Briefing Paper for the Ad Hoc Committee on a Bill of Rights - Notes on Human Rights AND culture and a Culture OF Human Rights

While recognizing the symbolic and constitutive function that a Bill of Rights for Northern Ireland could serve, this briefing note does not seek to address arguments for or against a Bill of Rights for Northern Ireland. Rather, it makes some specific points about rights as they relate to culture and on the development of a culture of rights.

A shared commitment to human rights is vital in the promotion of equality and justice in all societies. In deeply divided societies, their protection is particularly important because rights afford recognition to the multiple ways in which individuals are at once both equal and different. Crucially, rights serve to provide confidence that the power of the state will be exercised for the good of the people and, moreover, an assurance that violations will not be tolerated. However, it is not enough to have legally enforceable rights, it is also important that people have the knowledge, resources and confidence to access those rights.

There are a range of international and national legal instruments that offer protection to the right to take part in cultural life, and to express opinion and identity. The relevant provisions, read together, unquestionably offer a right to cultural expression. We wish to make several observations in terms of contestation over ‘culture’ and cultural identity. Whilst we would argue for the widest definition of the term culture, of note here are those ‘traditions’ or aspects of ‘heritage’ deemed of particular importance to the cultural identity of groups or communities. It is very common that in forms of conflict involving group identities that elements of culture will become contested with significant emotional resonance. We should thus be interested in how human rights can afford due recognition to identity-based claims and in the ways in which a rights framework can assist in the resolution of conflicts involving such claims.

Human Rights and Culture

• The Belfast/Good Friday Agreement tasked the Northern Ireland Human Rights Commission with considering ‘the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland.’
• We caution against framing the function of a Bill of Rights as being, in any way, to attempt to protect ‘the identity and ethos of both communities.’ As the 25^th anniversary of the Belfast/Good Friday Agreement approaches, such a focus not only overlooks the rights of members of other communities, but also flattens the rich diversity within communities and presents an obstacle to shared cultural celebration and exchange.
• From the perspective of many social scientists there is a tension between conferring cultural rights in ways that reify and fix group boundaries and a contemporary understanding of how culture works. We understand that culture, including traditions and aspects of heritage, are fluid and change over time. As such, to regard aspects of culture as permanently characterizing particular communities can only serve to entrench and institutionalise difference by elevating the salience of these two communal blocs. To suggest that a ‘particular group’ has a ‘particular culture’ is essentialist, simplistic and almost always ignores diversity within groups (for example between younger and older people, males and females, as well as differences based on political opinion, power and status). In turn, this emboldens those who rely upon rights rhetoric for political gain and contributes to the debasement of a culture of rights.

Culture of Rights

• While we have noted some of the tensions between understandings of culture AND human rights, we would like to underscore the importance of establishing a culture OFhuman rights. This refers to the importance of embedding the resources within society to promote the utilisation of human rights and promoting the rights of others and the reciprocity that this suggests.
• Once a framework of human rights exists it is equally important that an understanding of human rights is promoted, is taught in institutions throughout society and that it plays a vital part of the political discourse of that society. The more that everyone understands and signs up to human rights protections the better.
• For example, freedom of assembly is viewed as a fundamental right for the functioning of a democratic society. One of the most important elements of human rights is their interconnectedness and exercising the right to freedom of assembly should involve acknowledging the potential impact it might have on the rights of others. Finding ways to protect the different interests at stake when rights come into conflict can make our public spaces more welcoming.
• This involves investment. It involves a legal and criminal justice system that is resourced in ways that ensures people’s rights are protected and respected and an education that teaches and legitimises human rights. Greater understanding of rights can provide legitimacy for political and legal systems which people have access too. This we might call development of a human rights culture.
• It is worth noting the variety of attitudes to human rights within different social groups in Northern Ireland. There are a number of reasons for this, some groups have used rights to make legitimate challenges to the institutions of the state, others view human rights as a tool to fight a particular political fight, or as a threat to the institutions of society. It would be better for everyone if we could promote projects that develop rights for all including building skills and resources.
• Developing a culture of rights based on international human rights instruments and well- resourced access provides the basis for ongoing conflict transformation in our society.
• Although human rights law underpins the expression of identity, politics, religion etc, it cannot alone provide what is required to resolve cultural contestation. Rights provisions are inevitably expressed in open-textured and indeterminate language. Rights are subject to interpretation. The very possibility of legitimate limitations being imposed on qualified rights illustrates how their realization will vary in different contexts and will depend on the continued development of good legislation and legal precedent.
• We would conclude that while a Bill of Rights could provide an important basis for the protection of cultural expression, the legal rights it contains will not of themselves provide an immediate panacea in cases of contestation involving cultural identity. The success of a Bill of Rights will be measured not by the legal cases it spawns but by the confidence and reassurances that a culture of rights provides.