Erika de Wet (Pretoria/Bonn): The Impact of Culture on the Meaning of “Property” and “Peoples” in International Law: An analysis of the jurisprudence of regional human rights bodies


Since the end of World War II international human rights treaties have proliferated both within the United Nations system, as well as on the regional level. These instruments are aimed at protecting individual rights and are based on the principle of universality. They depart from the premise that the rights guaranteed by them apply to all individuals everywhere, regardless of factors such as race, ethnicity, gender, language, religion, national or social origin. These human rights instruments seem by their very nature to be irreconcilable with arguments that the applicability of human rights depends on the cultural context and/or that human rights are attributed to groups rather than individuals.
Yet, paradoxical as it may seem, the individualist and universalist human rights paradigm has shown itself receptive to claims pertaining to culture and group-identity, as a result of which it is being used as a tool by those who propagate the accommodation of multiculturalism. Most prominent in this regard has been the right to property, which has been (re)interpreted by regional human rights bodies to accommodate the communal property of indigenous and tribal peoples. This evolution went hand-in-hand with developments pertaining to the notions of ‘peoples’ and ‘peoples’ rights’.
This presentation examines the evolution of the right to property in regional human rights instruments from an individual right to a right that includes also the collective land rights of indigenous peoples. It concludes by asking whether the approach of the different regional judicial bodies are accommodating the cultural dimension of land claims of indigenous peoples sufficiently, as well as raises questions about the broader implications of the introduction of  cultural relativism for international human rights protection.

Prof. Dr. Erika de Wet

Curriculum vitae

Legal scholar Erika de Wet completed her legal education and a doctorate in Comparative Constitutional  Law at the University of the Free State in Bloemfontein.  She also holds an LL.M from Harvard Law School. In 2002 she completed her Habilitation at the University of Zurich with a treatise on “The Chapter VII Powers of the United Nations Security Council”. Between 2004 and 2013 Erika de Wet was Professor of International Constitutional Law at the Amsterdam Center for International Law at the University of Amsterdam, having previously lectured at inter alia Leiden University.  Between 2011 and 2015 she was founding Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law in the Faculty of Law, University of Pretoria. Since 2016 she is the SARCHI Professor of International Constitutional Law in the same Faculty. She also lectures at the University of Bonn in her capacity as honorary professor and since October 2015, she is Fellow at the Käte Hamburger Center for Advanced Study in the Humanities “Law as Culture”.