Promoting and Protecting Human Rights in Transitional Cultures:
An Empirical Case Study in Minority Regions (Excerpt)
The article includes six sections. Only the Introduction and an excerpt of Part I and Part II are provided here. The Chinese full-text was published at Achieves for Legal Philosophy and Sociology of Law, Vol. 7, 2004, Beijing, 18,000 words in Chinese.
This article reviews the dilemma on the notion of “culture” in current human rights research with seven cases related to the ethnic cultures. Associated with the analysis of cultural relativism and the universalism of human rights, the following conclusions have been made: (1) culture itself is a dynamic phenomenon which will produce significant influence on people’s rights in reality; (2) the transformation of specific ethnic culture could be in accordance with the international human rights standard by occasion, at the same time, it also constitute the obstacles to the realization of those human rights; (3) National ideology can influence the transformation of certain culture; (4) through this influence, it is possible that the traditional ethnic culture can absorb the values of modern human rights ideas; (5) there’s no hurdle between ethnic culture protection and human rights protection; (6) the culture transformation is based on its origins and basis no matter how the national ideology want to impose the impacts; (7)a precondition of influencing the ethnic culture through national intervention is to protect the existing cultures as well as its autonomy and free development; (8) the so-called culture protection could produce further influence on the transformation of the protected culture.
Every society experiences changes every second; every society experiences some inconsistency and collision; each element of the society plays an important role in the decomposition and changes.
Human rights universalism and relativism debate is a long-lasting and hot topic in human rights research field, especially in “culture” related themes. A classic example can name the argument of “Asian Value”. Based on case studies investigated in my field work in multiple communities in the minority areas of Yunnan Province, several points among this debate have been reviewed through empirical angles. Some conclusions, which differ from the above two extremes have been drawn in the end. Six parts constitute the analysis.
First, the conception of culture has been examined in detail through literature review. It will figure out that when this conception is used as “the objective of rights” and “the benchmark to measure the other rights” at the same time, the debate will find its way to exist.
Case studies begin from the following part. By two cases (the customary stealing in Luo Village and murder case in Ping Village) the second part indicates that (1)culture is not a static phenomena and its changing will cause substantial influence on people’s rights; (2) certain national laws, which in conformity with the international human rights norms, could encounter the obstacle to be enforced in specific community; (3) in its process of transformation, specific culture could downplay the protection of modern human rights.
The third part is a case about six women’s immigration marriages to the Western countries in a Ha Ni Minority family. This event, along with the other factors, drastically changed women’s image in the community and made it accord to modern human rights standard occasionally. This event and the cases examined in the second part demonstrates that culture transformation is an uncertain and worrying process without the intervention of proper human rights ideas.
The fourth part discusses three cases about environmental protection and rights to survive. It argues that (1) national ideology can impose influence on culture transformation. (2) this influence could promote the convergence of modern human rights perspectives with the traditional ethnic cultures. (3)there is no unconquerable obstacle between human rights protection and ethnic culture protection. This part also analyzes the respective deficits of cultural relativism and rights universalism and concludes that one should always keep in mind that any culture’s transformation is based on its origins and basis when we talk about the influence of national ideology.
The fifth part examines the case of cultural transformation of a village after it has been arranged as touring site. This case indicates the culture protection could catalyze its transformation. It also debates that the protection of ethnic culture rights should pay attention to its autonomy and self-development, except the culture phenomenon itself. This is the prerequisite for national intervention to the ethnic culture transformation. Only in this way can we harmonize the human rights protection with the culture transformation and realize the human rights in the transitional culture.
The sixth part is conclusion. It summarizes the above studies and draw the conclusion in the deductive analysis, through which links the empirical research with the theoretical questions posed in the first part.
Culture is a kind of “shared fruit by all people, these not only include values, languages, knowledge, but also materials.”  It means that, culture is the material basis and spirit support of which people depend on for life. Therefore, culture is an important aspect of human right. Interestingly, in the area of human right, culture becomes logical right object and condition: on one hand, “all people” have the right “of …freely determine their political status and freely pursue their economic, social and cultural development.” Especially “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…”; on the other hand, because of the different traditions of culture, different culture, district, nationality or even village may have different view of values, therefore, when mentioning a specific aspect of human right, people unusually use culture as a condition of measuring boundaries of other rights.
When using culture as the measure standard, people will make arguments between commonality and particularity of human right, this point can be shown from the dispute of “women right”. Western feminism people consider “female Genital Mutilation, FGM”, “Polygamy” and “Bride price” which are popular in Africa and Islamic area as “a blatant violation of women's rights and a symbol of patriarchal control over women”. They insist that these activities should be abandoned completely. But some people think that the above mentioned customs have to be place in a given social structure and family culture background. Some researches show that, customs like FGM are supported by all the local women, at the same time, “African women think that the activities like body deformation, keep on diet for the purpose of losing in the so called civilized society are unbelievable and unbearable”. Therefore, “…to fight against genital mutilation without placing it in the context of ignorance, obscurantism, exploitation, poverty, etc., without questioning the structures and social relations which perpetuate this situation is like 'refusing to see the sun in the middle of the day”. The uttermost of this opinion is the so called ‘culture relativism’, the believers of this opinion believes that in the given society, changing culture and development should not be affected by the criticism and rectification of outer space.
They even consider culture is “the sole source of the validity of a moral right or rule.” Obviously, culture relativism people will not agree the existence of human right community, this point is unacceptable to the people who hold human right commonality。 Human Right Commonality believers think that there are some moral values can be shared and applied worldwide, every person should be given the core and basic right because of they are human. Culture has nothing to do with “the basic moral right and rules”.
Because culture is treated as not only human right object, but also the boundary of other rights, the discussions on Culture become complicated in the human right area: “Sometimes Culture is protected in international human right, sometimes will be considered as the obstacle to against international human right”. These years there are some argument on “Asian values”, representing the puzzlement to the International Human Right made by the controversy.
In this paper, although the given nationality culture, as “a whole living manner of generation to generation”, has stable and successive features. However, in real life, culture should not be static, but a culture keeps on changing (the elements leading culture to change are very complicated: economical, political, but also inner, outer). This paper considers the process caused by the composition of elements and happens every second as the flux of Culture. From this point of view, we may find some resolutions to resolve the conflict of human right relativism and commonality: on the one hand, in given nationality and area, gradually emerges the standard of international human right into people’s value. Therefore leading culture move toward the right direction of human right protection and finally avoid these national and regional cultures become the obstacle to the international human right protection; on the other hand, in international and domestic human right legislations, considering the cultural difference, allowing some nationalities and regions gradually reach an ideal right protect state in some time through culture changing.
Obviously, above mentioned “magnificent narration” is based on a series of theoretical hypothesizes. We at least have to prove several questions in experience: 1, whether the culture is still changing? 2 whether the values of different cultures will affect or even transplant each other? 3. Is it possible that the national Culture accept international human right value standard during the changes. 4 what are the areas of human right to the “culture right” protective object.
From all the current resources, cultures of every Chinese nationality keep on changing. Even in the village investigated by myself, there are examples of culture changing.
Case 1: The custoum of “Eating ” in the Luo Village
Before revolution, February twelfth of each year is the day for families in Luo Villiage to sacrifice “dragon tree”. On that day, the whole village will hold a sacrifice activity together leaded by the “dragon head”, then people will eat a dinner under the dragon tree; the next day, families visit one house after another and do the greetings. The process of dragon sacrifice and house visiting is just the process of “dragon head” who deal with the situation. After the open and reform, family again becomes the basic unit of Luo Village, Sacrifice ceremony comes back and becomes even ceremonious.
Case 2，Stealing case in Ping Village
One day in April 2000, villagers in Ping Village and several other people were caught red handed during the stealing. Because A is hardened thief in Ping village, other villagers seized him and dragged him to the playground of the primary school in the village, beat him to death. To the several other accompanying thieves, cadre of the village invited all the related staff in the police station and local government to the meeting of whole village, villagers confirmatively require all of them to be fined RMB 1000. This money will be used to treat the villagers a dinner. After the bargain, fine changes to RMB 800, both the police station and the local government staff agreed to the decision.
Before 1950s, Yao nationality district in Ping village was under the control of a so-called “heads of stockaded village”. And rich accustomed rules have been developed, some of them are like this: stealing the things like vegetables at the first time, return the staff and invite the owner for a dinner; if the situation is more serious, the thief has to work as punishment; one of these kind of punishments is to repair a part of important road of their village. To those people who stole cows and horses, they will be fined Bankai （The Local Money）50, 60 or even 100-200. After the liberation, with the collapse of old rules, the accustomed rules are not supported by the law any more, and totally hand on by the villagers as the inner rules which should be obeyed.
The poor villages far from cities have no idea about the rules of International Human Right Pact, even don’t clear the national laws of P.R.China. Their understanding of social rules mainly comes from the accustomed habits and rules cultivated in the traditional cultures. In the accustomed rules at the time of “Senior Villager”, thieves did not have to take the risk of losing life, or even no corporal punishment. Why this time A was still beaten to death by the villagers? Let’s analyze one of its culture flux first:
From the punishments the villagers do to A’s companions, the shade of traditional culture is very obvious---Fine and Dinner which are very similar to the case 1. Then why this rule could be handed down and the rules of services are abandoned? This maybe related to the difficulty of enforcement: asking the thieves to work need some people to watch them over, the cost of this seem too much because the techniques of road repairing have improved greatly nowadays. Another important reason is that, under the past rules, the enforcement of thieves’ services had a set of established routines and forcible power, however, after the “senior villagers” system abandoned, the power of the previous routines lost. Therefore, people decide to abandon their tradition. This abandon means that the there is no corresponding common rule to the “Serious” thievery, under the circumstances of the national rule cannot reach the expectation of villagers, looking for a simple and enforceable punishment which has great impact is reasonable----villagers’ beating towards A not only punished A but also shocked A’s companions. According to my investigation and my colleagues’, beating thieves as their punishment has solidified in the brain of villagers as an accustomed rule.
The investigator of case 2 (Qiliang Wang) analyzed the change of social control model in Ping Village and gave the comment: “ if the traditional rules in a community is too weak to maintain the ordinary order, while the national law can not respond to the regulatory demands of this community for some reasons at the same time, then, logically, another traditional rules or accustomed practice which contradict to the national regulations would possibly take into formation”. As it is emphasized in this paper: under the “senior Villager” system, the accustomed rule has no conflict with modern human right ideology, this chance and fragility is very obvious after social, political and economic condition changes.
Another question to be raised in Case 2 is that: why the police station and the local government staff who are taking the responsibility of enforcing national law agree the “decision” of fining A’s companions in the village meeting and did not trace the responsibility of the villagers who beat A to death.
Suli stated when commenting on another case: “When Judge allow accustomed rules into law selectively, modify or replace laws, they are not lack of the knowledge of official laws, and also not because they agree to certain culture or certain culture structure, the reason is the same as the villagers: there are a series of existing conditions which will affect their own profits promote them to do like that…..” In deed, to the judges, policemen and administrators of villages, they may never agree with the opinions of villagers, but from the angel of villagers, they invite these rulers to come to the “public judgment” of thieves meaning that they at least not afraid (no matter being illegal or other reasons) that the activities which are not obeyed national laws(for example, beating A to death and the punishment on A’s companions) will be punished severely by the officers. Even they inviting officers can be seen as a demonstration to the national law. This shows that, the result of culture understanding and culture change in the villages of the villagers already lead the executors of national laws(no matter they agree or not inner heart) have to think whether themselves should execute national laws stoutly. In the meantime, officers’ connivance to the village culture change actually strengthen the inner conform to the culture change of villagers. However, in this paper, in all the interactive effect, I will conclude all of them on the culture change. On this basis, we could think nationality culture change will take some effect on the people who are in the culture. What’s more, Case 2 also tells us that, this kind of effect may not beneficial to the reality admitted and protected by the international human right law.
 Dahrendorf, Class and Class Conflict in Industrial Society, (Stanford, Calif., Stanford University Press, 1959)
 David, Sociology, (Beijing: China Renmin University Publisher, 1999), p 63.
 Article 1 of ICESCR.
 Article 27 of ICCPR
 about the discussion of village culture, see Gao Zhaxiang, “To Construct the Modern Communist New Culture Village”, Xinhua Issue 8 of 1993. Also, Donghao and Yuqiang, “A Empirical Study on the Minority Women’s Outgoing Phenomenon”, Guizhou Minority Research Journal, Issue 1 of 2003.
 See World Health organization, Female Genital Mutilation: An Overview, 1998.
 See Esther M. Kissakye, “Women, Culture and Human Rights: Female Genital Mutilation, Polygamy and Bride Price”, in the Human Rights of Women: International Instruments and African Experiences, (World University Service, Austria, 2002.)
 Julie Dimauro, “Toward a More Effective Guarantee of Women’s Human Rights: A Multicultural Dialogue in Intenational Law”, Women’s Rights L. Report, Summer, The State University of New Jersey, 1996.
 Rosemary Mbur, “A Tradition Better Dead”, Women and Health, Vol. 1, No. 2, Centre for African Family Studies, July 1993.
 Isabelle R. Gunning, Arrogant Perception, World-Traveling and Multicultural Feminism: The Case of Female Genital Surgeries, 23 Colum. Hum. Rts. L. Rev. 189.
 Association of African Women for Research and Development, “A Statement on Genital Mutilation”, In Third World-Second Sex: Women’s Struggles and National Liberation, pp217-218. (Miranda Davies Edition, 1983)
 Jack Donnelly, Cultural Relativism and Universal Human Rights, 6 Hum. Rts. Q. 400, at 400.
 Karen Engle, “Culture and Human Rights: The Asian Values Debate in Context”, 32 NYU. J. Int’l L. & Pol. 291.
 About the debates on “Asian Values”, see Michael C. Davis, “Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values”, 11 Harv. Hum. Rts. J. 109 (1998); Pheng Cheah: “Positing Human Rights in the Current Global Conjecture”, 9 Pub. Culture 233 (1997); Yash Ghai, “Human Rights and Governance: the Asia Debate”, 15 Aust. Y. B. Int’l L. 1, 13 (1994); Daniel Bell, “ The East Asian Challenge to Human Rights: Reflection on an East West Dialogue”, 18 Hum. Rts. Q. 641 (1996); Stephen A. Douglas & Sara U. Douglas, “Economic Implication of the U.S.--- ASEAN Discourse on Human Rights: the Asian Values Debate in Context”, 32 NYU. J. Int’l L. & Pol. 291.
 Supra note 2, p63.
 On the first-hand materials of culture changing, see Gao Fayuan ed., Series on Minority Investigation on Yunnan Province, (Yunnan University Press 2000.)
 Have followed the practice of anthropology and sociology, the cases indicated in this article are dealt with anonyms. Luo Village is located in an autonomous region of Yunnan Province. I have visited this village three times through 1996 to 1999.
 Dragon Head exists widely in the villages of Yi, Miao and Hani Minorities in the Southern Yunnan and differs in the election and jurisdictions from place to place.
 Statistics are provided by the local government. This case was investigated and collected by Wang Qiliang in 2002, see Wang Qiliang, “the Fracture of Traditional legal Culture and the Vacuum of Modern Legal System”, in Ideology Front, Issue 3 of 2001.
 See An Investigation on Miao and Yi Minorities of Pinbian and Jinping Villages in Yunnan, (Internal Material), (Yunnan University, 1976) p 128. Ban Kai is the money unit of that time.
 See Liang Zhiping, the Customary Law of Qing Dynasty: the Society and the Country, (CUPL Press, 1996), p1.
 The reason on not sending A to the police station is that “the police will only detain A for several days and fine him several hundreds dollars, then set him free finally”. (says by the interviewees in the village). This can not realize the aim in controlling the stealing.
 Supra note 21.
 Suli, Sending Laws to the Rural Areas: A Research on the Legal System of the Rural China, (CUPL Press 2000), p 206.
 Supra note 21.