Churches

(European Ch. and Human Rights)

DEF: For the Christian Churches the idea of independent human rights was initially a challenge (Rivers 2007). Human rights were perceived as an anthropocentric rival ethics born out of the anticlerical (especially anti-Catholic) impulse of the Enlightenment and French Revolution. In particular, the human right of freedom of religion was perceived as a threat by traditional Churches inasmuch as it strengthened the status of minority religions [e.g. KOKKINAKIS v. GREECE, 1993]. Historically, Protestant Churches were more open to human rights than the Catholic Church, which accepted HR only in the 1965 Second Vatican Council (Glendon 2001), and the Orthodox Churches, which are still in the process of defining their position (Stoeckl 2014).

INSTR: Churches are challenged by provisions in the ECHR in the following way: article 9 (Freedom of Thought, Conscience and Religion) challenges the traditional majority status of Christian Churches in Europe inasmuch as it strengthens minority faiths; article 10 (Freedom of Expression) has an impact on Churches inasmuch as it guarantees a secular public sphere and the right to publicly criticise religions; article 11 (Freedom of Association and Assembly) also strengthens minority faiths and works against state-church relations that privilege the traditional majority confessions; article 14 (Prohibition of Discrimination) works both in favour of the Churches as well as to their detriment, inasmuch as it guarantees non-discrimination on religious grounds, but it also makes it more problematic for Churches themselves to discriminate against certain groups, for example women, the unmarried, or the nonreligious. In addition, Article 2 of the First Protocol (‘right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions’) includes challenges for Christian Churches. On the one hand, due to religious pluralisation in states where education still carries confessional remnants, and on the other hand, due to secularisation that pushes religion out of schools.

CASES: The ECtHR has given two principled responses in cases involving religious freedom and the status of Christian Churches in society. It has either shown judicial restraint, refraining from ruling into national models of religious governance, or it has tried to impose one model of religious freedom on individual member states. Over the first four decades of its existence, the ECtHR has shown strong judicial restraint, applying the margin of appreciation doctrine and affirming that the ECtHR was compatible with a variety of churchstate relations [e.g. OTTO PREMINGER INSTITUT

v. AUSTRIA 1994]. In the last two decades, by contrast, the ECtHR has increasingly promoted forms of institutional secularism. Reason for this inversion of tendency were the institutional reorganisation of the Court in the 1990s, the joining of new member-states from the former Eastern bloc, and increased litigation activism on the part of minority religious groups [e.g. KOKKINAKIS v. GREECE 1993] (Koenig 2015). The clash of these two tendencies was particularly apparent in the case [LAUTSI, 2011], in which the Court in its first judgment sought to impose a model of secular public sphere on Italy, but overturned the judgment in the appeal-case reverting to the margin of appreciation (Annicchino 2012).

VIEWS: European nation-states remain strongly embedded in a broader Christian culture and frequently models of religious governance are informed by historical favouritism vis-à-vis Christian Churches. At the same time contemporary European societies are increasingly challenged by religious pluralisation due to international migration, secularisation and new religious movements. This situation creates tensions in the governance of religion in many member states of the Council of Europe. Constitutional models of churchstate relations in Europe range from strict state neutrality (e.g. France), to cooperation models (e.g. Austria, Belgium), to established churches (e.g. United Kingdom). The ECtHR does not directly interfere with these arrangements, but it indirectly regulates the permissible forms of relationship between religious institutions and the state by reference to religious freedom (Evans/ Thomas 2006). Christian Churches have a vested self-interest in preserving traditional church-state relations. However, inasmuch as they are committed to HR as the guarantors of protection of religious freedom, Christian Churches can also become spokespersons for the faithful as such, including new religions (for example through ecumenical dialogue).

CONCL: In the juridical framing of religious freedom in front of the ECtHR, the traditional approach of balancing out an individual right, vis-à-vis the state and society as a whole, is being replaced by a confrontation of individual HR. Individual non-discrimination provisions are brought into direct confrontation, for example the prohibition of discrimination on grounds of sexuality and religion, as in the case where a marriage registrar claims the right to refuse to perform same-sex marriages on religious grounds [EWEIDA AND OTHERS, 2013]. It is to be expected that in this situation, the Christian Churches in Europe will be less and less able to rely on historically established privileges in church-state relations. As the ECtHR increasingly concentrates on guaranteeing the religious freedom of individual believers, and not the status of religious organisations, the Christian Churches are bound to become religious players among others even though they still represent the majority faith in many countries.

REFERENCES:

Annicchino, Pasquale: “Between the Margin of Appreciation and Neutrality: The Lautsi Case and the New Equilibria of the Protection of Freedom of Religion or Belief in Europe”, in Roberto Mazzola (ed.): Diritto e Religione in Europa. Bologna: Il Mulino (2012) 179.

Evans, Carolyn/Thomas, Christopher A.: “Church-State Relations in the European Court of Human Rights”, in BYU Law Review 699 (2006), 699.

Glendon, Mary Ann: Catholicism and Human Rights, University of Dayton: Marianist Award Lecture (2001).

Koenig, Matthias: “The Governance of Religious Diversity at the European Court of Human Rights”, in Jane Bolden and Will Kymlicka (eds.): International Approaches to the Governance of Ethnic Diversity, Oxford: Oxford University Press (2015).

Rivers, Julian: “The Church in an age of human rights”, International Journal for the Study of the Christian Church, 7:1 (2007), 3.

Stoeckl, Kristina: The Russian Orthodox Church and Human Rights, London: Routledge (2014).

EWEIDA AND OTHERS v. UK (ECtHR 15/01/2013, 48420/10, 59842/10, 51671/10 and 3651/10).

LAUTSI v. ITALY (ECtHR 18/03/2011, 30814/06).

Kristina Stoeckl

Circumcision

DEF: Male circumcision is defined as the surgical removal of all or part of the prepuce (foreskin) of the penis. The reasons for performing male circumcision are numerous and based on religious, cultural, social and medical motives. For example, circumcision is considered a required practice in the Islamic faith, and most branches of the Jewish faiths, but is also performed as a ‘rite of passage’ in other religions and cultures. Globally, approximately 30% of males are circumcised, of whom two thirds are Muslim (WHO, 2007). Circumcision performed on minors for non-therapeutic reasons has been legitimised by invoking freedom of religion and supposed medical benefits (e.g. reduced risk of HIV infection), even if studies relating to these benefits are highly controversial.

CASES/VIEWS: Male circumcision has recently become the subject of increased criticism in Europe (especially in Denmark, Germany, the Netherlands and Sweden). Debates intensified after the District Court of Cologne (Germany) ruled in 2012 that the circumcision of a four-year-old boy amounted to abuse, even though the surgery was medically performed competently and based on the consent of both parents. Central to this discussion is the right to religious freedom of parents that needs to be weighed against the right to physical integrity and self-determination of the child.

CONCL: Important is whether, and how much, harm is done to young boys when undergoing circumcision. For a long time, the prevailing view was that male circumcising was associated with little health risk. However, more research shows that it can have adverse effects on sexual, emotional, and psychological health (Boyle, 2002). As a consequence, stricter laws have been adopted in some EU countries regulating the circumcision of young boys (calling for example for sound medical supervision and anaesthesia). Although the CoE’s Parliamentary Assembly included both →Female Genital Mutilation (FGM) and the ‘circumcision of young boys for religious reasons’ in the category of violation of the physical integrity of children (CoE, 2013), the practice has not been outlawed in Europe. It seems that – at least for now – the religious rights of the parents prevail.

REFERENCES:

Boyle, G.: ‘Male Circumcision: Pain, Trauma and Psychosexual Sequelae’, Journal of Health Psychology, (2002).

Council of Europe, Parliamentary Assembly Resolution 1952/2013: Children’s right to physical integrity (2013).

World Health Organization, Department of Reproductive Health and Research and Joint United Nations Programme on HIV/AIDS (UNAIDS): Male circumcision: Global trends and determinants of prevalence, safety and acceptability (2007).

BESCHNEIDUNG (LG Köln/Cologne, Judgment of 7 May 2012, 151Ns169/11).

Annemarie Middelburg

Citizenship

DEF: There is no single definition of citizenship. The term has different meanings which were shaped in historical processes. Since Roman times, it can be understood as the basis for the enjoyment of different rights and/ or as a formal, legal status of a person in a community to which different rights and obligations are attached (the latter understanding often referred to as nationality). The Greek polis developed an understanding of citizenship as active engagement in community life. Nowadays, citizenship is often understood as belonging to any given community with which a person identifies and where links of solidarity between people are developed. In this sense one can name different ‘citizenships’, such as ‘ethnic citizenship’, ‘sexual citizenship’, ‘multicultural citizenship’ or ‘cultural citizenship’ (Isin, Turner, 2002). In legal literature, citizenship is often understood as the legal bond between a person and a state to which different rights are attached and therefore synonymous to nationality.

INSTR: Legal acts in national as well as international contexts rarely define citizenship (nationality). The first convention that defines nationality is the European Convention on Nationality (ECN, 1997). According to ECN, nationality denotes the legal bond between a person and a state and does not indicate the person’s ethnic origin (Article 2(a)). Before, different definitions appeared in judgments of international courts, e.g. in a case judged by the ICJ [NOTTEBOHM, 1955], where nationality was defined as ‘legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’. This concept of so called ‘effective nationality’ has proved to be a useful concept in international law in deciding cases of positive conflicts of nationalities.

Citizenship was perceived for a long time as being exclusively within the domestic jurisdiction of the state. Such was the formulation of 1930 Convention on certain questions relating to the conflict of nationality laws (Article 1). The development of human rights instruments after World WarII, however, resulted in nationality being perceived also as a human right. The right to a nationality was for the first time formulated in 1948 in the Universal Declaration of Human Rights (Article 15). The right of →children to nationality is formulated in the Convention on the Rights of the Child (Article 7). The right to a nationality is also part of the ECN (Article 4(a)). Moreover, there are many human rights instruments that restrict the competence of states in this domain, e.g. regulations adopted by states in this domain cannot be contrary to regulations of international law such as the principle of non-discrimination in enjoying nationality (Article 5 iii CRPD), the ban on arbitrary deprivation of nationality (Article 15(2) UDHR), and the obligation to avoid statelessness (Article 4b ECN).

Nationality does not have the same significance for an enjoyment of rights as in the past, where many rights were linked with this status. Shortly after World WarII, H. Arendt wrote that nationality is ‘a right to have rights’ (Arendt, 1951). Today, nationality does not have such a fundamental meaning for a person due to universalization of human rights. For example, according to Article 15(1)(a) ICESCR, everyone has the right to take part in cultural life. This right applies to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation (CESCR, General comment No 20). In the national context, however, many rights are still restricted to nationals only (e.g. voting rights, protection from deportation, and the right to run for public office) and international conventions allow for such restrictions (e.g. Article 21 ICCPR).

The concept of citizenship of the →European Union was introduced in 1993 by the Treaty of Maastricht. According to the current EU Treaties ‘(e)very person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ (Article 20(1) TFEU and Article 9 TEU). The citizenship of the Union adds an additional layer of rights to those linked with the status of a member state national. However, the enjoyment of the majority of these rights is dependent on how citizens exercise their rights of free movement throughout the Union.

CASES: For many years, nationality was seen as the exclusive competence of the state. Discretionary competence of states in nationality law is nowadays restricted by international human rights law [e.g. IACHR, YEAN AND BOSICO, 2005]. The ECtHR and ECHR do not recognise the right to a nationality of a particular state [KARASSEV, 1999]. However, the ECtHR issued rulings concerning a potential violation of Article 8 in the context of nationality. According to the Court, in certain circumstances the arbitrary refusal of nationality may constitute a violation of the right of private and family life guaranteed by Article 8 [SLIVENKO, 2003; KURIĆ, 2010]. To date, no judgment has found a violation of Article 8 in this context, which shows that the ECtHR provides states with a wide margin of appreciation in nationality matters. In addition, the ECtHR dealt with discriminatory provisions in nationality law [GENOVESE, 2011].

In the context of the UN system, the Human Rights Committee found that states cannot create arbitrary barriers in acquiring nationality [STEWART, 1996; CANEPA, 1997]. In the EU context, the CJEU stated that a withdrawal of member state nationality which could result in the loss of citizenship of the Union is subject to a proportionality analysis by the courts [JANKO ROTTMAN, 2010].VIEWS: An interesting debate concerns the issue of devaluation of nationality (Soysal, 1994, Jacobson 1997). According to this argument, an erosion of nationality takes place because rights traditionally linked with citizenship are expanded onto foreigners. This process is linked with the development of human rights instruments and the creation of supra-national structures such as the EU. In this context, the traditional dichotomy ‘national – foreigner’ is undermined and we nowadays see rather a continuum of different statuses of an individual in a state. The term ‘denizen’ has been used to describe those foreigners whose status is very close to a citizen of a particular country (Hammar, 1990).

In recent times discussions have also been held on how far the issue of nationality is an exclusive domain of domestic jurisdiction, especially in the EU context following the CJEU’s decision in the Rottman case (Shaw, 2016).

CONCL: Citizenship is a powerful concept. It encompasses the idea of belonging to any given community with which a person identifies and where links of solidarity between people are developed. This powerful message behind the concept was used when the idea of European Union citizenship became reality. As a legal institution, it is known in every modern state; it undergoes evolution linked mainly to the development of international human rights law.

REFERENCES:

Arendt, Hannah: The Origins of Totalitarianism, Berlin: Schocken Books (1951).

Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2) U.N. Doc. E/C.12/GC/20 (2009).

Hammar, Tomas: Democracy and the Nation State, Ashgate: Aldershot (1990).

Isin, Engin and Turner, Bryan: (ed.) Handbook of Citizenship Studies London: Sage (2002).

Jacobson, David: Rights Across Borders. Immigration and the Decline of Citizenship, London: The Johns Hopkins University Press (1997).

Shaw, Jo: “Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law?: Concluding thoughts”, Rottmann in context, (available at eudo-citizenship.eu accessed 04/2016).

Soysal, Yasemin: Limits of Citizenship. Migrants and Postnational Membership in Europe, Chicago: The University of Chicago Press (1994).

CANEPA v. CANADA (HRCee 3/04/1997, 558/1993).

GENOVESE v. MALTA (ECtHR 11/10/2011, 53124/09).

JANKO ROTTMAN v. FREISTAAT BAYERN (CJEU, 2/03/2010 r., C-135/08).

KARASSEV v. FINLAND (ECtHR 12/01/1999, 31414/96).

KURIĆ AND OTHERS v. SLOVENIA (ECtHR 13/07/2010, 26828/06).

NOTTEBOHM CASE [LIECHTENSTEIN v. GUATEMALA] (ICJ 06/04/1955, Rep 4, ICGJ 185).

SLIVENKO v. LATVIA (ECtHR 9/10/2003, 48321/99).

STEWART v. CANADA (HRCee 1/11/1996, 538/1993).

YEAN AND BOSICO v. DOMINICAN REPUBLIC (IACHR 8/09/2005 r., 12.189).

Dorota Pudzianowska

Clash of Civilisations

DEF: The term ‘clash of civilisations’ has entered the discourses of both international relations and cultural commentary, mainly but not exclusively in the West. It is based more on fantasy than empirical reality and, yet generates attitudes and positions that run diametrically counter to the spirit of both cultural rights and intercultural dialogue enshrined in the standard-setting instruments adopted by the organisations of the United Nations system and by regional bodies such as the Council of Europe. Indeed, the UN →‘Alliance of Civilisations’ is a deliberate and concerted effort to undo the ill-effects of the ‘clash’ paradigm.

The notion of a coming ‘clash of civilisations’ was elaborated over two decades ago by the Harvard political scientist Samuel P. Huntington, whose eponymous article and book (1993; 1996) argued that conflicts between cultures, of which ‘civilisations’ were the highest order expression, would be the key driver of international relations in the post-Cold War world, rather than economic competition or differences in political ideology, rendered obsolete by the triumph of so-called ‘free market democracy’.

VIEWS: Despite its conceptual and methodological flimsiness – the author relied upon essentially anecdotal evidence for the sweeping overgeneralisations and reductionist reasoning that undergirds his monolithic concept of ‘civilisation’ (Anheier and Isar, 2007; Nederveen Pieterse, 2009) – the notion has acquired considerable purchase in the popular imagination. It has increasingly become a euphemism, once again mainly in the West, for a fear of Islam, perceived as monolithically anti-Western. In this guise it has provided much of the rationale for the US ‘war on terror’, yet since then it is also readily and regularly invoked by journalists and public intellectuals elsewhere, notably in the wake of terrorist acts by Islamist extremists (e.g., Bobb, 2015), despite the fact that such violence is driven more by clashes of interests, based on economic and political inequalities between ‘haves’ and ‘have nots’, rather than differences based on beliefs or ‘culture’. In the wake of the November 2015 Paris terrorist attacks, the Egyptian–Belgian journalist Khalid Diab observed that ‘although ISIL undoubtedly hates Christians and other non-Muslims with a passion and believes in just such a clash, buried amid its jihadist rhetoric of fighting the ‘infidel’ is a clear indication that the choice of Paris as a target was largely motivated by France’s ‘military assets’ in Syria.’ Diab thus added that ‘ISIL’s ‘jihad’ has been about territory politically, resources, economically, and, ideologically, its main enemy has been what it regards as errant Muslims who are worse than the ‘infidel’...’ Yet it is also true that both Osama bin Laden and the entourage of George W. Bush have used the ‘clash of civilisations’ paradigm to urge their followers on, the former arguing that people in the West really adhere to it – and are ready to become ‘new crusaders’.

CONCL: Huntington advised the United States and other Western powers to draw closer together, maintain their strength, and, above all, recognise ‘that Western intervention in the affairs of other civilisations is probably the single most dangerous source of instability and potential global conflict in a multi-civilisational world’ (1996, p. 312). The implication is that the belief and value systems of ‘the Rest’ are simply incommensurable with those of ‘Western Civilization’: they are inherently conflict generating, and resistant to any form of dialogue or mutuality. Behind any ‘cultural’ difference lurks the spectre of conflict: the cultural dimensions of conflict on the one hand, and the conflict inducing dimensions of culture on the other. When the collective bearers of such difference are constructed as monolithic entities, or reduced to a single “culture” and set against each other in the process, it is difficult to realise the contemporary vision of cultural rights. The ‘clash of civilisations’ paradigm could be seen, then, as the contemporary equivalent of Kipling’s line ‘OH, East is East, and West is West, and never the twain shall meet, Till Earth and Sky stand presently at God’s great Judgment Seat’ but in a reading that disregards the next two lines of the poem, which anticipates today’s ethos of intercultural dialogue: ‘But there is neither East nor West, Border, Breed, nor Birth, When two strong men stand face to face, tho’ they come from the ends of the earth!’

Ultimately, the ‘clash of civilisations’ is more often than not a self-fulfilling prophecy, one that, as G. John Ikenberry pointed out, is the equivalent of the ‘security dilemma’, in which misperceptions about the other create tensions and lead to conflict: ‘Huntington wants the West to defensively guard against the coming clash, but to other powers like China and Japan the circling of the Western wagons will look like a declaration of a new Cold War’ (Ikenberry et al., 1997). In this sense, then, the paradigm negates and forecloses the positive vision of living together with difference upon which the cultural rights perspective is based.

REFERENCES:

Anheier, Helmut and Isar, Yudhishthir Raj (eds.): Conflicts and Tensions. The Cultures and Globalization Series, 1. London: SAGE Publications (2007).

Bobb, Dilip: “I, Tiresias. The clash that Huntington prophesied is upon us. Or is it?”, in Outlook, 30 November 2015.

Diab, Khaled: “Isil and the illusion of a clash of civilizations”, in Al Jazeera, 16 November 2015.

Huntington, Samuel P.: “The Clash of Civilizations?”, in Foreign Affairs, Summer 1993.

Huntington, Samuel P.: The Clash of Civilizations and the Remaking of World Order. New York: Simon & Schuster (1996).

Ikenberry, G. John: “The West: Precious, not Unique: Civilizations Make for a Poor Paradigm Just Like the Rest”, in Foreign Affairs, March/ April 1997.

Nederveen Pieterse, Jan: Globalization & Culture. Global Mélange. Lanham, MD.: Rowman and Littlefield Publishers, Inc. (2009).

www.culturalrights.net.

Yudhishthir Raj Isar

Common Values

(C. V. of the European Union)

DEF: The European Union is founded on the values of freedom, equality and democracy, as well as respect for human rights, as laid down in the Charter of Fundamental Rights of the EU (in force since 2009). However, the sense of community that these ‘common values’ helped to create has come under severe strain in recent years. In the context of a spate of terrorist attacks, particularly the issues of migration and internal security, however tenuously they are related, have led politicians from populist but also mainstream parties to misuse the term in order to deliberately exclude communities whose roots or religion are deemed ‘un-European’.

INSTR: The ‘values...common to the Member States’ described in the Treaty on European Union (Article 2), are ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.’ The Charter of Fundamental Rights of the EU specifically mentions the term ‘common values’ in its preamble, which stresses that the ‘preservation’ and ‘development’ of these values should respect ‘the diversity of the cultures and traditions of Europe as well as the national identities of the Member States...’ The official motto of the EU is ‘United in diversity’, which expresses both respect for the many different peoples, languages and traditions it comprises and the fact that together these forge a greater whole.

CONCL: The fact that the term ‘common values’ is used so differently in public discourse and in the original concept behind EU legislation is of concern in itself, particularly as effective means are sought to prevent and combat radicalisation and extremism of various hues (minorities do not have a monopoly on extremist behaviour). However, this need not be a lasting phenomenon. It is vital to clarify that, whenever and in whatever context the phrase is used, common values can only be built on the basis of mutual respect, inclusion and the rule of law. This in turn is dependent not only on legislation, but also on ensuring well-resourced human rights education and civic awareness training for children and adults throughout the EU.

REFERENCES:

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, (available at eurlex.europa.eu accessed 04/2016).

Charter of Fundamental Rights of the European Union, (available at www.europarl.europa.eu accessed 04/2016).

Katya Andrusz

Community Identification

(Free Choice of Ethnic, Racial or National Identity)

DEF: Conceptualising ethnic, racial or national identity is a central issue in the social sciences. Whether there exists a free choice for self-identification and the eligibility for such a right under international law needs to be examined. Differing from other forms of identity, in particular gender or religion, the free choice of ethnic, racial or national identity as a free-standing right or principle is not secured in an explicit form under international law. On the surface level, the choice of identity, similarly to the freedom of thought or conscience, should not be restricted, as it is a mere intellectual and/ or emotional (that is, non-legal or political) phenomenon. Seeing it as a practical matter, with implications of a legal, political and fiscal nature, the free choice of identity has two dimensions for state obligations: a positive and a negative one.

INSTR: According to the basic tenet of legal logic, if there was a proper right to free choice of identity allowing people to opt out from racial, ethnic or national (minority) communities, the very right necessarily would need to include the freedom to opt in either to the majority or to any chosen social group.

The negative aspect of the free choice of identity prohibits the state from creating an official, mandatory ethno-national identity (and classifications and registries) for individuals. Thus, people have an unconditional right to opt-out from any socio-legal construct that incorporates ethno-national classifications. This obligation (and people’s right to formally assimilate or integrate into the majority) is reiterated in several international instruments and documents such as the Council of Europe’s Framework Convention for the Protection of National Minorities, the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the 1990 Copenhagen Concluding Document on the Human Dimension of the CSCE, the 2012 Ljubljana Guidelines on Integration of Diverse Societies of the OSCE, and the 2007 United Nations Declaration on the Rights of Indigenous Peoples (thus including even communities beyond strictly defined minorities).

The right to opt out is guaranteed by powerful data protection regulations. Due to the painful memories of the Holocaust, population transfers, and state-organised ethnic cleansing (all of which were built on easily accessible official registries containing data on ethno-national affiliation), the continental European legal framework establishes strict barriers to processing and collecting ethno-national data. Article 8 of the European Data Protection Directive (95/46/EC) creates a special category of sensitive data, and apart from a very narrow set of exceptions (set forth by law, having the explicit consent from the person in question, or anonymisation), prohibits the processing of data revealing racial or ethnic origin.

The 2007 UN Principles and Recommendations for Population and Housing Censuses also set forth that censuses should not require compulsory declaration of belonging to specific identities or groups, since nobody should be compelled to declare his or her belonging to a minority. International law also recognises the right to retain ethno-national identity in the sense that no one should be forced to assimilate into the majority.

The positive aspect of the free choice of identity encompasses the individual’s right to join a group or community. In such an explicit form, the freedom to choose one’s identity is rarely declared in legally binding documents.

CASES: International law suggests that states may actually set forth ‘objective’ membership criteria (for the national or ethnic minority communities) and implies that the state is authorised to either establish these criteria or adopt definitions provided by non-state agents like selfdeclared representatives of minority communities or other (academic or political) bodies fulfilling this task. The process of how the state comes to define the group or membership criteria, i.e. how individuals can choose to identify or declare affiliation, is a different issue, falling more or less within the competence of the domestic legislator. The European Court of Human Rights did not dispute the right of a government to require the existence of objective evidence of a claimed ethnicity [CIUBOTARU, 2010]. Similarly, the UN Human Rights Committee held that if the domestic legislation confines a minority right attached to the membership in a minority community, it should be objectively and reasonably justified [LOVELACE, 1981].

CONCL: The requirement of the active, affirmative involvement of the individual in group membership, accompanied by the prohibition of mandatory inclusion by the state, along with the prohibition of collecting sensitive data, thus, does not create an autonomous, sui generis right under international law for the free choice of identity, since it does not and cannot include the right (of choice) to opt in to any chosen group. The core of what exists entails the following:

(i)States cannot create mandatory ethno-racial or national classifications;

(ii)States cannot deny the right of individuals not to affiliate involuntarily with any given group – most of all for statistical and censuspurposes;

(iii)States cannot forcefully assimilate individuals into the majority; and:

(iv)Insofar as individuals do not wish to make use of minority rights or preferential treatment, the state cannot make arbitrary ethnoracial classifications.

In addition, if individuals decide to seek affirmative action, preferential treatment or minority rights, under international law, states are indeed authorised to establish (objective) criteria for membership in the groups and the recognition of identification. In effect and practice, states are explicitly obliged to act if discrimination or hate/ bias crimes are committed on grounds of a presumed or perceived identity or group membership. Also, under international law, while states cannot legally question an individuals’ identification with the majority, there are no narrowly tailored litigable state obligations for the cultural and social integration and assimilation of persons belonging to minorities.

REFERENCES:

Barth, Frederik: Ethnic Groups and Boundaries: The Social Organization of Culture Difference. 1969, Reprint, Bergen/ Oslo: Scandinavian University Press (1994).

Brubaker, Rogers, and Frederick Cooper: “Beyond ‘Identity’” 29(1) Theory and Society (2000) 1.

Council of Europe: Explanatory Report to the Council of Europe’s Framework Convention for the Protection of National Minorities, Strasbourg: CoE (1995).

Pap, Andras L.: “Is there a legal right to free choice of ethno-racial identity? Legal and political difficulties in defining minority communities and membership boundaries” 46(2) Columbia Human Rights Law Review (2015) 153.

CIUBOTARU v. MOLDOVA (ECtHR 27/04/2010, 27138/04).

LOVELACE v. CANADA (UN HRCee 30/07/1981, R/6/24).

Andras L. Pap

Constitutional Courts

DEF: The role of constitutional courts is determined by their power of constitutional review. In constitutional review, courts can invalidate statutes and other acts of public authority contrary to the constitution. The emergence of constitutional courts in post-war Europe was prompted by the horrors of war, as well as the failures and excesses of elected bodies (parliaments) which necessitated the establishment of institutional safeguards against a ‘tyranny of the majority’. Today, the role of constitutional courts is additionally predicated on the need to provide protection of human rights, including rights of various minorities, beyond the politics of the day.

HIST: The power of the judiciary to invalidate laws contrary to the constitution was first proclaimed by the US Supreme Court [MARBURY, 1803]. Upon this decision, judicial reviews in the USA could be exercised by any court. Unlike such type of dispersed judicial review, in continental Europe constitutional review is concentrated in a specialised court or tribunal. This model was developed by Hans Kelsen and established for the first time in Austria in 1920, followed by Czechoslovakia (1920), Liechtenstein (1921) and Spain (1931). In both models of review – dispersed and concentrated, the role of a court is to ensure the supremacy of the constitution over other legal acts. In Europe, the Kelsenian model was not entirely followed and his warning against conferral of rights jurisdiction to constitutional courts had been politically ignored. The so-called ‘new constitutionalism’ in the post-war era was based on the strong belief that rights protection should be made an important part of the jurisdiction of constitutional courts (Shapiro 1998, 1999). The result has been that ‘virtually no one writes a constitution without providing for rights protection and a mode of review.’ (Stone Sweet, 2012)

INSTR: Today, constitutional review is part and parcel of any constitutional regime. Even in countries without a written constitution like Israel and the UK, supreme courts exercise the role of a constitutional court in cases concerning the protection of human rights. Still, there are important differences in the organisation of constitutional courts, the appointment of judges, jurisdiction, procedures and legal effects of their decisions (Venice Commission 2015). Moreover, conceptual differences exist between ‘strong’ and ‘weak’ types of constitutional review. In strong review countries, judges are not only ‘negative legislators’ but also play an active role in shaping legal standards by means of their dynamic interpretation, in particular in the area of human rights protection. In contrast, weak review countries permit courts to determine inconsistencies in legislation or disproportionate impacts on human rights, while leaving the content of rights to be determined by legislation (Waldron 2006).

VIEWS/CASES: According to Kelsen, the power of constitutional courts should be limited to declaring acts contrary to the constitution null and void. This approach excludes a positive determination of the scope of protection of constitutional rights which remains reserved for the legislature. Kelsen’s views on the role of constitutional courts were founded on his understanding of the role of constitutions: to set up a framework for government.

Today, the debate about the role of constitutional courts and the character of constitutional review continues, as the legitimacy of their decisions is challenged by the counter-majoritarian argument implying that unelected judges should not overrule acts which reflect the will of the majority. Hence, constitutional courts need to establish their authority on the substantive notion of democracy, the respect for rule of law, and the protection of human rights. However, according to Aharon Barak (2008), their role is even broader: it is to bridge the gap between society and the law and to defend democracy.

In the era of global constitutionalism characterised by the plurality of legal orders, the role of constitutional courts is weakened by the authority of international tribunals. In this context courts not only compete for the power of the ‘last word’ but also engage in judicial dialogues. In Europe, the relationship between national constitutional courts, the CJEU, and the ECtHR is even more complex – on the one hand, it is based on the principle of mutual trust and recognition, on the other hand, it is a form of mutual control and oversight. Yet, without some degree of cooperation, courts risk marginalisation and the loss of influence. Notwithstanding the internal rivalry, constitutional courts, the CJEU, and the ECtHR co-shape European constitutional traditions and legal culture. Although there are important differences in constitutional systems of EU member states, the standards of protection of human rights in the EU are common, save exceptional cases in which a higher level of protection is granted to certain values or rights. These differences are permitted under the narrow exception of ‘constitutional/national identity’ [see e.g. OMEGA, 2004].

Given the above-mentioned challenges to the authority of constitutional courts, there is a gradual shift from the confrontational ‘last word’ approach, which overemphasises who has the final say, to what the limits of law are. In the latter approach, constitutional courts have the power of the ‘first word,’ which invites other parties, including other courts, to take positions and engage in a constructive dialogue. Especially in the EU, constitutional courts move away from their exclusive role of constitutional guardians and become involved actors of European constitutionalism, wielding persuasion rather than compulsion. Furthermore, proponents of political constitutionalism advocate shifting the authority of the ‘last word’ from courts to democratically elected bodies, while equipping them with the right to override judgements of constitutional courts, alongside judgments of international human rights courts (Bellamy 2007). Still, such solutions seem to be inadequate in new democracies where the ruling majorities have strong inclinations to remove any limitations of their power.

CONCL: In a democratic regime, a constitution is supposed to have a normative content as opposed to a mere declaratory (semantic) one. Therefore, a governing majority should be aware that there are constitutional limits to their democratic mandate and it is the province of the judiciary to set down these limits and enforce them in a judicious manner. For this very reason, the privileged stature of constitutional courts pits them against the political power. Yet, constitutional courts have their own constitutional promises to keep and respect the limits of their own institutional authority. Their existence reinforces the belief that democracy is not only about the electoral result, but also about fundamental values which last beyond next elections. Nevertheless, a mere existence of the constitutional court is not enough to provide effective safeguards against abuses of power or violations of fundamental rights. Equally important is the social legitimacy of their authority, as well as the normative framework which entails guarantees of their independence and undisturbed functioning.

REFERENCES:

Barak, Aharon: The Judge in a Democracy, Princeton: Princeton University Press (2008).

Bellamy, Richard: Political Constitutionalism; A Republican Defence of the Constitutionality of Democracy, Cambridge: Cambridge University Press (2007).

Peters, Anne: “Global constitutionalism” in: Gibbons, Michel et al (eds.), The Encyclopaedia of Legal Thought, Hoboken:Willey–Blackwell (2015).

Shapiro, Martin: “The European Court of Justice: of institutions and democracy”, 32 Israel Law Review (1998) 1.

Shapiro, Martin: “The European Court of Justice” in: Craig, Paul, de Burca, Grainne (eds.): The Evolution of EU law, Oxford: OUP (1999).

Sweet Stone, Alec: “Constitutional Courts” in: Rosenfeld, Michel, Sajó András (eds.): The Oxford Handbook of Comparative Constitutional Law, Oxford: OUP (2012).

Venice Commission (Council of Europe): Compilation of Venice Commission Opinions, Reports and Studies on Constitutional Justice, CDL-PI (2015)002.

Waldron, Jeremy: “The Core Case against Judicial Review”, 115 Yale Law Journal (2006) 1346.

MARBURY v. MADISON (1803, 5 U.S. 137).

OMEGA SPIELHALLEN- UND AUTOMATEN-AUFSTELLUNGS-GMBH v. OBERBÜRGER-MEISTERIN DER BUNDESSTADT BONN (CJEU 14/10/2004, Case C-36/02).

Tomasz Tadeusz Koncewicz and

Anna Śledzińska-Simon

Conversion

DEF: In the context of freedom of religion or belief, the term conversion covers two conceptually different but at the same time related dimensions: (1) changing one’s own religion or belief and (2) inducing others to change their religious orientation, i.e. by way of missionary activities. ‘Converts’ are those who have adopted a new faith, thereby replacing their previous religion or belief by a new religious orientation. Members of the religion which the convert has abandoned often stigmatise that change as ‘apostasy’. Communicative outreach activities aimed to convert others are sometimes criticized as ‘proselytism’.

INSTR: Using the wording of Article 18 of the UDHR (1948), Article 9 of the ECHR entrenches the ‘freedom to change’ as a core element of freedom of religion or belief. While article 18 of the ICCPR does not repeat the highly disputed term ‘change’, it confirms everyone’s freedom to ‘have or to adopt a religion or belief of his choice’, thus by implication clearly corroborating the right to change. This forum-internum dimension of freedom of religion or belief even enjoys unconditional protection and cannot be exposed to any justifiable limitations or restrictions for whatever reasons. Conversion in the second meaning of the word, i.e. inducing others to change their faith, falls within the broad range of ‘manifestations’ of religion or belief in ‘worship, teaching, practice and observance’, as also enshrined in Article 9 of the ECHR as well as the above-cited UN instruments. Unlike the freedom to change one’s own religion or belief, inducing others to reconsider and change their faith is not beyond possible limitations. However, for limitations to be justifiable, they have to meet all the criteria set out in European and international human rights law, respectively. Non-coercive attempts of converting others thus are generally covered by freedom of religion or belief.

CASES: Internationally, no aspect of freedom of religion or belief has been more controversial than the two dimensions of conversion, as defined above. In a number of Islamic states ‘apostasy’ from Islam is considered a criminal offence, in a few countries possibly even leading to a death verdict. In many more states conversion can incur de-facto sanctions in family and inheritance laws, such as involuntary dissolution of marriage, loss of custody for children and denial of the right to inherit. In the face of ongoing human rights violations against converts in many parts of the world, UN forums and experts have repeatedly corroborated the right to change as an indispensable part of freedom of religion or belief and a test issue indicative of the understanding of that human right in general. While in Europe ‘apostasy’ laws no longer exist, a number of (mostly Eastern) European countries still prohibit ‘proselytism’, a term which typically does not receive a clear legal definition while obviously carrying quite negative connotations. Proselytism laws are aimed to protect the traditional religious landscape from unwanted missionary activities. The ECtHR had to deal with this issue in a number of cases. The [KOKKINAKIS, 1993] decision concerning noncoercive missionary activities of a Jehovah’s Witness marks the very beginning of the Court’s jurisdiction on freedom of religion or belief.

VIEWS: The issue of conversion continues to divide the international community, including (albeit confined to the aspect of proselytism) the member states of the Council of Europe. Controversies are also reflected in the academic literature on freedom of religion or belief. Critics have argued that by broadly including conversion, the right to freedom of religion or belief privileges those religious communities which actively recruit followers, while putting those communities in a disadvantaged position which do not engage in any missionary activities. Some critics go a step further by alleging that the prevailing view on freedom of religion or belief displays a ‘Protestant’ bias in the understanding of religion, which mainly focuses on individual believing while more or less ignoring collective religious practices or expectations of solidarity within the community. Yet others have contended that the term ‘choice’, as often employed in human rights language, indicates a shallow misconstruction of religion, which should not be treated in as a mere commodity in a marketplace of religious ideas and spiritual practices.

CONCL: Against a widespread misunderstanding, it should be noted that the right to freedom of religion or belief, as enshrined in international and European human rights instruments, does not protect religions or belief-systems in themselves. Instead, it aims to empower human beings, as individuals and in community with others. While having its specific scope of application, freedom of religion or belief thus follows the same logic as other rights to freedom, such as freedom of expression or freedom of assembly and association etc. The treatment of conversion has been, and continues to be, the litmus test for the understanding of freedom of religion or belief as a human right to be respected in all human beings, in recognition of their inherent human dignity. Without the option of changing one’s religion or belief, decisions to remain within a certain religious community would by implication lack their qualification as manifestations of freedom. Moreover, rather than simply eroding communitarian loyalty, the right to change – in conjunction with the right to invite others to reconsider their orientation – may furthermore expose religious communities to a healthy competition.

REFERENCES:

Ahdar, Rex J. and Leigh, Ian: Religious Freedom in the Liberal State, Oxford: OUP (2nd edn. 2013).

Bielefeldt, Heiner, Ghanea, Nazila and Wiener, Michael: Freedom of Religion or Belief. An International Law Commentary, Oxford: OUP (2016).

Evans, Malcolm D: Religious Liberty and International Law in Europe, Cambridge: CUP (1997).

Ghanea, Nazila: “Apostasy and Freedom to Change Religion or Belief” in Lindholm, Tore, Durham, Jr., W. Cole and Tahzib-Lie, Bahia (ed.): Facilitating Freedom of Religion or Belief: A Deskbook, Leiden: Nijhogg (2004).

Sharma, Arvind: Problematizing Religious Freedom, New York: Springer (2011).

Taylor, Paul M: Freedom of Religion: UN and European Human Rights Law and Practice, Cambridge: CUP (2005).

KOKKINAKIS v. GREECE (ECtHR 25/05/1993, 14307/88).

LARISSIS and others v. GREECE (ECtHR 24/02/1998, 23372/94, 26377/94, 26378/94).

www.freedomofreligion.ohchr.org.

Heiner Bielefeldt

Council of Europe (CoE)

DEF/INTRO: The Council of Europe (CoE) is a regional intergovernmental organisation founded in 1949. It concentrates on promoting human rights, democracy and the rule of law in its member states and seeks to develop, throughout Europe, common and democratic principles based on the →European Convention on Human Rights and other instruments guaranteeing the protection of individuals. The CoE has 47 member states and is led and represented by the Secretary General. The main political components of the Council of Europe are the Committee of Ministers (CM), the organisation’s decision-making body, and the Parliamentary Assembly (PACE) composed of 318 members representing national parliaments. The most visible institutions of the CoE in the field of human rights are the ECtHR, established pursuant to the ECHR, and the Commissioner for Human Rights. One of the key factors prompting the CoE activities and endeavours is the promotion of cultural rights through cultural cooperation and standard setting.

The main principle underlying CoE culturerelated policies has been to develop the European cultural identity while at the same time protecting the distinctive features that are the source of the identity’s richness. The right to take part in cultural life has been identified as ‘pivotal to the system of human rights’ (Recommendation 1990 of the PACE), so the cultural policies have as their aim the protection of both individual rights as well as collective rights in the field of culture. The idea of defining and protecting cultural rights has been developed through cultural cooperation coordinated by CoE expert bodies, in particular under the guidance of the Steering Committee for Culture, Heritage and Landscape (CDCPP) (under this head from 2012) which is responsible for activities of the CoE and its member states related to culture, heritage and landscape and for monitoring and evaluation of policies’ implementation.

It also has to be underlined that the ECtHR, through its case-law, has significantly contributed to the definition of the scope of cultural rights protected in the framework of the ECHR realising in practice the principle of indivisibility of human rights.

Over the years, the CoE has further developed its basic idea that strengthening democracy, human rights and the rule of law implies promoting a relationship with culture. A range of CoE’s activities clearly demonstrate that cultural activities and policies influence democratisation and sustainable development. The dissemination and consolidation of a common constitutional European heritage, playing a unique role for states in transition and generally in the process of democratisation, are ensured by the CoE advisory body on constitutional issues – the European Commission for Democracy through Law (Venice Commission).

INSTR: Basing on the fact that culture plays a unique part in forging a Europe of solidarity and shared standards especially in the field of human rights, numerous activities of the CoE concentrate on providing a legal framework for cultural and heritage policies. This activity started with the European Cultural Convention (Paris, 1954) whose purpose has been e.g. to safeguard European culture and promote national contributions to Europe’s common cultural heritage. Later followed e.g. the Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979), the European Convention on Cinema Coproduction (Strasbourg, 1982), the European Convention on Offences relating to Cultural Property (Delphi, 1985), the Convention for the Protection of the Architectural Heritage of Europe (Granada, 1985), the Convention for the Protection of the Archaeological Heritage of Europe (revised) (Valletta, 1992) and the European Charter for Regional or Minority Languages (Strasbourg, 1992).

Due to a number of political, economic and legal difficulties, the CM decided in 1996 to suspend the work of CAHMIN, one of its expert bodies which had been mandated with drafting a complementary ECHR Cultural Protocol, envisaged to include provisions guaranteeing individual rights. In 2000, the CoE confirmed its commitment to the protection of culture and heritage by adopting the European Landscape Convention (Florence, 2000). Next has been the European Convention on Protection of the Audiovisual Heritage (Strasbourg, 2001) which is the first binding international instrument introducing both a compulsory legal deposit of all moving-image productions as well as the accessibility of these collections for the public. Finally, the Framework Convention on the Value of Cultural Heritage for Society (Faro, 2005) is based on the idea that knowledge and use of heritage form part of the citizen’s right to participate in cultural life as defined in the →Universal Declaration of Human Rights.

VIEWS: CoE’s role as the key European organisation in the field of human rights is undisputed. However, it has not been spared from criticism alleging its lack of efficiency, its internal dispersion of activities and competencies as well as overlapping with other international organisations. Since 2009/2010, the CoE introduced certain long term reforms which pursue the following objectives:

The process of undertaking reforms and increasing efficiency is ongoing. Only when the CoE succeeds in realising this goal will it remain a relevant actor on the European level.

It should be noted that the European system of protection of human rights created on the basis of the ECHR has also been subject to significant challenges in recent years, especially due to the enormous number of submitted applications. The first phase of its reform ended in 2004 with the adoption of Protocol no. 14 introducing significant changes to the ECtHR’s internal process of dealing with applications. The next step is the fulfilment of goals identified by intergovernmental conferences on the future of the ECtHR (Interlaken, Izmir, Brighton, Brussels).

CONCL: The CoE has made many efforts to refocus culture as part of its function to protect human rights and foster democratic processes. Its cultural policies concentrate on:

REFERENCES:

Bourquin, Jean-Fred: Violence, Conflict and Intercultural Dialogue, Strasbourg: CoE (2003).

Council of Europe: Heritage and beyond, Strasbourg: CoE (2009).

Council of Europe: Communication on the activities of the Committee of Ministers (September 1995 – January 1996), Statutory Report 1st Part of the 1996 Session of the Assembly (22–26 January 1996) CM(96)17 [Doc. 7460] and: Council of Europe Reform: heading into the future. Progress review report, 27/06/2011.

European Court of Human Rights: Cultural rights in the case-law of the European Court of Human Rights, report available at: www.echr.coe.int (Case-Law / Case Law Analysis / Research Reports – accessed 01/2016).

Laaksonen, Annamari: Making Culture Accessible – Access, participation and cultural provision in the context of cultural rights in Europe, Strasbourg: CoE (2010).

PACE Resolution 1689 (2009): The future of the Council of Europe in the light of its sixty years of experience.

Pickard, Rob (ed.): European Cultural Heritage: A review of policies and practice, Strasbourg: Council of Europe publishing (2002).

Council of Europe website: www.coe.int (accessed 01/2016).

Aleksandra Mężykowska

Court of Justice of the European Union (CJEU)

DEF: Originally founded 1952 under the Treaty establishing the European Coal and Steel Community and since the Rome Treaties commonly known as the European Court of Justice (ECJ), the Court of Justice of the European Union (CJEU) is now the main judicial authority of the →European Union and one of its seven principal organs. The CJEU’s core function is to ensure that the lawis observed in the interpretation and application of the EU Treaties. This function is performed through the following procedures: preliminary ruling, action against a member state, action for annulment, action for failure to act, action for damages.

INSTR: The CJEU is composed of three judicial bodies: The Court of Justice, the General Court, and the Civil Service Tribunal. The Court of Justice consists of 28 Judges (one from each EU Member State) and 11 Advocates Generals. Both the Judges and the Advocates General are appointed by common accord of the governments of the member states for terms of 6 years, after consultation of the special panel. The Judges and Advocates General chosen must be persons whose independence is beyond doubt and who possess qualification necessary for appointment to the highest judicial bodies in their respective countries, or are layers of recognised competence (Article 19 (2) TEU, Article 253 TFEU). The Advocates General assists the Court. The General Court (formerly the Court of the First Instance) was created in 1988 to support the Court of Justice. It includes at least one judge from each Member State. The Judges are appointed in the same procedure as the Judges of the Court of Justice. The Civil Service Tribunal, created in 2004 is the first specialised court established under Article 257 TEU. It is composed of 7 Judges appointed by the Council for a period of 6 years, following a call for applications and after taking the opinion of a committee established for that purpose.

With its main function: the interpretation and application of the treaties of the EU (Article 19 TEU), the CJEU constitutes the judicial authority of the EU. Together with national courts of the member states, it ensures, as an international court established under treaty law, the uniform and effective application and interpretation of the EU law. The role performed by the CJEU within the EU system of judicial protection is compared with the role of constitutional courts in national legal orders. The CJEU controls the legality of acts of the EU institutions as well as the observation of EU laws by the member states. The CJEU performs its function within the framework of jurisdiction conferred upon by treaties. It adjudicates within the following main procedures: action for failure to fulfil obligations (Articles 258 – 260 TFEU), action for annulment (Article 253 TFEU), action for failure to act (Article 265 TFEU), action for damages (Article 340 TFEU), preliminary ruling procedure (Article 267 TFEU), opinions on international agreements of the EU (Article 218 TFEU).

CASES: The CJEU has referred to culture as an element of EU policies in several decisions delivered in preliminary ruling procedure as well as actions against member states and actions for annulment. Case-law concerning the relationship between internal market and culture is of special practical importance. According to the jurisprudence of the Court, there is no doubt that cultural objects are goods in terms of the free movement of goods within the internal market [COMMISSION, 1968] and that cultural activity conducted by artists and cultural institutions (e.g. museums) constitutes part of the internal market of services or an element of free movement of establishment. As well, employees of cultural institutions are considered as workers within the internal labour market. According to the Court, some aspects of culture are also covered by the principle of respect of the national identities of the member states, which is strictly connected with respect for their cultural and linguistic diversity, as provided in Article 3(3) TEU and Article 22 CFREU. The protection of national languages as an essential element of cultural heritage has to be respected by EU law [MALGOŽATA RUNEVIČ-VARDYN AND VARDYN, 2011]. Culture is also recognised by the CJEU as a national value protected by the member states. The protection of national treasures possessing artistic, historic or archaeological value constitutes a legitimate aim for prohibitions or restrictions on imports, exports or goods in transit adopted by member states (Article 36 TFEU). According to the well-established case-law of the Court, cultural policy aims may constitute an overriding requirement relating to the general interest which can justify a restriction on the freedom to provide services [cf. COLLECTIEVE ANTENNEVOORZIENING GOUDA, 1991 and VERONICA OMROEP ORGANISATIE, 1993]. In addition, the Charter of Fundamental Rights of the EU covers culture with regard to freedom of speech (Article 11) and artistic freedom (Article 13). The CJEU noted [cf. UNITED PAN-EUROPE COMMUNICATIONS BELGIUM SA, 2007 and TV10 SA, 1994] that the maintenance of pluralism is connected with freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, and constitutes one of the fundamental rights guaranteed by the Community legal order [TV10 SA, 1994].

CONCL: The CJEU, as the central judicial authority of the EU, performs its function of constitutional court of an autonomous legal system through reviews of the legality of the acts of the institutions of the European Union. It also oversees whether member states comply with obligations under the various Treaties, and cooperates with national courts by delivering authoritative interpretation of EU law. Since 1970, the Court adjudicates on cases concerning broadly understood ‘culture’ and cultural policy of member states vis-à-vis internal market freedoms. Thus, the Court, in cooperation with national courts, ensures a proper balance between interests of economic integration and the preservation of national cultural heritage.

REFERENCES:

Alter, Karen: The European Court’s Judicial Power, Oxford: Oxford University Press (2009).

Bobek, Michal: “The Court of Justice of the European Union”, College of Europe Research Paper in Law 02/2014.

Chalmers, Damian/ Davies, Gareth/Monti, Giorgio: European Union Law: Text and Materials, in particular: “The Union Judicial Order”, Cambridge: Cambridge University Press (2014).

De Witte, Bruno: “Market Integration and Cultural Diversity in EU Law”, in Valentina Vadi & Bruno De Witte (eds.), Culture and International Economic Law, London–New York: Routledge (2015).

Iglesias Sánchez, Sara: “The Court and the Charter: the Impact of the Entry into Force of the Lisbon Treaty on the ECJ’s Approach to Fundamental Rights” (2012) 49 CMLRev 1565.

Psychogiopoulou, Evangelia: “The EU and Cultural Rights”, in Ana Filipa Vrodljak (ed.), The Cultural Dimension of Human Rights, Oxford: Oxford University Press (2013).

Psychogiopoulou, Evangelia: The Integration of Cultural Consideration in EU Law and Policies, Leiden–Boston: Nijhoff (2008).

COMMISSION v. ITALY (ECJ 10/12/1968, 6/68).

MALGOŽATA RUNEVIČ-VARDYN AND ŁUKASZ PAWEŁ WARDYN v. VILNIAUS MIESTO SAVIVALDYBĖS ADMINISTRACIJA AND OTHERS (ECJ 12/05/2011, C-391/09).

STICHTING COLLECTIEVE ANTENNEVOORZIENING GOUDA AND OTHERS v. COMMISSARIAAT VOOR DE MEDIA (ECJ 25/07/1991, C-288/89).

TV10 SA v. COMMISSARIAAT VOOR DE MEDIA (05. 10. 1994, C-23/93).

UNITED PAN-EUROPE COMMUNICATIONS BELGIUM SA AND OTHERS v. BELGIAN STATE (13/12/2007, C-250/06).

VERENIGING VERONICA OMROEP ORGANISATIE v. COMMISSARIAAT VOOR DE MEDIA (ECJ 03/02/1993, C-148/91).

Official website of the CJEU: http://curia.europa.eu (accessed 03/2016).

Izabela Skomerska-Muchowska

Cultural Autonomy

DEF: Although there is no officially adopted legal definition of the notion of ‘cultural autonomy’ in international law, its historical concept refers to the establishment of self-governing minority cultural councils, which enjoy the status of selfruled public law legal entities endowed with administrative functions and public powers to take binding decisions on minority cultural affairs (language, education etc.) and may levy taxes. Based on the personal principle of self-proclamation of its members, cultural councils exercise, as governmental institutions, jurisdiction over them, irrespective of their place of residence (non-territorial element). Their decisions cannot be overruled by the state authorities (autonomy element), unless they go beyond the scope of their competence (matters limited to issues of a minority culture).

INSTR: Cultural autonomy is argued to be a valuable vehicle for the protection of minorities’ and indigenous peoples’ cultural rights. However, there are no explicit references to it in international ‘hard’ law instruments relating to minorities. Only some weak provisions exist in very few ‘soft’ law texts on minorities, mainly the 1999 OSCE Lund Recommendations (paras. 17–18) and the 2008 Commentary on ‘Effective Participation’ (para. 135) of the Advisory Committee (ACFC) on the Framework Convention for the Protection of National Minorities (FCNM, 1995), which simply note respectively that ‘non-territorial forms of governance’/‘cultural autonomy arrangements’ – especially in fields like education, culture, language rights or religion – are useful for the safeguarding of minority identity. Because of their general nature and vague wording, these statements certainly do not constitute a holistic approach to the issue. As regards indigenous peoples, ILO’s legally binding Indigenous and Tribal Peoples Convention of 1989 makes no direct reference to the notion, though it emphasises, in a series of its stipulations (e.g. in Articless 6(1), 7(1) and 27(3)), the right to establish and develop their own institutions. Further, the non-legally binding 2007 UN Declaration on the Rights of Indigenous Peoples proclaims in Article 4, that these peoples have ‘the right to autonomy or self-government’ as well as the right to maintain their cultural institutions (Article 5) and control their educational systems (Article 12(1)). In both cases, however, the norms have a declaratory tone and are quite ambiguous regarding states’ obligations.

CASES: Given the fact that neither the ECHR nor any other major international or regional human rights instrument refers explicitly to the right to cultural autonomy it comes as no surprise that there is no case law on the matter. In the present situation then, the ACFC is the body that could fruitfully contribute, through its mild, compromised opinions, to the elucidation of the normative content of cultural autonomy arrangements and to their proper implementation, at least to the member states of the FCNM that have introduced this model in their national legislation (e.g. Estonia, Hungary, Russia). Under this light, a first useful, though very general, observation regarding cultural autonomy that could serve as a working guideline for further elaboration is the one found in para. 136 of ACFC’s Commentary on Effective Participation, namely that: ‘the corresponding constitutional and legislative provisions should clearly specify the nature and scope of the autonomy system and the competencies of the autonomous bodies. In addition, their legal status, the relations between them and other relevant State institutions as well as the funding of the envisaged autonomy system, should be clarified in the respective legislation. It is important that persons belonging to national minorities be involved and that their views be duly taken into account when legislation on autonomy arrangements is being prepared or amended.’

VIEWS: Adherents of the cultural autonomy model argue that it could serve as an alternative to territorial autonomy, since the territoriality principle on which the latter is based is seen with suspicion by most governments as a first step on a slippery path leading to secession. In this context, they also assert that establishing non territorial cultural autonomy arrangements is the best way to avoid the phenomenon of creating ‘minorities within minorities’ that goes inevitably with territorial autonomy settlements. Further, they maintain that by de-territorialising the identities and demands of sub-state groups, cultural autonomy could reduce or prevent ethnic tensions between different cultural groups living in the same area. Finally, they suggest that cultural autonomy seems to be the most functional choice for small and dispersed groups that are not in a position, for obvious practical reasons, to seek territorial solutions. On the other hand, there are critical thoughts noting that there are examples where cultural autonomy has been used as a pretext for enforced segregation. Others observe that the assumption that all members of a group are equally committed to the protection of their culture is problematic, overseeing internal power conflicts and interest differences within the collectivity. Aswell, they point out that non territorial cultural autonomy challenges liberal conceptions of equality by granting rights only to certain cultural communities. Finally, they suggest that it may violate individual rights at the within-group level.

CONCL: In order to come to some conclusions regarding cultural autonomy’s potential to prevent ethnic conflicts and safeguard cultural diversity, one should comparatively study the relative national legal frameworks. At first glance the situation seems rather disappointing. In some cases the regulations remained on paper and were never realised in practice (e.g. Latvia, Ukraine), while in others they did not function satisfactorily as the cultural autonomy bodies do not have clear legal status (e.g. Estonia) or enjoy a status similar to ordinary NGO’s (e.g. Russia), with no real public functions and competencies. However, it is not the cultural autonomy model that is to blame for these failures, but the various tacit political motives behind its adoption in the specific spatial and temporal national context (the presentation of democratic credentials in the case of e.g. the Baltic States). Indeed, cultural autonomy arrangements, alone or in combination with some forms of territorial settlements, seem to produce positive results, though not without several flaws and shortcomings, for the protection of cultural rights of small and scattered minorities. The examples of Slovenia, Hungary and to a degree Serbia and Croatia are indicative in this direction. Thus, benevolence from the nation-states proves to be a crucial factor for the practical, even partial, success of the cultural autonomy model.

REFERENCES:

Eide, Asbjorn, Greni, Vibeke and Lundberg, Maria: “Cultural Autonomy: Concept, Content, History and Role in the World Order”, in Suksi, Markku (ed.): Autonomy: Applications and Implications, Hague: Kluwer (1998).

Kymlicka, Will: “National Cultural Autonomy and International Minority Rights Norms”, 6 Ethnopolitics (2007) 379.

Lagerspetz, Mikko: “Cultural Autonomy of National Minorities in Estonia: The Erosion of a Promise”, 45 Journal of Baltic Studies (2014) 457.

Nimni, Ephraim: “National-Cultural Autonomy as an Alternative to Minority Territorial Nationalism”, 6 Ethnopolitics (2007) 345.

Osipov, Alexander: “Non-Territorial Autonomy During and After Communism: In the Wrong or Right Place?”, 12 Journal on Ethnopolitics and Minority Issues in Europe (2013) 7.

Smith, David: “Non-Territorial Autonomy and Political Community in Contemporary Central and Eastern Europe”, 12 Journal on Ethnopolitics and Minority Issues in Europe (2013) 27.

Athanasios Yupsanis

Cultural Dimensions of Human Rights

INTRO: The clarification of cultural rights addresses one of the major gaps in the human rights protection system. Despite recent progress, the weak development of cultural rights and the massive attacks they still bear whenever they appear will require long and complex interpretation in history. Fact is that they concern the heart of the relationships between any person and cultural environments full of contradictions, the intimate experience each individual has with others, with objects, with traditions.

The relation between culture and modernity is sensitive, which is why cultural rights touch at the core of human relationships with politics, making us fear the worst deviations. For many, cultural rights go against the universality of human rights. In reality, they are at the cross-road between civil and social rights, in all the spaces where knowledge resources, or cultural resources, are essential, where freedoms have their roots. Cultural rights are only conceivable in democracy if they are firmly embedded in the system of human rights and share their universality. The development of cultural rights guarantees the interface between diversity and universality by securing the human rights’ approach against four major risks – relativism, particularism, communitarianism and culturalism (Meyer-Bisch, 2011). In fact, cultural rights reside on all the frontiers, at the most intimate of human capacities, in this space of porosity where each of us can simultaneously be more dependent and more free. Cultural freedoms, rights and responsibilities consist in accessing, participating in and contributing to the cultural resources necessary to live and develop one’s identity throughout one’s life. Central to the classical debate between ‘formal’ and ‘effective’ freedoms, there are freedoms ‘educated’ of their responsibilities.

INSTR: Classically, cultural rights include the right to education (Article 26 of the UDHR, Article 13 and 14 of the ICESCR) and the right to take part in cultural life (Article 27 of the UDHR, Article 15 of the ICESCR and Article 27 of the ICCPR). The right to education and to life-long education represents the right to access and participate in the cultural resources necessary to one’s existence. What is at stake in these two rights is the capacity to share a ‘cultural life’, understood as a series of activities related to cultural resources, and not merely to transmit a ‘given’ (Meyer-Bisch and Bidault, 2010, para 5.3). In the Fribourg Declaration on cultural rights, a civil society text elaborated in collaboration with numerous experts, we proposed a presentation with 6 substantive articles: the freedoms to exercise the cultural activities of one’s choice (including linguistic, academic freedoms and creativity), the right to access heritage, to take part or not to take part in cultural communities, the rights to education, to information (education and information are inseparable), the right to take part in cultural policies (Fribourg Group, 2007; Meyer-Bisch and Bidault, 2010; CESCR, General comment 21, 2009).