CULTURAL RIGHTS OF REFUGEES IN BRAZIL: IN SEARCH OF AN EFFECTIVE PROTECTION

 

DIREITOS CULTURAIS DOS REFUGIADOS NO BRASIL: EM BUSCA DE UMA PROTEÇÃO EFETIVA

 

Amanda Luiza da Silva Oliveira Pinto*

Bárbara Marianna de Mendonça A. Bertotti**

Miriam Olivia Knopik Ferraz***

 

RESUMO: Pretende-se verificar em que medida os direitos culturais dos refugiados no Brasil são respeitados. Assim, serão analisados: (i) o panorama geral de proteção dos refugiados, no que tange às normas de proteção, nacionais e internacionais; (ii) o direito à cultura como direito fundamental e humano, no Brasil e no mundo; e (iii) a integração cultural de migrantes refugiados, uma vez que o Brasil se tornou um país atrativo para os migrantes refugiados. O método utilizado será o lógico-dedutivo por meio de revisão bibliográfica.

 

Palavras-chave: Imigrantes. Refugiados. Cultura. Integração Cultural. Direitos Humanos.

 

ABSTRACT: It is intended to verify to what extent the refugees' cultural rights in Brazil are respected. Thus, the following will be analyzed: (i) the general outlook of refugees' protection, with regard to national and international standards of protection; (ii) the right to culture as a fundamental human right in Brazil and in the world; and (iii) the cultural integration of refugee immigrants, since Brazil has become an attractive country for refugee immigrants. The method used will be the logical-deductive through bibliographic review.

 

Keywords: Immigrants. Refugees. Culture. Cultural Integration. Human rights.

 

Recebido: 25.05.2017

Aprovado: 11.06.2017

 

1 INTRODUCTION

 

The refugee crisis has had large dimensions and widespread media coverage. Data from 2016 (UNHCR, 2016) show that Brazil has about 8,863 recognized refugees, from 79 different nationalities. Although it is not one of the largest recipients in the world, Brazil has recognized the importance of the theme with the approval of the Law on Migration (Law 1345/2017).

However, the reception of these people, expropriated from their homes and countries of origin, is not enough to guarantee them dignity and opportunity to rebuild their lives and families. In conditions of misery, whether because of the institutional failure of the State, or because of war, hunger and political persecution, few elements of social cohesion are brought with these foreigners, so that they can defend themselves against any violence practiced by the domestic citizen, such as prejudice and social and economic discrimination.

In Brazil, there are many governmental and nongovernmental agencies working to receive and welcome refugees, in accordance with the United Nations Refugees Statute and the Brazilian Law on Refugees, including the National Committee for Refugees (CONARE). Furthermore, the United Nations agency, UNHCR (United Nations High Commissioner for Refugees), which is responsible for identifying, selecting, and referring States to global refugees' groups and their categories, is headquartered in Brazil.

Therefore, it is imperative that both public officials and companies, in the first instance, recognize their rights and thus respect them. But not only that: the refugees themselves must know their rights, for many violations occur because of their ignorance.

In addition, the defense of their customs and culture is something that deserves a democratic space, for assimilation is not the solution in keeping with the dignity of those who seek shelter in a country, due to the unsustainable situation in their own countries.

Given that part of the State authorities tends to grant more favorable treatment to national citizens and to privilege people of the same national origin, causing cultural shocks, problems of adaptation or integration of expatriates, it becomes indispensable to protect these people, so that formal and material equality is achieved.

In this sense, the concept of development that permeates the Brazilian Constitution can be seen under an extrinsic and intrinsic bias. The first concerns the State’s plan, relating to the growth of economic production and the balance of the State's organizational and financial structuring. The second, of a subjective nature, concerns the implementation of material conditions of dignified existence, which allows each citizen the free development of his/her personality (FACHIN, 2010, p. 180 and 193).

From this, it becomes imperative to protect the cultural rights of refugees. This article will work, from a theoretical perspective, with this theme. The relevance of the issue is manifest in the face of new waves of refugees as a result of the anti-terrorist policy and the "war on terror", which began in 2001.

Therefore, relevant legislation, news and doctrines on the cultural issues regarding migrants in Brazil will be analyzed, including not only the international protection, but also the national one. In addition, it brings the international protection and internalized by Brazil about this right.

The purpose of this paper is to demonstrate the right to culture in Brazil when it comes to refugees, through the analysis of existing governmental structures, to outline future possibilities.

Thus, in the first moment, international and national protection for these migrants will be analyzed, followed by national and international protection of cultural rights. Finally, the public policies that are in force and necessary for the cultural integration of refugees and the steps for their implementation will be drawn up on the basis of existing initiatives and the proposition of broader policies.

 

2 OVERVIEW OF REFUGEES IN BRAZIL: OUTREACH AND PROTECTION

 

International protection^[1] of refugees had their first manifestation in the “1951 Geneva Convention on the Status of Refugees” (STATUTE OF REFUGEES, 1951), and the 1967 Protocol, in New York (PROTOCOL RELATIVE TO REFUGEES, 1967). It is extracted from the 1951 Convention that a refugee is anyone who by virtue of a characteristic has founded fear of persecution, and who does not want or can not avail himself of the protection of his country of origin, or, in the cases of stateless persons, of the country of habitual residence. This characteristic is due to their race, religion, nationality, belonging to a social group or political opinion. In addition, the 1951 document adds two other criteria as essential for the refugee to have a recognized status: a chronological and historical nature and a geographical-spatial nature, criteria that were abolished by the 1967 protocol, thus increasing the protection of refugees.

It is observed that these parameters were not updated to the current reality in which we live, that is, one has the attachment to the five possibilities of search for refuge listed above and one does not observe what the current reality cries out: refugees leaving their countries of origin for the negation of economic, social and cultural rights. It is also added that it is a deficit of the current system not to recognize the “economic” refugee and the “environmental refugee” (ATANGANA-AMOUGOU, 2015).

From these premises, it is the methodology created by James Hathaway which has the ability, in the concrete case, to verify the existence of persecution. It is based on three human rights mandates, which have been enshrined internationally through the adoption and recognition of the International Charter of Citizens. This letter contains a number of rights that can not be violated: the right not to be subjected to torture and slavery; the Liberty of thought, conscience and religion; the guarantee of not being arbitrarily imprisoned; the right to privacy, the right to vote, the right of access to public jobs and the formation of labor associations. It also establishes rights associated with the State's financial conditions: such as the right to work, food and health. In the face of the violation of one or more rights listed, there is persecution. Thus, the author points out the existence of persecution when there is no systematic and lasting protection of the hard core of human rights, violation of essential rights, and when it comes to rights tied to the availability of resources, there will be violation when resources are available and are not realized nevertheless. (HATHAWAY, 1991).

            Brazil does not have a positive record of receiving refugees. This fact is observed in the 1934 Constitution^[2] which established in its text a system of quotas to restrict the entry of immigrants in Brazil and parallel to the Consolidation of Labor Laws (CLT), created in 1943, had as a determination that the minimum number of Brazilian employees should be of 2/3.^[3]

This discrimination is not plausible in view of the current constitutional protection that covers both Brazilians and foreigners residing in the country with the same rights.^[4]

Currently, there is in Brazil the granting of political asylum in article 4, item X, of the Brazilian Constitution, including as a basilar factor in the country governing its international relations. In addition, Brazil welcomed the 1984 Cartagena Declaration (CARTAGENA DECLARATION, 1984), which broadened the definition of refugee as defined by the 1951 Convention and the Additional Protocol of 1967. Subsequently, specific legislation was published for refugees, in 1997, Law no. 9,474 was enacted, defining mechanisms for the implementation of the Refugee Statute.

The aforementioned legislation has considerably broadened the concept of refugee in Brazil, covering the person who has founded fear of persecution due to race, religion, nationality, social group or political opinions and due to a serious and widespread violation of human rights. Thus, this definition reflects Brazil's position in defense of human rights and recognition of the refuge institute as a humanitarian measure (PAMPLONA; PIOVESAN, 2015, p. 47).

In 2017, the Migration Law (Law No. 13.445/2017) was enacted. Although it represents an advance and provides the isonomy and integration of migrants, emphasizing solidarity and non-prejudice, repudiating and preventing xenophobia, racism and any other forms of discrimination, it still falls short of securing all rights, as it has received 20 presidential vetoes.

The approved text establishes first that the Brazilian migratory policy will also be governed by the development of culture, in its art. 3º VII and later in item XIV, that will have as objective the strengthening of the cultural integration in Latin America, through the constitution of spaces of citizenship and free movement of people. It ensures in art. 4º the right to the culture of the immigrant, adds in art. 13, § 2º that the beneficiary of a visitor's visa may compete and receive prizes in artistic and cultural competitions; in addition, the granting of a temporary visa, as well as residence for the purpose of investment or of cultural relevance, is provided for in art. 14, h and art. 30, h, respectively. Finally, art. 77 brings the definition of the principles and guidelines of the public policies for the emigrants, and among them, the promotion of culture is included in subsection II.

In this way, it is denoted that the law brought a concern to cite the cultural element in its device. However, it is observed is that the device that has greater potential to extend the cultural aspects is the present in art. 77, culture as guideline and principle of the elaboration of public policies, which is still bound to the discretion of the executive. Therefore, it is observed of the present legislation that the cultural element was placed as an inspiring and very generic element, bringing little practical revolution for the cultural valorization of the immigrants.

The Brazilian reality needs a greater and more responsible support for the whole refugee issue, since Brazil has about 5,208 refugees from at least 80 different nationalities, most notably from: Colombia, Angola, the Democratic Republic of Congo and Syria. In total, the five largest nationalities are represented by Syrians (2,298), Angolans (1,420), Colombians (1,100), Congolese (968) and Palestinians (376) (CONARE, 2016).

Syrian refugees have grown considerably in number of applications and, in parallel, there has been a decline in the number of Colombians seeking refuge. The issue of Syrian refugees brings to light a reality that directly influences how Brazil will act on refugee matters, after all, there are many requests for economic issues and, in the face of each new humanitarian crisis, Brazil receives an ever increasing demand in particular from Syria and Lebanon (UNHCR, 2014). In 2016, the number of refugee concessions in Brazil fell by 28%[5]. Only 886 applications received by foreigners from 1,978 cases were deferred. In 2015, 1,231 concessions were granted in respect of 1,423 cases (REIS, 2017). Despite the fall, the refugee situation deserves special attention.

 

3 CULTURAL RIGHTS AND THEIR PROTECTION IN BRAZIL AND IN THE WORLD: AN OVERVIEW

 

Since it emerged in the thirteenth century, the concept of culture has undergone several changes and the tendency is for new meanings to be introduced, both in everyday life and in the academic sphere. However, the universal concept of the term emerged in eighteenth-century France as a cultivated state of mind, "associated with the ideas of progress, education and evolution"^[6] from an individual perspective (PEDRA, 2013, p. 24-25).^[7]        

Irene Nohara and Ana Luiza Azevedo assert that "culture is a prerequisite for the existence of mankind"^[8] and that its concept is broad and complex. Contrary to popular belief, it is not only the set of customs of a people, or their manifestations and popular expressions, but the mode of organization of a society, and it includes: (i) the way people are divided into social groups; (ii) the presence or absence of private property; (iii) forms of labor relations (cooperation, exploitation...); (iv) how the family is ordained and the relationship between parents and children; (v) the manner and ritual of the formation of the conjugal bond; (vi) forms of leisure; (vii) religions and their precepts - including sacred rituals and the manner in which the dead are treated; (viii) the presence or absence of writing; (ix) the form of power; (x) the tongue; (xi) objects and their peculiarities; (xii) artistic expressions - music, sculpture, painting, handicrafts, literature, folklore, etc.; (xiii) the way society treats older people and children; (xiv) the behaviors; (xv) eating habits; (xvi) sports, etc. (NOHARA, AZEVEDO, 2016, p. 202-203).^[9]

For Francisco Humberto Cunha Filho, the definition of culture in the Brazilian legal system (CUNHA FILHO, 2004)^[10] must derive from the provisions of article 216 of the Constitution, caput and subsections I to V, without prejudice to other legal provisions.^[11]

It is known that cultural policies, in their contemporary sense, have taken a significant place in the international agenda of the 1970s, especially with the instigation of UNESCO.^[12] However, with the neoliberal wave that emerged in the 1980s, they went into stagnation.

In Brazil, after the long years of military dictatorship, the Ministry of Culture was created in 1985, the result of the country's redemocratization process. One year later, the "Sarney Law", the first Brazilian tax incentive law for culture, is created and breaks with the existing modes in this area. After that, several organs are created to work in this field: the Secretariat for Support to Cultural Production (1986); the National Foundation for the Performing Arts (1987); the Brazilian Cinema Foundation (1987); the National Pro-Reading Foundation, bringing together the National Library and the National Book Institute (1987) and the Palmares Foundation (1988), under pressure from the black movement in the centenary of the abolition of slavery (RUBIM, 2011, p.16).^[13]

The advent of the Federal Constitution of 1988 brought, in Section II, Chapter III, the functions of the government in the field of Culture. In its article 215, it imposes obligations on the State and shows the objectives that must be achieved,^[14] notably to guarantee to all the full exercise of cultural rights and access to the sources of national culture, supporting and encouraging the valorisation and diffusion of cultural manifestations.

In addition, cultural rights were also set forth in art. 5 of the Brazilian Constitution of 1988, as follows: item IX, which deals with freedom of artistic expression; subsections XXVII and XXVIII, dealing with copyright and related rights; and section LXXIII, which deals with the right to the protection of cultural heritage.

Three years after the publication of the Brazilian Federal Constitution of 1988, the then president of the Republic Fernando Collor de Mello sanctioned Law no. 8,313 of 1991, known as the Federal Law of Incentive to Culture or "Rouanet Law" in honor of the then Secretary of Culture Sérgio Paulo Rouanet .^[15] This law is regulated by Decree no. 5,761 of 2006 and promoted through the National Program of Support to Culture (Pronac), which is the basis for all current incentive policies in Brazil^[16] (DOMINGUES; SOUZA, 2011, p. 133).

The current law acts through five main lines (Article 3): encouraging artistic and cultural training; promotion of cultural and artistic production; preservation and diffusion of the artistic, cultural and historical patrimony; stimulating knowledge of cultural assets and values; and support for other cultural and artistic activities defined by the Ministry of Culture (CUNHA FILHO, 2004, p. 147).

The cultural promotion established may benefit individuals, legal entities governed by public law and under private law, whether or not they are for profit. For each hypothesis there are specific rules.

Culture is also protected internationally^[17], so that deal with the theme: the Universal Declaration of Human Rights (1948);the International Covenant on Economic, Social and Cultural Rights (1966);the International Covenant on Civil and Political Rights (1966);the Universal Copyright Convention (1952);the Convention on the Protection of Cultural Property in the Event of Armed Conflict (1954);the Declaration of Principles of International Cultural Cooperation (1966);the Convention on the Protection of World Cultural and Natural Heritage (1972);the Recommendation on the Participation of Peoples in Cultural Life (1976);the Artist Status Recommendation (1980);the Mexico Declaration on Cultural Policies (1982);the Recommendation on the Safeguarding of Traditional and Popular Culture (1989);the Report of the World Commission on Culture and Development (Our Creative Diversity-1996);the Universal Declaration on Cultural Diversity (2001), and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) (MACHADO, 2011, p. 106).^[18]

In spite of this protection, inevitably the public sphere practices acts of contempt and disregard for cultural singularities. "This is because acts of vertical communication (presuppositions in any and every relation of authority, especially between the State and the citizens) end up creating a situation of embarrassment, through the domination of collectivities that results in their demotion and oppression" (ROMAN, 2014).

In this path, it is observed that culture is a fundamental human right^[19] and has immediate applicability^[20] and, as mentioned, should be guaranteed to everyone, including foreign refugees. The Brazilian Constitution itself states in its art.4, sole paragraph, that the Federative Republic of Brazil will seek the economic, political, social, and cultural integration of the peoples of Latin America, aiming at the formation of a Latin American community, thus promoting cultural integration between nations.

In addition, a country that aims to develop must include in its public policies the promotion of culture. Such concern is therefore essential, so that the various facets of the right to culture, such as the right to participate in cultural life and the right to identity, are promoted (NOHARA; AZEVEDO, 2016, p. 200).

 

4 CULTURAL INTEGRATIONREQUIRED

 

As seen, culture in Brazil is a complex theme. The search for the integration of refugee immigrants is large, however, insufficient when analyzed in the face of the proportion of these peoples arriving here.

Brazil is a country that has a wide ethnic diversity, however, discrimination and all forms of prejudice is a reality that is not absent today, although there are many organs and public policies defending the exact opposite:

 

Discrimination on the basis of their status as migrant or being a non-national is often overt, but other discriminations interact with and change migrants’ experiences including on the basis of their actual or assumed gender, age, sexual orientation, gender identity or expression, religion, ethnicity, nationality, class, and/or disability. (GAATW, 2017).

 

In most cases, this repulsion on the other is between peoples of nations with little or no ethnic and cultural connection, but sometimes it may occur among nations whose peoples have much in common, as in the case of Brazil and Angola.

In this case, the Brazilian people have constructed the erroneous view that the black or mulatto represents ignorance and criminality, believing that they are solely responsible for such characteristics and reality. This prejudice, generally analyzed under the aspect of the country in question, affects not only Brazilians but also refugees, distancing them from the possibility of practicing their culture, their beliefs and religion, for fear of being rejected by society.

Prejudice is one of several reasons that discourage refugees from practicing their own culture outside their country of origin. The new Migration Law^[21], as previously mentioned, brings the right to culture in a generic way and mainly as a principle inspiration, as cited in art. 77 of that law, which places the promotion of culture as a “principle and guideline” for public policies for refugees. Thus, in the new legislation, there are no major advances in the cultural problems that affect refugees the most: the possibility of expressing and valuing their culture, and the cultural integration itself.

It is important the cultural inclusion of the refugee in Brazilian culture. Including learning the Portuguese language, the teaching method, the traditional festivals, the family way of life, among other factors. But the cultivation of their own culture is extremely important - being able to remember their origin, their creeds and habits makes the refugees feel even more at home, even so far from it.

Faced with this problem, it is extremely important to take into account that such refugees are not out of their country by their own choice, to get where they are means that they face social, political, cultural and even family problems, leaving no other choice but to seek shelter out of his homeland.

In this way, the refugee does not want and cannot be forced to have to adapt to a new culture - to be acculturated, in any place. To him, the right and the opportunity to keep his modus vivendi must be ensured and if you want to acquire new culture characteristics of being inserted when needed to adapt. This acculturation has impacts on the refugee's mental health, with public policies and social practices with a psychological scope to assist them (BUDDINGTON, 2002, p. 447-464), such as group conversations with psychologists and other activities that will be cited below.

Thus, cultural inclusion must be "reverse", as an exchange of cultures, in order to reduce the culture shock that refugees suffer upon entering Brazil, encouraging them to cultivate their own culture and not necessarily converting to Brazilian tradition. Incentives to Brazilian culture should include traditions of refugee countries, making it truly an integration of these peoples in Brazil, respecting their way of life, their beliefs, their morals.

As explained, Brazil already predisposes various incentives to integration. The example of this is the participation of a representative of a nongovernmental organization that is dedicated to refugee assistance and protection activities in the country, in this case Caritas Archdiocese of Rio de Janeiro and São Paulo, which is of fundamental importance, for it is the institution that provides social assistance to refugees in Brazil.

In addition, the Normative Resolution of “CONARE” no. 14, of December 27, 2011, article 5, item V, provides that civil society organizations implementing the Program are responsible for promoting social integration, cultural, citizenship and incentive to autonomy of the individual or family resettled. Article 4 of that resolution, in section III, provides that UNHCR is to contribute financially to the project of local integration of resettled refugees, through the availability of resources. Still, in its art. 7, provides that other legal and physical persons, on a voluntary basis, may be empowered to participate in the initiatives of this program, by donating financial resources or assets, providing specific services or joining various campaigns, according to specific terms signed with the entity the structure of the Program.

The sources of resources for implementing the incentive to culture can be both state-owned and privately-owned. Taking these bodies into account, it is pertinent to analyze some cases of events in which a greater inclusion of refugee culture would be possible.

A first example of practical actions could be the inclusion of the Portuguese language in complementary hours (voluntary) in classes taught by academic students of the course of Philology of public and private universities. In these classes, a refugee could be added as an “assistant teacher”, to teach, along with the Portuguese class, his language to those who have an interest in learning, having talk wheels, cultural games and even different methods teaching brought by refugees^[22].

Another way would be in the community integration of social services (SESC, SESI - legal entities under private law).Within each of these programs there is a range of cultural incentives from artistic performances, concerts and shows with the own artistic and cultural development, with courses, workshops and debates, in addition to providing libraries with access to updated collections.^[23]

There would then be the possibility of integrating into these events and publicizing to society a space for refugees who have an interest in bringing their culture in some way or by presenting songs at concerts, speaking at workshops about the cuisine of their country of origin, literature, poetry, its religion, its difficulties, about cultural difference and its positive and negative points, in short. Such an attitude would make the refugees contribute to Brazilian society not only with his work, but also with cultural diversity and learning^[24].

Going further, there are also major national events, such as a Rock in Rio, which could propose a festival of music from immigrant countries (“Music Immigration”). In this way, a course and film festival of immigrant films could also be provided by the schools of arts, with a survey of productions from all countries of origin (Syria, Lebanon, Jerusalem, Africa, Pakistan), showing cultural realities of origin.

These are some of the alternatives that could be added to Brazil's humanitarian system, which is already vast, but could improve these aspects of respect for the native culture of the refugees, without forcing an acculturation.

It is verified, therefore, that Brazil has a correct human posture. In fact, it cannot be said that there are no incentives for the insertion of the refugee in Brazil.The reflection made in this article brings only another point of view of inclusion, with emphasis on preserving the culture of the country of origin of the refugee here in Brazil, in order to ease the pain and suffering.

On the other hand, despite the special incentives and the competent bodies (UNHCR, 2016), it can be said that there is a failure to publicize public policies on this issue, which are the policies carried out by the public power both directly and indirectly (Through authorized agents), with the aim of improving the quality of life of the population in question, through works and assistance.

In Brazil, there is a refugee settlement policy, in accordance with the above resolution, which resulted from the creation of Law 9,474 of 97, through CONARE, to provide inclusion basic rights (access to health, education, labor market) of refugees in Brazilian social assistance programs, such as Bolsa Familia, however, without publicity, their results are restricted and are not expanded.

Therefore, the union of public policies and private incentives are necessary so that the concern for the well-being of the refugee is assured, including with regard to the maintenance of its culture in the countries that have hosted it.

 

CONCLUSION

 

Before the brief study recorded in this article, it is concluded that this country has ample legislation for the due legal and humanistic protection of the refugees, however, in many ways it proves insufficient.

Although Brazil shows itself to be a country of great receptivity to immigrants, statistics and reality show that at various times they are marginalized and forced to experience exclusion.

Likewise, as discussed in chapter 3, culture is also widely regulated both in Brazil, as a fundamental right of the citizen, and in international contexts, which emphasize its importance for decent human development.

Despite the extensive regulations, the refugee, in his host country, does not have all the rights respected. With emphasis on his right to culture, the current legislation is loaded with generic terms and prescriptions that effectively do not force the state and society to any attitude of cultural integration and respect culture in isolation.

Upon arriving here, the refugee is forced to be “acculturated” (BUDDINGTON, 2002), leaving most of his traditions aside to live in the work environment, school, family and shelter.

Cultural integration policies, as well as existing non-governmental programs to ensure the maintenance of refugee culture, have no echo, being isolated and restricted to a few refugees who happen to be in the right place at the right time, excluding those who have been further away from the city center, because of work, or even exploitation.

In this sense, it is urgent to discuss this issue, including in the school context. It is necessary to fight for the broad cultural integration of the refugee, taking into account that the migratory movement is increasing and will be increasingly present in Brazilian daily life.

 

 

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