Negotiating Cultural Rights presents a critical contribution to the important topic of human rights. Largely neglected and often misunderstood, cultural rights are addressed in this interdisciplinary book by a number of expert scholars from diverse parts of the globe. Chapters in the book provide thoughtful, informative commentaries and discussions based on the groundbreaking reports of Farida Shaheed, who was the first United Nations Independent Expert and Special Rapporteur in the Field of Cultural Rights from 2009 to 2015.
An important chapter is by Shaheed herself, who shares an insightful discussion of her work as Special Rapporteur. In addition to addressing how cultural rights are enumerated in Article 27 of the Universal Declaration of Human Rights, she undertakes the difficult task of defining culture:
"a living process, historical, dynamic and evolving, not as a series of isolated manifestations,… but as an interactive process whereby individuals and communities, while preserving their specificities and purposes, give expression to the culture of humanity… Culture is like a prism through which we perceive, understand and engage with the human, manufactured, and natural world around us, and through which we, in turn, are perceived and understood by others." (pg. 24)
In this view, culture is not a static product but a site of contestation over meanings and narratives, providing people with a sense of self, in addition to collective and individual identities, which are constantly undergoing creation.
Shaheed focuses on cultural rights as having three main aspects (pg. 25): the right to access a cultural life, the right to participate in a cultural life, and the right to contribute to a cultural life. She also emphasizes that culture needs to be seen as linked to power.
The book addresses a number of critical issues. First it disagrees that cultural rights degrade universal human rights, arguing that the mistaken view confuses respect for cultural diversity with cultural relativism. In contrast, Negotiating Cultural Rights emphasizes that cultural diversity must not be used to infringe upon or limit fundamental human rights, in particular the rights of women, such as are protected by domestic and international legal instruments. As a result, cultural rights include the right to not to participate in any cultural event or process that degrades human dignity. In this view, cultural rights need to be seen as separate from culture per se, in order to refuse cultural relativism and respect cultural diversity and universal human rights. In other words, a right to culture is not about simply preserving any particular culture or safeguarding a certain heritage.
Likewise, the book clarifies the relationship between individual rights and group rights. It maintains that cultural rights may be engaged alone, individually, in association with others, or as a community, because all individuals have a right to access cultural heritage. As such, pitting individual rights against group rights is the result of a false binary.
Negotiating Cultural Rights also focuses on two significant themes emerging in the field. The first theme is about how cultural rights are empowering rights. In this view, human rights are both absolute and historically defined, which allows human rights to serve as a common language in support of understanding others and norms while also being in constant movement and a complex synthesis formed via long historical processes. Since cultural rights are transformative, they are empowering and provide important opportunities for the realization of other human rights, such as the right to education.
The second theme is about connections between culture and science. Some may perceive a conflict between culture and science, but Negotiating Cultural Rights emphasizes that rights to culture and rights to science are encompassed by the broader rights of all human beings to be creative and the rights of all people to enjoy the results of the creativity of others. In this view, it makes more sense to understand rights to culture and science together, rather than in conflict or as an either/or dilemma.
The book also makes a number of important recommendations. For example, Lotte Hughes addresses the use of the word “community”, cautioning that it tends to lead to exclusion rather than better understanding. This author also warns about the fragile line between real and “invented” traditions, calling for better criteria for deciding on the historical legitimacy of competing claims.
Helle Porsdam and Matthias Mann, in another chapter, focus more on science. In contrast to various global trends, they focus on the need for science to benefit everyone, including the most vulnerable groups, and advocate for the development of environments that protect individual researchers and enable them to produce and disseminate scientific knowledge alone or with others without fear of violence or repression.
Additional key recommendations of the book include Lucky Belder’s call to museums, museum professionals, and civil society to improve protection of cultural heritage. Yvonne Donders’ suggests to avoid representing culture predominantly as an obstacle to human rights, in order to support how cultural rights and culture can empower women and transform societies. Dalindyebo Shabalala, furthermore, recommends a “cultural ecology” approach to marketing practices, along with greater regulation and self-regulation of the advertising industry.
Hanne Hagtvedt Vik, in another part of the book, addresses history and the teaching of history. This chapter recommends for contexts that have disagreements about events in the past and have limits on access to historical narratives to allow multi-voiced narratives and the recognition of victims. This author suggests approaching the teaching of history from a human rights approach that builds on rights to freedom of opinion and expression and rights to information and academic freedom. In this view, the teaching of history should be used to promote peace.
While offering profound insights and in-depth attention, the scope of the book is wonderfully vast. Shahira Amin focuses on the gap in Egypt between constitutional law and the reality on the ground, and Stina Teilmann-Lock examines where criticism of corporations is silenced in the name of protecting corporate interests. In another chapter, Fiona Macmillian addresses copyright policy, and Jannice Käll's chapter concerns advanced capitalism, neoliberalism, and the role of public universities.
Despite ongoing challenges such as widespread discrimination and the general woeful state of cultural rights globally, Negotiating Cultural Rights contributes to a solid start on an important, complex topic that each of us has a responsibility to carry forward so that the future of human rights can be brighter.
Belder, L. & Porsdam, H. (2017). Negotiating Cultural Rights: Issues at Stake, Challenges, and Recommendations. Cheltenham, UK: Edward Elgar Publishing.
Interim relief is when a court or tribunal provides some short-term help or an order before a full trial or hearing. Examples of interim relief at the Human Rights Tribunal have included ordering the respondent to allow the applicant to visit his family in a semi-private room in hospital accompanied by his service animal, in Sprague v University Health Network, 2015 HRTO 1706.
More recently, KZ v Cambridge Kips Inc., 2017 HRTO 241 ordered the respondent to allow the applicant, a 12-year-old girl, to train and compete with the respondent's gymnastics club.
The Human Rights Tribunal suggests that granting an interim relief request is an extraordinary step. The party seeking the relief has a significant onus or burden to demonstrate that the request meets requirements. These requirements are set out in Rule 23.2 of the Tribunal's Specific Rules:
1) the Tribunal must be satisfied that the application alleging discrimination has merit,
2) that the balance of harm or convenience favours granting the interim remedy, and
3) that it is just and appropriate in the circumstances to do so.
EC v Ontario (Health and Long-term Care), 2015 HRTO 1462 clarified that, without proper consideration, the request for interim relief should not be granted if the result of this remedy would essentially give the applicant a part of the final remedy sought by the application. In Grant v Bombardier Inc., Bombardier Commercial Aircraft, 2015 HRTO 253, the applicant's request for an interim remedy was refused because the request sought not to preserve an existing state of affairs, but instead sought to form a new employment relationship between the applicant and respondent.
Danbrook v Hilton Toronto Hotel, 2013 HRTO 811 confirmed that financial hardship is not a sufficient factor in granting an order for an interim remedy. Williams v Iroquois Falls (Town), 2010 HRTO 2350 agreed that a delay in an applicant's request for interim relief is a significant factor against granting the relief.
The Ontario Human Rights Tribunal requires that a request for interim relief is submitted in a Form 16, and then other parties to the dispute typically have seven days to file a Form 17 Response to Request for Interim Remedy and deliver it to other parties, according to the Rules of Procedure.
June 15 is the anniversary of the Ontario Human Rights Code. This quasi-constitutional, provincial law prohibits discrimination in social areas such as employment, housing, contracts, membership in vocational associations, and goods, services, and facilities.
First taking effect in 1962, the Code was the first of its kind in Canada. Described by historians such as Dominique Clément, this law was premised on the understanding that prejudice can be unspoken and systemic.
Discrimination and harassment because of race, ethnicity, ancestry, place of origin, colour, citizenship, creed including religion, age, marital status, family status, or sex are strictly prohibited by the Code.
While the principles of the Preamble of the Code have remained constant since 1962, additional grounds have been added. During the 1980s, disability and sexual orientation were added as protected grounds, and sexual harassment was more explicitly prohibited. Later, in 2012 gender identity and gender expression were included in the Code.
The Code also prohibits reprisal for raising a Human Rights complaint.
The Human Rights Tribunal of Ontario is an adjudicative body that hears complaints that the Code has been violated. In 2013-2014, 74 percent of applications to the Human Rights Tribunal were in the social area of employment, and 54 percent of applications claimed discrimination due to disability, according to legal scholars such as Irv Ash.
The Human Rights Tribunal can order monetary amounts to be paid to people who experience discrimination. For example, OPT v Presteve Foods Ltd. (2015) is a case of two temporary foreign workers from Mexico. These sisters worked at a fish processing plant in Ontario and alleged that their employer, inside and outside the workplace, subjected them to sexual assaults and touching, unwanted sexual solicitations, a poisoned work environment, and reprisal. The Tribunal ordered $50,000 for one of the workers, and $150,000 for the other, as compensation for injury to dignity, feelings, and self-respect.
In another case known as Emra v Impression Bridal Inc. (2014), the Tribunal heard allegations that a manager had been terminated after a brief, two-day disability-related absence. It ordered the employer to pay $25,000 as financial compensation for discrimination and $33,000 for lost wages.
A more recent case is AB v Joe Singer Shoes Ltd. (2018), in which the Tribunal awarded $200,000 to the applicant. She was an employee and tenant of the respondent for over 18 years. She brought her case to the Tribunal on the basis that the employer had sexually assaulted and harassed her, and also demeaned her for her physical appearance, language skills, and place of origin.
The Code also enables the Human Rights Tribunal to order non-monetary restitution, such as a public apology or reinstatement of employment, or order specific performance, such as participation in Human Rights Training.
The Human Rights Tribunal uses a two-part test when considering allegations of discrimination. First, as described in Moore v British Columbia (2012), applicants need to demonstrate that it appears to be true that they were discriminated against. Applicants need to demonstrate the following:
1. they have a characteristic protected from discrimination,
2. they suffered adverse impact in one of the social areas protected by the Code, and
3. the protected characteristic was a factor leading to this adverse impact.
This discrimination, furthermore, need not be intentional.
Second, in the case that this first step is satisfied, the respondent then has the burden to sufficiently explain how the discriminatory conduct was justified.
The Human Rights Tribunal is designed to be remedial, not punitive. This means that Tribunal remedies are not meant to punish parties in a dispute. Giguere v Popeye Restaurant (2008) held that: "Public interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and ensure future compliance, are achieved in the particular circumstances."
Lee v Kawartha Pine Ridge District School Board (2012) described how the objective of the Tribunal's power to order remedies is to put applicants in the position they would have been in but for the discrimination. This is called "make whole" remedial power.
The Human Rights Tribunal requires that its forms are used. An application at the Human Rights Tribunal begins when a person alleging discrimination files a Form 1, which can be found online.
If you have been discriminated against contrary to the Human Rights Code, or if you are a business that has a complaint about discrimination, it is suggested that you immediately contact a lawyer or paralegal who has Human Rights Law as an area of their practice.
(This article was originally published with Raise the Hammer on May 22, 2018.)
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