Wiater, Patricia: Intercultural Dialogue in the Framework of European Human Rights Protection (White Paper Series – Volume 1), Strasbourg: Council of Europe Publishing (2010).

ABDULAZIZ, CABALES AND BALKANDALI v. THE UNITED KINGDOM (ECtHR 25/5/1985, No. 9214/80; 9473/81; 9474/81).

CHAPMAN v. THE UNITED KINGDOM (ECtHR 18/1/2001, 27238/95).

KOKKINAKIS v. GREECE (ECtHR 25/5/1993, 14307/88).

LEYLA ŞAHIN v. TURKEY (ECtHR 10/12/2005, 44774/98).

THLIMMENOS v. GREECE (ECtHR 6/4/2000, 34369/97.

YOUNG, JAMES AND WEBSTER v. THE UNITED KINGDOM (ECtHR 18/10/1982, 7601/76; 7806/77.

Patricia Wiater

International Covenant on Economic, Social and Cultural Rights (ICESCR)

DEF: The ICESCR is the first international instrument to deal extensively with economic, social and cultural (ESC) rights, the so-called secondgeneration human rights. ICESCR was adopted at the same time as the ICCPR and entered into force on 3 January 1976. Both ICESCR and ICCPR cover almost entirely all the rights enshrined in the →UDHR. As of today, there are 153 state parties to the ICESCR.

The ICESCR provides inter alia for the progressive realisation of the right to: self-determination; social security; an adequate standard of living, including adequate food, clothing and housing; protection of the family; the highest attainable standard of physical and mental health; education; participate in cultural life; benefit from scientific progress; and protection of an author’s moral and material interests resulting from scientific, literary or artistic production. While some of the rights enshrined in the ICESCR are clearly categorised as cultural rights, all other ICESCR rights have been recognised as having a cultural dimension and their effective application and implementation is required to be culturally mediated. The implementation of the ICESCR rights is monitored by the Committee on Economic, Social, and Cultural Rights (‘the Committee’).

While at universal level the ICESCR deals with the ESC rights, the regional counterpart in Europe is the →Charter of Fundamental Rights and Freedoms of the →European Union and the European Social Charter of the →Council of Europe.

INSTR: Of all international human rights instruments, the ICESCR is the only treaty that refers to cultural rights in its title. Cultural rights under ICESCR encompass the right to education (Articles 13 and 14) and the rights guaranteed in Article 15 (echoing the wording of Article 27 UDHR): the right to take part in cultural life (Article 15 (1)(a)), the right to enjoy the benefits of scientific progress (Article 15 (1)(b)) and the right of authors/ writers/ artists to the protection of their moral and material interests (Article 15 (1)(c)).

The Committee has repeatedly confirmed that states parties have a core obligation to ensure the satisfaction of minimum essential levels of each of the rights enunciated in the Covenant; however, it accepts that a ’full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time” and that their progressive realisation will take place ‘under the prevailing circumstances’ (CESCRGeneral Comment No. 3, paras. 9–10).As of 2016, the Committee has adopted 23 General Comments; their normative value has been indispensable in affirming that ESC rights retain the same binding effect as civil and political rights. With regard to education, the Committee has defined the general and specific states’ obligations and has set the minimum core obligations (which apply irrespective of the availability of resources) whereby states are to ’ensure the right of access to public educational institutions and programmes on a non-discriminatory basis; to ensure that education conforms to the objectives set out in Article 13

(1) ICESCR; to provide primary education for all in accordance with Article 13 (2)(a); to adopt and implement a national educational strategy which includes provision for secondary higher and fundamental education; and to ensure free choice of education without interference from the state or third parties, subject to the conformity with ‘minimum educational standards’ (CESCR Comment No. 13, para. 57). With respect to Article 15, the Committee has endorsed a broader understanding of ‘culture’ that includes its individual and collective dimensions and has affirmed the states’ obligation to protect people against harmful practices attributed to customs and traditions and to take special measures for groups requiring special attention (migrants, minorities, indigenous peoples, women, children, older persons and persons with disabilities) in order to protect their cultural identity and to enable them to exercise the right to take part in, gain access and contribute to, on equal terms, all spheres of cultural life, i.e. access to one’s own cultural and linguistic heritage, access to cultural materials, television programmes, films, theatre and other cultural activities, in accessible forms, etc. The Committee has taken a firm stand by stating that intellectual property rights, which are of temporary nature, are not to be equated with the human right in Article 15 (1) (c) (CESCR General Comment No. 17, para. 3).

The concept of ‘cultural rights’ is evolving as the concept of ‘culture’ and the identity of the right-holder is redefined on a normative level (see HRCee jurisprudence; Maastricht Guidelines on Violations of Economic, Social and Cultural Rights; Limburg principles on the Implementation of the ICESCR Rights, etc). The role of the Human Rights Committee, the Human Rights Council and the UN Special Rapporteurs cannot be ignored in this respect as they have affirmed the holistic nature of ‘culture’, the overlap with civil and political rights, and the cultural dimension of all human rights, i.e. freedom of religion, freedom of assembly/ association, freedom of information. This trend to reinterpret cultural or culture-oriented rights in international law instruments and realign the scope of human rights through the prism of cultural connotations effectively enhanced the status of cultural rights and affirms the interlinkages between cultural rights and the universality of human rights.

CASES: Unlike the ICCPR’s interstate or individual’s complaint procedure, the ICESCR’s implementation mechanism has been considered significantly weaker. The lack of a ICESCR complaints procedure for many decades enforced the belief that only civil and political rights are effectively justiciable. The vaguely worded ICESCR provisions and the nature of the rights therein vis-a-vis the ICCPR rights have also reinforced objections as to their justiciability in the international and domestic sphere.

The failure of the international community to adopt an international complaints mechanism under ICESCR for many decades has been pointed as the main reason for the side-stepping of ESC rights. However, domestic courts’ decisions have demonstrated that ESC rights benefit from judicial protection and are subject to judicial enforcement in a number of domestic jurisdictions. Following lengthy and protracted negotiations, the Optional Protocol to the ICESCR was finally adopted on 10 December 2008. The Protocol provides a complaints mechanism similar to the one offered by the Optional Protocol to the ICCPR. Individual complaints, called ‘communications’, can be submitted by or on behalf of individuals or groups of individuals claiming to be victims of a violation of any of the economic, social or cultural rights enshrined in the Covenant. Additionally, the Committee may initiate inquiries if it has received reliable information containing well-founded indications of serious or systematic violations of the Covenant’s rights in a state party. Since 2013, the Committee has received a handful of complaints out of which only two were admissible but they do not concern violations of cultural rights [I.D.G., 2014 and LÓPEZ RODRÍGUEZ, 2013].

The collective complaints procedure under ICESCR may stumble upon the Human Rights Committee jurisprudence in terms of the right holders, i.e. members of minorities or minorities themselves. The HRCee, through its interpretation of Article 27 ICCPR, has held that ‘culture’ manifests itself in many forms as are related rights, which include a way of life that is closely associated with the use of land resources and the activities conducted therein as well as the rights of persons belonging to minorities to enjoy their own culture as a group. While Article 27 does not refer to minorities per se, the HRCee has consistently affirmed that the right to culture can only be realised when exercised ‘in a community’ (see HRCee case-law). Thus the HRCee has allowed for individual communications which can have impact on the group while communications submitted by groups are not allowed. This link between the individual right to culture and its exercise in the collective context as recognised by the ICCPR is likely to take a new direction by the Committee in future case law. While the line between the individual and the collective right to culture under Article 27 ICCPR is thin, given that their protection depends on whether the ‘ability of the minority group to maintain its culture, language or religion’ is affected, the Committee may see itself deviating from the HRCee practice.

Furthermore, the extraterritorial scope of the ICESCR has been confirmed in the ICJ jurisprudence [DEMOCRATIC REPUBLIC OF CONGO, 2005, para. 216]. The ICJ held in [ADVISORY OPINION ON THE LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY, 2004] that states have duties under the ICESCR to ‘territories over which a State Party has sovereignty and to those over which that State exercises territorial jurisdiction’ and found that Israel had effectively hindered access to educational facilities, water resources, etc. (paras. 111–113).

VIEWS: Since the adoption of the ICESCR concerns have been expressed over the status and justiciability of ESC rights and the lack of certainty about their boundaries and when and how they might be enforced. In the literature of 1970s and 1980s there has been a strong line of argumentation regarding the superiority of civil and political rights vis-a-vis the ESC rights alongside a misperceived belief that human rights formulate in a hierarchy of different generations of rights. To a certain extent this assumption explained the neglect and violation of ESC and the delay in establishing an individual or interstate complaint procedure. Cultural rights under the ICESCR and other international instruments have long been viewed as ‘luxury’; a narrow understanding of their scope and content has associated cultural rights with the special rights recognised to minorities and indigenous peoples in order to enable them to preserve their cultural identity. While cultural rights are indeed granted to this category of groups, a number of states’ have been reluctant to recognise collective cultural rights in fear of state fragmentation and separatism.

Despite the indivisibility and interdependence of all human rights, the fact that the content of cultural rights is less well-defined than civil and political rights, is rather indicative of their exclusion from or underrepresentation in processes of national and international adjudication. At national level there has been a persistent reluctance to afford courts any role in providing judicial remedies to address cultural rights’ violations. The fact that the realisation of ESC rights is highly dependent on the budgetary constraints of different state parties has further tested their enforceability (see Article 2 of the Covenant, each state party to the Covenant agrees to ‘take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized’ in the Covenant). Associated with this is the fact that only 21 states so far have ratified the Optional Protocol and accepted the Committee’s competence on receiving complaints. The limited number of states (mainly from Europe and Latin America) indicates which geographical areas have shown an appetite for supranational supervision of the implementation of the ICESCR rights. However, this is only related to the nature of the ICESCR rights, the realisation of which depends on the resources and technical capacity of the states (i.e. technical co-operation, international assistance, etc.). Today, the categorisation of human rights is considered outdated and rather reflecting their chronological development.

CONCL: The considerable delay in adopting a complaint’s mechanism and the slow ratification of the Optional Protocol to ICESCR illustrate states’ reluctance to affirm ESC rights as legal entitlements and tools for empowerment and justice. Substantive concerns over the justiciability of ESC rights – often linked to sovereignty or procedural issues from a national legal order point of view – have hindered the progressive realisation of these rights. Despite the expectations for numerous cases to be submitted before the Committee once the Optional Protocol entered into force, as of 2016, only few complaints have been submitted. Should the Optional Protocol not receive ratifications from a substantial number of states, this would send a gloomy message over the future of cultural rights. By looking at other successful human rights instruments and complaints procedures, i.e. ICCPR and the Human Rights Committee, for ICESCR to gain flesh and blood and to be turned into a living instrument, more complaints need to be submitted before the Committee in order for it to accumulate a sturdy body of case-law and gain a proper understanding of the ICESCR provisions and their interpretation.

REFERENCES:

International Commission of Jurists: Courts and the Legal Enforcement of Economic, Social and Cultural Rights–Comparative Experiences of Justiciability, Geneva: International Commission of Jurists (2008).

Ringelheim, Julie: “Cultural Rights”, in Daniel Moeckli, Saengeeta Shah and Sadness Sivakumaran (eds.): International Human Rights Law, Oxford: Oxford University Press (2014).

Scheinin, Martin, and Langford, Malcolm: “Evolution or Revolution? Extrapolating from the experience of the Human Rights Committee” 27 Nordisktidsskrift For Menneskerettigheter (2009).

Tomuschat, Christian: “An Optional Protocol for the International Covenant on Economic, Social and Cultural Rights”, in Klaus Dicke, Stephan Hobe, Karl-Ulrich Meyn, Anne Peters, Eibe Riedel,Hans-Joachim Schütz and Christian Tietje (eds.):Weltinnenrecht: Liber amicorum Jost Delbrück , Berlin: Duncker and Humblot, (2005).

Human Rights Council Resolution 27/30, 26 September 2014, A/HRC/RES/27/30.

ICCPR. General Comment No. 23: Article 27 (Rights of Minorities).

ICESCR, General Comment No. 3: The nature of States parties obligations (Art. 2, par. 1).

ICESCR, General Comment No. 5: Persons with disabilities.

ICESCR, General comment No. 6: The economic, social and cultural rights of older persons.

ICESCR, General Comment No. 11: Plans of action for primary education (art.14).

ICESCR, General Comment No. 13, The right to education (article 13 of the Covenant).

ICESCR, General comment No. 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights).

ICESCR, General Comment No. 17: 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.

ICESCR, General Comment No. 20: Nondiscrimination in economic, social and cultural rights.

ICESCR, General comment No. 21: Right of everyone to take part in cultural life.

INTERNATIONAL COURT OF JUSTICE:

ADVISORY OPINION ON THE LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY [2004] ICJ Rep 136.

DEMOCRATIC REPUBLIC OF CONGO v. UGANDA, (ICJ merits) [2005] ICJ Rep 168.

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS:

I.D.G. v. SPAIN Communication No. 2/2014.

LÓPEZ RODRIGUEZ v. SPAIN, Communication No. 1/2013.

HUMAN RIGHTS COMMITTEE:

BEARD OMINAYAK OF LUBICON LAKE BAND v. CANADA, Communication No. 167/1984, CCPR/C/38/D/167/1984.

HOWARD v. CANADA, Communication No 879/1999, UN Doc CCPR/C/84/D/879/1999„ (2005).

IVAN KITOK v. SWEDEN, Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985.

LANSMAN ET AL v. FINLAND, Communication No. 511/1992, UN Doc. CCPR / C / 52D / 511 / 1992.

LANSMAN ET AL v. FINLAND, Communication no. 671/1995, U.N. Doc. CCPR/C/58/D/671/1995.

LOVELACE v. CANADA, Communication No. 24/1977, UN Doc. CCPR/C/13/D/24/1977.

Kalliopi Chainoglou

Internet Access

(Right to I. A.)

DEF: The right to Internet access refers to state duties of ensuring connectivity with the global network of TCP/ IP operated devices for all individuals within a state’s jurisdiction, allowing them to access and impart data and opinions. While the human rights status of the right to Internet access remains unsettled, it is undoubtedly perceived as an implication of the freedom of expression and its composite rights: to access and to share information and ideas. As such the right to Internet access is a recognised civil right in national laws of a number of countries, including Finland, Estonia and Greece, with the latter stipulating ‘the right to participate in the Information Society’ and viewing the ‘facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof’ as an ‘obligation of the State’ (Greek Constitution, Article 5(a)). The right to Internet access is postulated as a necessary condition for the exercise of other human rights in the time of the global information society, such as freedom of expression, freedom of conscience or the right to assembly. This perception is shared by civil society and international organisations, including the United Nations, Council of Europe and the European Union.

INSTR: The right to Internet access has been subject to considerations of many international forums and organisations. At the UN level it was the 2011 report of the UN Special Rapporteur on the freedom of expression, Frank La Rue, which took up the question of recognising the right to Internet access as a human right. In his report La Rue observed that ‘the Internet has become an indispensable tool for realising a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States.’ (La Rue 2011). He went on to detail the role of states in ensuring this right, by stating that each state needs to ‘develop a concrete and effective policy, (...) accessible and affordable to all segments of population.’ In addition, the La Rue report reflects a broader perspective of the right to Internet access, observing that ‘by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also enables the realization of a range of other human rights’. This statement reflects the current international status of the right to Internet access: on the one hand, it may be viewed as an autonomous value to be protected by law, it may, on the other hand, be perceived solely as a precondition for the enjoyment of other human rights, without a separate reference to it included in their catalogue.

The Council of Europe takes a middle approach, and views the right to Internet access in the context of the ‘public service value of the Internet’ – a reference to necessary measures taken by states to ensure that everyone in their jurisdiction has online connectivity. The Council notes ‘people’s significant reliance on the Internet as an essential tool for their everyday activities (communication, information, knowledge, commercial transactions) and the resulting legitimate expectation that Internet services be accessible and affordable, secure, reliable and ongoing.’ (Council of Europe, 2007) Ensuring Internet access is perceived as a means of combating discrimination, as per Article 14 ECHR.

CASES: The French Constitutional Council’s reference to the right to Internet access as a fundamental right in its 2009 decision regarding a controversial French copyright law amendment (France, 2009) initiated a debate both in Europe and worldwide. The law proposed a ban on Internet access for those violating others’ rights, with the relevant decision to be made by an administrative body. Provisions of the law that were to enable an Internet disconnection were revoked, because the Constitutional Council considered it as a too far-reaching sanction, since it would have disproportionately affected the individual right to access information.

The ECtHR [YILDIRIM, 2012] sets the limits of the right to Internet access. Although the ECtHR refrained from recognising explicitly the right to Internet access as a human right, it made important observations on the significance of the online environment for the exercise of the freedom of expression in the contemporary global society. The applicant in this case maintained a website within the Google Sites domain. The access to the domain, and effectively to Yildirim’s site, was blocked following an order from a local court on the ground that one of the websites within the Google Sites domain, maintained by a user abroad, contained information violating Turkish law. As the Court was unable to prosecute the editor of the infringing content, it ordered the blocking of the entire domain, including the one of the applicant, although it was not being investigated or prosecuted. Yildirim claimed he was disabled from disseminating his academic work and views, which amounted to prior restraint, imposed without any court decision. Supporting his claim, the ECtHR observed that Article 10 applies not only to the content of information but also to the means of dissemination, ‘since any restriction imposed on the latter necessarily interferes with the right to receive and impart information’. The court found the imposed restrictions unforeseeable, with Turkey failing to ‘afford the applicant the degree of protection towhich he was entitled by the rule of law in a democratic society’. Moreover, it held that the ‘measure in question produced arbitrary effects and could not be said to have been aimed solely at blocking access to the offending website’, which made the applied measure overbroad. The ECtHR also provided recommendations as to the means applicable to Internet blocking applied by states as a legal measure, observing that those states need to ensure judicial review of procedures concerning the blocking that guarantee avoiding abuse, in particular by ‘blocking access in general’ [YILDIRIM, 2012]. In this context, the Court confirmed that the right to access online information is not an absolute one, yet any restriction laid upon it must meet the criteria present in the rich case law on Article 10 of the ECHR, including measures of foreseeability and proportionality. This line of adjudication was further developed in later cases decided by the ECtHR.

VIEWS: There seems to be little debate on the fact that the Internet conditions the exercise of human rights in the 21st century. There is agreement in the literature that the global network altered the scope of the right to free expression as well as to sharing information and ideas. Therefore, many scholars opt for recognising the right to Internet access as a new, autonomous human right. Referring to the classical notions of human rights generations, they identify the right to Internet access as a fourth generation right, conditioned by the freedom of expression and the right to access and impart information. They observe, however, that the practical transposition of this dogmatic approach into legal instruments presents important challenges that are yet to be overcome. Freedom of expression, fundamental to the right of Internet access, is not an absolute right. The limitative clause, present in Article 10 ECHR, covers a vast array of cases where states may impose relevant restrictions. Since the global character of the network resulted in a new paradigm of state jurisdiction and law enforcement, identifying the limits of free online expression has proven more difficult than in the pre-Internet era. To ensure the right to Internet access to everyone, without discrimination and with respect of due process, a universal set of criteria would need to be identified. Such a task has so far proven impossible for international human rights law and seems unlikely to be achieved for the purpose of setting online standards. With regard to the multi-stakeholder environment of the Internet (governments, civil society and business), some authors refer to soft law and good practice as the tools to facilitate finding the right balance between protecting the right to Internet access and securing rights of third parties. In this context, business self-regulation is discussed as a contemporary solution for ensuring all human rights, including Internet access, to all actors in the global information society. Bottomup endeavours such as the – primarily businessfunded and managed – Global Network Initiative try to identify a contemporary human rights consensus, which should then be reflected in the terms of service offered by participating companies. Consequently, the right to Internet access is an issue in the UN Protect, Respect and Remedy Framework, which attempts to identify the human and civil rights obligations of transnational corporations and other business actors (Human Rights Council, 2008).

There are however scholars who opt for perceiving the right to Internet access as a new, yet coherent element of the human rights regime, one rooted in the right to free expression and assembly, with little need for identifying it as a separate legal category. One of Internet’s original architects, Vinton Cerf, views technology as ‘an enabler of rights, not a right itself’ (Cerf, 2012) There are also some academics who opt for using other, well recog-nised legal constructs, such as the right to identity, as measures for ensuring human rights protection in online environments (De Hert, 2012).

CONCL: Considering that some European states explicitly recognise the right to Internet access in their national laws as well as the Council of Europe approach, case law and the relevant literature, Internet access can be viewed as an enabler of human rights in the information society, with its status as a specific human right remaining unconfirmed.

REFERENCES:

Cerf, Vinton G.: “Internet Access Is Not a Human Right” New York Times, (4 January 2012).

Council of Europe: Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet (2007).

De Hert, Paul: “A right to identity to face the information society” in W. Bruggeman, R. van Eert and A. van Veldhoven (eds.): What’s in a name? Identiteitsfraude en diefstal, Antwerpen: Maklu (2012).

France, Loi n∘ 2009-669 du 12 juin 2009 favorisant la diffusion et la protection de la création sur internet, 2009, (loi HADOPI).

Human Rights Council: Protect, Respect and Remedy: a Framework for Business and Human Rights. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie. A/HRC/8/5 (2008).

AHMET YILDRIM v. TURKEY (ECtHR 18/12/2012, 3111/10).

Joanna Kulesza

Internet Content Suppression

DEF: Internet content suppression (ICS) practices impede the possibility to access, receive or impart information and thus impose restrictions on individual’s right to freedom of expression as outlined in Article 19 of the ICCPR and Article 10 of the ECHR.

ICS (or internet censorship) results from legislative and technical measures. Technical measures (e.g., filtering and blocking) on information communication network or a part of it are used to cause temporary, permanent, ex-ante (e.g., blocking an Internet Protocol) or ex-post (e.g., removing comments) ICS.

INSTR/CASES: For ICS practices to be compatible with the human rights framework, ICS measures have to meet the criteria foreseen in Article 19(3) ICCPR or in Article 10(2) ECHR. Recently, more guidance on states’ obligations on freedom of expression in the ICT has been provided in jurisprudence, international and regional declarations.

When faced with issues of ICS, the ECtHR on several occasions has applied a framework established in its case law interpreting Article 10(2) ECHR. In a case of [AHMET YILDIRIM, 2013], concerning the court order (in the third party case) blocking access to an online service, the ECtHR, when considering the formal and material criteria for ICS, stated that having a measure ‘prescribed by law’ does not suffice to limit freedom of expression. The measure should be precise, accessible to the public, result in predictable outcomes and be compatible with the rule of law. The ECtHR has been criticised for not developing minimum criteria for ICS and not invoking proportionality or necessity tests, which go beyond the requirement of the rule of law. The ECtHR decision in [DELFI, 2015] remained reluctant to such criticism and did not consider technical aspects of ICT. Instead, it invoked the margin of appreciation doctrine and concluded that a measure limiting freedom of expression of a news portal had been proportional with its aims and thus compatible with the ECHR.

CONCL: National laws provide legal ground for ICS. While many states fight illegal and harmful content (e.g., hate speech or child sexual abuse images), the scope of ICS laws varies among states and is shaped by social, legal and historical factors. Similar to the offline context, states’ measures providing for restrictions on freedom of expression in the online context have to comply with the cumulative criteria outlined in Article 19(3) of the ICCPR. According to these criteria, limitations on the freedom of expression can be imposed if they ‘are provided by law and are necessary (a) to protect the rights or reputations of others; (b) to protect national security or public order, or public health or morals’.

REFERENCES:

Joint Declaration on Freedom of Expression and responses to conflict situations, 4 May 2015 (available at www.ohchr.org accessed 06/2016).

UN Human Rights Committee: General Comment No. 34, Article 19 Freedoms of opinion and expression (CCPR/C/GC/34), 12 September 2011.

UN Human Rights Council: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (A/HRC/17/27), 16 May 2011.

AHMET YILDIRIM v. TURKEY (ECtHR18/03/2013, 3111/10).

DELFI v. ESTONIA (ECtHR16/06/2015, 64569/09).

Paul de Hert/Lina Jasmontaite

Investigative Journalism

(and Protection of Sources)

DEF: Investigative journalism (I.J.) is practised by journalists (reporters, editors) or Internet bloggers, sometimes assisted by documentalists, whistleblowers and other concerned citizens, who profoundly research, describe and publish issues of public interest. Protection of sources is often a requirement for I.J., since the practices or documents in question – e.g. political affairs, crimes or negative corporate practices – have usually been kept secret or confidential before their disclosure. One of the most prominent cases revealed by I.J. has been the ‘Watergate Scandal’ of 1972 (break-in at the headquarters of the Democratic Party in Washington), which later led to the resignation of US President Richard Nixon.

INSTR/CASES: In principle, the diverse forms of I.J. and the related protection of journalistic sources fall under the provisions of Article 19 UDHR and Article 10 ECHR (Freedom of Expression and Information). In this context, the ECtHR observed that ‘the vital public watchdog role of the press could be undermined’ if journalistic sources are not protected [GOODWIN, 1996] and that the use of surveillance systems by the Dutch secret service against two investigative journalists violated human rights [TELEGRAAF MEDIA..., 2012]. The court also found that even the interference in the private life of a witness by using a hidden camera in an interview could be justified due to ‘the public interest in information on malpractice’ of insurance brokers [HALDIMANN AND OTHERS, 2015]. On the other hand, the Grand Chamber of the ECtHR came to a different conclusion in a case [BÉDAT, 2016] involving ‘sensationalist’ reports based on unlawful investigations – such as quoting in a newspaper secret judicial records of interviews and letters sent by a defendant to a Swiss judge – as they were considered to endanger ‘the right to protection of reputation’ (Article 8 ECHR) and did not ‘contribute[d] to any public debate on the ongoing investigation’.

CONCL: The soaring ‘information overload’ – due to millions of actors in the new digital media world and including deliberate disinformation, hidden campaigning or →‘trolling’ practices – could let the call of the ECtHR for ‘accurate and reliable information in accordance with the ethics of journalism’ [BLADET TROMSØ AND STENSAAS v. NORWAY, 1999] appear like a plea in a lost cause. However, the skills of investigative journalists with searching, evaluating, prioritising and verifying experience in both traditional and digital fields of communication have never been more important than they are today, not the least because they can also enhance ‘information literacy’ in the broader public. While the current case law favours – at least on the European level – independent journalistic investigation without interference of the state, NGOs such as the Global Investigative Journalism Network (http://gijn.org/) or Article 19 (www.article19.org) still see the need to provide advice or even legal and financial support for journalists, since governments and private companies do not always respect this standard.

REFERENCES:

BÉDAT v. SWITZERLAND (ECtHR 29/03/2016, 56925/08).

GOODWIN v.UNITED KINGDOM (ECtHR 27/03/1996, 17488/90).

HALDIMANN AND OTHERS v. SWITZERLAND (ECtHR 24/02/2015, 21830/09).

TELEGRAAF MEDIA NEDERLAND LANDELIJKE MEDIA B.V. v. THE NETHERLANDS (ECtHR 22/11/2012, 39315/06).

Andreas Joh. Wiesand

Journalists

DEF: Journalists and the media play a crucial role in democratic societies. They disseminate information and ideas (widely), thus influencing opinion-forming, and they perform the role of ‘public watchdog’ by monitoring governmental authorities and exposing corruption and wrongdoing. They therefore enjoy a high level of freedom of expression, but are also expected to adhere to journalistic codes of ethics. The nature of journalism has recently been undergoing major changes. Facilitated by Internet-based communications technologies, a growing range of actors now participate in public debate alongside journalists and the media. All too often, journalists reporting on controversial matters of public interest are killed, attacked, threatened, unlawfully detained or imprisoned as a result of their work. Impunity for the perpetrators of crimes against journalists is a grave problem in a number of European countries.

INSTR: Article 10 of the ECHR is the key European legal provision guaranteeing the right to freedom of expression. Article 10 ECHR and Article 19 of the ICCPR provide comparable levels of protection for the right to freedom of expression. Article 11 of the Charter of Fundamental Rights of the European Union also focuses on freedom of expression and the media; it should be read in the light of relevant case-law of the ECtHR. Other rights enshrined in the ECHR and ICCPR are also very important for securing the safety of journalists, e.g. the right to life, the right to freedom from torture, inhuman or degrading treatment or punishment, the right to liberty and security, right to a fair trial, etc. (McGonagle 2013, Parmar 2014). Article 10 ECHR guarantees everyone the right to freedom of expression, which includes the freedom to hold opinions and the right to receive and impart information and ideas without interference by public authority and regardless of frontiers. Although Article 10 does not specifically mention journalists, the Court recognises that freedom of expression is extremely important for them (McGonagle & Voorhoof, 2015).Within the Council of Europe, the Committee of Ministers, Parliamentary Assembly and Commissioner for Human Rights have all adopted standard-setting texts or issued reports and taken stances aimed at strengthening journalistic and media freedom. The Council of Europe, in partnership with leading journalism organisations, has launched an online platform to promote the protection of journalism and the safety of journalists. The OSCE Representative on Freedom of the Media (RFOM) is a very active and influential player in this field.

CASES: The ECtHR sees it as the ‘task’ of journalists and the media to impart information and ideas on matters of public interest and considers that the public has a ‘right’ to receive such information and ideas [THE SUNDAY TIMES (No. 1), 2009]. Thus, the Court examines the necessity of any restriction on the right to freedom of expression of journalists and the media very strictly. In order for journalists and the media to be able to act as public watchdogs, the Court accepts that they are entitled to enjoy a range of freedoms, including: protection of confidential sources [GOODWIN, 1996]; protection against searches of professional workplaces and private domiciles and against seizure of materials [DE HAES AND GIJSELS, 1997], and editorial and presentational autonomy [JERSILD, 1994], even including recourse to exaggeration and provocation. But journalistic freedoms are neither unlimited nor unconditional. Article 10(2) ECHR states that the exercise of the right to freedom of expression ‘carries with it duties and responsibilities’. There is an expectation that journalists contributing to public debate act ‘in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism’ [BLADET TROMSO AND STENSAAS, 1999].

VIEWS: In case-law and academic literature alike, the importance of journalism for democratic societies is undisputed (McQuail 2013). The expansion of journalism is also largely accepted, although the boundaries between professional and amateur (‘citizen’) journalists are sometimes contested (Schudson 2013) and their relationship is one of both competition and complementarity (McGonagle 2013). This prompts questions about whether and to what extent the freedoms, duties and responsibilities recognised by the ECtHR in respect of journalists also govern the activities of bloggers, whistle-blowers, academics, Internet intermediaries and other contributors to public debate (McGonagle, 2013; OSCE RFOM Open Journalism Project, Commissioner for Human Rights 2011).As in the case-lawof the ECtHR and the work of intergovernmental organisations and civil society organisations, literature highlights common sources of chilling effect on journalism, public debate and freedom of expression generally: overbroad (criminal)→defamation and other laws, the arbitrary application of such laws, violence and threats against journalists, including online and in particular targeting female journalists, impunity for crimes against journalists, etc. (Council of Europe 2014, Horsley 2014). Dissenting opinions in the Court’s case-law, echoed in academic literature, draw attention to the potential chilling effect of onerous duties and responsibilities (sometimes referred to by the Court as ‘responsible journalism’) on freedom of expression of journalists and other (media or Internet) actors in public debate (e.g. [DELFI A.S., 2015]).

CONCL: Besides the issues flagged above, other emerging issues include data journalism, algorithmic journalism and drone journalism (Andreotti 2015). All of these issues will continue to feature in the ECtHR’s evolving case-law and in other standard-setting, monitoring and awareness-raising work by various Council of Europe bodies, the OSCE RFOM and relevant UN bodies. The challenges facing this work are threefold. First, there must be due appreciation of the important interplay between the range of rights and freedoms that enable journalists to carry out the tasks ascribed to them in democratic societies. Second, in light of the reconfigured media ecosystem, fresh thinking is required in order to achieve the appropriate calibration of the rights, duties and responsibilities that govern journalistic activities, including when carried out by actors who are not professional journalists. Third, redoubled efforts are required by the international community and national political leaders to ensure the effective implementation of existing legal frameworks for the protection of journalism and the safety of journalists and others who contribute to public debate. Very often this is a question of political will and determination.

REFERENCES:

Andreotti, Onur (ed.): Journalism at risk: Threats, challenges and perspectives, Strasbourg: Council of Europe Publishing (2015).

Commissioner for Human Rights (ed.): Human rights and a changing media landscape, Strasbourg: Council of Europe Publishing (2011).

Committee of Ministers of the Council of Europe: Declaration on the protection of journalism and the safety of journalists and other media actors, 30 April 2014.

Conference of Ministers responsible for Mediaand Information Society, “Freedom of Expression and Democracy in the Digital Age: Opportunities, Rights, Responsibilities”, Belgrade, 7–8 November 2013.

Council of Europe: Platform to promote the protection of journalism and safety of journalists.

Horsley, William: Safety of journalists Guidebook (2nd edn.), Vienna: OSCE Representative on Freedom of the Media (2014).

McGonagle, Tarlach: “How to address current threats to journalism? The role of the Council of Europe in protecting journalists and other media actors”, Expert paper, Doc. No. MCM 2013(009), Strasbourg: Council of Europe.

McGonagle, Tarlach (ed.), Voorhoof, Dirk et al.: Freedom of Expression, the Media and Journalists: Case-law of the European Court of Human Rights, IRIS Themes, Vol. III, new, updated edition, Strasbourg: European Audiovisual Observatory (2015).

McQuail, Denis: Journalism and Society, London: SAGE Publications Ltd. (2013).

Parmar, Sejal: “The Protection and Safety of Journalists: A Review of International and Regional Human Rights Law”, Background paper, Seminar and Inter-regional Dialogue on the Protection of Journalists: Towards an effective framework of protection for the work of journalists and an end to impunity, Strasbourg, 3 November 2014.

Schudson, Michael: “Reluctant Stewards: Journalism in a Democratic Society”, 142(2) Daedalus (2013) 159.

BLADET TROMSO AND STENSAAS v. NORWAY (ECtHR 20/05/1999, 21980/93).

DE HAES AND GIJSELS v. BELGIUM (ECtHR 24/02/1997, 19983/92).

DELFI AS v. ESTONIA (ECtHR 16/06/2015, 64569/09).

GOODWIN v. THE UNITED KINGDOM (ECtHR 27/03/1996, 28957/95).

JERSILD v. DENMARK (ECtHR 23/09/1994, 15890/89).

THE SUNDAY TIMES v. THE UNITED KINGDOM (NO.1) (ECtHR 26/04/1979, 6538/74).

Tarlach McGonagle

Landscapes

(Cultural L.)

DEF: Cultural landscapes represent the ‘combined works of nature and of man’ (Article 1 of the 1972 World Heritage Convention) reflecting thus the spiritual relationship of people with nature. Pursuant to the World Heritage Committee Guidelines (2012, Annex 3), cultural landscapes are ‘illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal’ and can be classified into three categories:

INSTR: In addition to the World Heritage Convention, UNESCO has set up a unique web of standard-setting conventions in the field of cultural heritage which may also apply to the protection of cultural landscapes depending on the issues in question, particularly as regards the →Protection of Cultural Property in the Event of Armed Conflict, the →Illicit Import, Export and Transfer of Cultural Property, the protection of the →Underwater Cultural Heritage and of the →Intangible Cultural Heritage. Complementary to these instruments a number of Recommendations have dealt with issues relevant to cultural landscapes such as conservation policies and practices in recognition of inherited →values and traditions of different cultural contexts: 1962 Recommendation concerning the Safeguarding of Beauty and Character of Landscapes and Sites; 1972 Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage; 1976 Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas; 2011 Recommendation on the Historic Urban Landscape.

A number of non-binding instruments have been adopted by various international bodies: 1964 the Venice Charter (International Charter for the Conservation and Restoration of Monuments and Sites); 1982 the Florence Charter (Historic gardens and landscapes); 1990 the Charter on →Archaeological Heritage; 2013 the Burra Charter (Conservation of Places of Cultural Significance); the 2004 Nachitoches Declaration (Heritage Sites) or the 2005 Xi’an Declaration (Conservation of the Setting of Heritage Structures, Sites and Areas).

Even though cultural landscapes are perceived as ‘cultural heritage’ in the framework of the World Heritage Convention, they still present a diverse formation of tangible and intangible expressions of human interaction with the natural environment. This overlap between nature and culture expands the legal framework within which cultural landscapes are protected on the international level. Key conventions in the field of biodiversity and natural heritage allow for linkages to be fostered between their protection and implementation frameworks and the management of cultural landscapes (1971 Ramsar Convention on Wetlands; 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora; 1979 Convention on the Conservation of Migratory Species of Wild Animals; 1992 Convention on Biological Diversity; 2001 Treaty on Plant Genetic Resources for Food and Agriculture). Increasingly, cultural landscape protection and management is based on the sustainable use of natural and cultural resources incorporating thus an environmental approach whereby ‘decisions have to be made about which elements of the cultural landscape are: (1) to be conserved at all costs, (2) subject to limited change provided that the overall character and significance of the resource is maintained, and (3) suitable for exchange in return for other benefits’ (World Heritage Cultural Landscapes, p. 27).

The Council of Europe European Landscape Convention (2000) is committed to the protection, management and planning of all landscapes (including ordinary landscapes and degraded areas, whetheron land, waterorsea), based on a balanced relationship between social needs, economic activity and the environment. Member states are to ’recognise landscapes in law as an essential component of people’s surroundings, an expression of the diversity of their shared cultural and natural heritage, and a foundation of their identity’ (Article 5). The implementation of the Convention is monitored by a Committee of Experts and further backed up by Guidelines of the Committee of Ministers, setting out principles for the promotion of awareness and public participation and integration of landscape dimension into territorial and sectoral policies. The extensive work of the Council of Europe to this direction is further reflected in a number of Resolutions and Recommendations, e.g. regarding Landscape Award (2008), an information system (2013) as well as the promotion of ‘Landscape Awareness through Education’ (2014) and pedagogical material for landscape education in primary school (2015).

At EU level, legislation has been predominately environment and agriculture-oriented; hence cultural landscapes could in principle fall under the protection scheme of the 1992 Habitats Directive, the 1979 Birds Directive, and the Natura 2000 sites network. However, these instruments lack a cultural heritage or people-centred dimension which is prevalent in the normative texts of other international organisations.

CASES: There is not yet substantial case-law on the protection of cultural landscapes either at international or European level. Limited cases from the ECtHR concerned striking a balance between the individual right to private property and the public interest in the conservation of national landscape [SUD FONDI SRL, 2009]. Yet, the American Court of Human Rights has taken a bold approach in affirming the right to use or enjoyment of property in light of the collective interest of cultural communities and local groups that live on that land [MAYAGNA (SUMO) AWAS TINGNI COMMUNITY, 2001 and MOIWANA COMMUNITY, 2005]. In March 2016, the Pre-Trial Chamber I of the International Criminal Court confirmed against Ahmad Al Faqi Al Mahdi the war crime charge regarding the destruction of historical and religious monuments in Timbuktu (Mali); this is the first international criminal court case where a person is solely charged for war crimes against an historic and cultural monument.

VIEWS: Concerns have been expressed at international, regional and local level with regard to the sustainability and management of cultural landscapes. Heritage professional communities are particularly eager to ensure the stability and integrity of cultural landscape components and the detectability or measurability (i.e. through data collection and identification of relevant indicators) of any changes in the cultural landscapes and its values that may occur due to natural processes, human use or over-use of the landscape. Even though cultural landscapes are predominately viewed as part of cultural heritage, there is significant conceptual connection between the World Heritage cultural landscapes and the international or regional protected areas (i.e. under the IUCN or the EU Natura 2000 sites framework). There is also actual spatial overlap between some WorldHeritage cultural landscapes and international or regional protected areas (i.e. IUCN-UNESCO Sacred Sites) which outline the need for synergies between IUCN, EU, ICOMOS, UNESCO and other relevant international bodies aiming at the substantial management and governance relations between the World Heritage cultural landscapes and such protected areas. Nowadays, there is a growing dialogue between intergovernmental and governmental bodies, non-governmental organisations and the civil society with regard to cultural landscape management issues ranging from coordination and monitoring of the management strategy, governance capacity (i.e. participatory governance, intergenerational commitment, active citizenship), tourism management to funding strategies and capacity building in terms of professional development, education and engagement of cultural associations and the communities in cultural landscapes.

Studies and initiatives organised by ICCROM, ICOM, IUCN and other relevant bodies have been particularly instrumental in enhancing the links between different actors and international heritage protection frameworks concerning cultural landscapes, protected areas and intangible heritage. Along these lines, in 2014 the ICOM Siena Charter on Museums and Cultural Landscapes recognised museums (including archives, libraries and cultural institutions) as duty-bearers with regard to the protection and preservation of cultural landscapes: ‘a museum which is responsible for the landscape undertakes at the same time the interpretation centre of heritage and territory, promoting its knowledge and its symbols making inhabitants and visitors conscious of their constitute values and encouraging them to preserve, promote and enrich it’.

CONCL: Currently, there are 88 cultural landscapes on the World Heritage List, but also more than 25 landscapes enlisted in the List of World Heritage in Danger, including sites in conflictaffected countries such as Syria and Iraq. The destruction of such cultural landscapes directly affects the identity, dignity and future of local community and humanity as a whole. Although cultural landscapes sites are heavily affected during conflicts, mostly through collateral damage, their increasingly intentional destruction by terrorist groups and other non-state actors only highlights the institutional and enforcement lacunae in the existing international legal framework on the protection of cultural heritage, including cultural landscapes.

REFERENCES:

Blake, Janet: International Cultural Heritage Law. Oxford: Oxford University Press (2015).

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Towards an integrated approach to cultural heritage for Europe, COM/2014/0477.

Finke, Gunnar: IUCN Linking Landscapes: Exploring the relationships between World Heritage Cultural Landscapes and IUCN protected areas, IUCN World Heritage Study No. 11, Gland: International Union for Conservation of Nature and Natural Resources (2013).

International Law ssociation, Johannesburg Conference 2016: Committee on Cultural Heritage Law Report on the Law Pertaining to Cultural Landscapes Significant to Indigenous Peoples, (accessed 06/2016 via www.ila-hq.org/).

Mitchell, Nora; Rössler, Mechthild; and Pierre-Marie Tricaud (eds.): World Heritage Cultural Landscapes. A Handbook for Conservation and Management. World Heritage Papers No. 26, Paris: UNESCO (2009).

Francioni Francesco. and James Gordley: Enforcing International Cultural Heritage Law, Oxford: Oxford University Press (2013).

MAYAGNA (SUMO) AWAS TINGNI COMMUNITY v. NICARAGUA (IACrtHR 31/08/2001, Ser. C No. 79).

MOIWANA COMMUNITY v. SURINAME (IACrtHR 15/06/2005, Ser. C No. 124).

SUD FONDI SRL v. ITALIA (ECtHR 20/01/2009; 75909/01).

Kalliopi Chainoglou

Language Rights in Europe

DEF: Traditional languages of autochthonous minorities have in the past often been repressed by nation states in the process of nation-building, in order to form a homogeneous nation with unitary language and culture. Despite all these efforts, a number of regional and minority languages have survived – and their speakers have for some time, called for respect of the cultural diversity inherited from the past. More and more states in Europe tend to acknowledge that there are good moral arguments, as well as grounds of political prudence (Kymlicka 2015, 11–17; Patten & Kymlicka, 2003, 1–51) to concede some positive language rights in favour of speakers of regional and minority languages in their national legislation – or to open (by means of devolution or regionalisation) an avenue for the regions concerned to pass their own legislation granting such rights (Pupavac, 2012, 24–50; Rautz, 1999, 23–38). The move towards the codification of such rights has been consolidated by the conclusion of some international conventions in the framework of the Council of Europe that define a certain minimum standard for the language rights of minority language speakers (Thornberry & Martín Estébanez, 2004, 89–168). The rights granted in these conventions concern, in particular, the granting of education in minority languages, or at least the teaching of these languages as a second or third language (Nogueira López et al., 2012, 247–288). They also cover the provision of media services in minority languages and some basic linguistic rights in the context of official settings, such as judicial courts, administration and public services, as well as a minimum level of support for cultural activities in these languages (Oeter, 2015, 66–73). As a starting-point, a number of international institutions, in particular the Council of Europe, the OSCE and the UN, acknowledge the reproduction of culture and of language as a human right; in addition, there are strong educational arguments in favour of the teaching of minority languages and states show a certain willingness to grant a minimum level of social and cultural rights envisaging the provision of some services in minority languages (Skutnabb-Kangas & Phillipson, 1995, 71–110). The scope of these rights is quite limited, however, since states accept only very broad formulations leaving a lot of leeway in fixing the operational details, or they insist on a ‘menu approach’ where choices in the rights provided for may be made with ratification (the case of the Language Charter).

INSTR: Languages of traditional minorities have gained some legal recognition in most European states and are covered by a minimum set of language rights, although even in the Council of Europe a number of states still oppose the trend towards granting formal language rights for speakers of regional or minority languages. In a growing number of national legal orders, language legislation of states provides for an extended set of language rights in favour of minorities (Hofmann, 1997, 356–382). This is true for nearly all states in central and Eastern Europe, the Balkans and the Scandinavian states, but also important states of Southern Europe such as Spain and Italy. The UK has also opened space for language rights in the context of devolution. The rights often are not granted to all regional or minority languages on an equal footing, but rely on asymmetrical regimes favouring some important languages and linguistic groups. There are also several legal documents at the international level that provide for language rights of linguistic minorities. These international legal documents often leave unspecified who is considered a minority, and thus leave it to the discretion of member states; sometimes they explicitly exclude migrants and their languages (Article 1(a) Language Charter).

In the framework of the OSCE, a minimum standard of minority protection has been elaborated at an early stage, with the famous Copenhagen Document of 1990; the substantial standards of Copenhagen were supplemented by the institutional innovation of the OSCE High Commissioner for National Minorities (Drzewicki, 2014, 59–94). The most important standard-setting, however, has happened in the context of the Council of Europe, where a certain activism developed during the early 1990s (Hofmann, 2009, 31–78). The political dynamics after the fall of the iron curtain resulted in the adoption of two Council of Europe conventions, the European Charter for Regional or Minority Languages of 1992 (Language Charter), and the Framework Convention for the Protection of National Minorities of 1995 (FCNM). Both instruments entered into force in 1998, with different numbers of contracting parties – in 2016 the Framework Convention had been ratified by 39 states, the Language Charter by 25 states.

Both treaties show a certain overlap, but differ in their main focus. The FCCM is drafted as a special human rights treaty operationalising human rights of members of ethnic minorities (Thornberry & Martín Estébanez, 2004, 92). When going into detail, it proved to be difficult to cover the broad range of problems with abstract formulations in the language of universal ‘rights’. In order not to overburden member states with a too far-reaching rights language, the concrete formulations had to be watered down by a large number of softening formulations, limitation clauses and in-built reservations (Hofmann et al., 2015, 73). The ambition of the drafters of the Language Charter went into a completely different direction. The various drafting groups knew from the beginning that you cannot do justice to the needs and purposes of language protection by using a mere human rights language. Educational offers are needed, radio and television programmes in these languages must be provided, cultural and social activities must be supported by the state, options of usage in communication with state authorities should be created, the use of these languages in social life needs to be encouraged. It is difficult, if not impossible, to formulate these needs of ‘positive action’ in the language of absolute rights (Woehrling, 2005, 27). Accordingly, the Language Charter takes a clearly complementary approach to the human rights perspective of the FCNM, opting for an ‘à-la-carte’ approach according to the model of the European Social Charter (Boysen et al., 2011, 34). States may choose different levels of protection for each regional or minority language protected under part III of the Charter.

The source of inspiration for a significant number of the principles and undertakings in the FCNM has been the ECHR. A number of provisions of the FCNM simply spell out the minority-related contents and meanings of traditional human rights enshrined in the ECHR. A number of other provisions codify principles and undertakings known from traditional instruments of minority protection, such as the right to education in the minority language. One may group the undertakings in different clusters of rights and obligations (Thornberry & Martín Estébanez, 2004, 100). One such group are clearly the nondiscrimination guarantees and the obligations to take positive measures in order to end discrimination and to achieve more substantial equality in diverse societies. A second group consists of the guarantee of cultural institutions and of cultural rights. In addition, Section II contains a series of language rights, and in particular educational guarantees and educational rights. These undertakings range from the general right of persons belonging to a national minority ‘to use freely and without interference his or her minority language, in private and in public, orally and in writing’, as it is enshrined in Article 10(1), to relatively specific educational rights. The general right to ‘freely use the language’ is extended in paragraphs 2 and 3 of Article 10 to some contextual guarantees to use minority languages in relation with administrative authorities and as an accused before a judicial court, although these formulations are full of caveats and reservations (Hofmann et al., 2015, 321). Another aspect of language rights are the use of the surname and first name in the minority language, as well as the display of minority language signs and inscriptions (Hofmann et al., 2015, 342). The undertaking to display traditional local names and topographical indications in minority languages is again very carefully worded and fraught with limiting formulations (Thornberry & Martín Estébanez, 2004, 106). The same is true for the undertaking to provide, under very limited conditions, ‘adequate opportunities for being taught the minority language or for receiving instruction in this language’ in the framework of public education systems (Hofmann et al., 2015, 414). The right for minorities to set up and manage their own private educational and training establishments is much less reserved, although it is clear that this, in principle, does not entail any financial obligations of support to such establishments. In addition, states commit themselves to take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities (Thornberry & Martín Estébanez, 2004, 106–107) and to provide adequate opportunities for teacher training and access to textbooks. In its institutional provisions on the monitoring mechanism, the FCNM follows the common approach of Council of Europe Conventions in the human rights field and sets out a standard reporting procedure (Phillips, 2004, 112–114). Member states have to submit reports on their policies pursued in accordance with the Convention to the Secretary-General, who will then transmit them to the Committee of Ministers. The Committee of Ministers is assisted in its task of monitoring by an Advisory Committee. The Advisory Committee shall consider the periodical reports of states and shall transmit ´opinions´ to the Committee of Ministers. On the basis of these opinions, the Committee of Ministers subsequently adopts conclusions and recommendations.

As far as the Language Charter is concerned, the decision to follow the model of the European Social Charter, with the resulting path decision for an ‘à la carte’ approach, meant that states kept a lot of leeway in determining the scope of obligations when ratifying the convention. The Charter is clearly not conceived as a human rights treaty, but as a treaty designed to set standards for the formulation and implementation of language policies. The primary object of protection thus are not minorities as groups or individual members of such minorities, but ‘languages’ as a cultural phenomenon (Boyen et al., 2011, 31; Nogueira López et al.„ 2012, 16–18). There are two operative parts that make up the Language Charter, Part II and Part III (Woehrling, 2005, 29). Part II provides for a ‘minimum code’ of elementary standards meant to create obligations for states vis-à-vis all minority and regional languages which exist upon the territory of a member state. The (programmatic) standards laid down in this part are binding in all its aspects and apply to each minority language covered. The standards as such, however, are rather vague and are more formulated as policy objectives than as concrete legal standards that could be applied directly by administrative authorities and courts (Boysen et al., 2011, 80). Part III constitutes the technical core of the Language Charter. It contains the specific ‘menu’ of protection for recognised minority languages with options of a much more concrete nature than the abstract principles and objectives of Part II. The Charter contains a list of nearly 100 options of specific measures in favour of minority languages, under which a state must select at least 35 options per protected language. The essence of such a ‘menu’ approach is about forcing states to make a choice on the level they are willing to take positive action (Woehrling, 2005, 27). This positive action includes in particular providing certain types of education in minority languages at state schools, offering programmes in minority languages in public service radio and television, and enabling speakers to use their language before administrative authorities and courts. Article 8 provides for a wide range of educational options (see in detail Nogueira López, 2012, 247–288), with models of education in the minority language (as a medium of instruction), bilingual types of education and models of education in the official state language with a certain level of teaching of the minority language (as an additional language taught in school). Article 9 envisages a differing degree of possibilities of using minority languages in the judicial system (as to the need for some flexibility in this regard see Dunbar, 2010, 178–180). Rather similar options exist with regard to language use in the administration provided for in Article 10, where usually only regional and local administrations open up to various degrees of minority language use (see Engbers, in Boysen et al., 2011, 265–270). There are obvious reasons behind the limited amount states make use of these options. Official use before courts and administrations requires a specific organisation of the court system and the administration and personnel with specific linguistic capabilities. More or less the same observation is true as far as media are concerned, the field regulated in Article 11. Options range here from entire TV and radio stations operating in minority languages to programmes broadcast in these languages, support for the production of audiovisual works in minority languages, the training of journalists and media staff in these languages and support given to minority language newspapers (see in detail Dunbar & Moring in Nogueira López et al., 2012, 373–424). Article 12 envisages various measures of support for cultural activities in minority languages, whereas Article 13 offers a range of measures encouraging the use of minority languages in economic and social life, with a practical priority in the operation of health systems (in particular hospitals) and homes for the elderly with service offers in minority languages (see Richter in Boysen et al., 2011, 341–346). Article 13 finally covers transfrontier exchanges, either in the framework of bilateral agreements with other states where the same languages are used, or via cooperation across borders of regional and local authorities. The implementation of these substantial obligations is again monitored, like with the FCNM, by an expert committee within the framework of a state reporting procedure (see in detail Oeter, 2004, 132–140).

VIEWS: Academic specialists, as well as the organisations representing minorities, have welcomed the introduction of the two Council of Europe conventions setting out basic language rights (Palermo, 2014, 181–192). The treaties are far from perfect, but they have brought a clear improvement and have contributed significantly to the development of a uniform normative standard (Hofmann, 2009, 64–73). The transparency of the institutional monitoring procedures also has helped in identifying the deficiencies and loopholes in the practical implementation of minority protection instruments. We now know, after more than fifteen years of monitoring, much more on what is needed for the protection and promotion of minority languages – and at the same time the concrete meaning of the standards set out in the conventions has gained very much concrete contours. The experience in both treaty settings also has set into motion a fruitful dialogue between, not only lawyers and sociolinguists, but also between academics and practitioners, identifying best practices as well as dead ends and traps of any normative endeavour to codify language rights (Palermo, 2014, 192–198). It is still a long way for these insights to find its way into majority discourse in societies, however. European public discourse hardly ever regards minority languages as a resource to be valued positively, and the overwhelmingly dominant topic in discourses on language policy (in particular in educational matters) still is the strengthening of ‘national’ languages, not paying sufficient attention to the potentials and advantages of societal multilingualism. There is – despite all the progress in research and standard-setting – a continuing legacy of outdated concepts of ‘one language, one nation’.

CONCL: The last decades have brought significant progress in standard-setting as far as language rights of traditional minorities and their members are concerned. The two relevant Council of Europe conventions have achieved a far-reaching consensus on the adequate level of protection and promotion of minority languages and the corresponding catalogue of language rights (although not all states in Europe participate in such consensus). The state of implementation of these standards is patchy, however, as is visible in the evaluation reports of the relevant monitoring bodies. The most pressing issues so far may be found within the realm of education. Without adequate educational rights, the intergenerational transmission of minority languages is more and more endangered. The number of minority languages in peril is growing, and countering that trend needs adequate arrangements in education, in the media sector and in the promotion of culture. In particular, there is a need for legal schemes to support multilingualism in education in order to overcome a monolingual bias of schooling.

REFERENCES:

Boysen, Sigrid et al.: Europäische Charta der Regional- oder Minderheitensprachen. Handkommentar. Zürich/St. Gallen: Dike (2011).

Drzewicki, Krzysztof: "Minority Policies of the OSCE", in Daniel Thürer (ed.): International Protection of Minorities – Challenges in Practice and Doctrine, Zürich: Schulthess (2014).

Dunbar, Robert: “The Charter as a Living Instrument: Legal Challenges and Perspectives” in Minority Language Protection in Europe: Into a New Decade. Strasbourg: Council of Europe Publ. (2010).

Hofmann, Rainer: “Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems”, 40 German Yearbook of International Law (1997) 356.

Hofmann, Rainer: “Minority Protection in Europe: Standard-Setting by the Council of Europe and the OSCE” in Daniel Thürer (ed.): Managing Diversity: Protection of Minorities in International Law. Zürich: Schulthess (2009).

Hofmann, Rainer et al.: Rahmenübereinkommen zum Schutz nationaler Minderheiten. Handkommentar. Baden-Baden: Nomos (2015).

Kymlicka, Will: “Multiculturalism and Minority Rights: West and East?”, Journal on Ethnopolitics and Minority Rights in Europe – JEMIE 14/4 (2015) 4.

Nogueira López, Alba et al.: Shaping Language Rights: Commentary on the European Charter for Regional or Minority Languages in Light of the Committee of Experts´ Evaluation. Strasbourg: Council of Europe Publ. (2012).

Oeter, Stefan: “The European Charter for Regional or Minority Languages”, in Mechanisms for the Implementation of Minority Rights. Strasbourg: Council of Europe Publ. (2004).

Oeter, Stefan: “Council of Europe – The European Charter for Regional or Minority Languages” in Daniel Thürer (ed.): International Protection of Minorities – Challenges in Practice and Doctrine. Zürich: Schulthess (2014).

Palermo, Francesco: “International Standards and New Challenges for the Protection of Minority Rights – A Few Proposals on the Example of Language Rights” in Daniel Thürer (ed.) International Protection of Minorities – Challenges in Practice and Doctrine. Zürich: Schulthess (2014).

Patten, Alan and Will Kymlicka: “Introduction: Language Rights and Political Theory” in WillKymlicka and Alan Patten (eds.) Language Rights and Political Theory. Oxford: Oxford University Press. (2003).

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Stefan Oeter

Languages of Migrants

DEF: Languages of migrants, in contrast to languages of autochthonous minorities, are often regarded as a threat to social cohesion and not as a cultural resource. Yet, firstly, a number of supranational institutions, among them the EU, the OSCE and the UN acknowledge the reproduction of culture and of language as a human right; secondly, there are strong educational arguments in favour of the teaching of migrant languages (Cummins, 2003) and thirdly, it is increasingly problematic to distinguish migrant and indigenous minorities. Linguists, educators and politicians therefore demand language rights also for migrants. Languages of migrants can also play a role in granting asylum or citizenship (Language and National Origin Group, 2004).

INSTR: Generally, languages of migrants face much less protection than languages of traditional minorities as their speakers are regarded as ‘foreigners’ who are supposed to ‘integrate’, a discourse in which language use is central (Extra & Yagmur 2002:14). There are several legal documents that mention the rights of linguistic minorities (see de Varennes 1997 for an overview of existing policy documents), however these often leave unspecified who is considered a minority, or explicitly exclude migrants.

Concerning migrants’ language rights in education, UNESCO (1953) maintains that ’it is axiomatic that the best medium for teaching a child is the child’s mother tongue’. On the EU level, the major document on migrant language education is still a 1977 Directive of the Council of the European Communities on the schooling of children of migrant workers (77/486/EEC). Although it promotes migrant language instruction, it was limited, based on legitimating remigration in case of unemployment and has become outdated (Extra & Yagmur 2002, 44). The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UN, 1990) proposes in Article 45,3: ‘States of employment shall endeavour to facilitate for the children of migrant workers the teaching of their mother tongue and culture and, in this regard, States of origin shall collaborate whenever appropriate’. These – relatively soft – provisions are not yet relevant in the EU, because none of its member states has ratified this Convention.

Despite a growing tendency of international bodies to promote linguistic diversity and a large number of local initiatives, states have done little to create legal rights for migrants’ languages and to overcome monolingual institutional structures.

CASES: There are few specific documents on migrant languages and language rights in Europe. The ECtHR addresses language in relation to the right to an interpreter in case of arrest or court rulings (ECHR Article 5 & 6) and demands the right to education (Protocol to the Convention, 1952, Article 2). In contrast to the USA, where legal debates on language issues in education are prominent [e.g. LAU v. NICHOLS, 414 U.S. 563 (1974)], there are no public or legal debates on whether or not this implies access to education in a language the pupil understands as the ECtHR has interpreted the article as ‘only meaning that subjects have the right to avail themselves of the means of instruction [...], not to have any particular type of education established.’ (Skutnabb-Kangas & Phillipson, 1995, 86).

Concerning the legal rights of migrants to immigrate or naturalise, there has been a court ruling of the CJEU that overturned a German law on language skills [NAIME DOGAN v. FEDERAL REPUBLIC OF GERMANY, 2014]. It had required German language skills before granting a visa to future spouses from certain non-EU countries. The law had affected primarily the Turkish minority in Germany. Non-EU illiterate individuals had been, in effect, banned from the right to take a German husband or wife (EurActiv, 2014).