From Cultural Genocide to Cultural Integrity

Another important aspect of the development of a right to cultural integrity, relates to the debates that took place around the issue of cultural genocide.

Many indigenous peoples have highlighted that their cultural heritage is es-sential for their survival as a people, indeed physical survival is connected to their cultural survival as distinct people. The importance of protecting indig-enous peoples against the threat of cultural annihilation was at the heart of one of the debates that dominated the 22-year long process that fijinally led to the adoption of the UNDRIP. An important debate focused on the inclusion of cultural genocide within the text of the Declaration.34

Cultural genocide broadly refers to ‘the extermination of a culture that does not involve physical extermination of its people.’35 Cultural genocide is based on the idea that a group can be destroyed by targeted attacks on its capacity

34 See: S. Mako, ‘Cultural Genocide and Key International Instruments: Framing the Indig-enous Experience’, 19 International Journal on Minority and Group Rights (2012) 175-194;

and J. Gilbert, ‘Perspectives on Cultural Genocide: From Criminal Law to Cultural Diver-sity’, in M. de Guzman and D. Amann (eds.), Arcs of Global Justice; Essays in Honor of Wil-liam A. Schabas (Oxford University Press, 2016).

35 K. Jonassohn and F. Chalk, ‘A Typology of Genocide and some Implications for the Hu-man Rights Agenda’ in I. WalliHu-mann, M.N. Dobkowski, R.L. Rubenstein (eds), Genocide

to preserve and transmit its own specifijic culture which would then disappear.

The destruction of indigenous peoples’ cultures can take many forms, includ-ing forced relocation, removal of children from their communities, invasion of their lands, aggressive assimilationist policies, or restriction to access to their traditional means of livelihoods. The need to protect indigenous peo-ples against cultural attacks against them did represent an important aspect of the drafting of the UNDRIP. The proposal was to include a strong protec-tion against cultural genocide, with notably the aim of preserving the cultural integrity of indigenous peoples. In an earlier draft of the Declaration submit-ted in 1994 to the former Commission on Human Rights, a specifijic article was dedicated to the crime of cultural genocide stating:

Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for any action which has the aim or efffect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities (…).36

During the drafting process, several indigenous representatives had notably highlighted that their removal from their traditional territories and the loss of access to their cultural heritage often amounted to cultural genocide, as the practice of dispossession, forced relocation or population transfer amounted to the destruction of their community.37 However, the reference to cultural genocide led to serious debates when it reached States’ representatives. Some of the member States, including the United States, Norway, New Zealand and Canada, called for the use of an alternative language noting that cultural geno-cide was not defijined under international law.38 This debate went back to ear-lier discussions during the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, when cultural genocide was

and the Modern Age: Etiology and case studies of Mass Death (Syracuse University Press, 1987), p. 11.

36 UN Doc. E/CN.4/Sub.2/1994/56, UN Draft Declaration on the Rights of Indigenous Peo-ples, Article 7.

37 See: UN Doc. E/CN.4/2002/98, p. 18.

38 United Nations High Commissioner for Human Rights, Indigenous Issues: Report of the Working Group Established in Accordance with Commission on Human Rights Resolu-tion 1995/32 , UN Doc. E/CN.4/2003/92, 2003.

rejected from the text of the convention.39 Ultimately, the draft article on cul-tural genocide was removed from the text.40

Instead, the adopted text afffijirms that indigenous peoples have ‘the right not to be subjected to forced assimilation or destruction of their culture.’ Article 7(2) asserts that ‘indigenous peoples have the collective right to live in free-dom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing chil-dren of the group to another group.’ But cultural genocide as such was rejected.

Despite the rejection of cultural genocide, the Declaration still makes refer-ence to cultural attacks against indigenous peoples, since Article 8 states: ‘in-digenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.’ Getting into more details, the text adds that States shall provide efffective mechanisms for prevention of, and re-dress for: ‘any action which has the aim or efffect of depriving them of their in-tegrity as distinct peoples, or of their cultural values or ethnic identities (…).’41 This reference to integrity as distinct peoples puts the emphasis on the need to ensure the survival of indigenous peoples, not only physically but also as cul-tural entities. It is signifijicant as, despite the rejection of culcul-tural genocide from the text of the Declaration, it does put the emphasis on the need to consider all attacks against indigenous peoples, and not only physical, which have the efffect of touching on the integrity of their cultural structures and heritage. As noted by Vrdoljak, in providing a clear statement against assimilation and cul-tural destruction, this article straddles ‘the divide between the international crime of genocide and positive human rights related to culture and cultural heritage.’42

39 See: W. Schabas, Genocide in International Law (Cambridge University Press, 2nd ed., 2009).

40 See: J.M. Hohmann, ‘The UNDRIP and the Rights of Indigenous Peoples to Existence, Cul-tural Integrity and Identity, and Non-Assimilation’, in Oxford Commentaries on Interna-tional Law – A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples (OUP, Forthcoming 2016).

41 UNDRIP, article 8 (2), emphasis added.

42 A. Vrdoljak, ‘Reparations for Cultural Loss’, in F. Lenzerini (ed.), Reparations for Indig-enous Peoples: International & Comparative Perspectives (Oxford University Press, 2008), p. 209.