Cultural Rights Exceptionalism and the US Domestic Human Rights Movement

Robert Albro
George Washington U

Robert Albro

At least since Tocqueville much ink has been spilled telling the story of US exceptionalism—a conviction that the US has a special role in the world. The conduct of the present Bush administration has caused even more ink to be spilled debating the perceived unilateralism of many US policies.

Exceptionalism, in the case of human rights law, has meant a US aversion to the domestic elevation of international standards above the US Constitution. This is a story I cannot rehearse in its entirety here. But the recent growth of a domestic human rights movement, represented by initiatives like the US Human Rights Network (founded in 2003 and currently composed of over 200 member organizations), promises to resituate human rights in the US legal context.

The network seeks “to challenge the pernicious belief that the United States is inherently superior to other countries of the world.” To this end, it hopes to direct more attention to economic, social and cultural (ESC) rights on the US home front alongside much more widely recognized civil and political rights. These include domestic effects of economic globalization, immigration and migrant workers, refugees, racial and religious discrimination, post-9-11 profiling, Islamaphobia, and failures of post-Katrina reconstruction—problems for which cultural conflicts loom large and a human rights approach to culture promises to be constructive.

Why Exceptionalism?
Janet Chernela suggested a year ago in AN that it is time for anthropologists “to return to the conversation on cultural rights,” particularly since the 1999 Declaration on Anthropology and Human Rights adopted by the AAA asserts our universal right to a “capacity for culture.” Here I reflect upon some of the reasons for the apparent irrelevance of these least recognized of ESC rights among the community of US human rights professionals now confronting the exceptionalism of the home front. Since rights struggles in the US are also significantly cultural struggles, why are they not formulated as questions of “cultural rights”?

But first a thumbnail account of why cultural rights formulations are marginal to US rights debates is in order. The US stands alone in not ratifying the basic cultural rights instruments, including 1966’s International Covenant on Economic, Social and Cultural Rights and 1989’s ILO Convention 169 addressing the self-determination of indigenous and tribal peoples. Nor has the US ratified two new UNESCO cultural instruments, 2003’s convention on intangible cultural heritage and 2005’s convention on cultural diversity. If details vary, US positions on specific treaties exhibit a deep ambivalence about ESC rights among policymakers—also shared in its way by the US human rights community.

Historically this ambivalence has been leavened by: the rejection of legal claims limiting US sovereignty; piecemeal US championing of individual civil and political rights (represented by articles 3–21 of the Universal Declaration of Human Rights); a polarizing Cold War legacy of East-West human rights realpolitik; the US treatment of human rights as a foreign policy rather than domestic issue; a US position that ESC rights are in fact needs or aspirations to be addressed with aid and through the market; frequent interpretations of collective rights (like affirmative action) as entitlements instead of obligations; and the bracketing of Native Americans as a special case that should not be generalized. These and other standpoints have been variously combined—depending upon circumstances—with the pervasive effect of disconnecting ESC rights from domestic rights discussions.

The US Rights Framework
In contrast to its neighbors to the north and south, there exist no federal provisions for cultural rights in the US, with the Native American case a partial exception. If Indian tribes are “domestic dependent nations” with some political autonomy, the US legal system reserves for itself the power to define legal standards for recognizing or rejecting the collective claims of native groups.

The closest the rest of us come to cultural rights are private “religious freedoms.” In legal terms these are a personal choice, justified by the Supreme Court’s application of the “free exercise clause” of the first to the “equal protection” clause of the 14th Amendments. If a “cultural defense” exists in US courts, it is rarely invoked and comparable to the insanity defense in helping to establish the motives of individual defendants. During the Reagan era in 1982, the State Department’s annual Human Rights Report dropped ESC rights from its roster of considerations without comment.

Domestic US policymaking privileges specific ideological content that, in practice, promotes a culture-free account. As Renato Rosaldo once observed, majoritarian interests in the US are assumed to correspond to “people without culture.” Sometimes described in terms of “possessive individualism,” in this account citizenship benefits accrue from an equality of opportunity. And legal priority is granted to personal responsibility, private ownership and cultural property.

This also informs domestic rights advocacy, as with a “woman’s right to choose.” Cultural identity, in this account, is an extension of an individual’s private sphere. And immigrant cultural heritage is relegated to the privacy of the family. ESC rights become a threat to “free enterprise” at home and abroad—invisible in US policies supporting the legal instruments of neoliberal globalization to encourage the privatization of cultural goods and services.

Making Cultural Claims Invisible
If obviously at odds with the evident cultural diversity in the US, this domestic legal account leaves little room for claims to collective rights or membership rights in defined cultural communities. As George Yúdice has noted, in the culture wars of the last quarter century, public struggles over group entitlements have not been waged as such but in surrogate domains and by invoking civil liberties.

In the “clash of civilizations” hyperbole of the War on Terror, this in fact amounts to a back-door cultural account used to support those “values” in the US in need of defending. These values patrol internal domestic borders articulating rights-based self-other distinctions in ways comparable to 1980s-era “Asian values” debates in human rights circles. This process tends to focus on internal cultural others as potentially dangerous interlopers into a domestic zone assumed to be culture-free.

If the US Human Rights Network is promising, its proactive attempt to introduce ESC rights into the domestic rights arena reflects the priorities of network members to promote economic injustice in the US as a human rights violation. “Economic and Social Rights” is one of its 13 caucuses. But this excludes the “C” of ESC. Human Rights professionals, I suggest, are subject to the same exceptionalist stance vis-à-vis the right to culture as US policy more broadly.

If the universalizing claims of human rights tend to be presented as difference-leveling “principled ideas,” the US-based rights account brackets cultural identity as irrelevant to civil liberties debates. If the human rights community has treated “culture” as an obstructive, harmful tradition, anti-modern, backward-looking, often irrational, and potentially extremist, then domestically, cultural rights appear doubly negated—locked away as a private matter and contrary to the “values” of the US’s own rights-based tradition. But we must ask: how might this leave the rights of minority communities vulnerable?

Robert Albro is the chair of the AAA Committee for Human Rights.