The German case is unique: Human dignity, Menschenwürde, according to the Basic Law, is an absolute right, not subject to limitation and is protected by the constitution’s eternity clause, i.e. it cannot be changed by any future constitutional amendments. There is an explicit textual reference to human dignity in the title of the Israeli Basic Law, and the text also provides for its preservation and protection. In the South-African Constitution and the jurisprudence of the Constitutional Court dignity also has an eminent role [MAKWANYANE, 1995].

CASES: Human dignity in legal texts can either be a basic value to be achieved through the enforcement of human rights, or alternatively, it can be a human right in itself. There are many legal systems – like in Canada or the United States –, where human dignity has exclusively a constitutional value as opposed to being formulated in the rights language. In these jurisdictions human dignity has a twofold value: it may be invoked by courts as a tool of interpretation when determining the content of constitutional rights, or alternatively, it may help to assess the constitutionality of limitations imposed on constitutional rights through sub-constitutional norms.

There are also legal systems where human dignity is viewed as a constitutional right. A purposive interpretation of human dignity by apex courts allows them to recognise rights not expressly mentioned in the constitutional text instead of interpreting the lack of textual reference as a denial of constitutional embeddedness. This is often the case with regard to social rights or new areas, such as bioethics (Barak, 2015).

Whereas the ECHR does not directly refer to dignity, the ECtHR has relied heavily on the concept. It has accepted that respect for dignity is core to the ECHR and its protection is a matter of civilisation (SW, 1995). The relation between dignity and torture, inhuman, degrading treatment and punishment was established in the early case law[TYRER, 1978], and itwas invoked with respect to the right to a fair hearing, [BOCK, 1989] the right to life [PRETTY, 2002] or the right to private life [GOODWIN, 2002]. By now the ECtHR sees human dignity as the very essence of the ECHR [PRETTY, 2002].

Human dignity was also incorporated into EU law, originally through judicial interpretation as a general principle of Community law, based on the constitutional traditions common to member states [OMEGA, 2004] and later by way of black letter law in the treaties and the CFR (McCrudden, 2008).

VIEWS: There are great differences in the regulation, interpretation and enforcement of human dignity. The concept has natural law connotations; its content is filled primarily with extralegal values. Although dignity is often perceived as a universal standard, it is largely culture-dependent. Originally the constitutional definition of human dignity was based on individualism, and the 1789 French Declaration of the Rights of Man and the Citizen emphasised the rights of individuals versus the state. This approach was taken over by post-1945 constitutional texts.

In contrast to Western traditions, African and Asian ones emphasise both rights and duties concerning human rights in general, and more specifically human dignity. These cultures do not consider human rights from an individualistic worldview, but their concern is the individual’s role and place in the community. The indigenous South African values include ubuntu, which can be translated into ‘group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity (...) marking a shift from confrontation to conciliation’ [MAKWANYANE, 1995]. Ubuntu stresses mutual interdependence, where group solidarity is central to the survival of communities.

Certain common points can be found between various cultures and jurisdictions, like the responsibilities derived from the German Menschenwürde and the notion of African ubuntu. In German theory and case-law, dignity involves both rights and obligations, and there is an emphasis on the individual ‘existing in the social world’ – a solution that is rather unique in Western cultures [MEPHISTO, 1971].

CONCL: Human dignity is a fluid concept, and its value lies in its vagueness, which enabled its universal acceptance in a post-1945 pluralistic world, with cultural, ideological, political and religious differences. Giving up on a concrete concept of human dignity had a functional advantage: it provided a foundation for human rights to be incorporated into legal documents, without the need for asking whether these rights pertain to all human beings (Carozza, 2013, p. 348). Human dignity became a normative and meta-legal principle, a theoretical source offering a foundational premise for all human rights, irrespectively of the nature of rights, ‘thus promoting a holistic protection of humanity’ (Dupré, 2016, p. 71). As a consequence human dignity was used to fulfil the promise of ensuring civilisation, democracy and the rule of law – in particular in the wake of inhuman and undemocratic regimes. Specifying what human dignity entails beyond its minimum core was not necessary and would even have been dysfunctional at the time of the acceptance of the UDHR or the ECHR. Therefore the determination of its exact content is left to international, regional and domestic apex courts, leading to significant differences in interpretation beyond the common core.

REFERENCES:

Arendt, Hannah: The Origins of Totalitarianism, San Diego/ New York/ London: Harcourt (1968).

Barak, Aharon: Human Dignity: The Constitutional Value and the Constitutional Right, Cambridge: Cambridge University Press (2015).

Carozza, Paolo G.: “Human Dignity”. In: Dinah Shelton (ed.): The Oxford Handbook of International Human Rights Law, Oxford: Oxford University Press, (2013).

Dupré, Catherine: The Age of Dignity: Human Rights and Constitutionalism in Europe, Oxford: Hart (2015).

Feldman, David: “Human Dignity as a Legal Value – Part I”, 4 Public Law 682 (1999).

Folkers, Horst: “Menschenwürde: Hintergründe und Grenzen eines Begriffs”, 87 Archiv für Rechts- und Sozialphilosophie 328 (2001).

Hoffmann, Hasso: “Die versprochene Menschenwürde”, 118 Archiv des öffentlichen Rechts, 353 (1993).

Kant, Immanuel: The moral law: Kant’s groundwork of the metaphysic of morals, translated and analyzed by H.J. Paton, London: Hutchinson (1972).

McCrudden, Christopher: “Human Dignity and Judicial Interpretation of Human Rights”, 19(4) European Journal of International Law 655 (2008).

Miguel, Carloz Ruiz: “Human Dignity: History of an Idea”, 50 Jahrbuch des Öffentlichen Rechts der Gegenwart 281 (2002).

BOCK v. GERMANY (ECtHR 29/03/1989, 11118/84).

KRISHNA ACHUTAN v. MALAWI (ACHPR, Comm. No. 64/92 (October 10,1991), 68/92 (March 2, 1992), 78/92, (October 6, 1992)).

MEIJA v. PERU (Inter-Am.C.H.R., Case 10.970, Report No. 5/96, OEA/Ser.L/V/II.91 Doc. 7 (1996))

MEPHISTO (30 Bundesverfassungsgericht 173 (1971)).

OMEGA SPIELHALLEN UND AUTOMATENAUFSTELLUNG GMBH v. OBERBURGERMEISTERIN DER BUNDESSTADT BONN (ECJ Case C–36/02, [2004] ECR I–9609.

PRETTY v. THE UK (ECtHR 29/04/2002, 2346/02).

S v. MAKWANYANE AND ANOTHER (Constitutional Court of South Africa(CCT3/94) 1995 (6) BCLR 665; 1995 (3) SA 391; [1995] ZACC 3, (6 June 1995)).

TYRER v. THE UK (ECtHR 25/04/1978, 5856/72).

Petra Bárd

Human Rights Council

INSTR: The Human Rights Council was established on 15 March 2006 by UN General Assembly Resolution 60/251. It replaced the Commission on Human Rights as the primary human rights body. The Council is composed of 47 members. All UN member states are eligible for membership, seats are divided according to regional groupings: 13 seats for both Africa and Asia, eight for Latin America and the Caribbean, seven for Western Europe and six for Eastern Europe. The Council convenes at least three times per year and can convene for special sessions in response to serious human rights situations.

The principal duties of the Council include the promotion of universal respect for all human rights and fundamental freedoms for all, address and make recommendations on situations of violations of human rights and promote human rights education and learning. One of the primary tools of the Council is the Universal Periodic Review (UPR) which is a mechanism that oversees states’ fulfilment of their human rights obligations. Under the UPR each of the UN member states is reviewed once every four and a half years. Reviews are based on three documents: (1) national report prepared by the state under review, (2) compilation of UN information, and (3) summary of relevant stakeholders such as NHRIs and NGOs. At the end of proceedings, a final outcome report is adopted that serves as the basis for the next review the state undergoes. The UPR mechanism has shown to be complementary to the procedures of the →UN treaty bodies, with the final outcome documents of UPR often containing encouragements to adopt treaty body recommendations.

The Council also has a complaint procedure, where a complaint can be brought by a person or group, claiming to be victims of violations of human rights, or a person or group (including NGOs) who have direct and reliable knowledge of alleged violations. The complaint must be substantiated, domestic remedies must have been exhausted, and the situation cannot be being dealt with by another international body. The Council complaint system is only concerned with more gross and systematic violations of human rights.

In 2009, the Council, through resolution 10/23, decided to establish, for a period of three years, a new special procedure entitled ‘independent expert in the field of cultural rights’. The mandate was extended in 2012, and the mandate holder was conferred with the status Special Rapporteur in the field of cultural rights (resolution 19/6). The Special Rapporteur will report to the Council on a yearly basis.

REFERENCES:

Lintel, Ida and Ryngaert, Cedric: “The Interface between Non-governmental Organisations and the Human Rights Committee”, International Community Law Review, Vol. 15 (2013).

McMahon, Edward and Ascherio, Marta: “A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council”, Global Governance, Vol. 18 (2012).

Spohr, Maximilian: “United Nations Human Rights Council – Between Institution-Building Phase and Review of Status”, Max-Planck-Yearbook of United Nations Law, Vol. 14 Munich (2010).

www.ohchr.org/EN/Issues/CulturalRights (accessed 03/2016).

Yvonne Donders

Human Security

INTRO: Traditional security models have focused on the security of the state under the tacit assumption that the security of its citizens in every societal aspect would follow from it. Numerous precedents have proved that assumption to be wishful thinking. Human security, in contrast, focuses on the subjective security of the individual. It is the focus on persons, families and communities that imbues human security with a strong cultural significance.

DEF/VIEWS: Human security was originally conceptualised to span seven dimensions of equal significance (UNDP, 1994): economic, food, health, environmental, personal, community, and political security – related to the principle of the triple bottom line. More recent models recognise the dominance of environmental security, providing support for the three pillars of socio-political, economic and health security (Lautensach & Lautensach, 2013). This raises numerous challenges for good governance and expands the discourse of security to arbitrate among conflicting cultural norms.

CONCL: The cultural dimension of human security manifests as values and key narratives that inform a country’s policies, priorities and lifestyles, that affect its legal and socio-political frameworks, its economic systems, its public health, and the underlying integrity of environmental support systems.

REFERENCES:

Lautensach, Sabina W., and Lautensach, Alexander K.: “Introduction”, in Human Security in World Affairs: Problems and Opportunities. Vienna, Austria: Caesarpress (2013). pp. XIX– XXXVIII.

UNDP (United Nations Development Programme): Human Development Report: New Dimensions of Human Security. New York: UNDP (1994).

Sabina Lautensach

Hybridity

DEF: In a cultural context, hybridity can be understood as an amalgamation or blending of different cultures and traditions via ‘cross-cultural negotiation’ or learning processes (Duxbury / Simons / Warfield, 2006). Learning from the experiences of both traditional and new minorities about ‘shared spaces’ and individual biographies demonstrating ‘multiple identities’ can lead to productive insights, in that respect.

INSTR: While the term ‘hybridity’ as such is not yet found in legal instruments, the 2005 UNESCO Convention calls for related policies and measures that help to ‘develop cultural interaction in the spirit of building bridges among peoples’ (Article 1(d)) and to generate ‘shared cultural expressions through dialogue and mutual respect’ (Article 4(8)). The Council of Europe Framework Convention on the Value of Cultural Heritage for Society sees a need to ‘establish processes for conciliation to deal equitably with situations where contradictory values are placed on the same cultural heritage by different communities’ (Article 7(b)) and to ‘reinforce social cohesion by fostering a sense of shared responsibility towards the places in which people live’ (Article 8(c)). Clearly, answering to such demands is less an issue for national and international courts and much more one for cultural policies with an intercultural perspective.

VIEWS: During the last decades, hybridity became a central topic in cultural studies. Some authors see cultural hybridisation as part of globalisation or ‘glocalisation’ processes leading to ‘crossover cultures’ or ‘translocal mélange’ (Nederveen Pieterse, 2003), others speak of a ‘World in Creolisation’ (U. Hannerz, 1987), ‘Bricolage’ (J. Okely, 1994), ‘blended worlds’ (H. Bhabha, 1994) or ‘Cultural Syncretism’ (M. Canevacci, 1992). However, hybridity should not be mistaken as merely an academic playground, as demonstrated in a selfreflection of football hero Zinedine Zidane: ‘Every day I think about where I come from and I am still proud to be who I am: first, a Kabyle from La Castellane (a neighbourhood in Marseille), then an Algerian from Marseille, and then a Frenchman’ (The Observer, 3/4/2004).

CONCL: A hybrid identity means that a human being integrates different experiences, sensitivities, and competences in his/ her life. And hybrid cultures or communities are those making use of different experiences, sensitivities, and competences in everyday life, thus shaping the structures and dynamic processes of societies. ‘Inclusion of otherness’ as the core principle of hybridity should not be understood as leading to one-way assimilation or ‘melting pot’ societies and rather as an attempt to capture difference as well as similarity, otherness as well as commonality. Related learning processes have the power to overcome segregation, ‘dualism’ or mono-cultural worldviews while recognising the complex allegiances of individuals and groups. Given the current reality of global migration flows and connected issues or fears, an observation of writer Salman Rushdie over 30 years ago could almost be seen as a prophecy: ’I don’t think that migration, the process of being uprooted, necessarily leads to rootlessness. What it can lead to is a kind of multiple routings. It’s not a traditional identity crisis of not knowing where you come from. The problem is that you come from too many places ... it’s not that there are pulls in too many directions so much as too many voices speaking at the same time’ (New York Times Book Review, 13/11/1983). In a positive connotation, hybridity can be understood as claiming the right to be equal – and different.

REFERENCES:

Duxbury, Nancy; Simons, Derek and Warfield, Katie: “Local policies and expressions of cultural diversity: Canada and the United States”, Paper commissioned by Institut de Cultura, Barcelona in the framework of the study Local Policies for Cultural Diversity. Paris: UNESCO (2006).

ERICarts Institute: Sharing Diversity, Study for the European Commission, Bonn/ Brussels (2008), cf. www.interculturaldialogue.eu (accessed 04/2016).

Nederveen Pieterse, Jan:Globalization and culture: Global mélange. Lanham, MD: Rowman and Littlefield (2003).

Tschernokoshewa, Elka: “Hybrid Worlds of Europe: Theoretical and Practical Aspects”, in Kockel, Ullrich; Nic Craith, Máiréad; Frykman, Jonas (eds.): A Companion to the Anthropology of Europe, Chichester: Wiley–Blackwell (2012). Elka Tschernokoshewa/Andreas Joh. Wiesand

Illicit Trafficking of Cultural Objects

DEF: The Illicit Trafficking of Cultural Objects refers to the movement of stolen and illegally exported art and antiquities. Nearly every nation recognises the need to protect and preserve beautiful and historic objects. As a result, international and domestic laws have been created to protect and preserve cultural objects and archaeological context. The international market in art and antiquities works against many of these restrictions.

INSTR: There has been a concerted international effort to restrict the illicit trafficking in cultural objects. At the international level the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property defines cultural property as ‘property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science’. Within Europe there are measures to provide the return of objects which have been wrongfully removed. Council Directive 93/7/EEC creates a framework for the return of cultural property within the European Union for cultural goods belonging to the national artistic, historical, or archaeological heritage which have been illicitly exported from a member state.

CASES: The →European Court of Human Rights (ECtHR) has had the opportunity to review some cases involving the individual right to property and the public interest in preserving art and culture. However, the Court has demonstrated a reluctance to go beyond a rigid application of the individual right of property under Protocol I, →European Convention of Human Rights (ECHR), to weigh the balance between individual rights and the communal interest in cultural objects. Recent legal decisions in the United States and the United Kingdom successfully allowed the application of foreign cultural patrimony laws in domestic courts. There remains though a great deal more work to be done to harmonise and develop the body of law which focuses on the illicit trafficking of cultural objects.

VIEWS: Much of the international movement of art can be considered illicit trafficking. A helpful distinction has often been made between nations of origin, and market nations. Origin nations often have a wealth of art or archaeological heritage which is valued by the art market. In contrast, market nations import works of art and antiquities. The distinction has proven useful, primarily due to the thoughtful scholarly contributions of the late legal writer John Henry Merryman. However, the distinction reveals its limits when we consider that every work of art or antiquity has a nation of origin. Even the United Kingdom, typically thought of as an important art market, has large quantities of cultural objects. Opponents of strong regulation at the level of nations of origin argue the restrictions merely drive legitimate trade in cultural objects towards the black market, further increasing the criminal and illicit aspects of the art and antiquities trade. On the other hand, advocates of these regulations argue archaeological sites are a limited resource which cannot be commercially exploited. They also point out how the restraints on the sale of cultural objects can limit the theft of cultural objects and looting of cultural patrimony.

CONCL: There are three components to effective regulation of cultural objects: First, an effective legal framework. Secondly, the necessary resources to implement that framework. And lastly, a desire on the part of a nation’s citizens to protect and preserve their heritage. Few legal regimes have been able to effectively implement all three. Progress may be slow, yet the fight against the illicit trafficking of cultural objects moves steadily forward. Cultural patrimony’s key role in human flourishing continues to gain deeper respect in international legal instruments, judicial decisions, and commentary.

REFERENCES:

Bator, Paul: “An Essay on the International Trade in Art” 34 Stanford Law Review 275 (1982).

Francioni, Francesco & Scheinin, Martin (eds.)Culture, Heritage and Human Rights: An Introduction, Leiden: Nijhoff (2008).

Gerstenblith, Patty: “The Public Interest in the Restitution of Cultural Objects” 16 Connecticut Journal of International Law 197 (2000).

Greenfield, Jeanette: The Return of Cultural Treasures, Cambridge: Cambridge University Press (2007).

Manacorda, Stefano & Chappell, Duncan (eds.) Crime in the Art and Antiquities World:Illegal Trafficking in Cultural Property, Springer (2011).

Merryman, John Henry: “TwoWays of Thinking About Cultural Property” 80 American Journal of International Law 831 (1986).

O’Keefe, Patrick J.: Commentary on the 1970 UNESCO Convention, Powys: Institute of Art and Law (2007).

Vrdoljak, Ana Filipa: International Law, Museums and the Return of Cultural Objects, Cambridge: Cambridge University Press (2006).

Derek Fincham

Impact Assessment

DEF: According to a definition by the International Association for Impact Assessment, assessing impacts ‘is the process of identifying the future consequences of a current or proposed action. The ‘impact‘ is the difference between what would happen with the action and what would happen without it’. Since the 1990s Impact Assessment (IA) has been promoted particularly by the EU and the OECD, and has developed into a key governance technique.

INSTR/VIEWS: IA is a generalisation of Environmental Impact Assessment (EIA),which came into law with the US National Environmental Policy Act of 1969 (NEPA) in order to assure, amongst other things, ‘aesthetically and culturally pleasing surroundings’ and to ‘preserve important historic, cultural, and natural aspects’ of national heritage (Sec. 101 [42 USC § 4331]). Meanwhile, EIA has become an international legal and moral standard instrument focusing on physical impacts (UN Rio Declaration on Environment and Development, Principle 17, 1992; Francis, Laudato Si’, sec. 182 et seqq.). Nowadays, the terms ‘social impact assessment’, ‘human rights impact assessment’ (see e.g. General Assembly, A/68/262, sec. 43; A/HRC/RES/15/9 sec. 8 et seq.; A/HRC/4/74, A/HRC/19/59/Add.5) and “cultural impact assessment” can also be found in several official UN texts. The term ‘cultural impact assessment’ is strongly linked with the consideration of Indigenous Peoples’ Rights in the context of large infrastructure projects. Farida Shaheed, the UN Human Rights Council independent expert in the field of cultural rights, mentions in her 2011 report that states ‘should utilise cultural impact assessments in the planning and implementation of development projects, in full cooperation with concerned communities’ (General Assembly, A/HRC/17/38). In the EU administration, IA has been developing a promising tool for participatory and evidence-based policy making since 2002 (COM/2002/0276), with the intention to integrate all relevant interests. Legally, IA can be seen as an increasingly important instrument to prove the proportionality of policies and measures. However, cultural issues have not played a significant role in this context yet.

CONCL: Understanding IA as ‘gathering and analysing evidence to support policy making’ (EU Better Regulation Guidelines 2015) implies two disadvantages for ‘culture’: its necessities very often lack evidence due to resource reasons and many of its aspects are not evident in the sense of measurability. Therefore, it is still most desirable to develop and establish a standard methodology for cultural impact assessments similar to already available guidelines for e.g. social, gender and fundamental rights IA. Such a work could start from few existing guidelines on cultural heritage impact assessment as well as preparatory reflections (Partal, 2013; Schindler, 2011).

REFERENCES:

Partal, Adriana: Impact Assessment: A Tool to Assist Cultural Sustainable Development, Melbourne: Global Cities Research Institute, RMIT University (2013).

Schindler, Jörg Michael: Kulturpolitik und Recht 3.0 – Von der Kulturverträglichkeitsprüfung zur kulturbezogenen Folgenabschätzung, Köln/Cologne: ARCult Media (2011).

Jörg Michael Schindler

Indigenous Peoples

(Cultural rights of I. P.)

DEF: A single universal definition of indigeneity seems neither necessary nor appropriate, given that it will be either over- or under-inclusive, depending on which society it is applied to. Commonly accepted is the general description by Martinez-Cobo (1986/7) which includes the following criteria:

–historical continuity with pre-colonial societies contiguous with their territory;

–distinct from, and non-dominant over, other sectors of societies now prevailing on those territories;

–determined to preserve for future generations their ancestral territories and identity, in accordance with their own cultural patterns, social institutions and legal systems.

Occasional synonyms are aboriginals, tribal peoples, first peoples, native peoples.

INSTR: Underlying principles include the collective occupation of residual ancestral lands, common genetic ancestry and cultural heritage, language, the self-identification of individuals and their acceptance by the collective. The general description, as well as its principles, have been accepted in international law (especially Article 27 ICCPR, the provisions of the UN Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP) and of ILO Convention no. 169). Article 33 of UNDRIP underlines the right to self-identification.

Article 27 of the ICCPR provides the key treaty provision supporting the rights to culture for indigenous peoples as a human right, irrespective of their status as ethnic minorities. In contrast to economic and social rights, cultural rights, both positive and negative, ensure participation in cultural life; sharing and benefiting from scientific advancement; and protection of intellectual property (UNHCHR, 2008).

Early post-contact contractual reconciliation of the disparate interests of indigenous peoples and their colonisers has benefited their subsequent relationship and the socioeconomic situation of the colonised. An example is the 1840 Treaty of Waitangi, which regulated land ownership, sovereignty and political rights of Maori in the new state of New Zealand. Maori have since enjoyed a relatively secure status in comparison to many other colonised peoples.

CASES: The 2006 European Consensus on Development commits the European Commission, Parliament and Council to policies towards building a more stable and equitable world, implicitly recognising indigenous peoples’ interests to those ends, and established August 9 as the International Day of theWorld’s Indigenous Peoples. The EU actively supports projects to ‘integrate indigenous issues into all aspects of its external policies’ through the European Instrument for Democracy and Human Rights (EIDHR) (EUEA, 2015).

Worldwide, the UNDRIP enshrines the cultural rights of indigenous peoples, as do numerous judicial decisions by the UN Human Rights Committee, the UN Committee on Economic, Social and Cultural Rights, the UN Committee on the Elimination of Racial Discrimination, the UN Committee on the Rights of the Child, the Inter-American Court of Human Rights, and the African Commission on Human and People’s Rights. The Special Rapporteur of the OHCHR advises which human rights may be considered cultural, and how to further define their content (UNHRC, 2010).

In 2016 the UNGA appointed four advisors to the UN Permanent Forum on Indigenous Issues, to facilitate indigenous peoples’ full participation in relevant UN bodies and to secure their free, prior and informed consent for activities that impact them, based on Resolution 70/232.

VIEWS: A common critique of indigenous claims (e.g. Fjordman, 2008) asserts that all peoples, including all Europeans, are equally indigenous, precluding any special claims. Such assertions are generally rejected as they contradict the Martinez-Cobo description.

Other critics question how it is possible that despite well-intentioned legal instruments, indigenous peoples worldwide are still economically and socio-politically disenfranchised (they make up 5% of the world’s population and 15% of the world’s poorest). Multinational corporations often ignore indigenous interests and claims, and at times employ assassination and intimidation tactics, as in the cases of Canadian mining corporations in Latin America. A just reconciliation, including full exercise of cultural rights, may have to await the moral transition to a sustainable environmental ethic and a reform of global capitalism (Burger, 1990).

Others point out that enshrining indigenous rights and entitlements in legal documents still reflects the patriarchal relationship of ‘givers’ and ‘receivers’. In order to achieve effective decolonisation and cultural safety for indigenous peoples (Ramsden, 2005), the two sides must aim towards a more equitable cooperation. Six major indigenous non-governmental organisations work to circumvent the power differential between states and their indigenous minorities, promoting the legal protection of indigenous rights and self determination worldwide.

CONCL: The cultural rights of indigenous peoples have been affirmed by numerous legal judgments and declarations. As an example for the progress that countries can achieve, Bolivia became a ‘plurinational state’ in 2009, following the 1989 ILO Convention 169 concerning Indigenous and Tribal Peoples. Fully two thirds of Bolivians claim indigenous origins. Similar initiatives have been implemented in Cuba and Venezuela.

However, three major limitations apply to the exercise of cultural rights: Some elements of pre-contact indigenous cultures, such as their religions, were irretrievably extinguished by colonising powers; while the right to practice their own religion is included among their cultural rights, it can no longer be exercised. The lower socioeconomic status and poor state of public health in most indigenous communities, as well as their political disenfranchisement, constitute particular threats to their →human security, especially in light of globalising trends (OHCHR, 2013); occasionally, as in the case of Alberta oil sands mined on the land of the Cree, environmental destruction and loss of land rights hampers the exercise of cultural rights. Some cultural practices have been found to contravene human rights and are thus excluded from cultural rights (Deer, 2010).

To address those limitations and to increase the cultural freedom of indigenous peoples in the multicultural context, concrete measures towards their cultural safety have to be met with some success.

REFERENCES:

Burger, Julian: The Gaia Atlas of First Peoples: A Future for the Indigenous World, New York: Anchor Books (1990).

Deer, M. Kenneth: The Complexities in Practical Terms: Cultural practices contrary to human rights, possible limitations to cultural rights, tensions around who defines culture and rights, presented at an OHCHR Seminar, sct.2. Geneva (2010): www.ohchr.org (accessed 04/2016).

European Union External Action (EUEA): EU’s Policy on Indigenous Peoples (2015): www.eeas.europa.eu (accessed 04/2016).

Fjordman: “Creating a European Indigenous Peoples’ Movement”, The Brussels Journal (04/06/2008): www.brusselsjournal.com (accessed 04/2016).

Office of the High Commissioner for Human Rights (OHCHR): “Poverty and economic, social and cultural rights”, OHCHR Report (2013) 48: www. ohchr.org (accessed 04/2016).

Ramsden, Irihapeti: “Toward Cultural Safety”, in Dianne Wepa (ed.): Cultural Safety in Aetearoa New Zealand, Auckland: Pearson Education (2005).

Martinez-Cobo, Jose: Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/7Add. 4.

UN General Assembly: Declaration on the Rights of Indigenous Peoples, A/RES/61/L.67, New York: UN (2007).

UNHCHR: Frequently Asked Questions on Economic, Social and Cultural Rights, Fact Sheet no. 33 (2007).

UN Human Rights Council: Report of the Independent Expert in the Field of Cultural Rights, A/HRC/14/36 (2010): www.refworld.org (accessed 04/2016).

Wiessner, Siegfried: “The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges”, 22(1) European Journal of International Law (2011) 121.

Sabina Lautensach

Information

(Access to I.)

DEF: A right of access to governmental information can be seen as the main element of a broader right of free access to media/ information (or ‘Freedom of Information’, as it is often referred to). As such, it includes access to cultural information (e.g. statistics, decisions on regulations and permissions, funding and state aid, as well as budget plans).

INSTR/CASES: In its developing case-law, the ECtHR has found in a highly controversial ruling, that Article 10 para. 1, ECHR constitutes a principle right of access to governmental information for journalists, as well as researchers, and for non-governmental organisations insofar as they play a ‘role as a public watchdog of similar importance to that of the press’ [GUSEVA, 2015]. Covering all EU institutions, Article 15 TFEU secures a right of access to official documents for everyone in the framework of a general ‘concept of openness’, which is substantiated in Regulation (EC) No 1049/2001. At present, the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) can be seen as the most powerful international legal regime concerning access to governmental information for everyone. It covers notably governmental information on ‘cultural sites’, which are defined in Article 1 of the UNESCO World Heritage Convention, 1972, and could serve as a model for legal instruments covering freedom of information in other domains, such as culture and media. Often less elaborate ‘freedom of information’ legislation exists on all administrative levels in many democratic countries; it marks a cultural turn from governmental secrecy to the principle of ‘open government’.

CONCL: Claiming a right of access to governmental information, with or without any explicit personal interest in the information, can help people to enforce their (human) rights or to meaningfully participate in public debate. For example, this could mean putting pressure on an administration, by spreading, or merely threatening to spread, some information out of its control, or by using the material to pursue a judicial remedy. Future discourses on ‘open government’ will increasingly have to address private institutions which perform public functions and are, at present, widely uncovered in national freedom of information legislation.

REFERENCES:

GUSEVA v. BULGARIA (ECtHR 17/02/2015, 6987/07).

gijn.org/resources/freedom-of-informationlaws/ (accessed 2/2016).

www.humanrightsinitiative.org (accessed 2/2016).

Jörg Michael Schindler

Intangible Cultural Heritage

DEF: Intangible cultural heritage (ICH) is defined by the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (ICH Convention) as ‘the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity’ (Article 2.1). It is also popularly known as ‘folklore’ (even if this terminology is much criticized by anthropologists), or sometimes referred to as ‘traditional cultural expressions’ (for the purposes of →intellectual property protection).

INSTR: The purposes of the ICH Convention are primarily to safeguard ICH, to ensure respect for it, to raise awareness, and to promote international cooperation (Article 1). Raising awareness is probably the main medium through which those objectives can be reached, and is an objective in itself, according to the ICH Convention.

The main mechanisms through which these objectives are accomplished are the lists created by the ICH Convention. Two of those lists are modelled after the World Heritage Convention, and they are the Representative List of the Intangible Cultural Heritage of Humanity, and the List of Intangible Cultural Heritage in Need of Urgent Safeguarding. The ICH Convention also innovates in creating an Inventory of Best Practices for the Safeguarding of the Intangible Cultural Heritage.

Another important innovation of the ICH Convention is the inclusion of communities in cultural heritage management, as opposed to only States (which had been the case with other conventions under UNESCO).

Finally, the Convention only allows for the listing of ICH that complies with universal human rights standards, thus creating a human rights exception that is seen as a victory for the universality of human rights.

The Council of Europe Framework Convention on the Value of Cultural Heritage for Society (‘Faro Convention’, 2005) includes ICH and proposes, similar to the UNESCO instrument, a modern, people-centred approach to cultural heritage based on human rights. Howewer, it also differs from the latter, e.g. with regard to its focus on ascribed values and wider socio-economic ‘functions’ of heritage.

CASES: There are very few cases that deal directly with ICH. The Inter-American Court has referred to ICH and the ICH Convention in three separate opinions by Judge Cançado Trindade (now at the International Court of Justice). In those three cases [MOIWANA v. SURINAME; YAKYE AXA v. PARAGUAY; SAWHOYAMAXA v. PARAGUAY, 2006], all involving indigenous or traditional communities, Judge Cançado Trindade used the ICH Convention to build an argument for a ‘universal juridical conscience’ around the protection of traditional cultures.

At the ECtHR and its, until 1998 operating, European Commission of Human Rights, there are no cases dealing directly with the term, but related issues came up under the ordinary term ‘folklore’. The two most relevant of these cases at the Court [UNITED MACEDONIAN ORGANISATION ILINDEN-PIRIN AND OTHERS v. BULGARIA, 2011] and [SIDIROPULOS AND OTHERS v. GREECE, 1997] before the Commission have to do with the right to freedom of association (Article 11 of the ECHR) of groups seeking to obtain special minority status to ‘Macedonian’ minorities in those countries, and the parties have invoked traditional folklore as one of the reasons why the association exists and its goals are justified. In both cases, there was a violation of Article 11 ECHR.

VIEWS: The prevailing opinion in the literature is that ICH is an important concept to enshrine a move towards protecting the cultures of peoples, beyond the nation-state. Because the ICH Convention includes in its provisions the need to have communities participate in the safeguarding process, the majority of the literature sees that as a victory for the international protection of cultural heritage and cultural rights more generally. Similarly, the fast pace of ratification of the ICH Convention (which has been ratified by 163 States at the time of writing, which is just shy of 12 years since the approval of the text).

However, more critical opinions challenge whether the ICH Convention can actually change the dynamics of state-centric protection of cultural heritage in international law. These authors argue that the ICH Convention only pays lip service to community involvement, and that ultimately it is still the state that serves as the ultimate arbiter of what ICH is, whether it should be protected, and in what terms. As a result, communities can have the meanings of their ICH controlled by the state, potentially to their detriment.

CONCL: ICH is a powerful concept, and the immediate and widespread acceptance of the ICH Convention means those structures are here to stay. Awareness can and should be raised to ICH using the mechanisms under the ICH Convention, and particularly the Inventory of Best Practices for the Safeguarding of the Intangible Cultural Heritage. Community involvement is a welcome development in heritage management in international law, but one must be wary of the limits of this possibility in the implementation of the ICH Convention.

In terms of judicial use of ICH and the ICH Convention, it is still limited, but it may be widely used as a means to protect the right to cultural identity in international human rights cases. But the human rights exception in the ICH Convention needs to be taken into account, and one must be mindful that cultural identity will only be protected with the help of the ICH Convention in terms that comply with universally recognized standards.

Similarly, ICH and the ICH Convention should be considered in the design of other policies on cultural diversity, including intellectual property rights, and the protection of cultural industries. Because the ICH Convention has come largely to symbolise cultural diversity, law-makers must be mindful of making the ICH Convention work harmoniously with other programs designed in the future.

REFERENCES:

Blake, Janet: Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage, London: Institute for Art and Law (2006).

Bortolotto, Chiara (ed.): Le patrimoine culturel immaterial: Enjeux d’une nouvelle catégorie, Paris: Éditions de la Maison des sciences de l’homme (2011).

Brown, Michael F: “Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property”, Intl J of Cultural Property 12 (2005), 40.

Deacon, Harriet; Dondolo, Luvuyo; Mrubata, Mbulelo; and Prosalendis, Sandra: The Subtle Power of Intangible Heritage: Legal and Financial Instruments for Safeguarding Intangible Heritage, Cape Town: Human Sciences Research Council (2004).

Kono, Toshiyuki (ed.): Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development,Mortsel: Intersentia (2009).

Lenzerini, Federico: “Intangible Cultural Heritage: The Living Culture of Peoples”, EJIL 22(1) (2011), 101.

Lixinski, Lucas, “Selecting Heritage: The Interplay of Art, Politics and Identity”, EJIL 22(1) (2011), 81.

Lixinski, Lucas: Intangible Cultural Heritage in International Law, Oxford: Oxford University Press (2013).

Seitel, Peter (ed.), Safeguarding Traditional Culture: A Global Assessment, Washington, D.C.: Smithsonian Institution (2001).

Smith, Laurajane; and Akagawa, Natsuko (eds.): Intangible Heritage, London: Routledge (2009).

Lucas Lixinski

Intellectual Property and Human Rights

DEF: On the face of it, intellectual property (IP) rights and human rights pursue two different rationales: IP rights as recognised in Part II, Section 1–7 of the TRIPS Agreement – a total of 8 IP types, including plant breeders’ rights – specify rights of right-holders to determine conditions for how new products are to be commercially available to the public. In addition, most national legislations enable research that attempts to ‘invent around’ a patented technology. In contrast, human rights tend towards increasing the availability and physical and economic accessibility of new products. Moreover, the proprietary logic of IP legislation contrasts with cultural dimensions of human rights treaties: Since most IP legislations only recognise written descriptions to determine and protect novelty, the principle that IP rights cannot be extended to the usage of traditional knowledge or intangible heritage may be circumvented – which could work either to the detriment or to the benefit of traditional communities.

INSTR: The balance that human rights treaties provide is found particularly in the ICESCR, Article 15(1). It does recognise the moral and material interests of those contributing with literary, artistic and scientific works (15(1)(c)), as well as the right of everyone to enjoy the benefits of scientific progress and its applications (15(1)(b)), and the right of everyone to participate in cultural life (15(1)(a)).

While Article 15(1)(a) and 15(1)(c) have been clarified by General Comment 21 and General Comment 17 of the UN Committee on Economic, Social and Cultural Rights, Article 15(1)(b) has been subject to clarification by the Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications (UNESCO 2009). General Comment 17 clarifies that the rights recognised byICESCR Article 15(1)(c) do not equal intellectual property rights, as human rights are inalienable and belonging only to the person or collective from where the invention originated, while IP can be granted, revoked and traded. A resolution (UN Sub-Commission on Human Rights 2000) and statement (UN Committee on Economic, Social and Cultural Rights 2001) were instrumental in highlighting the IP-HR-tensions.

The issue ofwho should be considered an ‘author’ of scientific production has been discussed by the former UN Special Rapporteur on the right to culture, clarifying that the protection of the moral and material interest can also include inventors, for inventions with which they have a strong personal link (UN Special rapporteur 2015, para. 34).

CASES: IP has been found by the ECtHR to fall under the right to property as recognised by Additional Protocol 1 (AP1) to the ECHR. The most controversial decision is [ANHEUSER-BUSCH INC, 2007], where human rights protection was extended to mere applications for a registration of trademarks.

Hence, the human right to property becomes justification for a stronger IP protection, and the two specifications for the right to property as only subject to the ‘public interest’ (AP1 Article 1(1)) or ‘general interest’ (AP1 Article 1(2)) have not been able to challenge this human rights justification of stronger IP protection.

However, Article 10 ECHR on freedom of expression has also been invoked: In [NEJI AND SUNDE KOLMISOPPI, 2013] and [ASHBY DONALD AND OTHERS, 2013] the ECtHR found the use of a copyrighted work to be an exercise of freedom of expression, even if this use resulted in a copyright infringement.

In the Court of Justice of the European Union (CJEU), the moral interests have been found to be encompassed by the IP Enforcement Directive (2004/48/EC) Article 13(1) – as the term ‘actual prejudice suffered’ encompasses moral interests: [CHRISTIAN LIFFERS, 2016].

VIEWS: There are several controversial cases of so-called bio-piracy, most of which are dealt with in appeal bodies within the patent offices. Within WIPO, the negotiations for international legal instruments on traditional knowledge (TK) and genetic resources – whose outcome is still not possible to assess – only resulted in higher awareness, the development of new tools to disclose prior art information, and an exchange of tools and experiences. While human rights provisions were found in the first drafts of proposed international legal instruments on TK and genetic resources, they have subsequently been removed.

There are two main approaches to IP and TK: a defensive approach, where the main purpose is to avoid bio-piracy, and a positive approach, where legislative provisions allow for inventions by farmers of indigenous peoples to be recognised and granted time-limited protection. Examples of the latter include the India Protection of Plant Varieties and Farmers’ Rights Act of 2001 (Act 53), Section 39(1)(i), the Malaysian New Plant Varieties Act of 2004 (Act 634), Section 13(1)(d), and the Thailand Plant Varieties Protection Act of 1999 (Act 2542), with a separate chapter entitled ‘Protection of Local Domestic Plant Varieties’. None of these states have been subject to criticism by any WTO bodies for these legislations (Haugen 2014). Hence, the TRIPS Agreement, unlike the UPOV Convention that regulates plant breeders’ rights, give states much leeway in formulating legislation.

CONCL: There are a diverse range of encounters between human rights and IP (Haugen 2007). An obvious encounter where IP and human rights can be mutually enriching is in the realm of copyright, as these rights have a stronger link to the person than patents or trademarks – which used to be termed ‘industrial property rights’. The encounter between IP and human rights in the realm of patents is more controversial and complex. Patents provide for time-limited exclusive rights over the commercial utilisation of a protected invention, and such IP protection is primarily enjoyed by corporations, not persons. As seen above, inventors fall under the protection scope of the ICESCR Article 15(1)(c), but only for inventions with which they have a strong personal link.

The WIPO runs two processes where human rights could have been included: First in the context of the Intergovernmental Committee on Intellectual Property and Genetic Resources, TK and Folklore, launched in 2000. Second, in the context of the Development Agenda, launched in 2005. As the ICESCR does recognise the balance between rewarding inventors and promoting access to new inventions, and also recognises the need to make ‘full use of technical and scientific knowledge’ in the context of →food (Article 11(2)(a)), and measures for the prevention, treatment and control of diseases in the context of health (Article 12(2)(c)), this failure to reflect issues through a human rights lens can be seen as a missed opportunity.

REFERENCES:

Haugen, Hans Morten: “The Right to Food, Farmers’ Rights and Intellectual Property Rights: Can Competing Law Be Reconciled?”, in Lea Brilmayer, Priscilla Claeys, Nadia Lombek and AdriennaWong (eds.), Rethinking Food Systems: Structural Challenges, New Strategies and the Law, Springer, Heidelberg (2014).

Haugen, Hans Morten: “Patent rights and human rights: exploring their relationships”, Journal of World Intellectual Property 10(2), 97–124 (2007).

UN Committee on Economic, Social and Cultural Rights: E/C.12/2001/15, Human rights and intellectual property (2001).

UN Committee on Economic, Social and Cultural Rights: E/C.12/GC/17. General Comment No. 17 (2005). The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant) (2006).

UN Committee on Economic, Social and Cultural Rights: E/C.12/GC/21 General comment No. 21. Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights) (2009).

UN Special rapporteur: Report of the Special Rapporteur in the field of cultural rights, A/70/279 (2015).

UN Sub-Commission on Human Rights: E/CN.4/Sub.2/RES/2000/7, Intellectual property rights and human rights (2000).

UNESCO: The Right to Enjoy the Benefits of Scientific Progress and its Applications, Paris, UNESCO (2009).

ANHEUSER-BUSCH INC. v. PORTUGAL (ECtHR 11/01/2007, 73049/01).

ASHBY DONALD AND OTHERS v. FRANCE (ECtHR 10/01/2013, 36769/08).

CHRISTIAN LIFFERS v. PRODUCCIONES MANDARINA SL AND MEDIASET ESPANA COMUNICACION (CJEU, SA [2016], Case C-99/15).

NEJIANDSUNDE KOLMISOPPI v. SWEDEN(ECtHR 19/02/2013, 40397/12).

Hans Morten Haugen

Inter-American Human Rights System

The Organization of American States (OAS), an international organisation comprised of 35 independent countries, created the Inter-American human rights system. This system is responsible for ensuring and monitoring implementation of human rights guarantees in the states that are members of the OAS. The OAS has drafted and promulgated multiple human rights documents and treaties. In 1948, the member states adopted the American Declaration of the Rights and Duties of Man (the American Declaration) and later promulgated a multilateral treaty: the American Convention on Human Rights (the Convention). These are the leading international instruments of the Inter-American system for the protection of human rights. All member states of the OAS are bound to respect the American Declaration; on the other hand, the compliance with the Convention is only obligatory to states that are a party to the Convention. The system contains two bodies: the Inter-American Commission on Human Rights (the Commission) and the Inter-American Court of Human Rights (the Court). Both entities can decide individual complaints concerning alleged human rights abuses (the recommendations of the Commission are not legally binding; the judgments of the Court are binding) and may request that a state adopt emergency protective measures to prevent irreparable harm. In addition, the Commission engages in a range of human rights monitoring and promotion activities, such as country or thematic studies. Moreover, the Court can issue advisory opinions on issues pertaining to the interpretation of the human rights documents and treaties, thereby assisting the member states in complying with their international human rights obligations.

The American Declaration on Human Rights contains several cultural rights, such as the right to education (Article XII) and the right to taken part in cultural life (Article XIII). The American Convention on Human Rights, however, hardly pays attention to cultural rights. In 1988, the OAS General Assembly adopted the San Salvador Protocol on Economic, Social and Cultural Rights, which contains provisions similar to the →ICESCR, including the right to take part in the cultural life of the community (Article 14). No specific rights concerning indigenous peoples or minorities were included. However, the Inter-American Commission and Court have dealt with many cases concerning indigenous peoples and their cultural rights, especially in relation to land issues. Landmark cases are [AWAS TINGI„ 2001], [MOIWANA COMMUNITY, 2005], [YAKYE AXA INDIGENOUS COMMUNITY, 2005] and [SAWHOYAMAXA INDIGENOUS COMMUNITY, 2006].

REFERENCES:

Buergenthal, Thomas and Shelton, Dinah: Protecting Human Rights in the Americas: Cases and Materials, Kehl: NP Engel (1995).

Goldman, Robert K.: “History in Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights” (2009) 31 HRQ 856.

Harris, David and Livingstone, Stephen (eds.): The Inter-American System of Human Rights, Oxford: Oxford University Press (1998).

Pasqualucci, Jo: The Practice and Procedure of the Inter-American Court of Human Rights. Cambridge: Cambridge University Press (2013).

Pasqualucci, Jo: “The Americas”, in D. Moeckli, S. Shah and S. Sivakumaran (eds.). International Human Rights Law, Oxford: Oxford University Press (2014).

MAYAGNA (SUMO) INDIGENOUS COMMUNITY OF AWAS TINGI v. REPUBLIC OF NICARAGUA (Inter-American Court of Human Rights 31/08/2001, Ser. C, Case No. 79).

MOIWANA COMMUNITY v. SURINAME (Inter-American Court of Human Rights 15/06/2005, Series C No. 124).

SAWHOYAMAXA INDIGENOUS COMMUNITY v. PARAGUAY (Inter-American Court of Human Rights 29/03/2006, Series C No. 146).

YAKYE AXA INDIGENOUS COMMUNITY v. PARAGUAY (Inter-American Court of Human Rights 17/06/2005, Series C No. 125).

www.cidh.org (accessed 3/2016).

www.corteidh.or.cr (accessed 3/2016).

Yvonne Donders

Intercultural Competence

DEF: Intercultural competence can be divided into cultural sensitivity, awareness and skills. Acquiring and applying these competences is a normative demand on decision-makers in order to enhance satisfaction and compliance with the outcome of proceedings and, thereby, to strengthen the legitimacy and accountability of political and legal institutions in culturally diverse societies. As a subcategory, intercultural judicial competence requires judges to constantly strike a fair balance between establishing a universally valid (human rights) order while, at the same time, recognizing legitimate cultural diversity.

INSTR: Recent policy recommendations of global and regional international organisations consider acquiring intercultural competence(s) as the normative demand of a ‘global culture of human rights’ and as one of the crucial preconditions for stepping into meaningful interactions and successful intercultural dialogues between and among members of culturally diverse societies (CoE 2008, UNESCO 2013). During the ‘International Decade for the Rapprochement of Cultures, 2013–2022’, proclaimed by the General Assembly of the UN (GA, Res. 67/104), the UN-member states are particularly called upon to enhance their activities relating to interreligious and intercultural dialogue.

Generally, competent intercultural interaction is associated with promoting social cohesion, development, as well as peaceful and harmonious interaction within and among societies (GA, Res. 68/126). From the specific perspective of the Arabic world, applying ‘methods and ethics’ for cultural exchange are deemed crucial for addressing prevailing challenges such as the Arab–Israeli conflict or the fabrication of a clash between Islam and the West (ALESCO 2006). Due to the effects of globalisation, migration and the afflux of asylum seekers, intercultural competence is, also from the European viewpoint, considered indispensable to avoid a climate of stereotypical perception, intolerance, discrimination and exploitation of minorities (CoE 2008). The CoE defines normative framework conditions facilitating the acquisition and practice of intercultural competence, namely the common values of democracy, human rights and fundamental freedoms, the rule of law, pluralism, tolerance and non-discrimination towards minorities, equal dignity and mutual respect (CoE 2008 at 18 et seq.).

It is commonly acknowledged that public authorities carry a particular responsibility for providing these legal and political preconditions for the democratic governance of cultural diversity. Particular emphasis is placed on ‘teaching and learning’ of intercultural competences (Coe 2008 at 28 et seq.) and on the crucial role education-providers play for the democratic citizenship and human rights education of individuals (UNESCO 2013 at 22, CoE 2010). The significance attached to human rights reveals that the expectation of exercising intercultural competence has a twofold effect on the judiciary: courts are both providers and addressees of intercultural competence. As providers domestic and international adjudicative bodies can authoritatively set the legal and political framework conditions for successful intercultural exchange. As addressees, universal and regional human rights bodies are required to respect and recognize the diversity of humans when deciding a particular case and when establishing an international legal order universally valid for ethnic, religious, linguistic minorities as well as majorities. In this regard, they are expected to practice intercultural judicial skills in managing cultural diversity (Wiater, 2010) – that is in integrating cultural concerns (Ringelheim, 2008) into the interpretation and application of human rights.

CASES: Considering these political expectations in evaluating facets of, and framework conditions for intercultural competence in current legal practice, different theoretical principles and legal methods can be identified in the case-law of the ECtHR and other human rights bodies.

In assessing culturally motivated claims of applicants as well as submissions of contracting states, the ECtHR refers to several theoretical principles as superior normative reference points. By means of its jurisprudence, the ECtHR aims at fostering democracy as a ‘fundamental feature of the European public order’ and as ‘the only political model’ contemplated by and compatible with the ECHR [UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY, para. 45]. Hallmarks of the European democratic society envisioned are the criteria of ‘pluralism, tolerance and broadmindedness’ [LEYLA ŞAHIN, para. 108]. In the ECtHR’s view these demands of democracy dictate that – although individual interests must on occasion be subordinated to those of a group – democracy does not simply mean that the views of a majority must always prevail. Rather, it is important to strike a balance, which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position [YOUNG, JAMES AND WEBSTER v. THE UNITED KINGDOM, para. 63]. Religious pluralism is a main sub-principle constituting the pluralistic nature of European societies [KOKKINAKIS v. GREECE, para. 31].

The ECtHR defines further ‘fundamental values’ of democracy binding on state authorities in solving cultural conflicts on the domestic level: The rule of law, especially the protection of every individual from arbitrary exercise of state power in decision-making processes as well as the absolute prohibition of torture and of inhuman or degrading treatment or punishment [SOERINGv. THE UNITED KINGDOM, para. 88] are of core importance in this regard. Also, the principles of equal dignity and equal enjoyment of rights form part of the unquestionable values of democracy [ÜNDÜZ v. TURKEY, para. 40]. Ethnic equality and gender equality are sub-principles of this democratic concept and express ‘key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe’ [ABDULAZIZ, CABALES AND BALKANDALI v. THE UNITED KINGDOM, para. 78]. In pursuing this aim state authorities generally have to act as ‘neutral and impartial organiser’ of pluralist and often divergent societal interests [LEYLA ŞAHIN, para. 107]. In case of the particular vulnerability of a societal group, the ECtHR can impose the obligation on state authorities to positively protect group members from racist-induced violence [NACHOVA AND OTHERS v. BULGARIA, 2005, Nos. 43577/98 and 43579/98, para. 164] and to affirmatively promote substantive equality. As a possible effect, cultural claims of the applicant can require the introduction of appropriate exceptions from otherwise applicable legal obligations [THLIMMENOS, para. 48].Without explicitly recognizing a ‘right to culture’, the ECtHR acknowledges that cultural concerns (e.g. the claim for particular linguistic rights, protection of cultural and natural heritage) can be protected under core civil rights, such as the right to respect for private and family life, the right to freedom of expression and the right to education (ECtHR, Research Division, 2011).

The ECtHR applies these normative precepts to particular cases by means of different methodical tools: On the level of interpretation the ‘principle of effectiveness’ [KLASSANDOTHERS v. GERMANY, para. 34] and the conviction that the ECHR is ‘a living instrument’ call for an understanding of the rights guaranteed which corresponds to the social reality and the ‘present-day conditions’ in European societies [TYRER v. THE UNITED KINGDOM, para. 31]. This view of the Convention has two effects: It allows integrating cultural changes and social developments into the interpretation of the ECHR and, at the same time, enables the Court to demand changes in cultural values and practices. For instance, the ECtHR set an end to the criminal punishment of certain homosexual acts in a contracting state – despite the religious reasoning of the state concerned [DUDGEON v. THE UNITED KINGDOM]. The method of comparative law – i.e. evaluating if domestic legal orders of the contracting states or other European and international law instruments form a ‘European consensus’ on the subject-matter – is another keymethod of the ECtHR in assessing the legitimacy of cultural claims of applicants or contracting states. The Court considers the (non-)existence of common ground between the laws of the contracting states as relevant in defining the breadth of the margin of appreciation attributed to national authorities in deciding issues of social, religious, ethical or ethnical relevance [LAUTSI AND OTHERS v. ITALY para. 70; DUDGEON, para.60].

The practice of other human rights bodies reveals that the methodical approaches of the ECtHR are not limited to European human rights adjudication but exemplify facets of the global status quo of intercultural judicial skills: Establishing normative guidelines, more concretely, a core of fundamental untouchable rights and principles which no culture is permitted to exceed, is also adopted by other regional human rights bodies, e.g. by the IACtHR on the fundamental nature of the right to life in the case of the ‘Street Children’ [VILLAGRAN-MORALES ET AL. v. GUATEMALA]. The rule of rendering treaty interpretation effective – particularly by taking cultural traditions into account in determining the scope of human rights protection – is also applied by the HRCee [FRANCIS HOPU AND TEPOAITU BESSERT v. FRANCE], the IACtHR [THE XÁKMOK KÁSEK INDIGENOUS COMMUNITY v. PARAGUAY], as well as the ACHPR [ENDOROIS WELFARE COUNCIL v. KENYA].

VIEWS: Scientific definitions of intercultural competence differ like the notion itself – mainly depending on disciplinary focal points. As an alternative to intercultural competence (for an overview see Deardoff, 2009) some refer to ‘cross cultural competence’ (Chiu et al. 2013). The various definitions correspond to an understanding of intercultural competence as a combination of knowledge, empathy, motivation and attitude as well as a set of linguistic, cognitive, affective and behavioral skills. Following Chen and Starosta (1997, 1998, 2000), intercultural competence incorporates the three dimensions of sensitivity, awareness and skills. While sensitivity concerns the individual capacity to comprehend and appreciate cultural differences, awareness refers to the ability of understanding how culture affects thinking, behaviour, and interactions.

Translating these findings into the logic of human rights protection and adding insights of legal anthropology, the following framework emerges: On the level of sensitivity and awareness, socio-legal studies point to the interrelatedness of (human rights) law and culture, and particularly to the dichotomy of this relationship. On the one hand, every individual is subject to the process of ‘enculturation’ and unconsciously marked by the normative categories and standards of his/her culture. In this regard, exercising the ‘right to culture’ can be crucial for establishing one’s identity and for the belonging to a social group. On the other hand, one’s culture cannot be perceived as a static, homogenous and unified entity of values and practices ‘capturing’ the individual’s free choice (Hoekema, 2005 at 11). Rather, both, the definition of cultural values and practices as well as precepts of state legality are social constructs, embedded in the field of power within and among social groups, produced through and questioned by hybridisation and, accordingly, open for change (Merry, 2001 at 46). This finding influences the level of skills: Just as cultural input can and must affect international and domestic legal systems, (human rights) law can evoke changes in culture. Although intercultural competences include the skills of respect and cultural humility, cultural concerns and claims are open for critical reconstruction.

The need to continuously construct and reconstruct the corpus of universally valid human rights by means of a critical attitude towards the culturally founded ‘self’ and the ‘other’ is approved by philosophical findings on ‘transcultural’ approaches to the claim of universality of human rights with respect to regional particularities of human rights concepts (for differentiation to ‘neutral’ and ‘intercultural’ approaches see Dhouib, 2014).

CONCL: From a legal standpoint, addressing the normative demand of intercultural competences to public authorities (especially the judiciary) has to be approved. It is an essential requirement for enhancing satisfaction and compliance with the outcome of proceedings and, thereby, for strengthening the legitimacy and accountability of political and legal institutions in culturally diverse societies. In particular, the general legal principles of justice and equality require the judicial branch to act in an intercultural competent manner when interpreting and applying (human rights) law.

However, exercising intercultural competence in adjudicating does not mean that every cultural value or practice, every claim founded in the religious, ethnical or social background of the individual(s) concerned has to be legally acknowledged and translated into the scope of human rights protection (harmful cultural practices). Rather, findings of socio-legal studies support the legal practice that human rights norms and judicial decisions can legitimately set limits to claims founded in the cultural diversity of the person concerned. Superior normative principles such as a core of untouchable and culturally unquestionable rights or the claims of pluralism and democracy can call for cultural changes and serve as guidelines in elaborating a demarcation between achieving human rights harmonisation and recognising diversity.

Yet, intercultural judicial skills are underdeveloped as long as human rights bodies do not realise the major challenges of transparency, changing perspectives and critical reconstruction. Both in defining superior theoretical principles and in applying legal methods to the particular case, the decisive factors influencing the Court’s findings have to be revealed in order to guarantee that minority positions are sufficiently considered. This is a demand of the principle of procedural justice as part of intercultural judicial competences. By contrast to actively and independently reconstructing the cultural (religious, social, ethnical) claim at hand, the prerogative of assessing the legitimacy of ‘cultural concerns’ is extensively left to state authorities in the current practice of the ECtHR: In concretising the ‘European consensus’, the Court mainly refers to legal commitments of the ECHR contracting states. The ‘margin of appreciation’ doctrine is founded on the Court’s conviction that – in religious, social or ethnical matters of particular controversy (e.g. religious symbols in public sphere) – national authorities, ‘who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions’ and to assess the necessity of the human rights interference [CHAPMAN, para. 91]. This approach is problematic. The demands of social justice attribute an active role to European human rights supervision in solving legal pluralistic conflicts (on legal pluralism see Benda-Beckmann, 2006), i.e. conflicts between precepts of the cultural normativity of applicants and state legality. A more progressive approach – and, in this regard, a higher level of intercultural judicial competence – is adopted by the CC of Colombia (exemplified by Isa 2014 at 739 et sqq.): In determining whether intercultural consensus on the core of culturally untouchable rights exists, the CC not only refers to human rights treaties, but also to testimonies of members of the minority (indigenous people) and to studies from anthropology and legal sociology dealing with the minority practices and values. This methodological openness should serve as a role model for other human rights bodies.

REFERENCES:

Arab League Educational, Cultural and Scientific Organization (ALECSO): “The Abu Dhabi Declaration on the Arab Position on Dialogue and Cultural Diversity”, January 2006.

Benda-Beckmann, Franz von/ Benda-Beckmann, Keebet von: “The Dynamics of Change and Continuity in Plural Legal Orders”, Journal of Legal Pluralism and Unofficial Law 53/54 (2006), 1.

Chen, Guo-Ming; Starosta, William J.: “A review of the concept of intercultural sensitivity”,Human Communication 1 (1997), 1.

Chen, Guo-Ming; Starosta, William J.: “A review of the concept of intercultural awareness”, Human Communication 2 (1998–9), 27.

Chen, Guo-Ming; Starosta, William J.: “The development and validation of the Intercultural Sensitivity Scale”, Human Communication 3 (2000), 1.

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