The right to heritage beneficiated from further consecration through the Council of Europe, ‘Recognizing the need to put people and human values at the centre of an enlarged and crossdisciplinary concept of cultural heritage’, in the Framework Convention on the Value of Cultural Heritage for Society (Council of Europe, 2005, Article 4). The object of this Convention is to provide a common framework to existing technical instruments that define the right of heritage according to the different administrative categories, by proposing a transversal definition, and to centre this definition on human persons and on development. This human rights perspective on heritage has been taken forward by the UN Special Rapporteur in the field of cultural rights (2011 and 2016).
DEF: The various cultural rights cannot be reduced to a global «right to culture», as if «culture» could be understood as a unified whole. ‘Cultural life’ involves a variety of activities that imply many intertwined rights, freedoms and responsibilities.
The definition of culture used by UNESCO with only slight variations since 1982 has the unquestionable advantage of decompartmentalising the whole field of culture and, in doing so, of emptying it of its content, a ‘right to culture’ that would necessarily adopt a narrow understanding (the arts and heritage). But this definition is applied only to collectives (features ‘that characterize a society or social group’). From a human rights perspective, a culture cannot be a frame that imposes itself upon an individual; it is only an environment comprising a wide variety of elements, often heterogeneous (A. Sen, UNDP, 2004).
A human rights based approach is required for such a wide definition to be operational, legitimate and realist. Human agency, each person’s fundamental right to choose his or her own cultural references, individually or with others, and his or her capacity to extract some freedoms and creativity from the different conditions – natural and cultural –, have to be recognised as the rationale. Each person is then beneficiary and author of cultural resources. In the Declaration of Fribourg, the definition was made operational and concrete by centring it on the persons: ‘The term ‘culture’ covers those values, beliefs, convictions, languages, knowledge and the arts, traditions, institutions and ways of life through which a person or a group expresses their humanity and the meaning they give to their existence and to their development’ (Fribourg Group, 2007, Article 2, al.1). This definition has been taken up and further developed in General Comment 21 of the CESCR (para 13).
The UNESCO Declaration and Convention have joined in this active interpretation by defining cultural goods as ‘conveying identities, values and meanings’. This crosscutting approach to culture is both legitimate and operational because it is hermeneutic: what is cultural is understood as the work that enables the circulation of meanings across the different modes of life. In any milieu, a ‘culture’ is nothing more than a series of resources and knowledge from which people, individually or collectively, can draw and to which they also have the right, freedom and responsibility to contribute, for themselves and for others.
Generally speaking, cultural rights are the rights and freedoms of a person to, individually or collectively, choose and express his or her identity and to access cultural references as the necessary resources needed for his or her process of identification, communication and creation (Meyer-Bisch and Bidault, 2010, op.cit. p.17, pars 0.12 and 3.8; also Special Rapporteur in the field of cultural rights, 2010, para 9; 2012, paras 2 and 7; 2016, para 7). They allow each person, alone or in community with others, to freely live a rich cultural identity, to access and enjoy the necessary cultural works (knowledge possessed by people or entrusted into works and institutions) that will allow the development of the capacities to participate in cultural life in a unique and creative manner. They render the subject capable of drawing in the works as the indispensable resources of its development, expression and contribution. For example, the right to language is not just functional: it is the access to the capacity of conceptualisation, impression and expression, which gives access to all other capacities. In all cultural disciplines, a capacity of recognition and admiration is at stake, allowing the development of a freedom and a responsibility.
DISCUSSION: The actual promotion of cultural rights allows us to consider the origin of universality in each cultural environment, and therefore to respect the right of each person not only to adhere to the universality of rights, freedoms and responsibilities, but also to live and express this universality in the specificity of his or her own experience and environment. This has more evident implications for the definition of the right to selfdetermination, but can also be said of all other human rights, for which three main aspects need to be considered:
a) The cultural dimension of each human right: Each time the adjectives ‘adequate’ or ‘appropriate’ qualifies the object of a human right (adequate food, housing, health care, information,...) (CESCR,General Comment 4, 1992, para 8; General Comment 12, 1999, paras 7 and 15, General Comment 2003, para 11–12), the exercise of that right has to be legitimately appropriated by the subject. This is a major condition of the rights’ effectiveness: the enjoyment of a right needs to be adapted to the conditions of the subject’s specific environment. ‘Appropriation’ can be defined as the correspondence between the capacities of the subject and the resources available. Obviously, the appropriateness is also economic, sanitary, etc., but the cultural dimension of appropriateness requires respect and valorisation of the cultural freedoms and capacities of a person in his or her environment. It recognises each person’s singularity in how they exercise their human rights.
b) The cultural interpretation of the content of other human rights: The cultural dimension also implies a culturally inclusive interpretation of each human right, one that recognises and verifies universality in the respect of singularity. This is not relativizing universality, it is bringing it into relation; it is adding to, and not diminishing, its value, it is an additional requirement. The cultural understanding of each human right contributes to a universality of human rights that is the opposite of standardisation.
This is particularly true of civil freedoms. Historically, the freedoms of opinion, expression, thought, conscience and religion and belief have been considered solely in formal terms, implying essentially negative obligations. Taking position on the content was avoided, understood as falling within private sphere and cultural specificities. The change of paradigm, formalised by the 2001 UNESCO Declaration on cultural diversity, consists in shifting our understanding of diversity from an obstacle or a limit to universality to the space where it has its roots. It forces us to reconsider more concretely the conditions for the exercise of ‘intellectual’ or civil freedoms. These freedoms all relate to knowledge and are built on them. So their content is cultural. What is a freedom of expression without knowledge and mastering of a language and its writings? What is a freedom of religion for someone who has only known a fundamentalist and discriminatory version of the religious tradition he or she refers to or tries to oppose? The analysis of the common content of these freedoms – the access to knowledge both specific to each content as well as susceptible to sharing – sheds light on their interdependence and on the shortcomings of formal analysis. The demonstration is furthermore obvious for the freedoms of research in the scientific field: their exercise cannot be reduced to non-impediment. Necessary training and fostering conditions have to be accessible. One could say that cultural rights embody these freedoms.
The same can be said about the rights of persons before the law. A fair trail, that restores respect and appropriation of the law for the perpetrator has to fully take into consideration that person’s capacities and environment, just as access to effective remedies for the victims and appropriate redress for society can only be achieved when considering the eminently cultural essence of the interpretation of the universality of the law. Finally, participation in a political community implies sharing its values, informed through permanent civic education and debate. The right to take part in cultural life is closely intertwined with the right to take part in political life, both needing appropriation of a series of common values, culturally constructed and discussed. Therefore, the cultural dimension is not just an improvement of the effectiveness: it touches directly on the substance of the right and contributes to a better understanding of the whole of the system.
c) The cultural construction of the grounds of discrimination: Finally, the issue of the cultural dimension is even more radical when one considers that the motives of discriminations are culturally constructed, and respecting the rights of the persons concerned requires the deconstruction of the motives of discrimination (Bouchard, Meyer-Bisch, 2016). If the rights of women are more frequently and severely violated than the rights of men, it is not only because of a natural vulnerability related in particular to maternity, but also because of the cultural construction of ‘gender’ relations that generally depreciates the role of women. The argument is also valid for the rights of the child: since the stages and limits of childhood, as well as the definition and division of responsibilities, are cultural constructions, the whole interpretation of the rights of the child depend on this construction. Similarly, the protection of older persons, migrants and detainees, indistinctly implies an interpretation of the value given to these distinctions that structure all societies and to the value given to the protection of the rights of these persons. In short, the conception – and therefore, the protection – of the rights of persons in disadvantaged situations is essentially a cultural question of major importance for the persons as well as the societies concerned. Whereas the principle of non-discrimination required until now a neutral approach, blind to cultural specificities, it needs to be interpreted today with the obligations related to the necessity to respect the cultural freedoms of each person and the values of knowledge without which the freedoms have no substance. What is emerging is a more demanding interpretation of the obligation to respect.
CONCL: The obligation to respect cannot be reduced to the duty of abstention from the state since, when violations are perpetrated, abstention becomes complicity. To respect does not only mean not to act, not to harm, but also to act in such a manner that one does not harm. Today, the obligation that should be at the forefront is the obligation to observe. It consists in ‘listening’ and ‘observing’ the victims and those witnessing violations, in the double meanings of this verb: to observe a situation and to observe the law. The first obligation of states is to ensure that systems of observation continuously exist and operate with the participation of all relevant stakeholders of the field concerned.
This principle applies to all human rights and cultural rights explicit their operations: democratic culture relies entirely on the practices of knowledge crossing. This means that each person has the right to participate in the crossing of knowledge. Each person also has the corresponding responsibility to contribute to it to the greatest extent of his or her capacities, in order to respond to the rights and freedoms of others.
REFERENCES:
Bidault, Mylène: La protection internationale des droits culturels, Bruxelles : Bruylant (2009).
CESCR: General Comments: No. 4 on the right to adequate housing (1992); No. 12 on the right to adequate food, (1999); No. 15 on the right to water (2003); No. 21 on the right of everyone to take part in cultural life (2009).
Council of Europe: Framework Convention on the Value of Cultural Heritage for Society (2005).
Council of Europe: Heritage and beyond, Strasbourg: Council of Europe Publishing (2009).
Fribourg Group: Cultural rights: Fribourg Declaration (2007) (available at www.unifr.ch/iiedh accessed 06/2016).
Knop, Karen: Diversity and Self-Determination in International Law, Cambridge: CUP (2008).
Meyer-Bisch, Patrice: “Les droits culturels ou le renforcement des capacités personnelles”, in Bosset, Lamarche (ed.): Droit de cité pour les droits économiques, sociaux et culturels : la Charte québécoise en chantier, Montréal, Editions Yvon Blais (2011).
Meyer-Bisch, Patrice, Bidault, Mylène: Déclarer les droits culturels. Commentaire de la Déclaration de Fribourg, Zurich, Bruxelles: Schulthess, Bruylan (2010).
Meyer-Bisch, Patrice, Bouchard, Johanne: “Intersectionality and Interdependence of Human Rights: Same or Different?” Equal Rights Review (Special Focus: Intersectionality), Volume 16 (2016).
PNUD: Rapport mondial sur le développement humain. La liberté culturelle dans un monde diversifié, Paris: Economica (2004).
Special Rapporteur in the field of cultural rights: Thematic reports, in particular A/HRC/14/36 (2010), A/HRC/17/38 (2011), A/67/287 (2012), A/HRC/31/59 (2016).
Patrice Meyer-Bisch/Johanne Bouchard
Cultural Expressions
(and the 2005 UNESCO Convention)
DEF: According to Article 4(3) of the 2005 UNESCO Convention on the protection and promotion of the diversity of cultural expressions (hereafter the 2005 Convention), cultural expressions ‘are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content’, the latter referring to ‘the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities’ (Article 4(2)). The notions of ‘cultural expressions’ and ‘cultural content’ are closely related to the concept of ‘cultural activities, goods and services’, referring ‘to those activities, goods and services, which at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have’ (Article 4(4)). Some examples of cultural goods and services that convey cultural expressions are films, videos, books, magazines or songs, made on traditional but also digital support. The 2005 Convention does not define the ‘diversity of cultural expressions’, but only the notion of ‘cultural diversity’ which ‘refers to the manifold ways in which the cultures of groups and societies find expression’ (Article 4(1)).
INSTR: The 2005 Convention reaffirms the sovereign right of each state party ‘to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this Convention’ (Articles 5, 6, 7, 8, 10, 12, 14–18). These commitments should be interpreted in the light of guiding principles, the first of which stating that ‘cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed’ (Article 2(1)). Moreover, ‘the protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures’ (Article 2(3)) and request an ‘equitable access to a rich and diversified range of cultural expressions from all over the world’ (Article 2(7)). In this regard, the Convention requires developed countries to ‘facilitate cultural exchanges with developing countries by granting (...) preferential treatment to (their) artists and other cultural professionals and practitioners, as well as (their) cultural goods and services’ (Article 16). Additionally, the promotion of ‘objectives and principles’ of the 2005 Convention in other international forums (Article 21) should result in the recognition of the specific nature of cultural goods and services in trade agreements, either by the exclusion of such goods and services from the scope of these treaties, or by the incorporation of cultural clauses that acknowledge their specificity.
CASES: In a case concerning television regulations requiring television operators to allocate a portion of their operating revenue to the funding of cinematographic films in one of the official languages of Spain [UTECA, 2009], the CJEU had to decide on a question submitted by the Spanish Supreme Court, related to the interpretation of some provisions in a European treaty and a European directive. The Court relied on the intrinsic link between language and culture, expressly referring to the UNESCO 2005 Convention, which states that ‘linguistic diversity is a fundamental element of cultural diversity’ and specified that the objective of promoting a language does not need to be accompanied by other cultural criteria in order for it to justify a restriction on one of the fundamental freedoms guaranteed by the EU Treaty. In numerous cases in the field of state aids, the European Commission recognised the very specific nature of the cultural sector, including e.g. films but also video games, by referring directly to the 2005 Convention (SA. 3413 2012/N; SA. 34030 2012/N; SA. 35227 2012/N; C 47/2006). On the international level, first steps towards an acknowledgment of the intangible dimension of cultural goods and services in →free trade disputes can be registered (WT/DS363/R).
VIEWS: During the negotiation of the 2005 Convention, tension arose between two groups of states: One group was in favour of a rather large scope of application of this instrument covering ‘cultural diversity’ in its broader sense, thus including intangible cultural heritage, cultural rights, culinary expressions, fashion design and even values and religious beliefs. The other states insisted on sticking to the terms of the negotiation mandate, whichwas limited to the ‘diversity of cultural expressions’ stricto sensu (Von Schorlemer, 2012). This narrow conception finally succeeded and, according to its Article 3, the Convention ‘shall apply to the policies and measures adopted by the Parties related to the protection and promotion of the diversity of cultural expressions’, these ones being conveyed by ‘cultural activities, goods and services’. However, the Quadrennial periodic reports (QPR) presented by the parties since 2012 demonstrate that many of them continue to give interpretations of the term ‘cultural expressions’ that go beyond the scope of application of the 2005 Convention. Some refer to many cultural forms and manifestations of culture that are covered by other cultural instruments, for instance by the 2003 Convention on the Safeguarding of the Intangible Cultural Heritage. Some scholars also consider that food or culinary traditions, as well as handicraft, are cultural expressions falling into the scope of the 2005 Convention and, according to them, most useful for the protection of cultural diversity (Maffei, 2012).
CONCL: The 2005 Convention introduced the new concept of ‘cultural expressions’ in the language of diplomacy, i.e. in international legal vocabulary and that of cultural policies at all levels. References to the diversity of cultural expressions have multiplied in international legal instruments and national cultural governance systems. Ten years after the adoption of the 2005 Convention, an important number of policies and measures strengthening the value chain of creation, production, distribution/dissemination and access of cultural goods and services has been adopted and implemented, even though the needs and realities faced by many creators and producers of cultural expressions still have to be addressed (Obuljen, 2015). The 2005 Convention has also reinforced international cooperation in the cultural field (Van Graan, Sanan, 2015) and the parties have been promoting actively the objectives and principles of the 2005 Convention in other international forums. In this regard, some remarkable progress has been observed in trade agreements, especially those concluded by the EU, that frequently incorporate references to the diversity of cultural expressions. Such references have appeared in a ‘cultural cooperation protocol’ attached to some free trade agreements, recognising the dual nature of cultural goods and services and giving a preferential treatment to the other parties (Guèvremont, 2015). In addition, parties to the Convention reported an increasing number of policies, programs and strategies that integrate culture into sustainable development policies implemented in their own territories or in their international development assistance activities (UNESCO, 2015). Considering the fact that digital technologies enhance the interaction between cultures, but also represent a threat to some of them (Kulesz, 2014; Guevremont et al., 2013), the issue of identifying the best approaches to protect and promote the diversity of cultural expressions in the digital environment will certainly receive much broader attention from the 2005 Convention bodies in the years to come.
REFERENCES:
Guèvremont, Véronique et al.: Implementation of the convention of the protection and promotion of the diversity of cultural expressions in the digital age: challenges, priority actions and recommendations, Report presented to the Intergovernmental Committee of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Seventh Ordinary Session, (2013).
Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions: Strategic and action-oriented analytical summary of the quadrennial periodic reports, CE/12/6.IGC/4, 10–14 December 2012.
Kulesz, Octavio: UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Analysis of Parties’ periodic reports and contemporary digital trends, Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, CE/14/8.IGC/INF.5, (2014).
Maffei, Maria Clara: “Culinary Traditions as Cultural Intangible Heritage and Expressions of Cultural Diversity”, in Borelli, Silvia and Lenzerini, Federico (ed.) Cultural Heritage, Cultural Rights, Cultural Diversity New Developments in International Law, Leiden: Nijhoff (2012).
Richieri Hanania, Lilian (ed.): The effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Oxford: Routledge (2014).
UNESCO: Re/Shaping Cultural Policies, 2005 Convention Global Report, UNESCO (2015).
Von Schorlemer, Sabine/Stoll, Peter-Tobias (eds.) The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Explanatory Notes, Springer (2012).
China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (2009), WT/ DS363/R (Panel Report).
UTECA – UNIÓN DE TELEVISIONES COMERCIALES ASOCIADAS v. ADMINISTRACIÓN GENERAL DEL ESTADO (CJEU 12/03/2009, C-222/07).
Véronique Guèvremont
Cultural Genocide
DEF: Cultural genocide refers to the destruction by the state or state organs of the culture of a community. Elements of cultural genocide could include unjustified restrictions and prohibitions of the use of native and regional languages, of the practice of religions, of cultural activities and expressions, as well as the destruction of cultural and educational institutions and cultural heritage (Donders, 2012). The Dalai Lama has called the situation in Tibet cultural genocide and the Canadian Truth and Reconciliation Commission concluded in 2015 that Canada’s aboriginal policy ‘can best be described as cultural genocide.’ (Truth and Reconciliation Commission of Canada, Honouring the truth, reconciling for the future, p. 1)
INSTR: Although the original concept of genocide, as invented by Raphael Lemkin, also had a cultural dimension (Lemkin, 1944), the prohibition of cultural genocide is not explicitly incorporated in international law. The prohibition of ‘ordinary’ genocide is firmly established in the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Moreover, the prohibition of genocide is recognised as a norm of ius cogens and as international customary law, which is binding upon all states. Cultural genocide does not fit in the common legal use of the word ‘genocide’ in the Genocide Convention, which presupposes the intent to physically destroy a certain group in whole or in part. Destroy is meant literally as the physical annihilation of people, which is why genocide is usually linked with violent conflict. The situations described as cultural genocide, such as that of the Tibetans in China or the indigenous peoples in the USA, Canada and Australia, have led to serious unrest and conflict, but they were not meant to systematically kill individuals or physically destroy the group. Instead, the aim was to forcibly assimilate these communities into mainstream society and culture (MacDonald and Hudson, 2012, p. 429). Cultural genocide was part of the draft Genocide Convention and the draft UN Declaration on the Rights of Indigenous Peoples, but it was not included (Donders, Short, 2010, p. 836). The remaining link is the prohibition of the forcible transfer of children (Article II(e)). This relates to culture, because the forced removal of children from their families might lead to imposing a distinct culture upon these children, which could lead to the disappearance of a community as a cultural unity (Donders, 2012; MacDonald and Hudson, 2012, p. 441; Mako, 2012, p. 177–179; Short, 2010, p. 844).
CASES: There is no international case law explicitly mentioning cultural genocide. The case law on genocide generally focuses on the intent to physically and biologically destroy a group. There are several cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY) in which the Court confirmed the standpoint that attacking or destroying the cultural characteristics, property or symbols of a group does not fall under the definition of genocide. However, the Court also argued that the intentional destruction of cultural and religious institutions and monuments can lead to the triggering of the intent to destroy a group within the meaning of the Genocide Convention. Moreover, the destruction of cultural property with discriminatory intent against a cultural community can be prosecuted as a crime against humanity [ICTY cases: PROSECUTOR v. DARIO KORDIC AND MARIO CERKEZ, 2001; PROSECUTOR v. RADISLAV KRSTIC, 2001; PROSECUTOR v. VIDOJE BLAGOGEVIC AND RAGON JOKIC, 2005].
VIEWS: The prohibition of cultural genocide does not fall under the Genocide Convention, unless it fulfils the requirement of the intent to physically destroy. To make it an international norm would imply a different interpretation of genocide. The Declaration on Rights of Indigenous Peoples refers to the prohibition of ‘any act of genocide’, which could include cultural genocide (Mako, 2012, p. 188). Some argue to extend the concept of genocide to include ‘the destruction of the social figuration’ or cultural genocide, which does not necessarily imply mass killing (Short, 2010, p. 842–844). Bearing in mind that international legal instruments related to genocide and international crimes adopted after the Genocide Convention, such as the Rome Statute on the ICC, do not include a reference to cultural genocide, and the fact that Courts have not accepted such an interpretation, it seems to be that ‘...among international lawmakers this is a dead issue’ (Schabas, 2000, 188). However, the main content of the norm of cultural genocide – not to destroy the culture of a community, including its language, religion, cultural heritage and institutions – can be found in several other international legal instruments, notably human rights treaties. International human rights instruments contain many rights in relation to culture, with special attention to vulnerable groups, such as minorities and indigenous peoples. The corresponding state obligations certainly include the prohibition to unlawfully and unjustifiably restrict or destroy cultures and cultural institutions. Cultural heritage is separately protected under heritage conventions, but also under international humanitarian law and international criminal law. According to these instruments, states are prohibited from damaging or destroying cultural heritage in time of conflict and to do the same, as well as to protect and promote it, in peace time. In short, existing international legal norms on genocide, cultural rights and cultural heritage taken together provide a legal prohibition of cultural genocide (Donders, 2012).
CONCL: Although Lemkin in his original conception of genocide included a cultural component, the Genocide Convention does not explicitly prohibit cultural genocide, apart from the prohibition of the forcible transfer of children. However, the normative content of cultural genocide – the destruction or suppression of cultures and the forceful assimilation of cultural communities into mainstream culture or society – is clearly forbidden in international law, in particular international human rights law, but also international humanitarian law and heritage conventions. Cultural genocide has been used as a label for situations where cultural rights violations have systematically taken place. In many parts of the world, cultures are limited or destroyed in very methodical but sometimes subtle ways. There may not be a violent conflict and people may not literally be attacked or killed, but their cultures are ridiculed, restricted, and eventually destroyed. By destroying cultures, the identities of cultural communities and thereby their existence inevitably dies as well.
REFERENCES:
Donders, Yvonne: “Old Cultures Never Die? Cultural Genocide in International Law”, in I. Boerefijn et al (eds.), Human Rights: Pre-Conflict, In Conflict, and Post-Conflict, Mortsel: Intersentia (2012).
Lemkin, Raphael: Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress,Washington DC: Carnegie Endowment for International Peace (1944).
MacDonald, David B.: “The Genocide Question and Indian Residential Schools in Canada.” Canadian journal of political science 45(2) (2012) 427.
Mako, Shamiran: “Cultural Genocide and Key International Instruments: Framing the Indigenous Experience” International journal on minority and group rights 19.2 (2012) 175.
Morsink, Johannes: “Cultural Genocide, the Universal Declaration, and Minority Rights”, 21 Human Rights Quarterly (1999) 1030.
Sautman, Barry: ““Cultural Genocide” and Tibet” Texas international law journal 38(2) (2003), pp. 173.
Schabas, William: Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge University Press (2000).
Short, Damien: “Cultural genocide and indigenous peoples: a sociological approach.” The International Journal of Human Rights 14(6) (2010) 833.
Truth and Reconciliation Commission of Canada, Honouring the truth, reconciling for the future: summary of the final report of the Truth and Reconciliation Commission of Canada (2015).
Vrdoljak, Ana F: International Law, Museums, and the Return of Cultural Objects, Cambridge: Cambridge University Press (2006).
Yvonne Donders
Cultural Identity
DEF: Cultural identity can be broadly described as the personification of culture. It is ‘...all those elements of culture through which individuals and groups define and express themselves and by which they wish to be recognised’ (Council of Europe (CAHMIN), Preliminary Draft Declaration of Cultural Rights, 1995), or as ‘...the sum of all cultural references through which a person, alone or in community with others, defines or constitutes oneself, communicates and wishes to be recognised in one’s dignity’ (Fribourg Declaration on Cultural Rights, 2007). Cultural identities are dynamic and heterogeneous. They are not created within bounded areas, but within spaces of interaction. Elements of cultural identities are, for example, language, religion, heritage, education, arts and literature, but also traditions, customs and institutions. Cultural identity has an individual and a collective dimension. It is built by relationships with other individuals and with communities. It is important to individuals and communities, because it gives them a sense of belonging. The suppression or limitation of the development and expression of cultural identity can make people feel alienated, which seriously affects their human dignity. Accordingly, international processes such as decolonisation, globalisation and migration, where cultural identities have been suppressed or surpassed, have contributed to the increase in the awareness of cultural identity. This awareness has, in turn, led to the claim for the protection of cultural identity as a right.
INSTR: The concept of cultural identity is included in various international legal instruments, most of which concern minorities or →indigenous peoples (e.g. the UN Declaration on Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, the Council of Europe Framework Convention on the Protection of National Minorities and the UN Declaration on the Rights of Indigenous Peoples). Several UNESCO instruments also contain references to cultural identity (Universal Declaration on Cultural Diversity and the Declaration on Race and Racial Prejudice). There is however no ‘right to cultural identity’ legally established in international law. States do not seem to be willing to accept (legally binding) provisions on cultural identity, mainly because of the vagueness and the collective dimension of this concept. The instruments that include cultural identity mainly reflect soft law. Cultural identity is generally referred to not as a legal substantive right, but as a general value or principle that underlies other, more specific, human rights. Many legally binding human rights provisions, in particular cultural rights, play an important role in the protection of cultural identity. These rights include provisions that explicitly refer to culture, such as the right to participate in cultural life, the right to enjoy culture, language and religion for members of minorities, but also other rights that relate to cultural identity, such as the rights to freedom of expression, religion and association and the rights to respect for private life, home, education etc.
CASES: Although none of the international legal instruments contains an explicit right to cultural identity, there are many cases dealing with elements of cultural identity under different human rights provisions. The Human Rights Committee has, for instance, interpreted the concept of ‘enjoyment of culture’ in Article 27 ICCPR in a broad manner, including elements such as language and religion, but also economic activities related to land (e.g. HRCee General Comment No. 23). The ECtHR has referred to cultural identity directly or indirectly in cases concerning rights to freedom of expression, religion, association, and the rights to respect for private life and home. For instance, the ECtHR has argued that freedom of religion is a fundamental element of a person’s cultural identity and emphasised that states should promote pluralism and ensure that religious communities tolerate each other [KOKKINAKIS, 2000;MANOUSSAKIS AND OTHERS, 1996; SERIF, 1999; THLIMMENOS, 2000; CHAÁRE SHALOM VE TSEDEK, 2000; LEYLA SAHIN, 2005]. The Court has also argued that cultural organisations set up to preserve and develop the minority culture and traditions are protected under the right to freedom of association [SIDIROPOULOS AND OTHERS, 1998; STANKOV AND THE UNITED MACEDONIAN ORGANISATION ILINDEN, 2001; GORZELIK AND OTHERS, 2001]. The Court has furthermore argued that the traditional way of life of a gypsy minority is protected under the right to respect for private life, family life and the home [CHAPMAN, 2001, CONNORS, 2004; WINTERSTEIN, 2013].
VIEWS: Behind the debate on a right to cultural identity lies a more general discussion on the possible ways of accommodating cultural differences in society. Policies of tolerance and multiculturalism have been developed to build a society in which different cultural communities can exist and are able and allowed to keep a distinct cultural identity against policies of assimilation. While cultural identity is appreciated as a value, its legal recognition remains in the form of soft law, having no legally binding force. Supporters of this right emphasise that the claim for a right to cultural identity originates from a situation of serious human rights violations and is necessary to protect and promote cultural identity as an important element of human dignity. Opponents point out that the existing human rights framework provides sufficient protection of cultural identity and that a right to cultural identity adds nothing to established human rights. Moreover, the concept of cultural identity is considered to be too vague to be transformed into a legal substantive right. Opponents also reject the possible collective subject of this right, because of the lack of a legal definition of the collective entity and the possible conflict between individual and collective rights. Another argument against a right to cultural identity is that this right could be interpreted as supporting questionable cultural activities. This links to the fact that a right to cultural identity, just as other human rights, cannot be enjoyed unlimitedly. Human rights can be limited by law for instance to protect the rights of others or general society, provided that these limitations are necessary and proportionate. A right to cultural identity as a legal norm in the form of hard law, which has legally binding force and could be invoked before a judge, is unlikely to be established at international level.
CONCL: The formulation of ‘a right to cultural identity’ is actually rather strange. The right to cultural identity implies the right to have or be provided with a cultural identity. This seems to be rather odd, since individuals and communities simply have a cultural identity, which cannot and should not be provided for by a state. Consequently, this right has been formulated in different ways. Some speak of the right to cultural identification. The Fribourg Declaration includes the right to choose and to have one’s cultural identity respected. A better formulation would be the right to freedom of cultural identity. It seems that one of the central claims of a right to cultural identity is the right to decide in freedom to have, develop and preserve a cultural identity, as well as to change one’s cultural identity. A right to freedom of cultural identity reflects the idea of cultural identity as a changeable process and of the importance of choice. Cultural identity does not have to be developed as a separate human right. Instead, as an important element of the dignity of human beings, it should be used as an underlying value for the development and implementation of human rights in cultural policies.
REFERENCES:
Council of Europe (CAHMIN): Preliminary Draft Declaration on Cultural Rights, CAHMIN(95)16 Appendix IV, May 1995.
Donders, Yvonne M.: Towards a Right to Cultural Identity?, School of Human Rights Research Series No. 15, Antwerp/Oxford/New York: Intersentia/Hart, 2002.
Francioni, Francesco and Scheinin, Martin(eds.): Cultural Human Rights, Leiden: Brill Publishers, 2008.
Human Rights Committee, General Comment No. 23,UNDoc. CCPR/C/21/Rev.1/Add.5, 26 April 1994.
Lenzerini, Frederico: The Culturalization of Human Rights Law, Oxford: OUP, 2014.
Vrdoljak, Ana (ed.): The Cultural Dimension of Human Rights, Collected Courses Volume, European University Institute, Florence: OUP, 2013.
BUCKLEY v. THE UNITED KINGDOM (ECtHR 25/9/1996 20348/92).
CHAPMAN v. THE UNITED KINGDOM (ECtHR 18/01/2001 27238/95).
CHAÁRE SHALOM VE TSEDEK v. FRANCE (ECtHR 27/6/2000 27417/95).
CONNORS v. THE UNITED KINGDOM (ECtHR 27/5/2004 66746/01).
GORZELIK AND OTHERS v. POLAND (ECtHR 20/12/2001 44158/98).
KITOK v. SWEDEN (Human Rights Committee, Comm. No. 170/1984 and 197/1985).
KOKKINAKIS v. GREECE (ECtHR 25/5/2000 14307/88).
LÄNSMAN v. FINLAND (Human Rights Committee, Comm. No. 671/1995).
LEYLA SAHIN v. TURKEY (ECtHR 10/11/2005 44774/98).
LOVELACE v. CANADA (Human Rights Committee, Comm. No. 24/1977).
MANOUSSAKIS AND OTHERS v. GREECE (ECtHR 26/9/1996 18748/91).
OMINAYAK v. CANADA (Human Rights Committee, Comm. No. 167/1984).
SERIF v. GREECE (ECtHR 14/12/1999 38178/97).
SIDIROPULOS AND OTHERS v. GREECE (ECtHR 10/7/1998 26695/95).
STANKOV AND THE UNITED MACEDONIAN ORGANSATION ILINDEN v. BULGARIA (ECtHR 2/10/2001 29221/95, 29225/95).
THIMMENOS v. GREECE (ECtHR 6/4/2000 34369/97).
WINTERSTEIN v. FRANCE (ECtHR 17/10/2013 27013/07).
Yvonne Donders
Cultural Institutions / Infrastructure
(Access to Culture / Public Financing of C. I.)
DEF: At a general level, ‘cultural infrastructure’ refers to the institutionalisation of culture. However, just as the term ‘culture’ is ambiguous and open to multiple interpretations, so is the notion of cultural infrastructure. From a public policy perspective, the term commonly refers to ‘cultural institutions’, i.e. organisational entities, foundations or establishments, providing cultural resources in the form of cultural activities, performances or services. Examples are museums, theatres, concert halls, libraries, sports stadiums (in some countries), cinemas, live performance institutions, and community cultural centres. What makes a cultural institution ‘public’ may depend on its legal status as public entity or the fact that its activities, performances or services are subsidised through public funding. By contrast, in an academic context, the term cultural infrastructure brings into focus what sociologists define as ‘social institutions’ and anthropologists as ‘ways of life’, i.e. social norms, conventions, and customs that organise and inform human relationships, with a special interest in their significance for the people who create, participate and maintain, or seek to change or revise them. Examples of these institutions are norms and practices related to dress, diet, worship, childrearing, social relations, etc.
INSTR: International human rights law entails no explicit recognition of the right to cultural infrastructure or state obligations to provide or finance related institutions. However, the claim that the institutionalisation of culture is indispensable to the actual enjoyment of cultural resources and also involves state obligations seems implicit in Article 15(2) ICESCR according towhich: ‘The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture’. The meaning of this provision is spelled out further in the CESCR’s General Comment no. 21 where the first principle mentioned is the availability of cultural goods and services, such as libraries and cinemas. Furthermore, according to the General Comment, states are required to take positive measures aimed at establishing and supporting public institutions and the cultural infrastructure necessary for the implementation of such policies; to grant assistance, financial or other, to artists, and other individuals and institutions engaged in scientific and creative activities; and to adopt measures to support minorities in their efforts to preserve their own cultures (para. 52). More recent human rights treaties establish more detailed provisions to this effect. For example, the UN Convention on the Rights of the Child (1989): ‘States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity’ (Article 31(2)). Also noteworthy is the UN Convention on the Rights of Persons with Disabilities (2006) which obliges states to take measures aimed at securing effective access to cultural institutions, including places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services (Article 30). The UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) is also of some relevance insofar as it provides the signatory states with ‘a sovereign right to formulate and implement cultural policies’ that include, in particular, measures aimed at providing public financial assistance and ‘establishing and supporting public institutions’ (Articles 5 and 6).
In the European context, attention should be given to the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (Faro Convention, 2005), which goes beyond the right of access to promote the full participation of all parts of society in the valorisation, protection and dissemination of heritage, also urging states parties to ‘promote cultural heritage protection as a central factor in the mutually supporting objective of sustainable development, cultural diversity and contemporary creativity’ (Article 5(e)). Furthermore, Recommendation 1990 (2012) of the Parliamentary Assembly of the Council of Europe on ‘the right of everyone to take part in cultural life’ affirms a conception of the state as a ‘major cultural agent’ which ‘not only has a responsibility to ensure a wide supply of cultural services, through all its public institutions, but also acts as an initiator, promoter and regulator of synergies between public institutions and organisations in the non-profit and private sectors which contribute to the protection and promotion of cultural heritage, to artistic creative endeavour, and to public access to the full range of cultural and artistic resources’ (para. 3).
Several European constitutions, e.g. in Italy, the Netherlands and Malta, Montenegro or Portugal, pronounce state obligations to provide conditions necessary for an actual enjoyment of culture (cf. Laaksonen, 2010; Council of Europe/ ERICarts, 2016). For example, the Greek constitution stipulates: ‘Art and science, research and teaching shall be free and their development and promotion shall be an obligation of the State’ (Article 16) and state authorities in Romania are obliged to guarantee that ‘national culture is supported, arts are stimulated, cultural legacy is protected and preserved, contemporary creativity is developed and Romania’s cultural and artistic values are promoted throughout the world’ (Article 33(3)). In addition, constitutional provisions in several European countries mention the rights of national minorities or ethnic groups to develop their own cultures, and to establish and maintain their own cultural institutions (e.g. Article 34 of the Constitution of Slovakia).
CASES: Relevant rulings in this realm are mainly concerned with the adjudication of claims concerned with the maintenance of social institutions of minority cultures but without necessarily affirming state obligations to protect them. The ECtHR recasts these claims as those concerned with the limits of religious freedom, and has concluded that this freedom does not extend to the protection of, for example, the full-face Islamic veil in public spaces [e.g. S.A.S, 2014] or the construction of Minarets [OUARDIRI, 2011, and LIQUE DES MUSULMANS DE SUISSE, 2011]. As regards the protection of institutionalised forms of indigenous cultures, a more proactive judicial stance can be observed in Latin America, as illustrated in the case of [MAYAGNA (SUMO) AWAS TIGNI COMMUNITY, 2001].
The modest number of rulings can be explained in light of the fact that alleged violations of cultural rights have traditionally been regarded as ‘not justiciable’, although the entry into force of the Optional Protocol to the ICESCR on 5 May 2013 may produce a change in this regard. In addition, it must be recalled that a court like the ECtHR continues to lack jurisdiction over claims related to cultural rights in a narrow sense. While court rulings concerning the financing of specific cultural institutions such as museums or theatres are nearly absent, the German Federal Constitutional Court generally confirmed a mandate of the state – that considers itself as a ‘cultural state’ (Kulturstaat) – ‘to preserve the freedom of the arts’, including through public financing (decision of 5 March 1974, NJW 1974, p. 689). According to the court, this task should be interpreted as the ‘responsibility to protect and support a free artistic life’ and financial resources allocated to fulfil that goal should depend primarily on the ‘economic power’ of potential receivers of support, that is their ability or not to re-finance themselves through the market, notwithstanding their legal status (dismissing in this case the claim of phonographic producers to receive similar tax benefits like those enjoyed by book publishers).
VIEWS: What is required of states to more concretely fulfil the right of everyone to enjoy culture remains polemical, for example, whether they should promote the institutionalisation of ‘high’ or ‘popular’ or ‘religious’ cultures. According to the ECtHR [S.A.S, 2014] a balance must be struck between the rights of religious minorities to maintain their own cultural infrastructures with the ‘rights and freedoms of others’ and to open personal relationships which makes life together possible, with preference given to the latter. Meanwhile, human rights advocates tend to defend the rights of cultural minorities to maintain their own social institutions as an aspect of freedom of religion and expression, as long as no harm is done. Indeed, not all institutions are consistent with international human rights law, but can be directly harmful not least to women and children, such as female genital mutilation. As a result, feminist movements are inclined to stress the damaging role of culture-related arguments for human rights. To temper an altogether negative approach, the UN Special Rapporteur in the field of cultural rights proposes to ‘shift the paradigm from one that views culture as an obstacle towomen’s rights to one that seeks to ensure equal enjoyment of cultural rights’ in the belief that ‘such an approach also constitutes an important tool for the realisation of all their human rights’ (3 Feb. 2016, para. 28).
Recognising the present absence of concrete obligations of public authorities to guarantee access to culture, the Polish National Center for Culture and the City of Wroclawstarted, in 2013, an initiative advocating a legal instrument binding all member states of the Council of Europe. Their main aim has been summarised as follows: ‘We demand that all citizens be given the opportunity to participate in cultural and artistic life. We insist that public authorities be charged with specific duties with regard to guaranteeing such participation, as currently many cultural rights in Europe are merely declaratory in nature.’
CONCL: In spite of its recognition as a fundamental human right, state obligations to provide real support to institutionalised forms of culture are all too often ignored or neglected. Nevertheless, cultural institutions are usually eligible for some public funding and support. In this light, the claim about the legal obligation to take appropriate positive measures to give effect to this right seems fairly uncontroversial. However, as pointed out by the UN Special Rapporteur in the field of cultural rights, ‘financial crises and austerity measures have led to severe cuts in public spending, resulting in unemployment among artists and the closure of cultural institutions’ (3 Feb. 2016, para. 37). Such fluctuations point to the continued fragility of cultural rights and their lack of priority when in conflict with other public concerns. Another pressing issue is the need for adequate representation in cultural institutions of different parts of society, such as youth but also women and other vulnerable groups, including immigrants. The nationalistic legacy of seeking cultural homogeneity in the public sphere, currently boosted by racist, anti-Semitic and xenophobic elements in political discourses seriously undermines the prospects of guaranteeing the cultural infrastructures needed to secure the effective and meaningful enjoyment of cultural life for everybody.
REFERENCES:
There is no book or article concerned exclusively with cultural infrastructure and human rights. Considering that the literature is rather fragmented the following readings may be useful:
Almqvist, Jessica: Human Rights, Culture and the Rule of Law, Oxford: Hart Publishing (2005).
Council of Europe/ERICarts: Compendium of Cultural Policies & Trends in Europe, County profiles and comparative table “Cultural Access and Participation – Elements in European Constitutions” drafted by Olivier Göbel. http:// www.culturalpolicies.net (accessed 04/2016).
Groni, Christian: “The right to take part in cultural life”. Background paper. Day of general discussion. The right to take part in cultural life (article 15(1)(a) of the Covenant, E/C.12/40/3), (9 May 2008).
Laaksonen, Annamarie: Making culture accessible: Access, participation and cultural provision in the context of cultural rights in Europe Strasbourg: Council of Europe Publishing (2010).
National Centre for Culture and Wroclaw2016 – European Capital of Culture: The Right to Culture as a Human Right – a call for action. Warsaw/Wroclaw (2015).
Report of the UN Special Rapporteur in the field of cultural rights, A/HRC/31/59, 3 February 2016.
Romainville, Céline: Neuf essentiels pour comprendre les “droits culturels” et le droit de participer à la vie culturelle. Bruxelles: Culture & Démocratie asbl, (2014).
MAYAGNA (SUMO) AWAS TIGNI COMMUNITY v. NICARAGUA (IACtHR 31/08/2001).
OUARDIRI v. SWITZERLAND (ECtHR 28/06/2011, 65840/09).
S.A.S v. FRANCE (ECtHR 01/07/2014, 43835/11).
Jessica Almqvist
Cultural Policy
DEF: Definitions of cultural policy have become common in the academic and policy field. The term may be broadly defined as ‘the overall framework of public measures in the cultural field... taken by national governments and regional and local authorities, or their agencies’ and requiring explicit goals and mechanisms for planning, implementation and evaluation (European Task Force on Culture and Development, 1997). The term is often used in plural, to express the wide range of actors implementing cultural policies in democratic societies (Martinell and Teixeira Coelho, 2015). Explicit connections between cultural policy and human rights are less frequent, as are legal cases in this area.
INSTR: Focusing on →cultural diversity, the UNESCO 2005 Convention stresses that states have ‘the sovereign right to adopt measures and policies’ in the field of culture (UNESCO, 2005, Article 2(2)). Previously, the 1982World Conference on Cultural Policies established a link between states’ measures in the field of culture and the right to take part in cultural life enshrined in the →Universal Declaration of Human Rights (UNESCO, 1982, para. 17). The cultural policy implications of this right have been examined by the UN Committee on Economic, Social and Cultural Rights (2009, para. 48): particularly as regards their obligation to fulfil that right states are required ‘to take appropriate legislative, administrative, judicial, budgetary, promotional and other measures’. Policies should cover both the material aspects of culture and ‘intangible cultural goods (such as language, knowledge and tradition)’ (ibid, para. 70). The right involves paying particular attention to the conditions of disadvantaged groups and recognising ‘the right to take part ... in the definition, elaboration and implementation of policies and decisions’ (ibid, para. 15(c)). This paves the way for participatory governance of culture and also involves that cultural (policy) aspects need to be taken into account when developing policies in fields other than culture (see e.g. EU, Lisbon Treaty, Article 167(4)).
CASES: As noted above, there is limited case law addressing cultural policy. However, developments such as the UNESCO 2005 Convention and its adoption by the EU and most European countries have reinforced the legal framework in this area. In this context, the ECJ has adopted judgments in a number of cases, mainly addressing the audiovisual and media field (→Broadcasting). Basic principles of these court rulings include the right of →governments to require public and private TV and radio operators to reserve quotas to →media content pursuing general interest aims ‘such as the retention, pursuant to the cultural policy of that member state, of the pluralist character of the television programmes available in that territory’ [UNITED PAN-EUROPE COMMUNICATIONS BELGIUM SA et al., 2007]; or to require TV operators to earmark part of their operating revenue for the pre-funding of European films and audiovisual contents, with additional measures adopted to support production in one of the official languages of the member state adopting those measures [UTECA, 2009].
VIEWS: While the need for governments to adopt cultural policies and measures has increasingly been accepted, their link with human rights is less visible. The Fribourg Declaration on Cultural Rights (2007, Article 9) calls public, private and civil actors to take initiatives that fully respect cultural rights as well as the cultural dimension of all human rights. UCLG has also established a link between cultural rights and the adoption of cultural policies at local level, stressing that ‘local governments are on the front line in the defense and promotion of cultural rights as fundamental human rights’ (UCLG, 2015). Increasingly, approaches to cultural policy have stressed the inevitability of a plural, complex governance of culture, including the involvement of a range of actors in appropriate negotiation and cooperation in policymaking processes and the exploration of synergies and tensions with economic, social, educational and other policy domains (Wiesand, 2013; Miralles, 2014). However, public funding cuts across many European countries in recent years have had a negative impact on cultural policies, including their ability to contribute to the fulfilment of basic rights, including access and participation in cultural life for all.
CONCL: Recent developments in the international legal framework, including the UNESCO 2005 Convention and contributions made by the UN Special Rapporteur on Cultural Rights, have reinforced the legal basis for the design and implementation of cultural policies. There is also an increasing acknowledgement that policies in this field are related to the exercise of human rights and the achievement of sustainable development. However, principles emerging from academic and professional sectors may not be sufficient at the policymaking level, particularly when confronted with broader policy objectives such as the reduction of public debt. Significant weaknesses include the limited availability of monitoring mechanisms addressing the impacts of cultural policies, including in terms of rights; and the limited understanding of how cultural policies can effectively guarantee the exercise of human rights. Nevertheless, several references to the connection between cultural policy and human rights have emerged in recent years, particularly at local and sub-state level.
REFERENCES:
European Task Force on Culture and Development: In from the margins. A contribution to the debate on culture and development in Europe, Strasbourg: Council of Europe (1997).
Fribourg Group: Cultural Rights. Fribourg Declaration, Fribourg: University of Fribourg (2007).
Martinell, Alfons and Teixeira Coelho: “Polítiques culturals: concepte, configuració i tendencies”, educational material, course Les polítiques culturals, Barcelona and Girona: Universitat Oberta de Catalunya / Universitat de Girona (2015, revised edition).
Miralles, Eduard: “Transversalidad y gestión cultural”, in Salvador Catalán Romero et al.: Manual Atalaya: Apoyo a la Gestión Cultural, Cádiz: Universidad de Cádiz (2014).
Missling, Sven; and Scherer, Bernd M.: “Article 7: Measures to Promote Cultural Expressions”, in Sabine von Schorlemer and Peter-Tobias Stoll (eds.): The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Explanatory Notes, Berlin and Heidelberg: Springer (2012).
UCLG (United Cities and Local Governments): Culture 21 Actions: Commitments on the role of culture in sustainable cities. Barcelona: UCLG (2015).
UN Committee on Economic, Social and Cultural Rights: “Right of everyone to take part in cultural life”, General Comment 
21, E/C.12/GC.21 (2009).
UNESCO: Mexico City Declaration on Cultural Policies, Paris: UNESCO (1982).
Wiesand, Andreas: Finally: ‘In from the Margins’?, Keynote address, EU Presidency Conference “Ready for Tomorrow?”, Vilnius (2013) (accessed 06/2016 via /www.academia.edu).
UNIÓN DE TELEVISIONES COMERCIALES ASOCIADAS (UTECA) v. SPAIN (ECJ 5/3/2009, C-222/07).
UNITED PAN-EUROPE COMMUNICATIONS BELGIUM SA et al. v. BELGIUM (ECJ 13/12/2007, C-250/06).
Jordi Baltà Portolés
Defamation
DEF: The term ‘defamation’ refers to the communication of a false statement which damages the reputation of a claimant. Defamation laws purport to protect claimants from false statements which cause harm to their reputation. Some jurisdictions distinguish between ‘libel’, referring to defamatory statements in written or some other permanent form, such as a broadcast, and ‘slander’, referring to spoken defamatory statements. Defamation laws can take the form of criminal or civil laws. Criminal defamation laws allow for defendants to be criminally prosecuted and punished with fines and/or imprisonment. Under civil defamation laws, a claimant may sue a defendant to recover pecuniary awards for the harm caused to their reputation. To avoid liability, defendants may be able to rely on defences such as ‘the defence of truth’ or ‘justification’, ‘fair comment’, ‘public interest’ and ‘privilege’. A broad range of laws concerning defamation exist around the world. Many such laws protect ‘honour’ or ‘feelings’ in addition to or instead of reputation. Many laws on defamation protect particular individuals in society, symbols, ideas or entities from insult or disrespect. These include laws protecting the honour of public officials or authorities, laws on desacato and lèse-majesté, and laws prohibiting ‘defamation of religions’ or blasphemy.
INSTR/VIEWS: In 2011, the Human Rights Committee set out its authoritative interpretation of the compatibility of defamation laws with Article 19 of the ICCPR on freedom of opinion and expression. In General Comment No 34, the committee emphasised that in its view such laws: should not ‘serve ... to stifle freedom of expression’; ‘include such defences as the defence of truth and ... should not be applied with regard to those forms of expression that are not, of their nature, subject to verification’; avoid ‘penalising or otherwise rendering unlawful untrue statements that have been published in error but without malice’, especially in relation to comments about public figures; recognise public interest as a defence; avoid ‘excessively punitive measures and penalties’; and ‘place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party’. Regarding laws prohibiting ‘defamation of religions’, the committee stressed that blasphemy laws ‘are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2’ on the prohibition of incitement. Significantly, the committee emphasised that ‘imprisonment is never an appropriate penalty’ for defamation and that the criminal law should only be applied ‘in the most serious of cases’, a position endorsed by the jurisprudence of the European, Inter-American and African Courts of Human Rights, and called on states to ‘consider the decriminalisation of defamation’. Interestingly, successive Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression, together with similar intergovernmental mechanisms at the regional level, have taken an even firmer position against criminal defamation laws, having long argued for the repeal of all such laws. Such experts have also called for civil defamation laws to provide for proportionate financial awards, as well as non-pecuniary remedies, such as the issuance of an apology, correction or reply.
CASES: Some of the most significant court judgments around the world on defamation have resulted from public officials bringing complaints against the media. Notably, in [NEW YORK TIMES v. SULLIVAN, 1964], the US Supreme Court held that, under the First Amendment of the US Constitution, a public official may not recover damages in a defamation suit against a news outlet unless the official can prove with ‘convincing clarity’ that the outlet acted with ‘actual malice’ in publishing the information. The ECtHR has established that expression on matters of public interest, particularly concerning public officials, attracts heightened protection. Since the seminal decision of [LINGENS, 1986], the Court has held that the ‘limits of acceptable criticism are ... wider as regards a politician as such than as regards a private individual’ because ‘the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and must consequently display a greater degree of tolerance’. In that case, the Court also distinguished between facts, which ‘can be demonstrated’, and value-judgments or opinions, whose truth is ‘not susceptible of proof’.
CONCL: Despite the standards developed by international and regional authorities, criminal laws and/ or broadly-framed civil laws on defamation remain in existence in the overwhelming majority of states in the world. Even though there is a growing number of states that have repealed criminal defamation laws (such as Jamaica, Montenegro and South Africa), defamation remains a criminal offence in states with notoriously poor records on the protection of freedom of expression (such as China, Russia and Turkey), but also in many liberal democracies (such as Germany, Denmark and Spain). Non-governmental organisations – such as ARTICLE 19, Freedom House and International Press Institute – regularly argue that such laws present some of the most serious challenges to freedom of expression internationally because they exert a ‘chilling effect’ upon the media and also other members of society; such laws inhibit legitimate public debate and the free flow of information and ideas, which are essential in any democratic society. In recent years, new problematic trends involving civil defamation laws have emerged including: ‘forum shopping’ or ‘libel tourism’ to jurisdictions with no genuine, real and substantial connection to the parties; the practice of SLAPPs (strategic lawsuits against public participation), costly proceedings brought by corporations to silence criticism; the application of a ‘multiple publication rule’ (in contrast to a ‘single publication rule’) in some jurisdictions which consider each new publication of the same allegedly defamatory statement as a new cause of action; and the imposition of liability on Internet service providers for content produced by third parties. Such challenges require adjudicators and other decision-makers to adapt and apply established international human rights standards concerning defamation.
REFERENCES:
ARTICLE 19: Revising Defining Defamation Principles: Background Paper 2016 (available at www.article19.org accessed 05/2016).
Human Rights Committee: General Comment No 34, CCPR/C/GC/34, 12 September 2011.
Media Legal Defence Initiative and International Press Institute: Freedom of Expression, Media Law and Defamation, February 2015 (available at www.mediadefence.org accessed 05/2016).
Special Rapporteur on the protection and promotion of freedom of opinion and expression (www.ohchr.org accessed 05/2016).
Trionfi, Barbara; Ellis, Steven M and Griffen, Scott (eds.): Out of Balance: Defamation Law in the EU and its effect on Press Freedom, A provisional overview for journalists, civil society and policymakers, July 2014 (accessed 22. 05. 2016) (ipi.freemedia.at/ecpm/defamation-lawreport.html accessed 05/2016).
LINGENS v. AUSTRIA (ECtHR 08/07/1986, 9815/82).
NEW YORK TIMES v. SULLIVAN, 376 US 254 (1964) (United States).
Sejal Parmar
Development
(Culture and D.)
DEF: The binomial ‘culture and development’ is understood nowadays in several different ways. Most commonly, as culture for development, or how cultural resources (in other words the ‘cultural and creative industries’) provide content for economic growth, through heritage tourism or the income and employment generated by the production, distribution and consumption of cultural goods and services. A related instrumental reading sees cultural expression as a source of social energy, engagement, inspiration and aspiration. A second understanding is of culture as method for development, as when different cultural forms are deployed to address developmental challenges, e.g. ‘theatre for development’. A third is of culture in development, where culture provides a context that must be ‘taken into account’ if development is to be successful. Finally, under the most conceptually ambitious reading, culture, in the broad sense, is viewed as being constitutive of development. Only this last understanding, inspired by the ‘human development’ or capabilities approach, is directly articulated with the question of cultural rights, since in this view development must include the flourishing of a people’s culture. Actually existing development, however, often does the reverse, as when, for example, entire populations are removed from their ancestral environments to make way for dams and highways, or when the socio-economic changes that accompany development reduce or eliminate cultural opportunities for minorities, the poor and other excluded sections of the population.
HIST: We must remember, of course, that in the development discourse of the 1950s, culture was in fact seen as an obstacle to ‘economic growth’: all the non-Western peoples were enjoined, explicitly or implicitly, to jettison attitudes and behaviours that were perceived to be ‘backward’ or retrogressive, in order to ‘catch up’ with the West. Development was a national project that meant modernisation, i.e. economic growth plus political and social modernisation alongWestern lines. It was only the massive decolonisation process of the 1960s across Africa that generated the aboutface through which culture was transformed into a resource for the nation – and the ‘national culture’ in question was and remains state culture. So much so that today, nativists across the world increasingly claim that development is inherently a threat to cultural survival. This position is shared by sub-national groups, making the culture and development interface an arena of contestation and negotiation.
The ‘culture and development’ idea has evolved in and around UNESCO since the late 1960s. The first term for it was ‘cultural development’, taken over from the French notion of développement culturel, which UNESCO defined as ‘a process of development or progress in the cultural life of a community, aimed at the attainment of cultural values and related to the general conditions of economic and social development’ (UNESCO, 1981). Within this perspective was the idea that development itself needed to be revisited as a plural project, parsed in terms not just of an abstract idea of universal ‘culture’, but also and above all in terms of distinct ways of life, each with its own developmental path. Thus in the 1970s, ‘cultural development’ was succeeded by the ‘cultural dimension of development’. Through a series of intergovernmental conferences in different world regions, the emphasis shifted from ‘progress in the cultural life of the community’ to the idea that culture – that is different cultures and cultural difference – must be made integral to the national development process: without the flourishing of its distinctive culture no nation could truly or authentically develop. Witness the celebrated definition adopted by the 1982 World Conference on Cultural Policies, where culture is ‘...the whole complex of spiritual, material, intellectual and emotional features that characterize a society or social group...’ (UNESCO, 1982).
VIEWS: This expansive definition is a result of the considerable broadening of the notion that has occurred. Today, ‘culture’ is understood as both ‘arts and heritage’ and ‘ways of life’ (Williams, 1988) and the two understandings are often conflated. Thus ‘protecting and promoting the diversity of cultural expressions’ (to use the language of the eponymous 2005 Convention) is advocated, not primarily for the sake of those cultural expressions themselves, but because they embody the symbols of ‘ways of life’ that are seen to be threatened by globalisation (which often replaces ‘development’ as a leading term). This conflation leads to the confusion that Marshall Sahlins warned about, ‘when culture in the humanistic sense is not distinguished from ‘culture’ in its anthropological senses, notably culture as the total and distinctive way of life of a people or society. From the latter point of view, it is meaningless to talk of ‘the relation between culture and the economy’, since the economy is part of a people’s culture’ (WCCD, 1996: 21). Such conflation has become a commonplace. Politicians and governments claim, rhetorically, to interpret culture in the so-called ‘anthropological’ sense (although none of their ministries or departments of culture deal with anything but the arts and heritage) just as do those who advocate for the place of culture in development.
These advocacy actors, whether they are national or international, adhere also to the ‘sustainable development’ discourse, under which the idea of ‘sustainability’ is deployed in ways that diverge considerably from the vision of the World Commission on Environment and Development of a process ‘that meets the needs of the present without compromising the ability of future generations to meet their own needs’ (WCED, 1987). Because the term ‘sustainable’ and its derivatives are so acceptable and malleable at the same time, they are easily yoked to the many-faceted and to-talising process that is ‘development’, allowing many different actors to project different interests, hopes, and aspirations. The term has become a politically correct qualifier, often unthinkingly or ritually invoked and extended across a wide array of economic, social or political processes. Thus it can refer to the maintainability of a broad societal process such as socio-economic development. Or to whether this or that project has the capacity to endure. Or to the medium- or long-term financial viability of a project or institution. Or to the ways in which certain practices may be conducive to a better quality of life.
Indeed, in the run up to the adoption in late 2015 of the Outcome Document entitled ‘Transforming Our World: the 2030 Agenda for Sustainable Development’ by the United Nations General Assembly, a campaign led by a global alliance of cultural organisations, advocated for a greater presence of culture. The campaign’s leaders, concerned that ‘the Outcome Document falls short of a full understanding and affirmation of the importance of culture to sustainable development’, issued a communiqué entitled ‘The Future We WantIncludes Culture’ (2015), stressing ‘the availability and accessibility of cultural infrastructure’. In other words, they foregrounded the instrumental contribution to development of the formally constituted arts and culture sector.
Such arguments have merit, to be sure, but they ignore the core issues of cultural rights. Yet abuses of cultural rights are at the heart of the dilemma. Tensions between and among ethnic and cultural communities, majorities and minorities, have arisen as development has transformed economic and social conditions. Through the politics of nation building, various contentions have arisen inter alia over rights to land, education, the use of language, political representation, freedom of religion, the preservation of ethnic identity, autonomy or self-determination (WCCD, 1996). The world’s →Indigenous and tribal people in particular have suffered as the national development project has eroded their land and resource base and restricted the use of their languages, social and political institutions, traditions, art forms and religious practices – a form of internal colonialism if not ethnocide, sometimes due to systematic government policy but more often to the impersonal forces of GDP-led development. An observation made by an African leader many years ago is premonitory of Jürgen Habermas’ (2010) thoughts on ‘human dignity’: as Alpha Oumar Konaré, then President of Mali, put it, ‘the negation of the cultural specificities of any people is tantamount to the negation of its dignity’ (in WCCD, 1996).
INSTR: The only international normative instrument that addresses this challenge is the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Although it is a completely non-binding text, the Declaration sets out the individual and collective rights of indigenous peoples, as regards their culture, identity, language, employment, health, education, etc. Article 23 gives them ‘the right to determine and develop priorities and strategies for exercising their right to development... (stating that they) have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.’ Article 31 states that ‘they have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.’