CONCL: Since the establishment of the EU in 1993, culture has become a significant area of its common action. The EU co-ordinates, supports and supplements, but does not harmonise, policies and measures of its member states in cultural matters, including via its ‘Structural Funds’ (ERDF and ESF). Moreover, the EU institutions as well as its members must act and legislate consistently with the CFREU, which guarantees the observance of certain cultural rights. The EU approach to culture involves both commonality and diversity, thus making the ‘European Cultural Space’ a distinct phenomenon, profoundly shaped by the integration process, the diversity of European societies and regional human rights law, located vis-à-vis the plurality and variety of other cultures of the world. This justifies a more coordinated common action of the EU in respect of cultural and cultural heritage, both in its internal and external dimensions. However, the possible withdrawal of the United Kingdom may profoundly affect the EU’s institutional structure, its legal system and cultural policies.
REFERENCES:
Bátora, Jozef, Mokre, Monika (eds.): Culture and External Relations: Europe and Beyond, London: Routledge (2011).
Craufurd Smith, Rachael (ed.): Culture and European Union Law, Oxford: Oxford University Press (2004).
De Witte, Bruno: “The Value of Cultural Diversity in European Union Law”, in Hildegard Schneider and Peter Van den Bossche (eds.), Protection of Cultural Diversity from a European and International Perspective, Antwerp: Intersentia (2008).
De Witte, Bruno: “Market Integration and Cultural Diversity in EU Law”, in Valentina Vadi & Bruno DeWitte (eds.), Culture and International Economic Law, London–New York: Routledge (2015).
Littoz-Monnet, Annabelle: Union and Culture. Between Economic Regulation and European Cultural Policy, Manchester and New York: Manchester University Press (2013).
Psychogiopoulou, Evangelia: The Integration of Cultural Considerations in European Union Law and Policies, Leiden–Boston: Nijhoff (2008).
Psychogiopoulou, Evangelia: “The EU and Cultural Rights”, in Ana Filipa Vrodljak (ed.), The Cultural Dimension of Human Rights, Oxford: Oxford University Press (2013).
COMMISSION v. ITALY (ECJ 10/12/1968, 7/68).
COMMISSION v. ITALY (ECJ 16/01/2003, C-388/01).
MALGOŽATA RUNEVIČ-VARDYN AND ŁUKASZ PAWEŁWARDYN v. VILNIAUS MIESTO SAVIVALDYBĖS ADMINISTRACIJA AND OTHERS (CJEU 12/05/2011, C-391/09).
Arts Rights Justice Working Group: cultureactioneurope.org (accessed 4/2016).
Culture-related action of the EU: ec.europa.eu/ culture (accessed 4/2016).
Exiting the EU: Impact in Key UK Policy Areas: http://www.parliament.uk/eu-referendum (accessed 6/2016).
Andrzej Jakubowski
European Union Agency for Fundamental Rights (FRA)
DEF: The FRA, based in Vienna, was established by Council Regulation (EC) No 168/2007 of 15 February 2007 as one of the EU permanent agencies, succeeding the European Monitoring Centre on Racism and Xenophobia (EUMC). Implementing EU law, it carries out tasks with regard to EU institutions and EU member states. The Agency’s mandate is specified by a Multiannual Framework and consists of ten thematic areas related to fundamental rights. Gathering data on the fundamental rights situation in the EU is the core FRA task. A horizontal task of the Agency, even if not mentioned directly in its legal foundations, is also to help to fully implement the EU →Charter of Fundamental Rights. As a hybrid institution, the FRA is best defined by its activities, since characterising it as a research institute, an administrative EU institution, or a human rights monitoring body would not fully explain how it actually works.
INSTR: The FRA offers socio-legal research covering all EU member states, thus providing comparable information and analysis across the EU28, published in its reports (all of them accessible via webpage). The Agency focuses on rights holders (individuals) as opposed to duty bearers (states and their entities), thus providing information also on the situation on the ground (rather than the law in the books). It ensures outreach to civil society, including through its Fundamental Rights Platform that brings together over 450 NGOs through annual meetings and online consultations. The Agency plays an important role as an independent expert body within the EU, inter alia through its legal opinions on draft EU legislation or as a provider of practical handbooks (e.g. on data protection, children’s rights). The FRA also offers a ‘joined-up governance approach’ to the protection of fundamental rights in the EU, taking full account of the contribution of local and regional actors as well as the United Nations and the Council of Europe, and developing networks with national equality bodies, National Human Rights Institutions or Ombudsman offices. The Agency is also tasked to raise awareness of fundamental rights and promote dialogue with civil society organisations.
The FRA helps to enforce a fundamental rights culture with regard to the implementation of public policies in the EU and its member states. It conducts quantitative and qualitative field research and gathers primary data. This type of research helps to address the lack of comparable and reliable information in the EU needed to shape evidence-based policies. The Agency uses its data to formulate comprehensive advice for both the EU and national institutions. In practice, the promotion of fundamental rights by the FRA contributes to improving the European legal culture, which can increasingly be verified in legislative proposals and measures of the EU institutions.
One of the Agency’s tasks is specifically directed at enforcing respect for the cultural, religious and linguistic identity, as well as diversity of the Union. Opinions, research and surveys concerning different grounds of →discrimination, prepared, published and disseminated by the Agency, are visible in the whole EU.
CONCL: Some rightly suggest that the FRA represents a new way of speaking about rights in the European Union, using ‘governance’ language. On the other hand, the Agency does not act like a traditional human rights monitoring body, since its goals are not led by the headlines of the day. It aims at safeguarding systematically the rights of the most vulnerable groups in European society. That is why its reports, e.g. on the situation of →LGBT, →Roma people or →refugees, usually have a real impact on shaping European ‘governance’ and human rights protection systems, especially as regards EU policies. In order to fully live up to its potential, the visibility and effectiveness of the FRA at the national level could still be further improved to cover all areas of the EU fundamental rights culture that is in constant need of being enforced.
REFERENCES:
“Bringing rights to life: The fundamental rights landscape of the European Union”, The European Union Agency for Fundamental Rights 2012.
Hinarejos, Alicia: “A Missed Opportunity: The Fundamental Rights Agency and Euro Area Crisis”, 22(1) European Law Journal (January 2016).
Sokhi-Bulley, Bal: “The Fundamental Rights Agency of the European Union: A New Panopticims”, 11(4) Human Rights Law Review (2011).
“The Fundamental Rights Agency – views from the new Member States and Germany”, Centre for International Relations, Warsaw 2006.
Toggenburg, Gabriel: “Fundamental Rights and the European Union: How Does and How Should EU Agency for Fundamental Rights relate to the EU Charter of Fundamental Rights”, EUI Working Papers, LAW 2013/13.
http://fra.europa.eu (accessed 05/2016).
Mirosław Wróblewski
Female Genital Mutilation
DEF: Female Genital Mutilation (FGM), also known as female circumcision, is a traditional practice involving the partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. An estimated 200 million girls and women worldwide have undergone this practice (UNICEF, 2016). FGM is classified as a form of Violence Against Women (VAW) and recognised as a human rights violation (Rahman and Toubia, 2000). Asylum seekers with a well-founded fear of persecution on FGMrelated grounds may qualify for refugee status under the 1951 Refugee Convention. In the EU, asylum systems receive several thousand applications relating directly to FGM every year (UNHCR, 2013).
INSTR/CASES: In the past decades, both the CoE and the EU have established a comprehensive legal and policy framework applicable to asylum claims on FGM related grounds. The Common European Asylum System (CEAS) plays a principal role and the new Recast Directives provide the framework for FGM and the right to asylum. In addition, the Convention on Preventing and Combating VAW and Domestic Violence (Istanbul Convention) is the first European legally binding instrument that includes a provision on FGM. Member States are obliged to respect the principle of non-refoulement, ensuring that victims of VAW who are in need of protection are not returned to any country where their life would be at risk or where they may be subjected to torture or inhuman or degrading treatment or punishment. Despite these efforts, there is a discrepancy between legal requirements and actual practice, in terms of the implementation of European asylum instruments. At the national level, cases where asylum is granted on FGM related grounds are rare. The same trend is observable at the European level. Although the ECtHR has repeatedly underlined in its decisions that subjecting a woman or a child to FGM would amount to ill-treatment contrary to Article 3 of the ECHR, none of the 13 cases by an asylum claimant on FGM related grounds were admitted. However, in some cases national authorities granted asylum to applicants after the claim was brought before the ECtHR.
CONCL: At the European level, the protection offered to asylum seekers who have a fear of persecution on FGM related grounds seems to be inadequate. A comprehensive analysis of the legal and policy asylum framework applicable to asylum claims on FGM related grounds identified several challenges that potentially hamper the achievement of better protection (Middelburg and Balta, 2016): First of all, there is a need for a harmonised approach to granting protection on FGM related grounds throughout Europe, because EU Member States offer different levels of protection (EIGE, 2013). Secondly, gender equality and cultural dimensions should be incorporated more often in the assessment of asylum claims in order to avoid that asylum decisions are biased by assumptions and beliefs, rather than rooted in reality. Lastly, special attention to the vulnerability of potential or actual victims of FGM is required. If these three challenges are taken into account, the level of protection afforded to asylum seekers could be enhanced.
REFERENCES:
European Institute for Gender Equality (EIGE): Female Genital Mutilation in the European Union and Croatia (2013).
Gruenbaum, Ellen: The Female Circumcision Controversy: An Anthropological Perspective, Pennsylvania: University of Pennsylvania Press (2001).
Middelburg, Annemarie and Balta, Alina: Female Genital Mutilation/Cutting as a Ground for Asylum in Europe, International Journal of Refugee Law (2016).
Rahman, Anika and Toubia, Nahid: Female Genital Mutilation: A Guide to Laws and Policies Worldwide, London: Zed Books (2000).
Shell-Duncan, Bettina and Hernlund, Ylva: Female “Circumcision” in Africa: Culture, Controversy and Change, London: Lynne Rienner Publishers (2000).
UNHCR: Too much pain: Female Genital Mutilation and Asylum in the European Union: A Statistical Overview (2013).
UNICEF: Female Genital Mutilation/Cutting: A Global Concern (2016).
Annemarie Middelburg
Food
(Right to, and Cultural Dimensions of, F.)
DEF: Following the 1996 World Food Summit, the draft of an International Code of Conduct on the Human Right to Adequate Food had been developed in 1997 by three NGOs, FIAN (Foodfirst Information and Action Network), WANAHR (the World Alliance for Food and Nutrition) and the Instituto Jacques Maritain. Article 4 of this Code defines the right to food as follows: ‘The right to adequate food means that every man, woman and child alone and in community with others must have physical and economic access at all times to adequate food using a resource base appropriate for its procurement in ways consistent with human dignity.’ Frequently, the right to food is connected with issues of rural water supply as a basis for agriculture (e.g. in parts of Africa, Palestine and Cyprus).
From a cultural perspective, we need to be aware of the fact that ‘adequate food is not simply a matter of ingesting sufficient nutrients. Food has cultural, social, economic and political dimensions, as well as the very important dimension of the pleasure of eating. People in statistical or abstract and idealised economic systems need only ingest sufficient calories, proteins, vitamins, etc. ...But for real human beings the quality of the access to food is what always counts. The means and manner of access to food deeply affect one’s quality of life and cultural expression’ (Künnemann and Epal-Ratjen, 2004).
INSTR/CASES: The right to food is protected by international HR instruments, such as the ICESCR which recognises in Article 11(1) that the ‘right to an adequate standard of living includes food, housing, clothing’, thus following the UDHR of 1948, which had also mentioned in Article 25 food on top of a list of basic provisions for all of mankind. In 1999, the CESCR issued General Comment No. 12 on the Right to Adequate Food. Its definition of ‘adequacy’ includes ‘cultural or consumer acceptability’,which implies the need to take into account ‘non-nutrient-based values attached to food and food consumption.’ In a case concerning the Ogoni people in the Niger delta whose existence was threatened by oil companies [THE SOCIAL AND ECONOMIC RIGHTS ACTION CENTER, 2001], the African Commission on Human and Peoples’ Rights asserted that the right to food is implicitly enshrined in provisions of the African Charter, such as the right to life (Article 4), the right to health (Article 16) and the right to economic, social and cultural development (Article 22).
In Europe, neither the ECHR (Council of Europe) nor the CFR (EU) mention food or nutrition explicitly whereas the OSCE Parliamentary Assembly Helsinki Declaration of 2015, recognises ‘food as a fundamental right’. Traditional forms of cuisine can be found frequently on UNESCO’s Representative List of the Intangible Cultural Heritage of Humanity. In addition, there exists a great variety of national – in some countries also constitutional – regulations governing food and agriculture. Among those with distinct cultural or religious traits, the taboo of cattle slaughter in most states of India (‘Beef Ban’) is often considered a striking example. In a – highly controversial – case involving a Jewish ultra-orthodox association [CHAÁRE SHALOM VE TSEDEK v. FRANCE, 2000], the ECtHR upheld the French ban of a special form of ritual slaughtering used to prepare kosher meat (glatt). The majority of the judges argued that, while rites as such can be covered by the ECHR, Article 9 had not been interfered with since the association could obtain meat prepared in accordance with their religious prescriptions from various butchers in Belgium.
Outside of the scope of HR, food items and crops are among the most heavily regulated products, including but not limited to controlled designation of origin labels or appellation d’origine contrôlée (in France, the Roquefort cheese was, in 1411, the first officially protected food product).
VIEWS: The OHCHR ‘Human Rights Indicators’ (2012) particularly emphasise the right to food and Article 6(1) of the above draft Code of Conduct on the Human Right to Adequate Food calls for states to respect the access to adequate food and, in this context, not to take ‘political or other measures destroying existing access by vulnerable populations’, including the respect of ‘ancestral lands and rights particularly of indigenous peoples.’ However, states are not the only actors to consider, as land grabbing by international food companies, landlords and mining or forestry industries; ‘dumping food’ exported from the EU; huge fish trawlers etc. increasingly threaten the existence of small-scale farmers, landless peasants, nomads and peasants practising shifting cultivation or other rural people especially from ethnic and cultural communities practising traditional forms of agriculture, hunting or fishing. The need to safeguard their food resources is underlined in many studies and documents, for example in the 2006 Report of the UN Special Rapporteur on the Right to Food, Jean Ziegler, on his mission to India (E/CN.4/2006/44/Add.2), where he states, inter alia: ‘Tribal peoples, particularly those living in forest and hill areas, are extremely marginalized, many having lost access to traditional forest livelihoods and food resources through the creation of Forest Reserves, and... also suffer disproportionately from displacement because of development projects such as dams, power plants, coal mines and mineral industries.’
CONCL: Land and water grabbing is a common phenomenon in both the global north and south and – despite the successful establishment of a parallel ‘green agriculture’ in the last decade – a growing number of small and medium-sized farms have been forced to close down. This affects also the diversity of food resources and related cultural meanings or practices.
The plan of a HRC working group to establish a Declaration on the Rights of Peasants and Other People Living in Rural Areas which includes not only the right to freedoms of association, opinion and expression (Article 12), but also the right to seeds and traditional agricultural knowledge and practice (Article 5) the right to the protection of local agricultural values (Article 9) and the right to biological diversity (Article 10), has not yet materialised. According to an old proverb, ‘paper is tolerant’ and a non-binding declaration can hardly be expected, in practice, to overrule economic interests. However, it could help to shed more light on important cultural dimensions of food and agriculture, as proposed by international NGO’s and explorative studies such as ‘The European Food Project’, initiated by the European Institute for Comparative Cultural Research, whose Rethymnon Declaration (ERICarts, 1998) pointed out: ‘Food is a cultural resource which brings people together at the same time reflecting their heritage, manners and way of life.’ And: ‘The defence of local and regional cultures requires the full and imaginative use by public authorities in partnership with civil society of the cultural resources and traditions available, including those relating to food and cuisine. In addition to food safety and nutritional value, emphasis should be placed on ensuring the authenticity of processes of production, the origin and quality of the product as well as the local customs and traditions surrounding their use.’
REFERENCES:
ERICarts: The Rethymnon Declaration on Cuisine as a Cultural Resource. Adopted in Rethymnon (Greece), 30 October 1998 at the EU sponsored Expert Conference “ELEA: Producing and Consuming Olive Oil: A contribution to European Culinary Heritage” (accessed 03/2016 via www. ericarts.org/web/projects.php).
Künnemann, Rolf and Epal-Ratjen, Sandra: The Right to Food: A Resource Manual for NGOs, Washington D.C.: AAAS Science and Human Rights Program / HURIDOCS (2004).
Office of the United Nations High Commissioner for Human Rights: HUMAN RIGHTS INDICATORS. A Guide to Measurement and Implementation. Geneva: UN/ OHCHR (2012).
JAKOBSKI v. POLAND (ECtHR, 07/12/2010, 18429/06).
THE SOCIAL AND ECONOMIC RIGHTS ACTION CENTER AND THE CENTER FOR ECONOMIC AND SOCIAL RIGHTS v. NIGERIA (African Commission on Human & Peoples’ Rights 27/10/2001, 155/96).
Andreas Joh. Wiesand
Free trade
(and Cultural Diversity)
DEF: The notion of ‘cultural diversity’ addressed in a context of ‘free trade’ generally refers to the question of the relationship between trade and culture or, more specifically, to the recognition of the dual nature, economic and cultural, of cultural goods and services. As stated in Article 8 of the UNESCO Universal Declaration on Cultural Diversity (2001), ‘(i)n the face of present-day economic and technological change, opening up vast prospects for creation and innovation, particular attention must be paid to the diversity of the supply of creative work, to due recognition of the rights of authors and artists and to the specificity of cultural goods and services which, as vectors of identity, values and meaning, must not be treated as mere commodities or consumer goods’. This recognition can lead to the development of specific rules to govern trade in this sector, or to ‘cultural exception’ or ‘cultural exemption’ clauses leading to an exclusion of such goods and services from the scope of a free trade agreement. Over the last fifteen years, the concept of ‘cultural diversity’ gradually replaced, or has been added to, those of the exception or exemption. This represents a paradigm shift from a defensive to a more positive approach to promoting culture in trade between states, an approach now reflected in UNESCO’s Convention on the Protection and Promotion of the Diversity of cultural expressions (hereafter the 2005 Convention).
INSTR: No cultural good or service is formally excluded from the scope of the WTO agreements, such as the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). In addition, the WTO agreements and its dispute settlement body do not yet recognise the specificity of cultural goods and services. Thus, any →cultural policies related to those goods or services must comply with the principles of non-discrimination. There is no definition or list of the ‘cultural goods’ covered by the GATT, but it certainly includes books, magazines, periodicals, CDs, music and film (UNESCO/Guèvremont, 2015). As for ‘cultural services’, according to the majority of authors, it includes audio-visual services (like motion picture and video tape production and distribution services, motion picture projection services, radio and television transmission services, sound recording), in addition to the other cultural services (like entertainment services, news agency services, →libraries, archives, museums, etc.). The GATS classifies audio-visual services as ‘Communication services’, while the other cultural services are included in the ‘Recreational, cultural and sporting services’.
The 2005 Convention, in contrast, recognises the ‘distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning’ (Article 1(g) and, therefore, reaffirms ‘the sovereign right of states to maintain, adopt and implement policies and measures that they deem appropriate’ to protect and promote the diversity of →cultural expressions (Articles 1(h), 5, 6, 7 and 8), ‘irrespective of the commercial value’ of such goods and services (Article 4(4)). In addition, the parties are asked ‘to promote the objectives and principles of this Convention in other international forums’ (Article 21). These and other principles of the Convention landed on fertile soil: In the past decade, states concluded numerous regional and bilateral free trade agreements, in which they used various techniques in order to recognise the specific nature of cultural goods and services. Several agreements exclude them from their scope, while others cover the cultural sector but enable reservations in order to protect some cultural goods and/ or services, or some cultural policies, from the free trade rules. It is worth noting that seven trade agreements concluded by the European Union over the last decade go further, incorporating one or more explicit references to the 2005 Convention and annexing a ‘Cultural Cooperation Protocol’ to promote the objectives and principles of this instrument (e.g. in the EU-CARIFORUM Economic Partnership Agreement).
CASES: Since the creation of the WTO in 1995, two complaints have been brought by the USA before the Dispute Settlement Body of the WTO concerning measures related to cultural goods and services. The first case [CANADA, 1997] arose well before the adoption of the 2005 Convention. At the time, the WTO panel did not recognise the specificity of the cultural goods involved and stated that it was not judging Canada’s right to protect its culture, but rather the instruments it used to achieve that goal (Shi, 2013). Canada’s loss in this case raised the awareness of many states about the vulnerability of their cultural policies in the face of the WTO agreements. In the second case [CHINA, 2009], the panel proved to be a bit more open towards the acknowledgment of intangible dimensions of cultural goods and services in dealing with a complaint concerning several Chinese measures related to various cultural goods and services. It recognised a link between the intangible content of a number of cultural goods falling within the scope of the GATT and the objective of protecting public morality mentioned in Article XX a., dealing with general exceptions. The recognition of this link, as advocated by China, was influenced by the text of the UNESCO Universal Declaration on Cultural Diversity of 2001 (UNESCO/Guèvremont, 2015).
VIEWS: From the beginning of its elaboration until today, the USA opposed the 2005 UNESCO Convention as well as any kind of recognition of the dual nature of cultural goods and services. In line with neoliberal ideology and economic interests, free trade is seen as stimulating the dynamic process of cultural diversity instead of preventing it, whereby outdated cultural manifestations are continuously crowded out by new ones (Cowen, 2002). According to this view, the 2005 Convention is vague, ambiguous, anti-commercial and anti-American in nature, and probably contrary to UNESCO’s Constitutional obligation to promote ‘the free flow of ideas by word and image’, since it allows protectionism without any constraints (Oliver, 2005). Other disagreements concern the main goal of the 2005 Convention, which ’has nothing to do with promoting cultural diversity. Everything is window dressing – it’s an amendment to trade agreements’ (Miller, 2003). In order to guarantee an uninhibited circulation of goods and services, the USA negotiates bilateral and regional free trade agreements, including the currently debated TTIP. While present agreements generally limit the right of states to adopt any kind of discriminatory policies, including cultural policies, their main objective in the field of culture is to prevent regulations that could affect the delivery of digital content (Bernier, 2004). Such contents are ‘computer programs, text, video, images, sound recordings, and other products that are digitally encoded, regardless of whether they are fixed on a carrier medium or transmitted electronically’ (see e.g. Article 14(4) of the United States–Morocco Free Trade Agreement, 2004).
CONCL: A decade after its adoption, the 2005 UNESCO Convention with its over 140 contracting parties can be considered a legal instrument of universal value, particularly because it managed to make a great number of states and the EU aware of the dual nature of cultural goods and services, including the importance of protecting and promoting the diversity of cultural expressions in the context of free trade agreements they conclude (UNESCO/Guèvremont, 2015). A new, productive mechanism for international cultural cooperation between its parties contributed to this success. The next big challenge facing the parties in the future will be to implement the Convention in the digital environment, considering the fact that digital technologies have fundamentally altered the way in which cultural goods and services are produced, distributed and accessed (UNESCO/Kulesz, 2015).
REFERENCES:
Bernier, Ivan: “The Recent Free Trade Agreements of the United States as Illustrations of Their New Strategy Regarding The Audiovisual Sector” (2004) (available at www.coalitionsuisse.ch accessed 06/2016).
Cowen, Tyler: “The Fate of Culture”, in The Wilson Quarterly (2002).
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.
Miller, Richard Terrell: US Delegation to the UNESCO General Conference. US Department of State (2003) (available at www.state.gov accessed 6/2016).
Obuljen, Nina and Smiers, Joost (ed.): UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Making it work, Zagreb: Institute for International Relations (2006).
Shi, Jingxia: Free trade and cultural diversity in international law, Oxford: Hart Publishing (2013).
UNESCO: Reshaping Cultural Policies, 2005 Convention Global Report, UNESCO (2015).
Voon, Tania: Cultural products and the World Trade Organization, Cambridge: CambridgeUniversity Press (2007).
CANADA – CERTAIN MEASURES CONCERNING PERIODICALS (1997, WT/DS31/R, Panel Report).
CHINA – MEASURES AFFECTING TRADING RIGHTS AND DISTRIBUTION SERVICES FOR CERTAIN PUBLICATIONS AND AUDIOVISUAL ENTERTAINMENT PRODUCTS (2009, WT/ DS363/R, Panel Report).
Véronique Guèvremont
Fundamentalism
(Religious F.)
DEF: Fundamentalism refers to religious movement or point of view characterised by a return to fundamental principles or sacred religious texts. It indicates unwavering attachment to a set of irreducible beliefs and often implies intolerance toward other interpretations. The expression was first used to describe an organised Evangelical movement in the United States in the early 1900s that opposed Protestant liberalism. The term has been generalised to similar movements within Judaism, Islam and Hinduism (Armstrong, 2000). Fundamentalism can apply to any religious group stressing strict observance of religious principles and a literal interpretation of sacred texts. In its non-academic usage fundamentalism is often employed as a synonym for violent extremism.
INSTR: In the interpretation of religious dogmas, fundamentalism is covered by the freedom of thought, conscience and religion (Article 9 ECHR), which protects individuals and religious groups. Religious organisations in the exercise of their autonomy have the right to set limits to the exercise of religious freedom by their members within religious institutions (Doe, 2011).
In the West, the discussion around fundamentalism is focused not on the legitimacy of fundamentalist religious stances, but on its intention to impose a given religious view in the political and civil sphere and the resulting questioning of the principle of secularism intrinsic to the democratic state. It can become a threat to the democratic state in the guise of religious totalitarianism.
The secular nature of the state should not imply an anti-religious attitude. Secular ideals and the separation between church and state are meant to preserve religions against political interference as much as they are intended to safeguard the political sphere from religious intrusion. Secularism and secular values are understood as being protective of fundamental values, including religion, not opposed to them (Bauman&Weingarten, 2006).
CASES: In Europe and in particular in Turkey, the only signatory of the ECHR with a Muslim majority, the religious fundamentalism that has been questioned is primarily Islamic. In its rulings on cases involving Article 9, the ECtHR has largely been faithful to the principles of liberal secularism. The Court has frequently emphasised the state’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society.
Therefore, the practice and argumentation in more recent cases [REFAH PARTISI, 2003 and LEYLA SAHIN, 2005], conflict not only with the liberal tradition regarding individual displays of religious identity in the public sphere, but also with the liberal tradition of respecting a certain legal autonomy for religious groups, a principle that has otherwise been supported by the Court. These rulings follow political criteria more than legal ones, given the risk that fundamentalism may impose religious norms to regulate certain areas of civil life (Martínez-Torrón, 2009).
VIEWS: Fundamentalism is generally seen as a reaction to secularisation and modernisation (Bruce, 2008). In policy debates or in the media, the term is often employed as a synonym for violent extremism. Some academic definitions include the willingness to use violence as a defining characteristic of fundamentalism (Heitmeyer, Müller & Schröder, 1997). This usage, however, does not reflect the most common academic conceptions, which define fundamentalism as a set of religious attitudes, norms and ideals (Emerson and Hartman, 2006). Fundamentalism is generally distinguished from orthodoxy, which reflects the content of what is believed rather than (as is the case with fundamentalism) the way the beliefs are held (Laythe et al. 2002).
There is also a fundamentalist – as opposed to liberal – secularism, which seeks to impose a secular (non-religious) lifestyle on all individuals entering the public sphere and advocates a limit to religious expression in public. Fundamentalist secularism denies religious conviction or belief any place for expression in the public realm (Westerfield, 2006). The ‘fundamentalist’ aspect of this approach lies in the fact that it imposes a secularist way of life on all individuals when they enter the public domain (Thorson Plesner, 2005).
CONCL: Acceptance of diversity is an important principle, which implies that secularism, and any principles and policies based on secularism, ought to be subject to adjustment to accommodate a wide range of cultural, ethnic and religious diversity. Secularism should give way to multiculturalism and accommodation, at least to some extent. Theorists differ widely as to the preferable degree of accommodation (Bauman & Weingarten, 2006). Recognition of difference should be limited insofar as it undermines core political values. In other words, while accommodation to cultural difference is desirable, elements of cultures or religions that are oppressive or dangerous ought not to be accepted in the name of multicultural accommodation. Europe’s legislators and policymakers, faced with serious challenges in integrating new minorities, must interpret both their own constitutional duties and the constitutional limitations on their powers.
Recent incidents and cases, e.g. [LEYLA SAHIN, 2005], as well as the passage of France’s law on religious symbols in 2004, seem to indicate that current understandings of secularism are increasingly relegating religious expression exclusively to the private sphere (Westerfield, 2006). From this standpoint, the range of approaches to secularism developed by European courts appears to be questionable (Bauman & Weingarten, 2006).
REFERENCES:
Armstrong, Karen: The Battle for God. Fundamentalism in Judaism, Christianity and Islam. New York: Alfred Knopf (2000).
Bauman, RichardW. & Weingarten, Sarah L. M.: “Keeping Religious Fundamentalism under Wraps: The Clothing Controversy in Selected European Countries”, 15(1) Forum Constitutionnel (2006).
Bruce, Steve: Fundamentalism. 2nd edn. Cambridge: Polity (2008).
Doe, Norman: Law and Religion in Europe: A Comparative Introduction. Oxford: OxfordUniversity Press (2011).
Emerson, Michael O. & Hartman, David: “The Rise of Religious Fundamentalism”, 32(1) Annual Review of Sociology (2006).
Heitmeyer, Wilhelm; Müller, Joachim & Schröder, Helmut: Verlockender Fundamentalismus [Seductive Fundamentalism]. Frankfurt: Suhrkamp (1997).
Koopmans, Ruud: “Religious Fundamentalism and Hostility against Out-groups”, 41 Journal of Ethnic and Migration Studies, (2015).
Martínez-Torrón, Javier: “La cuestión del velo islámico en la jurispridencia de Estrasburgo”, 4 Derecho y religión (2009).
Westerfield, Jennifer M.: “Behind the Veil: An American Legal Perspective on the European Headscarf Debate”, 54(3) The American Journal of Comparative Law (2006).
LEYLA SAHIN v. TURKEY (ECtHR 10/1/2005, 44774/98).
REFAH PARTISI AND OTHERS v. TURKEY (ECtHR GC 13/02/2003, 41340/98, 41342/98, 41343/98, and 41344/98).
Montserrat Gas-Aixendri
Gender Stereotypes
DEF: Gender relates to the specific characteristics of women and men in a society. Although gender is neutral to human sex, identity and individual experience, it is heavily determined by cultural and social norms. Gender roles and relationships of and between women and men are also influenced by law. Gender is relevant to law and law is not neutral with regard to gender. Law also defines rights and obligations of spouses, parents, children or other family members. Law determines who is eligible to enter marital relationships, who is recognised as a mother or a father of a child or who is entitled to maternity leave, etc. When law draws distinctions based on biological differences between men and women, certain individual choices such as the choice of one’s life companion may be either prohibited or remain outside the protection of law. However, law may also establish procedures enabling recognition of the preferred gender in case of individuals who experience gender incongruence. Moreover, law may be used to influence gender roles and change social practices. Under current human rights standards, law should be used to eradicate harmful gender stereotypes which generally mean preconceptions about the attributes, characteristics, and roles of men and women. Gender stereotypes are considered harmful when they are based on the idea of inferiority of either gender.
INSTR: Unlike other human characteristics, gender is defined under international law. Article 7(3) of the Rome Statute specifies that gender ‘refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.’ Likewise, the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence stipulates that gender ‘shall mean the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’ (Article 3(c)).
In the light of these definitions, it is clear that different societies attribute different roles to men and women and sanction different attitudes and activities as socially acceptable or desirable. International law interferes only with such preconceptions and practices which deny equal value of men and women and their capacity to make individual life choices concerning their appearance and body, sexuality and reproduction, parenting and child care, as well as education, training, profession, employment and public functions. International human rights law acknowledges that harmful gender stereotypes are an obstacle to equal enjoyment of right by women and men.
According to Article 5 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) states shall take all appropriate measures ‘(a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;’ and ‘(b) to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.’ It implies that harmful practices, even if recognised by tradition, custom or religion, need to be changed via law and policy. Similar provisions are found in Article 12(1) of the Istanbul Convention.
International law specifically prohibits manifestations of harmful gender stereotypes which lead to violations of human rights (Gender Stereotyping as a Human Rights Violation, 2013). In addition, some forms of gender-based violence inspired by gender stereotypes amount to unlawful →discrimination against women. They include →female genital mutilation, ‘honour’ crimes, forced marriages and child marriages, sexual assaults linked to date-rape drugs, feminicides, rape and marital rape. In order to address these violations, states need to tackle gender stereotypes. In this regard states have to eliminate wrongful gender stereotyping from the practice of public authorities (i.e. the judiciary, prosecution, law enforcement or health care) and non-state actors, and to adopt special measures promoting gender equality, in particular, in the media and educational programs (Cook/Cusack, 2010).
CASES: In the human rights case law, gender stereotypes are usually mentioned with regard to attitudes and decisions of domestic authorities which are influenced by gender stereotypes (sexual stereotypes, etc.) regarding the expected behaviour ofwomen as victims of rape or domestic violence, as well as their realisation of reproductive functions. In [OPUZ, 2009] the ECtHR found that the judicial passivity in cases regarding domestic violence affected mainly women. Hence, the response of domestic authorities to domestic violence was insufficient and led to impunity of aggressors, despite legal reforms against the discrimination of women.
Similarly, gender stereotyping at work could be regarded as a case of (sexual) discrimination. The US Supreme Court held that sex discrimination entails not only stereotype-based discrimination against men and women but also discrimination based on individual failure to conform to the stereotypes associated with these groups [HOPKINS, 1989]. Although typically gender-based recruitment is not permitted under anti-discrimination law standards, in very exceptional cases the fact of being a woman could constitute essential characteristics for a job (e.g. the ‘Hooters girls’ as a business brand).
VIEWS: In recent years, the term ‘gender’ became a theatre of an ideological war. In many countries, conservative parties and groups took the offensive against so-called ‘gender ideology’ and specifically against the view that gender roles may be individually determined regardless of biological differences between women and men. In some countries the war with gender ideology has led to constitutional amendments defining marriage as a union between a man and a woman and legislation prohibiting the promotion of homosexuality (Gliszczyńska-Grabias, Śledzińska-Simon, 2016). These developments demonstrate that gender ideology is perceived as a risk to the natural order, in which men and women have equal but different (complementary) roles defined by their biological functions. In particular, some religious organisations argue that denying sexual differences would overturn the existing social relations (Scott, 2013). In this way, gender has become a ‘site’ of the cultural and ideological struggle over the meaning of natural differences, gender and sexual identity, as well as sexual orientation (McCrudden, 2015).
Gender stereotypes are also at the centre of human rights debates concerning redistribution and representation which is essential for labour and social laws and policies and the concept of →citizenship. In this regard, gender stereotypes appear not only as roots for gender-based violence, but also other forms of oppression and marginalisation through exclusion from certain professions or relegation to low-paid jobs and industries or unpaid care work. They are often perpetuated by protective laws and policies which take ‘natural’ differences into account, but contribute to gender injustice. In the perspective of critical theory, gender injustice was reinforced by the ‘original’ social contract that sanctioned the public/ private divide and labour division between men and women (Pateman, 1988).
According to Nancy Fraser, gender justice in post-industrial society should move from the model of ‘universal breadwinner’ and ‘caregiver parity’ to the model of ‘universal caregiver’ (Fraser, 1994). A similar approach is promoted in the scholarship on institutionalisation of gender neutral family roles (Rubio Marin, 2015). It follows the view that gender justice presupposes gender →equality implying that there is an individual right not to be subjected to gender stereotypes, even the benevolent ones. In this context, Rikki Holmaat speaks of a fundamental right of women and men ‘not to be confined to culturally defined constructions of femininity or masculinity, or to pre-fixed (and fixed) female and male parental roles’ (Holtmaat, 2012:145).
In the arts and media domains, gender stereotypes and subsequent discrimination – including the marginalisation of women by ‘gatekeepers’ in certain professions, based on the traditional belief of a feminine ‘lack of creativity’ – have long been an issue in public debates and research (see e.g. Cliche/Wiesand, 2003). This has led to manifold artistic initiatives and, in some cases, also to successful public measures (such as increasing the share of women in panels awarding scholarships and prizes). For example, from 1996 to 2016, the Fondazione Adkins Chiti Donne in Musica (Italy) identified and collected sheet music and other material from over 18,000 female composers – one of the artistic professions where women are still widely neglected today.
CONCL: Gender, gender roles, and family models are constructed by law and society which remain in a mutual relationship. While law often reflects society, both law and society are dynamic and subject to change. Therefore, the crucial question concerns the scale of changes introduced by law which a given society deems necessary, and conversely, the scale of legal changes (or lack of such) which is perceived as unjust and illegitimate. As noted by CEDAW Committee, ‘(t)raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion (...)’ (CEDAW, 1992), regardless of whether such prejudices and practices are justified as a form of protection or control of women.
REFERENCES:
CEDAW: General Recommendation No. 19 (11th session, 1992).
Cliche, Danielle;Wiesand, Andreas: “Exposing and Opening Gates... Introduction and Recommendations”, in ERICarts (ed.): Culture-Gates. Exposing Professional ‘Gate-keeping’ Processes in Music and New Media Arts, Bonn: ARCult Media (2003).
Cook, Rebecca J. and Cusack, Simone: Gender Stereotyping: Transnational Legal Perspectives, Philadelphia: University of Pennsylvania Press (2010).
Fraser, Nancy: “After the Family Wage: Gender Equity and the Welfare State”, 22(4) Political Theory (1994).
Gliszczyńska-Grabias, Aleksandra and Śledzińska-Simon, “Value Pluralism without the Value of Pluralism? ‘Homosexual Propaganda’ Bans as a Litmus Test for the Acceptance of Liberal and International Human Rights Norms in the Post-Communist States”, 15 Baltic Yearbook of International Law (2015).
Holtmaat, Rikki: “Article 5” in: Freedman, Marsha, Chinkin, Christine, Beate, Rudolf (eds.), The UN Convention on the Elimination of All Forms of Discrimination Against Women. A Commentary, Oxford: Oxford University Press (2012).
McCrudden, Christopher: “Transnational culture wars”, 13(2) International Journal of Constitutional Law (2015).
OHCHR: Gender Stereotyping as a Human Rights Violation, Report (2013).
Pateman, Carole: Sexual Contract, Stanford University Press (1988).
Rubio Marin, Ruth: “The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter”, 13(4) International Journal of Constitutional Law (2015).
Scott, Joan W.: “The Uses and Abuses of Gender”, 1 Tijdschirft voor Genderstudies (2013).
OPUZ v. TURKEY (ECtHR 9/06/2009, 33401/02).
PRICE WATERHOUSE v. HOPKINS, 490 US 228 (1989).
Anna Śledzińska-Simon
Golden Rule
INTRO: Different worldviews, cultural practices or national legacies sometimes collide with basic values. However, such tensions can lead to productive outcomes. Consequently, the European Union forged its motto of ‘Unity in Diversity’ (2000). Today, some actors seem to interpret this concept merely as a call to defend strong national identities within the diverse European space, while neglecting →common values, shared ethics and dialogue – as demonstrated in the 2016 ‘Brexit’ decision of the UK. Ageneral idea of justice could remind us of common ground: Based on the principle of reciprocity, the Golden Rule is known in many cultures or world religions, but has also sources in European philosophy (e.g. Kant’s ‘Categorical Imperative’).
DEF/VIEWS: According to Jürgen Neyer (2007), this standard holds ’that only those rules can claim to be just which do not impose on any other person more serious restrictions of freedom than one would be willing to accept for one’s self.’ While cultural and social interpretations of the reciprocity norm may differ when applied to specific situations, Neyer recognises a ‘common normative intuition which is shared across many cultures and times.’
CONCL: The Golden Rule should not be equated with cultural relativism in its negative connotations. Rather, the ‘sharing diversity’ approach – explored 2008 in a study of the ERICarts Institute for the European Commission – could serve as a starting point when addressing cultural differences or interpretations, including in legal and policy contexts, thus paving the way to meaningful intercultural exchanges and solutions.
REFERENCES:
Neyer, Jürgen: Supranationality and Transnational Justice. Conference paper, Frankfurt/Oder: European University Viadrina (2007).
http://www.interculturaldialogue.eu (accessed 11/2015).
Andreas Joh. Wiesand
Governments
(and Cultural Rights)
DEF: Governments have at their disposal three main functions that need to be in place to achieve their cultural development goals: (1) regulations to give proposed or adopted rules, measures and means a legal character; (2) public services provision by organising and funding cultural institutions and infrastructures they find indispensable; and (3) promotion of cultural activities in the third and business sectors via public funding and other supportive measures to intervene in the cultural market when it performs insufficiently. For example, a Ministry or state →administration is part of the executive branch of power and can act as a protector, facilitator, promoter and advocate for arts and culture. However, such actions should observe human rights principles enshrined in treaties and other legal instruments ratified by the state. In this context, the contracting states ‘assume obligations and duties under international law to respect, to protect and to fulfil human rights’ (OHCHR, 2016), including those with cultural dimensions. Related measures could be negative: to refrain from intervening in (artistic) freedom of expression; and positive: to facilitate the enjoyment of culture-related human rights. On the one hand, governments are obliged to refrain from interfering with human rights and to protect individuals or groups of individuals against human rights abuses. On the other hand, they should strive to create the necessary climate and conditions within which arts and culture can be accessed and develop. While both components are important, the promotion and protection of the diversity of →cultural expressions is now placed so high on global agendas that, in 2005, →UNESCO adopted its Convention devoted particularly to contemporary expressions in the arts and media.
INSTR: Human rights’ standards are more than empty promises. With regard to cultural rights such as the right to equitable →participation in cultural life (Article 15(1)(a) ICESCR), this is particularly significant. More and more governments execute their ‘sovereign right to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory’ (Article 5(1), 2005 UNESCO Convention). Their activity and the growing involvement of civil society stakeholders led to the development of, and on-going demands for, a wide range of policies, laws, measures and public bodies aiming to support, serve or regulate the arts, heritage, broadcasting and other media, languages or socio-cultural needs. This was especially the case in Europe, where access to culture for the general public is not protected in the ECHR but rather in a number of national constitutions and not all of these activities may be officially linked with the implementation or ‘enjoyment’ of culture-related human rights. However, national ministries in charge of culture as well as regional or local governments usually take care to underline positive implications of their planning and policies for the realisation of principles such as freedom of expression; cultural diversity (and the opposite, e.g. the exclusive protection of a national language); or equality/nondiscrimination – the latter potentially leading to →affirmative action measures on behalf of special or disadvantaged groups in society (such as reduced admissions to cultural services for →children, →older people or the unemployed).
VIEWS: A closer look into e.g. the Council of Europe/ERICarts ‘Compendium of Cultural Policies and Trends in Europe’ reveals that solutions for cultural challenges and related policy approaches differ from one country to the next, depending on such factors as the individual country’s history, the nature of its government as well as on its political, economic and social context. These approaches cannot be classified exclusively on the basis of who administers or finances them, since this may be done by a ministry (like in France), through ’arm’s-length’ or quasi-autonomous organisations (such as Arts Councils in the UK and other countries), in public-private partnerships or by other institutions, foundations and organisations with differing legal status. As well, due to the lack of a generally accepted definition of ‘culture’ as a governmental domain, areas of state or local action may be smaller or larger (but reach, especially in Europe, now often beyond the arts in a narrow understanding and include e.g. socio-cultural programmes, heritage protection or the development of private-sector ‘creative industries’). Finally, also the basis and instruments for interventions speak against simple classifications since these may amount to direct public support in the form of subsidies or public institutions – as frequently found in Europe – or to indirect governmental incentives such as tax concessions like in the USA (Gournay, 1988).
CONCL: Despite such differences, an important shift ‘from governing to governance’ in →cultural policies can be recognised in the last decade, which has been described as ‘joint and uneven terms of engagement with the complex field of economic, social, political and cultural power relations in which we are all stakeholders’ (Mercer, 2012). The arm’s length concept, which is based on the professional independence of the main cultural actors or beneficiaries, is facing the challenge of how to include other stakeholders and thus create productive ’multi- or inter-actor’s dynamics’ in the cultural domain – of course, without endangering freedom of expression or discouraging artistic passion.
REFERENCES:
Council of Europe/ERICarts (eds.): Compendium of Cultural Policies and Trends in Europe, Strasbourg/Bonn (accessed 06/2016 via www. culturalpolicies.net).
Gournay, Bernard: “Rapport National”, in: La politique culturelle de la France, Paris: La Documentation Française (1988).
Klaić, Dragan: Resetting the Stage: Public Theatre between the Market and Democracy, Intellect Ltd. (2013).
Madden, Christopher: “The independence of government arts funding: A review”, D’Art Topics in Arts Policy, No. 9, 2009. (available at www.ifacca.org/en/ accessed 06/2016).
McGuigan, Jim: Rethinking cultural policy. Berkshire: McGraw-Hill (2004).
Mercer, Colin: Towards Cultural Citizenship: Tools for Cultural Policy and Development, Stockholm: The Bank of Sweden Tercentenary Foundation & Gidlunds Förlag (2012).
Vesna Čopič
Hate Crimes
DEF: Hate crimes are crimes committed against persons from racial, religious, sexual or other minorities, because they are belonging to, or thought to be belonging to such a group. International human rights law imposes obligations on states to effectively investigate, prosecute and punish not only the underlying crimes, but also their discriminatory background, both when committed by state agents and/or private individuals or groups.
INSTR: In the past, when a person’s right to life, right to family life, or right to be free from inhuman and degrading treatment were violated because that individual or group belonged to a racial, religious, sexual or other minority, states only had a duty to protect from, and sanction violations by its own agents (negative obligation). Today, their human rights duties go much further, in that they need to effectively investigate and prosecute such violations and their discriminatory motives (procedural obligations) not only when committed by state agents but also by private individuals (positive obligations).
CASES: The ECtHR and the IACHR have developed such standards on hate crimes mainly in cases involving race-based hate crimes [e.g. NACHOVA, 2005; STOICA, 2008; WALLACE DE ALMEIDA, 2009]. Similar protective standards emerge with regard to gender based violence before the IACtHR [e.g. GONZALES, 2009] and domestic violence before the ECtHR [e.g. OPUZ, 2009].
CONCL: The case law on hate crimes has mainly dealt with fact patterns arising out of racially motivated violence The standards on negative and positive obligations have also been applied to violence against religious [BEGHELURI, 2014] and LGBT minorities [IDENTOBA, 2015]. It will be interesting to see whether human rights bodies will draw on gender-based and domestic violence against women case law to develop uniform protection standards for all types of discriminatory hate crimes.
REFERENCES:
BEGHELURI v. GEORGIA (ECtHR 07/10/2014, 28490/02).
GONZALES v. MEXICO (IACtHR 16/11/2009, ser. C, no. 205).
IDENTOBA v. GEORGIA (ECtHR 12/05/2015, 73235/12).
NACHOVA v. BULGARIA (ECtHR 06/07/2005, 43577/98 and 43579/98).
OPUZ v. TURKEY (ECtHR 09/06/2009, 33401/02).
STOICA v. ROMANIA (ECtHR 04/03/2008, 42722/02).
WALLACE DE ALMEIDA v. BRAZIL (IACHR 20/03/2009, 12.440).
Mathias Möschel
Hijab
DEF: Generally, the H. can refer to any head, face, or body covering worn by Muslim women or girls beyond the age of puberty outside of their family home. In different countries (e.g. Turkey), the Hijab and similar types of clothing are seen as a symbol for standards of modesty. In a wider religious or philosophical perspective, Al-hijab is to signify ‘the veil which separates man or the world from God’ (Glassé, 2001); this would actually suggest that both men and women should avail themselves of such a symbol. Noteworthy are recent efforts of designers to harmonise the Hijab with contemporary fashion design.
VIEWS/CASES: However, some observers consider the Hijab as an instrument of social pressure with the intention of separating women from men in the public sphere, which may collide with human rights interpretations. It is banned in public/ educational institutions e.g. in France, Belgium and in a few German Länder. As regards Germany, this practice was ruled unconstitutional as a general measure in 2015 [1 BvR 471/10], which questions earlier views of the ECtHR [DAHLAB, 2001 and LEYLA ŞAHIN, 2005]. The Human Rights Committee has found that a restriction on the wearing of the Hijab is an interference of the right to freedom of religion (Article 18 ICCPR) and that the freedom to manifest one’s religion includes the right to wear religious clothing in public [HUDOYBERGANOVA, 2004].
CONCL: While wearing (or not wearing) a Hijab could be considered a matter of personal choice, this issue seems to become increasingly overshadowed by questions of principle such as, on the one hand, unreflected traditions or religious →fundamentalism and, on the other hand, a specific (and likewise ‘fundamentalist’) interpretation of secularism. This ambiguity could suggest further European and international efforts to reach a common approach to Hijab issues, taking into account what is appropriate or ‘necessary in a democratic society’ (Article 9.2 ECHR).
REFERENCES:
Glassé, Cyril: The New Encyclopedia of Islam, Lanham (2001).
Thomassen, Lasse: “The Politics of the Hijab at the European Court of Human Rights”, in APSA 2012 Annual Meeting Paper.
DAHLAB v. SWITZERLAND (ECtHR 15/02/2001, 42393/98).
HUDOYBERGANOVA v. UZBEKISTAN (Human Rights Committee 08/12/2004, 931/2000).
LEYLA SAHIN v. FRANCE (ECtHR 10/11/2005, 44774/98).
Andreas Joh. Wiesand
Historical Truth
DEF: Memory laws are defined as legal regulations concerning the interpretation of historical events. They are also supposed to attach a specific legal qualification to these events. Negationism is a denial of historical facts, especially the crimes of genocide. In many states the law forbids the negation, belittling or trivialisation of the crime of genocide (also war crimes and crimes against humanity).
INSTR/CASES: The passing of memory laws leads to a number of controversies, both of a legal character (violation of freedom of expression and scientific research), and of an historical and sociological character (interference in historians’ findings, manipulating the collective memory). Despite these controversies, such laws have been passed all over the world and basically take two forms: (1) of legal establishment of a certain official orthodoxy concerning historical facts, not connected with any sanctions or (2) a legal ban on interpreting historical facts in a certain way under threat of sanctions. The most frequently debated kind of memory laws are bans on negating the crime of genocide, especially the laws penalising Holocaust denial. Legal obligation for the EU states to introduce such legal bans was included in the Council Framework Decision 2008/913/JHA. The ECtHR has had to consider whether such laws are in compliance with the principle of freedom of expression. In the case of Holocaust denial, the Court has consistently ruled that limitations of freedom of expression are in compliance with the ECHR [GARAUDY, 2003, among others], but its attitude towards penalisation has been different in the case of denial of the Armenian genocide [PERINCEK, 2015].
CONCL: The judgment of the Grand Chamber of the ECtHR in [PERINCEK, 2015] indicates that the debate on acceptability of penalising certain historical statements is still open. It seems that the UN Human Rights Committee holds a similar opinion: In its General Comment no. 34, the Committee states that bans on expression of certain opinions of historical events, which are not accompanied by, e.g. incitement to hatred, excessively violate freedom of expression. This tendency may lead to more frequent questioning of the legitimacy of memory laws.
REFERENCES:
Douzinas, Costas: “History Trials: Can Law Decide History?”, Annual Review of Law and Social Science, 8 (2012).
Hennebel, Ludovic, and Hochman, Thomas (eds.): Genocide Denial and the Law, Oxford: Oxford University Press (2011).
Lipstadt, Deborah: History on Trial: My Day in Court with David Irving, New York: Ecco (2005).
Osiel, Mark J.: Mass Atrocity, Collective Memory, and the Law, Edison (1997).
FAURISSON v. FRANCE, (HRCee 8/08/1996, 550/1993).
GARAUDY v. FRANCE (ECtHR 24/06/2003, 65831/01).
PERİNÇEK v. SWITZERLAND (ECtHR 15/10/2015, 27510/08).
SÕRO v. ESTONIA (ECtHR 3/09/2015, 22588/08).
councilforeuropeanstudies.org/research/researchnetworks/transnational-memory (accessed 10/2015).
humanrightscolumbia.org/ahda (accessed 10/2015).
www.lph-asso.fr (accessed 10/2015).
Aleksandra Gliszczyńska-Grabias
Housing
DEF: The right to adequate housing is universally recognised as a socio-economic right. It has two main components: (1) the socio-economic aspect which underlies positive obligations of the state to provide adequate accommodation, and (2) the privacy-related aspect which emphasises protection of the home against forced evictions, harassment and other types of intrusion. In essence, both the right to adequate housing and the right to protection of the home correspond to the basic human need of a safe shelter, which should be ensured without →discrimination. The culture-related aspect of housing signifies respect for the choice of the way of living and adequate consideration of a vulnerable status of certain groups, including cultural or ethnic minorities.
INSTR: State obligations following from international law (i.e. Article 25 UDHR, Article 11(1) ICESCR, Article 31 of the Revised ECSR) include the positive duty to take ‘all appropriate means’ to promote adequate housing and a negative duty to refrain from forced evictions (Article 7 ICCPR, Article 8 ECHR). According to the CESCR General Comment No. 4, the right to housing should not be interpreted restrictively and mean only the right to ‘a roof over one’s head’. Still, the realisation of the right to adequate housing depends on availability of resources, while the concept of adequacy referring to (a) legal security of tenure; (b) availability of services, materials, facilities and infrastructure; (c) affordability; (d) habitability; (e) accessibility; (f) location; (h) respect for cultural identity and diversity needs to be read in the light of local conditions. In the view of the CESCR adequate housing implies cultural adequacy which concerns the way of constructing houses and the use of building materials, as well as policies supporting this process. Both housing development and modernisation should enable the expression of cultural identity and diversity of housing, while ensuring that the cultural dimensions of housing are not sacrificed (CESCR, 1991).
In contrast, the protection against forced eviction is unqualified. According to the CESCR General Comment No. 7 forced eviction is a permanent or temporary removal against the will of individuals, families or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate legal protection. The African Commission on Human and People’s Rights inferred that the minimal protection following from the right to shelter obliges states not to destroy the housing of citizens and not to obstruct efforts by individuals or communities to rebuild their lost homes [SERAC, 2001, 60–61]. Importantly, the state obligation to make legal protection against forced eviction or demolition effective also against third parties contributes to prevention of homelessness.
CASES: Beside the prohibition of discrimination in access to accommodation on any grounds (i.e. CRPD, CRC, CEDAW, CERD, EU Directive 2000/43/EC), international law recognises special needs of vulnerable minorities whose way of life shall be given adequate consideration in public policies concerning housing. Although no right to be provided with a ‘home’ can be derived from Article 8 of the ECHR, and the Strasbourg Court was unwilling to accept that states have positive obligation to secure adequate number of suitably equipped official sites for gypsy caravans [CHAPMAN, 2001], the recent case-law demonstrates that national authorities need to provide special protection of →Roma, Sinti and Travellers [D.H. and OTHERS, 2007] and in case of evictions provide them with adequate alternative housing [WINTERSTEIN, 2013]. In particular, according to the Court, ‘the underprivileged status of a community must be a weighty factor in considering approaches to dealing with their unlawful settlement and if their removal is necessary, in deciding on its time, modalities, and, if possible arrangements for alternative shelter’ [YORDANOVA, 2012, para. 133]. Whereas in the context of land use and →urban planning national authorities enjoy a wide →margin of appreciation, the ECHR offers protection against arbitrary expulsions from land traditionally occupied by Roma communities, albeit without legal permission. According to the →European Commission on Social Rights, states need to ensure that the housing conditions in Roma camps meet minimum standards and offer access to social housing for Roma and Travellers wishing to live in mobile homes [ERTF, 2012].
VIEWS: The dilemma usually related to socioeconomic rights concerns the question whether the right to adequate housing is justiciable. The Indian Supreme Court confirmed in a precedential decision [OLGA TELLIS, 1985] that adequate housing is not only a matter of social policy, but also a fundamental right derivative from the protection of life. In consequence, the eviction of pavement and slum dwellers from the city of Bombay infringed their right to livelihood because their life depended on jobs in the city.
Yet, not all evictions violate international human rights standards. What distinguishes fair from unfair eviction is the form (manner, timing, etc.) of its enforcement, as well as the availability of alternative accommodation (relocation, resettlement, etc.) and effective legal remedies to those concerned.
In practice, evictions against vulnerable groups such as Roma, Sinti and Travellers do often violate human rights standards, including the right to protection of private and family life and the enjoyment of possession, notwithstanding illegal construction of dwellings, unlawful occupation of land or low value of their possessions, and/or lead to forced expulsion of →migrants.
CONCL: The right to adequate housing is a component of the right to an adequate standard of living, which is essential for the enjoyment of any human rights. It appears that the determination of standards of living in the course of drafting social policies or land use and urban planning should be made with respect to minority cultures and ensure their active participation. Often minority or vulnerable groups lack political representation and their engagement in decision making processes could compensate for this deficiency. In particular, policy-makers should be sensitive to different ways of life and cultures of those living in a community, which include nomadism and traditions regarding common use of land.
REFERENCES:
Hohmann, Jessie: The Right to Housing: Law, Concepts, Possibilities, Oxford: Hart Publishing (2013).
Nolan, Aoife: “‘Aggravated Violations’, Roma Housing Rights and Forced Expulsions in Italy: Recent Developments under the European Charter Collective Complaints System”, 11(2) Human Rights Law Review (2011), 343.
Terminski, Bogumil: The Right to Adequate Housing in International Human Rights Law – Selected Bibliography, Geneva, (2013) (available at www.ssoar.info accessed 04/2016).
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4: The Right to Adequate Housing (Art. 11(1) of the Covenant), 13 December 1991, E/1992/23.
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 7: The right to adequate housing (Art. 11(1)): forced evictions, 20 May 1997, E/1998/22.
UN Special Rapporteur on the Right to Adequate Housing – Official website: www.ohchr.org (accessed 04/2016).
CHAPMAN v. UK (ECtHR 18/01/2001, 27238/95).
COHRE v. FRANCE (ECSR 28/06/2011, 58/2010).
COHRE v. ITALY (ECSR 25/06/2010, 58/2009).
D.H. AND OTHERS v. CZECH REPUBLIC (ECtHR 13/11/2007, 57325/00).
ERTF v. FRANCE (ECSR 24/01/2012, 64/2011).
OLGA TELLIS and ORS v. BOMBAY MUNICIPAL COUNCIL (Supreme Court of India 10/07/1985, 2 Supp SCR 51).
SERAC AND ANOTHER v. NIGERIA (ACHPR 15/10/2001,155/96).
WINTERSTEIN v. FRANCE (ECtHR 17/10/2013, 27013/07).
YORDANOVA v. BULGARIA (ECtHR 24/04/2012, 25446/06).
Anna Śledzińska-Simon
Human Dignity
DEF: The original Latin word dignitas has a twofold meaning of dignity as an ethical concept on the one hand and high status, superiority on the other. Theological views and philosophies are influenced by this twofold meaning throughout the development of the concept of human dignity from Roman times until today. Some believe that all human beings are born equal and remain so throughout their entire lives, while others differentiate between people as to the degree of worthiness they achieved. The former ontological concept is widely accepted by international and domestic norms – heavily influenced by the teachings of Immanuel Kant, who claimed that ‘(e)very rational being exists as an end in himself, not merely as means for arbitrary use’ (Kant, 1972, p. 95).
INSTR: Human dignity in post-World-War-II legal documents serves a twofold purpose: it guarantees that the traumatic historic experiences of humanity never return, and lays down the foundations of a democratic order based on the rule of law (Hoffmann, 1993).
Many international human rights documents start the enumeration of rights with human dignity and there are a number of constitutions that chose dignity as their highest constitutional value (Charter of the United Nations, UDHR, ICCPR, ICESC, CRDP, CERD, CEDAW, the Declaration of the Rights of the Child, 1924/1959).
The ECHR does not expressly mention the notion, but its Preamble reaffirms the UDHR’s values and principles including dignity. The case-law of the ECtHR acknowledges that certain treatments of humans – such a torture, violations of due process, violations of privacy and discrimination – are incompatible with the idea of inherent dignity. Dignity has a central role also in the EU context: according to the Lisbon Treaty it is one of the core values that the Union is based on, and it is also enshrined in the EU’s bill of rights, the CFREU. The American Convention on Human Rights and the African Charter on Human and Peoples’ Rights also contain references to dignity, heavily relied on by the attached case law (MEJÍA, 1996; KRISHNA, 1992).
Human dignity is elevated to the central value in some national constitutions. It is a framework right providing a ‘common roof’ for a wide variety of situations, and an all-encompassing right from which constitutional rights of lower level of generality can be derived. In this sense human dignity is called a mother right implying that it can give birth to other, so-called daughter rights (Barak, 2015, p. 156–169).