other human rights. But in the case of cultural rights, the nature of culture and the role that individuals play as gatekeepers of the content of culture and the evolution of cultural groups means that they must be balanced in a particular way-with individual rights primary and group rights secondary.

In fact, the discussion of group and individual rights seems to be based on a false dichotomy. If individual rights are able to protect the dynamic and changing nature of cultural groups, then it may indeed be more appropriate to think of group rights not necessarily as those that protect the unit of the group but as those rights that can only be claimed and exercised by a group. As some commentators point out, all human rights can in some ways be seen as having group dimensions because they are always carried out in the social context that allows some to claim rights, and others to be obligated to respect them (Donnelly 2003: 25). What this indicates is that individual rights need not be thought of as those that protect only individuals and not groups. The distinction between group and individual rights might be more usefully seen as a functional one that indicates how a right is acted upon. All human rights are claimed and exercised in a social context, but some-such as, for example, self-determination and language-require a group context in which to truly exercise the right in question.

As Denise R´eaume points out, cultural rights are indeed rights that cannot be exercised by individuals alone, but this is not the end of the discussion of the nature of this type of right. Her theory of rights to public goods (of which culture is one) argues that culture is a public good in which the production of the good is united with the consumption of it. She explains:

A cultured society is not a set of artifacts-plays, paintings, films. The good does not consist in some end product . . . it consists in participating in the production of those artefacts which constitute a cultured society. But there is no end product because, in a sense, these artifacts are never completed but are

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continuously reinterpreted and re-created by each generation. (R´eaume 1988: 10-11)

While this leads her to the conclusion that group rights are necessary to protect a good that is heavily dependent on the existence of a group with which to produce and consume culture, it also points to some interesting facts about the interaction of structure and agency within cultural groups. Chief among them is the fact that the action of group members is the key to creating and altering the substance of what culture is. The relationship between the agency of group members and the structure of the group itself is a dialectical one; group members are shaped by the culture they are part of but at the same time they are able to impact the shape of the group by virtue of the action of continually reinterpreting the group. If group rights were rights that protect groups, then it would make sense to argue that cultural rights must be group rights. However, if it is possible to accept that individual rights can protect groups by protecting individuals' capacity to be active members of a cultural group, then group rights can be thought of differently. The assertion that cultural rights are primarily individual rights acknowledges the role that individuals play as gatekeepers in this dynamic between individual agency and the structure of the group. Group rights to things such as language are not dismissed but instead are balanced against the primary need to ensure an individual's right to be an agent in the autonomous determination of their cultural identity and to be part of its ongoing evolution.

Cultural rights are partly constituted by group rights because they are indeed experienced in community with other group members. However, as with the right to freedom of association, despite the fact that there is an inescapably social aspect to the right it is also crucially concerned with the ability of individuals to be autonomous agents in choosing how to negotiate their own associations; individual agency and choice are key to cultural rights and freedom of association contributing to people's dignity. However, the boundaries of what defines different cultural groups are not necessarily fixed. Also, unlike freedom of association, cultural groups are not always completely voluntary. Eisenberg points out that some are nonvoluntary and some are involuntary3 ; people are born into certain cultural groups and have certain ethnic characteristics passed on to them by their parents. Some of these identifiers may be acceptable to individuals, and some may be rejected. It is inescapable that cultural rights must include some group and some individual rights in order to preserve the nature of cultural groups as having these qualities.

What Are Cultural Rights?

Cultural rights are those that protect the capacity of individuals to draw on their culture and to participate in its continual evolution. Such rights are not necessarily group rights. Instead, while there are undeniably some group rights involved in protecting cultural groups, these must be subordinated to the individual right of people to be active agents in determining their own cultural identity and mediating the shape and content of the cultural groups they identify with. This article has examined the way that cultural rights are articulated in international law and analyzed in scholarly literature. Although the definition of cultural rights that can be taken from international covenants and declarations is a rather vague one, the literature on the meaning of culture, group rights, and individual rights provides a clear picture of some key themes that have been debated: The question of whether cultural groups can be protected through individual rights or if group rights are necessary, and the question of what exactly culture is-a way of life broadly defined or something more specific.

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However, one of the themes in this literature that has not yet been discussed is the question of whether cultural groups have the effect of enriching people's lives or harming them. Just as there is evidence that individual rights have not been successful in protecting minority groups in the past, there are also many examples of the ways in which prioritizing the protection of ethnocultural groups has been harmful to individuals.

Klejda Mulaj (2007) argues that the idealization of the nation-state as the most stable and manageable form of state has led to efforts by states to create ethnocultural homogeneity. Such efforts can be disastrous for those who find themselves in the way of this endeavor. Others emphasize that cultural groups can be manipulated and exploited by those seeking to control people. Micheline Ishay's discussion of decolonization leads her to the conclusion that "[u]nqualified group rights can be used to inflict the very harms they purport to protect against. Elites of newly independent states can easily appeal to or reinvent ancestral traditions in order to justify women's or minorities' unequal rights or other forms of social and economic discrimination" (2004: 197). Similarly, Dominic Bryan's examination of the role of identity in Northern Ireland leads him to caution that

"Culture", "community", and "identity" all emerge as positive things but are clearly also mechanisms of control. In Northern Ireland culture is sanctified in a "community" that, according to politicians across the political spectrum, needs protecting at all costs. . . . And why wouldn't politicians argue this? They after all represent political parties that embody the communal differences from which they glean support. (2006: 615) 

When cultural identities are politicized, they can take on a different meaning, the boundaries of groups become more intractable. Cultural groups may come to be mechanisms of exclusion and control in order to prevent deviation from a politically pertinent structure. When this occurs, the benefits that cultures accord to their members are much lower than if the culture functions as a site of collective interpretation and negotiation of meaningful identity.

Amartya Sen points out that people do not always fit into a single identity category. To essentialize identity by assuming it is contained in mutually exclusive cultural packages is limiting and potentially dangerous:

The insistence, if only implicitly, on a choiceless singularity of human identity not only diminishes us all, it also makes the world much more flammable . . . the main hope of harmony in our troubled world lies in the plurality of our identities, which cut across each other and work against sharp divisions around one single hardened line of vehement division that allegedly cannot be resisted. (Sen 2006: 16)

There is no use in reinforcing the divisions between people and increasing the chances of conflict between them, especially if doing so is an artificial reduction of the plural identities that people seem to have.

It may be counterproductive to protect cultural structures or groups without an underlying awareness of the agency of individuals in them. Such structures can be oppressive to people, and there are several reasons why oppressive groups should not be protected. From a human rights perspective it is simply not acceptable to reinforce a structure that violates individual human rights; moreover, if a cultural group is valuable because of the shared meanings it allows people to express, then a structure that imposes constraints rather than

Cultural Rights, Groups, and Individual Rights 77

enabling constructive interaction is of no use. The fact that cultural groups are constantly evolving means that the substance of the group cannot be protected without unnecessarily freezing its attributes. Also, the variance between different groups means there cannot be a one-size-fits-all formula for accommodating groups. Finally, the fact that people have plural sources of identity means that reifying distinct cultural groups may actually diminish the complexity of identity and increase the divisions among people.

Thus far I have argued that cultural rights must be conceptualized as primarily individual rights for several reasons. First, different cultural groups have different characteristics and there is even variation within groups over time as they evolve through the agency of their members. Given this fact, schemes for protecting culture run the risk of either imposing judgments about which characteristics of culture are or are not deserving of protection or declaring protection for a very vaguely defined notion of culture. Because group members have such a vital role in mediating the shape of the cultural groups they identify with, it seems wise to protect cultures by protecting their capacity to act in this way.

Second, much of the literature on the concept of culture emphasized that it is the significance people draw from their identification with culture, and their freedom to do so without coercion, that constituted the essence of the definition of culture. In other words, culture is worthy of protection because it is valuable to people and enhances their quality of life. The role that individuals play in maintaining the significance of cultures is crucial. As time passes, group members must reassess the significance of their culture in the context of changing external circumstances and ensure that it is a living system that is still able to have meaning for its members. Without this, cultural groups would become historical artifacts.

Third, it is not possible to say that either group or individual rights can protect a cultural group; instead, it is inescapable that cultures are what they are because of a dialectical relationship between the structure of the group and the agency of its individual members. Cultural rights must recognize this and prescribe a way of balancing between the elements that are group rights and those that are individual rights in order to protect groups that are characterized by this dialectical dynamic. The literature on cultural rights has been preoccupied with the debate about whether group or individual rights should be employed to protect culture, but I do not propose to defend the idea that only individual rights such as freedom of association can protect groups, as Kukathas does. Nor do I want to argue that group rights are justified by the role culture plays in developing individual autonomy, as Kymlicka does. Instead, I argue that the best way of protecting cultural groups is to prioritize individual rights because of the role that individuals play as gatekeepers of the vitality and significance of cultural groups within this dialectical relationship.

Fourth, due to factors such as intermarriage, migration, and diversity within societies, many people have multiple identities, and they do not relate to only one cultural group. In such circumstances, it is all the more important for individuals to be in control of the way in which they define their cultural identity. A conceptualization of cultural rights that emphasized group rights might strengthen the structures of different groups and compel such people to choose between these multiple sources of identity by hardening the boundaries between these groups and reducing the possibility for any in between spaces that might dilute the strength of each group's identity.

Finally, cultural rights as part of the larger body of human rights cannot protect culture by endangering other human rights. Cultural groups can be used as a mechanism of control, especially when they are politicized. This is one of the key reasons why cultural rights should empower individuals to be active within cultural groups rather than risking empowering

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political elites who may use the idea of a cultural community to control its members or to harm those outside the group.

For all of these reasons, I argue that cultural rights should be conceptualized primarily as individual rights and that this determination should be used as a guide for balancing between the interests of individuals and groups within cultures. I propose the following rule as a more effective guarantee of cultural rights than those offered in the existing international declarations and conventions:

Whereas determining one's own identity is an important element of individual autonomy and dignity;

Whereas identity may be expressed individually or collectively, and collective identity may take the form of culture;

Whereas culture is defined as a set of shared meanings, norms, and practices that form a comprehensive worldview that unites a group and contributes to the identity of its members:

1. All individuals have the right to define their own identity and/or to do so as part of a culture.

2. All individuals have the right to form, to participate in, to maintain and/or to leave a culture subject to the following:

a. Cultures may not violate any human rights, in particular the rights to freedom of conscience, freedom of speech, freedom of religion, freedom from discrimination, and the right to life and the right to equality before the law of any individual, whether members of the group or not.

3. The rights to form, to participate in, and to leave a culture are expressions of individual autonomy.

4. The right to maintain a culture must be augmented by support for institutions that express culture if such institutions are in accordance with 2(a).

This is not a radical change from the existing guarantees of cultural rights, but it is more specific. Much like the existing articles, it articulates cultural rights in individual terms, and the only section that is a group right is the right to maintain a culture. The only portion of this that differs from existing rights is the idea of a right to identity and the explicit connection between culture and individual autonomy. Much of the substance of this expression of cultural rights is already guaranteed by individual human rights, but it should be emphasized explicitly that the autonomous determination of one's own identity and worldview can exist in the context of a cultural group and this warrants protection as long as it falls within the scope of the limitations described above.

This conceptualization of cultural rights flows from my definition of culture as sets of shared meanings, norms, and practices that form a comprehensive worldview that unites a group and contributes to the identities of its members. The protection of a culture is not necessarily about protecting a grouping; it is about a shared meaning and identity. At issue is not the structure that is formed by the norms and practices of a culture but the ability of people to autonomously create them and to participate in them. Prioritizing this aspect of culture provides a safeguard against the dangers of reifying the boundaries of cultural groups and preventing their natural evolution. It also defines culture in a way that excludes oppressive cultures from the definition of what a culture is-the boundaries and meaning of culture belongs in the hands of its members.

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Notes

1. Others, such as Hurst Hannum (1990) and Nathan Lerner (2003) have provided extensive accounts of the ways in which ethnocultural groups have not been satisfactorily protected by existing interpretations of individual rights throughout history.

2. Balancing between the interests of groups and individuals is a strategy proposed for other groups rights as well. Some, like Allen Buchanan and Cindy Holder, propose that the insurance against many of the worries expressed about a particularly contentious group right-selfdetermination- is the idea that the exercise of the right to self-determination must be balanced against respect for other human rights (Buchanan 1993; Holder 2006b). In fact, as S. James Anaya points out, self-determination is just like all other human rights in that it is embedded in and must be balanced against other human rights in its exercise (Anaya 2004).

3. Nonvoluntary and involuntary affiliations are both those that individuals do not have power to determine, but involuntary affiliations are additionally those that individuals actively reject but cannot discard because of a characteristic that they have nonvoluntarily-such as being a woman or a person of color (Eisenberg 1995: 178-180).

References

ADLER, Emanuel. (2005) Communitarian International Relations: The Epistemic Foundations of International Relations (London: Routledge).

ANAYA, S. James. (2004) Indigenous Peoples in International Law (Oxford: Oxford University Press).

BRYAN, Dominic. (2006) The politics of community. Critical Review of International Social and Political Philosophy, 9(4), 603-617.

BUCHANAN, Allen. (1993) The role of collective rights in the theory of indigenous peoples' rights. Transnational Law & Contemporary Problems, 3(89), 89-108.

DONNELLY, Jack. (2003) Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca, NY: Cornell University Press).

EISENBERG, Avigail. (1995) Reconstructing Political Pluralism (Albany: State University of New York Press).

GALENKAMP, Marlies. (1998) Do we need special, collective rights for immigrants and refugees in Western Europe? Citizenship Studies, 2(3), 501-517.

GEERTZ, Clifford. (1973) The Interpretation of Cultures (New York: Basic Books, Inc.).

GLAZER, Nathan. (1995) Individual rights against group rights. In The Rights of Minority Cultures, W. Kymlicka (ed.) (Oxford: Oxford University Press).

HANNUM, Hurst. (1990) Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press).

HARTNEY,Michael. (1995) Some confusions concerning collective rights. In The Rights ofMinority Cultures, W. Kymlicka (ed.) (Oxford: Oxford University Press).

HOLDER, Cindy. (2006a) Culture as a basic human right. In Diversity and Equality: The Changing Framework of Freedom in Canada, A. Eisenberg (ed.) (Vancouver: UBC Press).

HOLDER, Cindy. (2006b) Self-Determination as a universal human right. Human Rights Review, 7(4), 5-18.

HOWARD, Rhoda E. (1995) Human Rights and the Search for Community (Boulder, CO: Westview Press).

ISHAY, Micheline. (2004) The History of Human Rights: From Ancient Times to the Globalization Era (California: University of California Press).

JACKSON-PREECE, Jennifer. (2003) Human rights and cultural pluralism: The "Problem" of minorities. In International Human Rights in the 21st Century: Protecting the Rights of Groups, G. M. Lyons and J. Mayall (eds.) (Lanham, MD: Rowman & Littlefield Publishers, Inc.).

JOHNSTON, Darlene M. (1995) Native rights as collective rights: A question of group selfpreservation. In The Rights of Minority Cultures,W. Kymlicka (ed.) (Oxford: Oxford University Press). Downloaded By: [Canadian Research Knowledge Network] At: 17:11 10 March 2010

80 Laura Reidel

JONES, Peter. (1999) Human rights, group rights, and peoples' rights. Human Rights Quarterly, 21(1), 80-107.

KUKATHAS, Chandran. (1995) Are there any cultural rights. In The Rights of Minority Cultures, W. Kymlicka (ed.) (Oxford: Oxford University Press.)

KYMLICKA, Will. (1995) Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press).

LERNER, Nathan. (2003) Group Rights and Discrimination in International Law, 2nd ed. (The Hague: Martinus Nijhoff Publishers).

MORSINK, Johannes. (1999) The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press).

MULAJ, Klejda. (2007) Ethnic cleansing and the provision of in/security. Security Dialogue, 38(3), 335-356.

PAREKH, Bikhu. (2000) Rethinking Multiculturalism: Cultural Diversity and Political Theory (Cambridge, MA: Palgrave McMillen).

R´EAUME, Denise. (1988) Individuals, groups, and rights to public goods. The University of Toronto Law Journal, 38(1), 1-27.

SANDERS, Douglas. (1991) Collective Rights. Human Rights Quarterly, 13(3), 368-386.

SEN, Amartya Kumar. (2006) Identity and Violence: The Illusion of Destiny (New York: W.W. Norton).

TAYLOR, Charles. (1995) Philosophical Arguments (Cambridge, MA: Harvard University Press).

UNESCO. (1970) Cultural Rights as Human Rights (Paris: Author).

UNESCO. (2005) Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Paris: Author).

UNITED NATIONS. (1966a) International Covenant on Civil and Political Rights. Gar 2200A, UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171 (entered into force 23 March 1976). [Online]. Available:  thtp://www1.umn.edu/humanrts/instree/b3ccpr.htm [6 Janaury 2010].

UNITED NATIONS. (1966b) International Covenant on Economic, Social and Cultural Rights. UN Doc. A/6316 (1966), 993 UNTS 3 (entered into force 3 January 1976). [Online]. Available: http://www1.umn.edu/humanrts/instree/b2esc.htm [6 January 2010].

UNITED NATIONS GENERAL ASSEMBLY. (1948) Universal Declaration on Human Rights. UN Doc. A/810 at 71 (1948). [Online]. Available: http://www1.umn.edu/humanrts/ instree/b1udhr.htm [6 January 2010].

UNITEDNATIONSGENERALASSEMBLY. (1992)Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. UNGAOR Supp. (No. 49) at 210,UN Doc. A/47/49 (1993). [Online]. Available:  http://www1.umn.edu/humanrts/instree/d5drm.htm [6 January 2009].