The Pursuit of Sustainable Development Through Cultural Law and Governance Frameworks: A South African Perspective

The idea of including a cultural dimension in development policies has become the focus of international scholarly and policy debates. Analysing and conceptualising the role of culture in the sustainable development context was brought into focus by the World Commission on Culture and Development (WCCD), with the publication of the report Our Creative Diversity: Report of the World Commission on Culture and Development in 1995. The Report highlighted the cultural dimensions of a human-centered development paradigm and proposed placing culture at the center stage of development thinking. This argument was taken further at the International Conference on Cultural Policies for Development held in Stockholm in 1998, where it was proposed that cultural policies become key components of development strategies. This article will examine the infiltration of culture into the contemporary understanding of sustainable development and the relevance of international law developments to domestic (South African) law and policy with regards to sustainable development and culture.

The content and meaning of sustainable development has witnessed a paradigm shift with significant focus on the different social dimensions of human development. The focus on human development is promoted on an international scale by the United Nations (UN) Development Programme, which began publishing its Human Development Reports in 1991. These reports typically analyse a range of issues which have an impact on human development like human security, 6 mobility, 7 global warming 8 and cultural liberty. 9 In this context, "culture" began to feature as a very prominent dimension of human development.
Similarly, Sen proposes the characterisation of development as "human capacity expansion," explaining that human capacity expansion is the enhancement of a person's capacity to lead the kind of life they desire, including their access to cultural resources and cultural participation. 10 This line of thinking prompting the prioritisation of human development over other more econometric development models resulted over time in proposals for the inclusion of culture as a key element for the full development of people and communities. 11 In turn, the measurement of development which was traditionally theorised from an economic growth perspective has been expanded to include other indicators such as institutional indicators like the rule of law, political regimes, the property rights versus contract rights development nexus, international trade, foreign direct investment and development. 12 Gleaned from the broad definition of sustainable development quoted above and the paradigm shift in the contemporary development indicator focusing on human development, it is possible to conceive of sustainable development as a development model which aims at ensuring optimal living conditions for the present generation without denying similar opportunities to future generations. 13 Therefore a pragmatic understanding of sustainable development will focus not only on the three traditional dimensions of sustainable development (which will be further discussed in paragraph 2), but will include other factors necessary for the realisation of "optimal living conditions" within a community. One of such factors would include considerations of culture, bearing in mind that different communities develop at different rates, a fact which must be taken into consideration in the implementation of sustainable development. 14 It is also agreed that culture gives meaning and content to development, as aptly stated in Our Creative Diversity Report 1995: "Development divorced from its human or cultural context is development without a soul ". 15 This article examines the infiltration of culture into the contemporary understanding of sustainable development, the relevance of international cultural law developments to domestic (South African) law, and possible governance measures for the recognition of culture in the pursuit of sustainable development and culture. It commences with a brief overview of the concept of sustainable development and an examination of the relationship between sustainable development and culture within existing literature and relevant international law instruments. Subsequently, an analysis of the role of cultural law as embedded in major international standard-setting treaties, guidelines and policies in the pursuit of sustainable development will be carried out. Furthermore, an insight into the South African position in relation to the interpretation of sustainable development that recognises issues of culture will be explored. The aim is to determine if issues of culture have received sufficient recognition in this context, and to determine if governance measures may be employed via existing governance structures to advance culture in the pursuit of sustainable development in South Africa.

An overview of the concept of sustainable development
The definition of sustainable development proffered by the Brundtland Commission in paragraph 1 above has earned wide acceptance and is argued to be instrumental in developing a global view of the concept. 16 It is argued by Kotzé that this definition of 14 Principle 1 of the Rio Declaration also states that "human beings are at the centre of concerns for sustainable development". 15 WCCD Our Creative Diversity 48. 16 Mebratu 1998 Environ Impact Assess Rev 494; Ako R "Challenges to Sustainable Development" 10.
sustainable development is vague and incoherent. 17 It is also contended by other authors that the blandness of the phrase makes the concept almost meaningless, 18 and that it lacks any clear rigour of analysis or theoretical framework for implementation and evaluation. 19 However, the ultimate aim of the ideal of sustainable development as suggested by the Brundtland Commission is "changing the quality of growth, meeting essential needs, merging environment and economics in decision making" 20 with an emphasis on human development, participation in decisions and equity in benefits.
The aim of sustainable development as articulated by the Brundtland Commission perhaps propels the adaptation of the concept over time by various disciplines, in spite of the varying debates about its meaning and intent. For instance, the economists' approach to sustainable development focuses on the "limits to growth theory". 21 The environmentalists' approach to sustainable development tends to agree with the conservationists' view of promoting bio-diversity, 22 promoting renewable sources of energy consumption, and recognising the real effect of climate change on the environment and patterns of consumption. 23  "a pragmatic approach must be adopted in defining sustainable development to ensure its relevance to the society in question". 38 In the light of the above, sustainable development for the purpose of this contribution is described as the process of development that prioritises the capacity of development processes -economic, environment, social, and cultural -to continue into the future whilst improving the quality of life of the present generation and ensuring that the future generation will be equipped to do the same.
This article further proposes that the primary objective of sustainable development is to maximise the success of development processes which are aimed at maintaining or improving environmental, economic, social, cultural and human resources whilst recognising the potential for trade-offs in such arrangements and proffering a system of mitigation.

Defining culture
As already explained, this contribution deals primarily with the role of culture in achieving sustainable development. However, the concept of culture is broad and polysemic, with far-reaching applicability resulting from its multi-layered and contextdependent meanings. 39 Although a detailed analysis of the theories of culture is outside the scope of this article, some insight will be given into the relevant aspects of culture within development discourse.
Attempts at linking culture to development are often limited to mainstreaming investments in cultural heritage and the living arts. This is probably why Hawkes 38 Ako "Challenges to Sustainable Development" 11. 39 In 1952, cultural anthropologists, Kroeber and Kluckhohn Culture, in a search for a suitable definition of culture, assembled 156 definitions of culture. These were classified under 6 headings, each presuming a different perspective on what a particular population is likely to share, namely: descriptive, historical, genetic, structural, psychological and normative definitions of culture.
argues that the value and the potential of culture are being undermined by the "tacit acceptance of the arts and heritage version of culture, thereby marginalising the concept of culture and denying theorists and practitioners an extremely effective tool". 40 The core of Hawkes argument is that there are several interpretations of the word "culture". For example, Bennett 41 thinks that culture bears at least two meanings in a legal context, one of which refers to intellectual or artistic endeavours, and the other of which refers to peoples' "store of knowledge, beliefs, arts, morals, laws and customs". Bennett's view denotes culture as "everything that humans acquire by virtue of being members of a society". 42 In the reference to intellectual or artistic endeavours, the right to culture would imply the right or freedom to perform and practice culture in the form of arts and sciences, and the second meaning of culture [C]ulture [is] the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs; that it is culture that gives man the ability to reflect upon himself. It is culture that makes us specifically human, rational beings, endowed with a critical judgement and a sense of moral commitment. It is through culture that man expresses himself, becomes aware of himself, recognises his incompleteness, questions his own achievements, seeks untiringly for new meanings and creates works through which he transcends his limitations.
The definition of culture in the Mexico City Declaration highlighted above, when read together with Principle 10 of the same Declaration, also gives insight into the potential link between culture and development. Principle 10 provides that: 40 Hawkes Fourth Pillar of Sustainability ... culture constitutes a fundamental dimension of the development process and helps to strengthen the independence, sovereignty and identity of nations. Growth has frequently been conceived in quantitative terms, without taking into account its necessary qualitative dimension, namely the satisfaction of man's spiritual and cultural aspirations. The aim of genuine development is the continuing well-being and fulfilment of each and every individual. c) Culture as "the arts" and "humane intellectual works," signifying the means of the processes in (b) d) Culture as a whole way of life, a signifying system through which a social order is communicated, reproduced, experienced and explored.
Use of the word culture occurs mostly in the contexts of (c) and ( development it is critical to extend cultural issues beyond the preservation of the arts, heritage and cultural identities to include the: ... broad civilizational notion embodied in culture as a "whole way of life" because it informs the underlying belief systems, worldviews, epistemologies and cosmologies that shape international relations as well as human interaction with the environment. 47 From this perspective, the contested definition of culture as "cultural activity" is relevant, as culturally informed patterns of relating to the environment, as in cultivating the environment for the benefit of meeting the needs of the community in terms of crop produce, will ultimately have an impact on the development of such a community; for example the use of more eco-friendly agricultural practices as in the practice of integrated farming versus slash and burn agriculture. In addition, the developing countries that portray themselves as being more enlightened on matters of sustainable development may view the developing countries as being less "cultured", a shift in vision which would have implications for the environmentalist social movement and how it mobilises. 48 These instances go to illustrate the pervasiveness of the concept of culture and how it may impact on notions and practices of sustainable development. References to culture in the reminder of this article will therefore be to cultural rights 49 within the context of the right to participate and produce intellectual and artistic works and the cultural heritage, 50 cultural diversity, 51 and the cultural creative industry (which includes the arts and creative industries) 52 as captured in several UN These instruments make reference to the potential contribution of cultural advancement to sustainable development. 54

Relationship between sustainable development and culture
Scholars have referred to the limitations of interpreting sustainable development only in the context of social, economic, and environmental factors. 55 However, since the publication of Our Creative Diversity Report, which regard development without considering the cultural context as development "without a soul", 56 the idea that the cultural dimension should be explicitly included in development policies gradually became the focus of international scholarly and policy debates. Nurse argues that culture should not be conceived of as simply as an additional factor of sustainable development along with the environmental, economic and social factors, because "peoples' identities, signifying systems, cosmologies and epistemic frameworks shape how the environment is viewed and lived in". 57 Therefore, culture shapes the ideology of development and conditions how people interact with the environment. 58 International treaty law also advocates the inclusion of culture in sustainable development. One example is the wording of guiding principle 6 in article 2 of the The work of UNESCO affirms the recognition of culture in development strategies and policies. Some of the outcomes of UNESCO's work, in the form of international conventions, standard setting guidelines in relation to culture and sustainable development will be examined below. It has been suggested that these international instruments provide legal and political guidelines for the regulation of culture-related issues which states are politically committed to consider within their jurisdiction by virtue of their membership in the international community. 69

International law and sustainable development via culture
In order to highlight the inter-relation between international culture-related Although intended to protect cultural heritage sites, the Convention demonstrates the integration of the cultural dimension in development strategies. The instruments provide useful principles to be taken into consideration when matters of sustainable development and culture must be considered, namely: f) Cultural policies must protect, stimulate and enrich every person's identity.

One of the ways in which this
g) The right of all individuals to defend and reserve their heritage must be recognised. h) The cultural dimension of development consists inter alia of the satisfaction of man's spiritual aspirations.
i) Culture must be mainstreamed into developmental policies and strategies and its intrinsic contribution to sustainable development must be recognised.

j)
States have a duty to progressively realise the right of every person to freely participate in the cultural life of the community, to enjoy the arts and share in scientific advancement and its benefits. To this end, states must create a conducive environment through cultural policies, and must recognise a cultural right as a fundamental human right which requires state protection. k) Cultural goods and services must be recognised as bearers of identity, value and meaning. l) Cultural industries must be equipped to be able to assert themselves at the local and global level through proactive cultural policies. m) Collaboration between the state and different sectors of civil society in the definition of public cultural policies must be encouraged with the object of preserving and promoting cultural diversity.
n) A participatory system of governance of sustainable development must be promoted.
o) It must be recognised that states have the sovereign right and responsibility to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of cultural expressions in their territory.

Culture and sustainable development in the South African context
Following the above, the reflection of the principles in paragraph 2.3 in South Africa's recognition of culture in the pursuit of sustainable development will be investigated.
Before this is done, a brief overview of sustainable development in the South African context, the recognition and integration of culture, and the influence of international law and governance measures in the pursuit of sustainable development will be investigated.

A brief overview of sustainable development in the South African context
The closest the Constitution of the Republic of South Africa, 1996 (hereafter the 1996 Constitution) has come to defining sustainable development is in section 24. In guaranteeing the right "to an environment that is not harmful to their health and

South Africa
Following the above discussions, it is contemplated that a cultural right be entrenched in the Bill of Rights. It is possible to argue that if the right to a healthy environment (section 24) can be achieved through sustainable development and if sustainable development includes a cultural dimension, then it follows that cultural issues can be inscribed within the right to a healthy environment vital for the wellbeing of individuals.
Therefore, as the right to a clean and healthy environment vital for the wellbeing of individuals is entrenched in the Bill of Rights, so is the right to the enjoyment of one's culture. 107 These rights thereby enjoy the status of "constitutionally protected rights" subject to the limitation of rights provision in section 36 of the 1996 Constitution.
Apart from the 1996 Constitution, NEMA defines the "environment" 108 to mean the surroundings within which people exist, which are made up inter alia of "aesthetic and cultural properties and conditions of the foregoing that influence human health and In that case the court came to the conclusion that a plan approved earlier (in 1957) to Flowing from the above discussions it is possible to submit that the culture-related matters raised in this article are applicable in the South African context. The legislative recognition of culture-related issues in South Africa is a good platform to launch the recognition of culture within the sustainable development equation from a human development perspective.

Integrating culture issues for sustainable development in South Africa
Issues of cultural heritage (as opposed to cultural diversity, cultural rights and creative cultural expression (arts and culture)) received legislative attention with the enactment of the National Heritage Resources Act 112 (NHRA), 1999, which governs the management of heritage resources. Perhaps this is because South Africa is home to eight of the world's official heritage sites. 113 However, it must be noted that the management and regulation of other aspects of culture are products of a combination of the extensive legal frameworks that exist both nationally and internationally. 114 For example, section 2(b) of NEMA provides that environmental management must be integrated, acknowledging that all elements of the "environment" 115 (with links to cultural heritage) are "linked" and "interrelated," and it must take into account the effects of decisions on all aspects of the "environment" and all people in the "environment" by pursuing the selection of the best practicable environmental option.
Therefore, it is implied that measures and governance in furtherance of environmental protection can be extended within applicable limits to issues of cultural policy, in the sense that due consideration must be given to issues of culture when applying measures and governance in furtherance of environmental protection. In relation to cultural policies, Roodt has argued that cultural policies are not intended for the regulation of heritage conservation sites alone rather that they underlie every viable 112 National Heritage Resources Act 25 of 1999.

113
SA Places Date Unknown http://www.places.co.za/html/south_africa_world_heritage_sites.html. South Africa is home to eight of the world's official heritage sites. 114 For example aa 5 and 6 of CDC safeguards and fosters state capacity for cultural policy-making.
It also provides a non-exhaustive list of the measures that parties may adopt in order to protect and promote the diversity of cultural expressions within their territory, including regulatory, institutional and financial measures. Also see Psychogiopoulou "Convention on the Diversity of Cultural Expressions" 366.

The influence of international law on South Africa's cultural law and policy
Generally, South Africa adopts a dualist approach to the incorporation of international law within the national legal system. This approach requires the formal metamorphosis of international law into domestic law. 122 It has been suggested that international legal instruments (treaties and soft law alike) provide legal and political guidelines for the governance of culture-related issues by virtue of South Africa's membership of international and regional organisations. 123 Therefore, international agreements or ... a municipality has executive authority in respect of, and has the right to administer … (b) any other matter assigned to it by national or provincial legislation.
For example the NHRA assigns the management of Grade III heritage resources to the local authority to the extent that section 8(4) of the NHRA provides that: A local authority is responsible for the identification and management of Grade III heritage resources and heritage resources which are deemed to fall within their competence in terms of this Act. The local government in this instance is enabled by the stated provision of the 1996 Constitution to manage cultural resources. This possibility is important to the extent that the effective governance of culture at the grass root level is essential to the over-all advancement of the cultural dimension in the advancement of sustainable development.
Furthermore, the notion of cooperative governance provided in chapter 3 of the 1996 whether or not they are formulated at international, national, regional or local levels, for the discharge of the obligations and duties laid on states (South Africa).
On the other hand, the centrists' theory, when viewed together with the "developmental local government" mandate for local government to work towards achieving development for everyone, captures the preferred framework for the advancement of culture in the sustainable development of South Africa. 152 It is not suggested that the structures and instruments that govern culture issues as they currently exist should be drastically redesigned or transformed, as this would be a staggering task to undertake. It is rather suggested that the current structures and instruments be extended to accommodate the constitutional objects and developmental duties of local government as outlined in sections 152 and 153 of the 1996 Constitution.
It is further suggested that consideration should be given to adapting an additional framework that would promote the fusing of matters of cultural diversity, cultural heritage, cultural rights and the promotion of the creative cultural industry at grassroots level in furtherance of the principles laid out in the international standardsetting documents discussed in this article.

Conclusion
The infiltration of culture into the contemporary understanding of sustainable development has been explored and its potential contribution to the advancement of sustainable development has been highlighted in this article. The need to recognise the cultural dimension of sustainable development is promoted on the platform of human development. Human development has been described as human capacity expansion, which includes improved access to resources, including cultural resources.
It has also been established in this article that human beings are at the centre of concerns for sustainable development, and that developmental processes must actively recognise the role of culture in delivering human development to communities.
The explicit and implicit provision for cultural matters in relation to sustainable development in the 1996 Constitution and related statutes and policies make the governance of cultural issues for sustainable development essential to give force to the recognition of issues of culture in the pursuit of sustainable development.
In furtherance of the governance of culture-related issues in the pursuit of sustainable development, the requirement for cooperative governance provides the platform for the three spheres of government to be actively involved in the advancement of cultural diversity, cultural heritage, cultural rights and the culture industry in the pursuit of sustainable development. The need for an integrated approach is supported by the view that the notion of sustainable development is promoted by the interdependency and interrelation of the traditional economic, environmental, social and cultural dimensions.
In addition, the effective governance of the cultural dimension manifested as described in this article would ultimately contribute to providing optimal conditions for achieving economic, environmental and social developmental goals in South Africa. In that issues of culture are most greatly reflected at the grassroots level, which is the area of governance for the local government. b) The role of civil society as envisaged in the CDC 154 should also be engaged in the form of a rights-based approach towards the governance of culture-related matters. Its role would be beneficial as it could potentially be the "conscience of the state governance structure" and aid the monitoring of the governance of cultural issues in furtherance of sustainable development. This might be achieved by allowing more civil society engagement in the formulation of cultural policies, thereby increasing public participation in the formulation of strategies for sustainable development via the cultural dimension.
It is believed that these recommendations are not exhaustive, but could serve as a