VIEWS: In line with international bodies, academic, as well as educational sources, generally agree on the relevance of language rights for migrants, particularly in educational contexts. Research has confirmed the significantly better achievements of pupils who have access to literacy in their native language (e.g. Cummins, 2003). There has been disagreement on whether or not to differentiate between ‘voluntary’ and ‘involuntary’ minorities and their respective rights for cultural reproduction. Due to demographic developments, where in the EU an estimated third of the urban population has a migration history, this debate has become less relevant. However, European public discourse hardly ever regards migrant languages as a resource, and the overwhelmingly dominant topic is the acquisition of majority languages as prerequisite to immigration and naturalisation.
A linked issue is the role of languages in asylum seeking procedures, where linguists have been very critical of unfounded decisions to deport migrants on grounds of their language use, apparently demonstrating the illegitimacy of their claims (Language and National Origin Group, 2004). This is related to a vibrant linguistic debate on outdated concepts on language that rely on a simple mapping of ‘one language, one nation’ (Blommaert, 2009).
CONCL: The most pressing questions with regard to migrant languages are certainly within the realm of education. Access to meaningful education for migrants is important for social cohesion and is not necessarily the same as education for majority speakers. There is a need for legal schemes to support language education and literacy in more than one language to overcome a monolingual bias of schooling that often reproduces ethnic discrimination indirectly. Demographic developments and economic and cultural globalisation require that the linguistic resources of the multilingual population are utilised more effectively. The most difficult aspect in this is how to grant rights to individuals in an increasingly diverse setting in which diversity does not necessarily come in the form of established ethnic groups with clearly definable languages. The legal right to learn (and not merely to be exposed to) the majority language in public schooling has to become an obvious matter.
Another important issue is the role of language in asylum seeking procedures and the degree of (socio-) linguistic expertise necessary to take decisions. The future role of national and official languages in granting access to naturalisation requires a transparent debate as well as transparent legal and administrative processes.
REFERENCES:
Blommaert, Jan: “Language, Asylum, and the National Order”, Current Anthropology 50 (2009).
Cummins, Jim: “BICS and CALP: Origins and Rationale for the Distinction”, in Christina Bratt Paulston & G. Richard Tucker (eds.) Sociolinguistics. The Essential Readings. Oxford: Blackwell. 322–28 (2003).
De Varennes, Fernand: “To Speak or not to Speak. The Rights of Persons Belonging to Linguistic Minorities. Working Paper prepared for the UN Sub-Committee on the Rights of Minorities”Working Paper prepared for the UN Sub-Committee on the rights of minorities (1997).
EurActiv: “European Court of Justice Bans German Language Requirement for Turkish Spouse Visas” (2014) (www.euractiv.com, accessed 09/2015).
Extra, Guus and Kutlay Yagmur: Language Diversity in Multicultural Europe. Comparative Perspectives on Immigrant Minority Languages at Home and at School, Paris: UNESCO (2014).
Language and National Origin Group: Guidelines for the Use of Language Analysis in Relation to Questions of National Origin in Refugee Cases, (2004) (www.essex.ac.uk, accessed 2/2016).
Skutnabb-Kangas, Tove and Robert Phillipson: “Linguistic Human Rights, Past and Present” in Tove Skutnabb-Kangas and Robert Phillipson (eds.) Linguistic Human Rights – Overcoming Linguistic Discrimination. Berlin: de Gruyter. 71–110 (1995).
UNESCO: The Use of Vernacular Languages in Education, Paris: UNESCO (1953).
Britta Schneider
LGBT
DEF: LGBT is an acronym that stands for lesbian, gay, bisexual, and transgender. It may be used to refer to an yone who is non-heterosexual or non-cisgender. A variant of this acronym adds the letter Q for those who identify as queer and I for those who identify as intersex.
INSTR/CASES: In many countries, the LGBT culture questions traditional cultural or family models and faces different problems. For example, homosexual partnerships or marriages, LGBT adoption or parenting, protection against hate crimes are not recognised everywhere. LGBT rights are protected by the UN, Council of Europe (see e.g. Rec CM/Rec (2010) 5) as well as EU instruments. The UN bodies in their work use the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (a document adopted in 2006 by a distinguished group of experts) that bring together and clarify existing international human rights law standards. The ECtHR issued several judgments concerning LGBT, among others in the context of discrimination in adoption procedures [e.g. E.B., 2008; X AND OTHERS, 2013], in exercising parental authority [SALGUEIRO DA SILVA MOUTA, 1999] or concerning civil partnerships [VALLIANATOS AND OTHERS, 2013; OLIARI AND OTHERS, 2015]. In the context of cultural rights, a case concerning the right to organise cultural events, such as gay prides, is of special interest [BACZKOWSKI AND OTHERS, 2007]. The right of transgender persons to legal recognition as members of the sex appropriate to their gender was confirmed by the ECtHR [CHRISTINE GOODWIN, 2002]. At EU level, the Employment Equality Directive (2000/78) requires all EU member states to provide for protection against discrimination based on sexual orientation in employment and occupation. According to the CJEU, unfavourable treatment because a transsexual person has undergone, or plans to undergo, gender reassignment amounts to discrimination on the grounds of sex [P, 1996].
CONCL: Protection of LGBT is progressively emerging as a new standard in international human rights law, especially at the European level, but less so in Africa and parts of Asia. However, the scope of this protection is still a subject of debate. In the European Union, one of the main problems is unequal protection against discrimination based on sexual orientation in comparison to more generous protection against discrimination based on race, ethnic origin or sex. The proposal of the European Commission to equalise the standard of protection (to combat discrimination outside the field of employment) within the EU in the form of a new – so called ‘horizontal’ – Directive is under discussion since 2008 (Pudzianowska, Śmiszek 2015).
REFERENCES:
Godzisz, Piotr and Pudzianowska, Dorota: “The case of anti-LGB hate crime laws in Poland”, in Schweppe Jennifer and Walters Mark Austin: The Globalisation of Hate Internationalising Hate Crime?, Oxford: Oxford University Press (2016).
Johnson, Paul: Homosexuality and the European Court of Human Rights, Abingdon: Routledge (2013).
O’Flaherty, Michael and Fisher, John: “Sexual Orientation, Gender Identity and International Human Rights Law: Contextualizing the Yogyakarta Principles”, 8(2) Human Rights Law Review (2008) 207.
Pudzianowska, Dorota and Śmiszek, Krzysztof: Combating sexual orientation discrimination in the European Union, Luxembourg: Publications Office of the European Union (2015).
BĄCZKOWSKI AND OTHERS v. POLAND (ECtHR 01/05/2007, 1543/06).
CHRISTINE GOODWIN v. UK (ECtHR 11/07/2002, 28957/95).
E.B. v. FRANCE (ECtHR, 22/01/2008, 43546/02).
OLIARI AND OTHERS v. ITALY (ECtHR 21/10/2015, 18766/11 and 36030/11).
P v. S AND CORNWALL COUNTY COUNCIL (CJEU 30/04/1996, C-13/94).
SALGUEIRO DA SILVA MOUTA v. PORTUGAL (ECtHR 21/12/1999, 33290/96).
VALLIANATOS AND OTHERS v. GREECE (ECtHR 07/11/2013, 29381/09 and 32684/09).
X AND OTHERS v. AUSTRIA (ECtHR 19/02/2013, 19010/07).
Dorota Pudzianowska
Libraries
(Access to L. Resources)
DEF: For centuries, libraries have served as a provider of literary inspiration and scientific or factual information, in many cities and towns also as cultural, educational and civic centres for all parts of the population. Access to culture and knowledge via libraries and, increasingly, to digitised or born digital content, is a key element of global and European policies of free access to →information.
The current digital revolution in the cultural sector changes the modes of access to information. Sometimes, these changes are seen as mainly technology-led. However, there is also legal uncertainty, specifically with regards to e-books (digital born content) and digitised collections (back catalogues; archives; letters; out of commerce works) which remain a major hindrance to enabling access to e-content.
INSTR: Libraries worldwide contribute towards turning everyone’s human right of free →participation in cultural life (ICESCR, Article 15, 1a) into a reality. Their work is also protected by the ECHR, since Article 10(1) on freedom of expression includes also ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’, even if this clause has, until now, mostly been employed to secure access to administrative information or official documents. Within the European Union, a patchwork of legal exceptions and limitations as well as diverse national modes of implementing the ‘InfoSoc Directive’ (2001/29/EC) did not fully clarify citizens’ rights to access information via libraries.
According to a recent report (Crews, 2014), 153 out of the 186 WIPO member countries included statutory ‘library exceptions’ into their →authors’ rights/ copyright laws (covering e.g. the reproduction of copyrighted works for private research and study; preservation and replacement of works; document supply and interlibrary lending) – which also shows that 33 countries do not yet recognise such exceptions.
CASES: Until now, the ECtHR did not deal directly with issues concerning access to content via libraries. However, in its case-law the court made some important clarifications, including that the freedom to receive information protected in Article 10 ECHR is not limited only to political news and other reports of public concern, ‘but covers in principle also cultural expressions as well as pure entertainment’ [KHURSHID MUSTAFA, 2008, § 44] and that the public of any country should not be prevented from having access to a work that can be considered part of the ‘European literary heritage’ [AKDAŞ, 2010, § 30]. The CJEU addressed the issue of digital content in libraries more specifically, confirming that EU member states are entitled to grant public libraries the ancillary right to digitise individual books from their collection without the right holder’s consent in order to make them accessible for the purpose of research or private study via dedicated terminals, based on a ‘fair balance’ between the interests of right holders and users of protected works [TECHNISCHE UNIVERSITÄT, 2014].
VIEWS: The present system of copyright protection and its role in either enabling or preventing creativity is now frequently under scrutiny (see e.g. Porsdam, 2016). A study has shown that most of the library stakeholders ‘are strongly supportive of a EU copyright reform, arguing that democratic values as well as the EU Single Market would benefit’, many of them proposing ‘either a general fair use exception in EU copyright law, or adding several specific exceptions, e.g. for text and data mining; e-lending; publicly funded research openly available; and that contract terms and technical protection measures cannot override limitations and exceptions’ (Andersdotter, 2015). While such demands are, as expected, questioned by many publishers (e.g. Börsenverein, 2015) and a few scholars, library organisations are focusing more on the concrete issue of how to uphold or further improve their service in the digital age. In 2013 and 2014, the European Bureau of Library, Information and Documentation Associations (EBLIDA) started a campaign for the ‘right to e-read’, maintaining that ‘libraries guarantee free access to content, information, and culture for all European citizens’ but facing a legal framework that ‘prevents libraries from fulfilling these essential services to our society, especially regarding the provision of e-books’.
CONCL: Given that information is a key driver for an educated society in which libraries both physically and digitally play a key role, it is not acceptable that rights in a digital environment should fall below those in the traditional physical environment. The ‘library everywhere’ concept of the 1950s, designed to meet the needs of underprivileged citizens by ensuring their access to reading, could now become a reality thanks to technological developments. To that effect, legal barriers impeding the further improvement of access to both digital and digitised e-content need to be removed.
REFERENCES:
Andersdotter, Karolina: Cross-border Copyfight. European libraries re-thinking the InfoSoc Directive, Masteruppsats, Uppsala Universitet (2015).
Börsenverein des Deutschen Buchhandels: Schwarzer Tag für Forschung und Lehre an deutschen Hochschulen, Presseerklärung vom 17. April 2015 (A black day for German university research and teaching, Press statement of the German Publishers Association).
Crews, Kenneth: Study on Copyright Limitations and Exceptions for Libraries and Archives, Geneva: WIPO Standing Committee on Copyright and Related Rights, SCCR/29/3 (2014).
Porsdam, Helle: Copyrighting Creativity: Creative Values, Cultural Heritage Institutions and Systems of Intellectual Property, Oxford: Routledge (2016).
AKDAŞ v. TURKEY (ECtHR 16/02/2010, 41056/04).
KHURSHID MUSTAFA AND TARZIBACHI v. SWEDEN (ECtHR 16/12/2008, 23883/06).
TECHNISCHE UNIVERSITÄT DARMSTADT v. EUGEN ULMER KG (CJEU 11/09/2014, C-117/13).
www.eblida.org/e-read/home-campaign/(accessed 04/2016).
Vincent Bonnet
Literary Expressions
(Freedom of L. E.)
DEF: Freedom of literary and artistic expression and access to culture for national, ethnic and linguistic minorities are protected in different legal instruments, including in the UDHR, whose Article 19 stipulates that ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’. The ECHR takes up these issues in Articles 9 ‘Freedom of thought, conscience and religion’ and Article 10 ‘Freedom of expression’. These articles were written in close relation with the idea of democracy which guarantees a free debate on every topic. Therefore, freedom of thought and expression can be considered the foundation of European democracies. An act of literary creation expressed in words in a given language (and possibly translated into other languages) is an inherent part of this concept.
INSTR: A writer as the author of thoughts has the right to express them according to Article 10 ECHR. Yet this article has a limitation clause in paragraph 2, which assumes that exercising freedom of expression may be subject to restrictions and penalties if these are ‘in the interests of national security’, if the ‘territorial integrity or public safety’ is being threatened or ‘for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’. Only as long as there is no conflict between free thoughts expressed by a writer in his/her literary work and these threats, he or she can enjoy freedom of expression to the full extent.
CASES: In democratic states there should be no censoring of speech or ideas expressed in public. The right to freedom of thought and expression results from the belief in a spiritual identity of an individual, in principles of pluralism and in the right to maintain contacts with a native culture. Constitutions of most European states share these assumptions and the system of conventions is supplemented by national measures. Yet there are examples of restricting the freedom of expression by state authorities, including bans on statements of a writer or on the circulation of his or her books, including confiscations of an edition, fines or a prohibition to print. As could be seen before, exercising literary freedom may entail ‘duties’ and ‘responsibilities’, which may be detrimental to literary expressions that belong to the world of literary fiction, even if they use a language of realism or are based on factual material. Famous cases of restrictions of freedom of literary expression resulted from accusations against: shocking or obscene content, e.g. in a textbook on sex education [HANDYSIDE, 1976]; promoting immoral behaviour, e.g. through publishing Appolinaire’s works [AKTAŞ, 2010]; offending religious feelings; defaming particular people, e.g. the leader of the Austrian Freedom Party, Jörg Haider [OBERSCHLICK, 1997] as well as institutions and organisations.
VIEWS: Literary →censorship, be it for political or ‘moral’ reasons, has been commonplace over centuries and still raised concerns throughout Europe in the not so distant past (Zimmer, 1966). Today, there is general agreement that freedom of expression may not pertain only to statements which are favourably received in a society. A human being has a need of individual expression, in literature it may even be overexpression. Among a wide range of various literary forms, the latter can take the form of iconoclasm, sarcasm, satire, irony, mockery, caricature, etc. They may be interpreted too literally, e.g. as a mockery of religion (Charlie Hebdo), as offensive towards public figures (political lampoons) or offending religious sensitivities (Pussy Riot). The ECHR protects freedom of expression in the name of pluralism of opinions, including the ability to communicate your opinions to other members of a society and the right of the society to learn about the opinion voiced by the author. Another important issue is the right to cultural expression of authors belonging to a national and ethnic minority and its culture. Such a collective dimension of freedom of expression lies at the heart of Article 10 of the ECHR. The issues that remain controversial are: ‘the right to shock’ and the right to present content close to pornography. Whether or not these phenomena are accepted is influenced by the concepts of ‘individual good’ and ‘common good’. The right to shock may be respected in connection with the right to individual development and fulfilment of the author’s potential as well as openness of people to other views. Yet invoking the ‘common good’ can suggest that it is acceptable for domestic authorities to interfere in literary and artistic manifestations that intend to shock [MÜLLER, 1988].
CONCL: Freedom of thought and different forms of expressing it in literature must remain guaranteed in democratic systems. It results from both individual and collective rights to personal freedom and collective freedom as well as from cultural diversity of contemporary societies; and the diversity entails the right to express different views. If we assume that a literary utterance includes an idea or value, the need to disseminate it could invoke the American concept of ‘a marketplace of ideas’ (with ‘producers’ of the idea and its ‘consumers’), but also the willingness to share values. Allowing the largest possible array of literary utterances is tantamount with acceptance of development of human imagination, the need to disseminate information and access the axiological space. The marketplace of ideas guarantees progress and protects against dangers. It results from the belief that it is better to articulate even the most controversial literary concepts than to keep them in hiding. Hiding thoughts creates a greater danger than revealing them. Contents that raise concerns, outrage or offend the general public are part of a democratic reality, which is why they should remain part of the free circulation of information. A ban on circulating the information may result only from the need to protect the society against danger, e.g. with regard to children and teenagers. It is important to remember that a certain age must be reached to be ready for a reception of certain literary works. Maturity, the right level of education, (intellectual preparation for a reception of literary content) constitute the protection against shock or harmful emotional impact among young readers.
REFERENCES:
Alexander, Larry: Is There a Right to Freedom of Expression?, Cambridge: Cambridge Studies in Philosophy and Law (2005).
Barendt, Eric: Freedom of Speech, 2nd edn., Oxford: Clarendon Press (2005).
Bollinger, Lee: The Tolerant Society, Oxford: Oxford Universty Press (1988).
International Mechanisms for Promoting Freedom of Expression: Tenth Anniversary Joint Declaration: Ten Key Challenges to Freedom of Expression in the Next Decade (www.osce.org2010).
Kamiński, Ireneusz C.: Ograniczenie swobody wypowiedzi dopuszczalne w Europejskiej Konwencji Praw Człowieka. Analiza krytyczna, OF, Warszawa (2010).
Łętowska, Ewa: Wolność wypowiedzi, “Law through Experience” / 116881-CP-1-2004-SK-GRUNDTVIG-G11.
O’Rourke, Kevin C.: John Stuart Mill and Freedom of Expression: The Genesis of a Theory, London: Routledge (2001).
Van Mill, David: Freedom of Speech, Stanford Encyclopedia of Philosophy (available at plato.stanford.edu, accessed 04/2016).
Zimmer, Dieter E. (ed.): Die Grenzen literarischer Freiheit, Hamburg: Nannen 1966.
AKTAŞ v. TURKEY (ECtHR 08/04/2004, 26307/95).
HANDYSIDE v. THE UNITED KINGDOM (ECtHR 07/12/1976, 5493/72).
MÜLLER v. SWITZERLAND (ECtHR 24/05/1988, 10737/84).
OBERSCHLICK v. AUSTRIA (ECtHR 23/05/1991, 11662/85).
Bożena Gierat-Bieroń
Margin of Appreciation
DEF: The term ‘margin of appreciation’ refers to the room for manoeuvre that the ECtHR is prepared to accord domestic authorities in fulfilling their obligations under the ECHR (Greer, 2000). The margin of appreciation is used in determining whether state action which limits the application of a right is necessary in a democratic society. The doctrine is closely linked to the idea that the protection of human rights of the ECHR is subsidiary to the protection of domestic systems. It is essentially a judge-made doctrine as no reference to the margin of appreciation is found in the ECHR (as long as the new Protocol 15 has not entered into force).
CASES: The margin of appreciation has been applied in a wide range of cases and its application is often difficult to predict. Factors which influence the application and the width of the margin in a case include: the provision invoked, aims pursued by the interference, the context of the interference and any European consensus on the issue (Spielmann, 2012). The margin of appreciation is most frequently applied in cases of relevance for ‘culture’, involving the provisions in Articles 8–11 and 14 (private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association and prohibition of discrimination), but also regarding Article 15 (derogation) and Article 1 of Protocol 1 (protection of property).
Examples of cases where the margin has been applied include [HANDYSIDE, 1976] where the Court said that states are ‘in principle in a better position than the international judge to give an opinion on the exact content’ of ECHR requirements. In [LEYLA SAHIN, 2005], the Court granted Turkey a wide margin of appreciation in relation to restriction on the wearing of headscarves due to the significance of secularism in Turkey at the time. In a subsequent case also involving the wearing of a full face coverage [S.A.S, 2014], the Court found that as there was no European consensus on the banning of full-face coverage, France had a wide margin of appreciation and was therefore justified in banning such clothing. In the case of [A, B AND C, 2010], despite European consensus on the issue of abortion, the Court found there was a margin of appreciation for Ireland in balancing the rights of the foetus and the rights of the mother.
VIEWS: There is a vast amount of academic literature on the margin of appreciation doctrine containing a wide range of divergent opinions. A part of the debate revolves around the question of the →universalism/relativity of human rights. On the one hand there is the opinion that the ECtHR has not taken the doctrine far enough in its application (Lord Hoffman, 2009), on the other hand there are those like Judge De Mayer in a dissenting opinion [Z, 1997] who say that it should be abolished, and it should not be for states to decide what is acceptable and what is not. For Greer the doctrine is integral to the ECHR’s interpretation, and the rights contained in the ECHR are both ‘universal and capable of being interpreted and applied differently in varying national contexts’ (Greer, 2010). It has also been argued that the doctrine should never be applied in the case of minorities as it is often the role of international human rights courts to provide protection for such groups (Benvenisiti, 1999).
CONCL: Protocol 15, when it enters into force, will add reference to the margin of appreciation doctrine to the end of the preamble to the ECHR. The margin of appreciation has moved from a doctrine developed by the court to almost a ‘right’ of states and it has been said that it brings the ECtHR into the ‘age of subsidiarity’ (Spano, 2014). The margin of appreciation doctrine will certainly continue to be used by the ECtHR as a method of interpreting the ECHR.
REFERENCES:
Benvenisti, Eyal: ‘“Margin of Appreciation, Consensus and Universal Standards”, 31 NYU Journal of International Law and Politics (1998) 843.
Council of Europe, Human Rights in Culturally Diverse Societies, Strasbourg: Council of Europe Publishing (2016).
Gerards, Janneke: “Pluralism, Deference and the Margin of Appreciation Doctrine”, 17(1) European Law Journal (2011) 80.
Greer, Steven: “The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights”, Council of Europe, Human rights files, No. 17, (2000).
Greer, Steven: “The Interpretation of the European Convention of Human Rights: Universal Principle or Margin of Appreciation?”, UCL Human Rights Review (2010) 1.
Hoffmann, Lord: “The Universality of Human Rights”, Judicial Studies Board Annual Lecture, 19 March 2009.
Shany, Yuval: “Toward a General Margin of Appreciation Doctrine in International Law?”, 16(5) EJIL (2005) 907.
Spano, Robert: “Universality or Diversity of Human Rights?”, 14 Human Rights Law Review (2014) 487.
Spielmann, Dean: “Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review”, in CELS Working Paper (2012).
A, B AND C v. IRELAND (ECtHR 16/12/2010, 25579/05).
HANDYSIDE v. THE UNITED KINGDOM (ECtHR 07/12/1976, 5493/72).
LEYLA SAHIN v. TURKEY (ECtHR 10/11/2005, 44774/98).
S.A.S v. FRANCE (ECtHR 01/07/2014, 43835/11).
Z v. FINLAND (ECtHR 25/04/1997 22009/93).
Hans Fischer-Kerrane
Media Content
(Diversity of, and Access to, M. C.)
DEF: Media pluralism and media diversity are closely-related concepts. Media pluralism concerns the availability of a range of different types of media whereas media diversity mainly concerns variety in media content/ output. It is widely accepted that media pluralism can contribute to media diversity, without necessarily guaranteeing it. Freedom of expression and freedom of the media are pre-conditions for media pluralism and diversity. The ability of individuals to express themselves freely via the media leads to the wide dissemination of information and opinions, which is very important for democratic societies. Different types of media help to foster diversity in different ways. For example, public service media must, in accordance with their mission, cater for the informational needs and interests of all groups in society by providing a diverse range of programming and services.
INSTR: The ECHR does not explicitly mention diversity of media content, but the ECtHR has explored the importance of media diversity in its case-law. The relationship between the right to freedom of expression and media diversity is circular: freedom to express ideas and opinions and disseminate information is a pre-requisite for media diversity, but media diversity is also very important for the freedom to receive information and ideas of all kinds. Media diversity has many facets, of which cultural and linguistic diversity are among the most salient. Besides the ECHR, various other Council of Europe treaties contain provisions that seek to promote (or have the effect of promoting) cultural and/ or linguistic diversity via the media. Examples include the 1995 Framework Convention for the Protection of National Minorities (especially Article 9) and the 1992 European Charter for Regional or Minority Languages (especially Article 11). The same can be said of the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. The Convention provides, for instance, that states parties ‘may adopt measures aimed at protecting and promoting the diversity of cultural expressions within its territory’, including ‘measures aimed at enhancing diversity of the media, including through public service broadcasting’ (Article 6(1) juncto 6(2)(h)). The Charter of Fundamental Rights of the European Union (2000, in force since 2009) contains provisions on freedom and pluralism of the media (Article 11(2)) and on cultural, religious and linguistic diversity (Article 22). The 1989 UN Convention on the Rights of the Child, recognising the role of the media, requires states parties to ensure that children have access to information and material from a diversity of sources (Article 17).
CASES: The ECtHR has consistently held that the state is the ‘ultimate guarantor’ of the principle of pluralism, especially ‘in relation to audio-visual media, whose programmes are often broadcast very widely’ [INFORMATIONSVEREIN LENTIA, 1993]. This means that the state has a positive obligation to uphold pluralism in the (audiovisual) media sector. The state must therefore ensure, amongst other things, that ‘the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country’ [MANOLE, 2009]. The Court has also held that it is important for all sections of the public to be able to receive a wide range of information, thus not only political and social news, but also ‘cultural expressions and pure entertainment’ [KHURSHID MUSTAFA, 2008]. The ECtHR has identified a particular role for public service media in the realisation of these objectives. The nature of that role has been developed in considerable detail by various standard-setting/policy-making activities, most notably by the Committee of Ministers of the Council of Europe. Recommendation CM/Rec(2007)2 of the Committee to member states on media pluralism and diversity of media content is particularly pertinent in this connection.
VIEWS: In academic literature, the terms media pluralism and media diversity, are sometimes distinguished and sometimes (seemingly) used interchangeably. Media pluralism is generally taken to refer to issues of media ownership; of choices available to the public between providers of services. Diversity, for its part, is most often taken to refer to the range of programmes and services available to the public (McGonagle, 2011). Distinctions have been made between different levels of media pluralism: content, source and outlet (Gibbons, 1999 and the Joint Declaration on Diversity in Broadcasting, 2007). In discussions about media content, it is important to take account of the actual content and how it is produced. It can be useful to distinguish between content produced by certain groups and content produced for certain groups. The former is more likely to speak to the target groups owing to the involvement of members of the groups in its design and creation. It is also important to take account of the practical value of diversity in media content. It has been suggested that it is not enough to ensure the availability of diverse media content, but that the public must also be exposed to that diverse content, if it is to have societal impact. This is sometimes referred to as ‘exposure diversity’, which goes beyond ‘supply diversity’. Recent literature explores the role of public service media in relation to exposure diversity, looking at modalities of ‘active pluralism’ (Gibbons, 2015), a ‘public service navigator’ role (Burri, 2015) and the use of ‘algorithmic profiling and targeting to guide audiences and stimulate more diverse choices’ (Helberger, 2015).
CONCL: As a media policy goal, the promotion of diverse media content remains a challenge. There is a risk of subjectivity in assessments of what level of media diversity is ‘sufficient’ in a democratic society and consequently, the usefulness of indicators as measurement tools is currently being explored in various quarters (e.g., the Media Pluralism Monitor Project). After affirming that the state is the ultimate guarantor of pluralism in the audiovisual media sector in 1993, the ECtHR was slow to spell out the implications of this positive obligation (see above). While a particular role for promoting diverse media content has been identified by the Court and others for public service media, the important contributions of other types of media (e.g., community media) are increasingly being recognised as well. There is also a growing awareness that the goal of promoting media diversity involves different challenges at different geographical levels (Barnett and Townend, eds., 2015). New, technology-driven, challenges have also emerged in recent years: so-called echo chambers (Sunstein, 2007) and filter bubbles (Pariser, 2011). This has prompted wide-ranging reflection among scholars (e.g. Karppinen, 2012, Valcke et al., eds., 2016) and policy-makers alike about how to achieve the goal of media diversity in the new media ecosystem.
REFERENCES:
Barnett, Steven and Townend, Judith (eds.):Media Power and Plurality: From Hyperlocal to High-Level Policy, Hampshire: Palgrave Macmillan (2015).
Burri, Mira: “Contemplating a ‘Public Service Navigator’: In Search of New- (and Better-) Functioning Public Service Media”, International Journal of Communication 9(2015), 1341.
Gibbons, Thomas: “Concentrations of Ownership and Control in a Converging Media Industry”, in Marsden, Chris and Verhulst, Stefaan (eds.): Convergence in European Digital TV Regulation, London: Blackstone Press Ltd. (1999).
Gibbons, Thomas, “Active Pluralism: Dialogue and Engagement as Basic Media Policy Principles”, International Journal of Communication 9 (2015), 1382.
Helberger, Natali: “Merely Facilitating or Actively Stimulating Diverse Media Choices? Public Service Media at the Crossroad”, International Journal of Communication 9 (2015), 1324.
Joint Declaration on Diversity in Broadcasting, adopted by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE RFOM, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information, 12 December 2007.
Karppinen, Kari: Rethinking Media Pluralism, New York: Fordham University Press (2012).
McGonagle, Tarlach: Minority Rights, Freedom of Expression and of the Media: Dynamics and Dilemmas, Antwerp: Intersentia (2011).
Pariser, Eli: The Filter Bubble: What the Internet is Hiding from You, New York: Penguin Books (2011).
Sunstein, Cass R.: Republic.com 2.0, Princeton NJ: Princeton University Press (2007).
Valcke, Peggy, Sükösd, Miklós and Picard, Robert G. (eds.): Media Pluralism and Diversity: Concepts, Risks and Global Trends, Hampshire: Palgrave Macmillan (2016).
INFORMATIONSVEREIN LENTIA v. AUSTRIA (ECtHR 24/11/1993, 13914/88).
KHURSHID MUSTAFA & TARZIBACHI v. SWEDEN (ECtHR 16/12/2008, 23883/06).
MANOLE & OTHERS v. MOLDOVA (ECtHR 17/09/2009, 13936/02).
www.monitor.cmpf.eui.eu (accessed 04/2016).
Tarlach McGonagle
Migrants
(Cultural Rights of M.)
DEF: A ‘migrant’ is defined by the International Organization for Migration (IOM) as a ‘person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is’ (‘Key Migration Terms’). While IOM places emphasis on the aspect of movement, UNESCO opts for a residence-based perspective, qualifying a migrant as a ‘person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country’ (‘International Migration and Multicultural Policies’).
INSTR: The term ‘migrant’ encompasses a notable number of different realities, determined by both the reasons convincing a person to migrate, and his or her legal status in the country of migration. According to the UN Special Rapporteur on the human rights of migrants, the latter include persons who are outside the territory of the state of which they are nationals or citizens, and of which they do not enjoy its legal protection (UN Doc. A/57/292, 9 August 2002, 25). It follows that migrants, broadly speaking, include those who are in the territory of the host country both legally and illegally. To a similar extent, both voluntary and involuntary immigrants are included in the concept. In international law the most important categories of migrants are diplomats, →refugees, migrant workers, and, among illegal migrants, victims of human trafficking. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provides for a number a cultural rights in favour of migrant workers, particularly the right to religion (Article 12), right to respect of their cultural identity (Articles 17 and 31), right to maintain their cultural links with their state of origin (Article 31), right to access to and participation in cultural life (Articles 43 and 45(1)), as well as right of the →children of migrant workers to be taught in their mother tongue and culture (Article 45.3). In March 2016, the Convention had been ratified by 48 countries, only four of which are European: Albania, Azerbaijan, Bosnia and Herzegovina and Turkey. To a similar extent, the 1977 European Convention on the Legal Status of Migrant Workers obliges states parties to take action to arrange special courses for the teaching of the migrant worker’s mother tongue for migrant workers’ children (Article 15). This Convention has so far been ratified by eleven countries. Article 10 of the 1975 ILO Migrant Workers (Supplementary Provisions) Convention (No. 143) requires States parties to develop national policies designed to guarantee equality of opportunities and treatment in respect of cultural rights for migrant workers or members of their families who are lawfully within its territory; Article 12(f) of the same Convention prescribes the right of the said persons to ‘preserve their national and ethnic identity and their cultural ties with their country of origin, including the possibility for children to be given some knowledge of their mother tongue’. Last but not least, Article 29(1)(c) of the 1989 Convention on the Rights of the Child establishes that the education of children shall be directed to, inter alia, the development of respect for the child’s own cultural identity, language and values, as well as for the national values of the country from which the child originates (which is of particular significance for migrant children).
CASES: At the UN level, the Committee on Economic, Social and Cultural Rights has affirmed that all cultural rights – just like any other right contemplated by the ICESCR – ‘apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation’ (General Comment No. 20).
Also the ECtHR has recognised the significance of migrants’ cultural rights, although in some cases only implicitly. For instance, the Court has found that the wish of Greek Cypriots living in northern Cyprus ‘to have their children educated in accordance with their cultural and ethnic tradition’ is a legitimate one [CYPRUS v. TURKEY, 2001] and that, consequently, the lack of appropriate school facilities for those people translated into a violation of Article 2 of Protocol I, concerning the right to education. Similarly, in the event of administration of forcible medical treatment which is contrary to a person’s cultural beliefs, a violation of Article 8 ECHR – relating to the right to respect for private and family life – occurs [MATTER v. SLOVAKIA, 1999; V.C. v. SLOVAKIA, 2011].
Finally, the Inter-American Court of Human Rights has noted, among other things, that ‘[b]asic labor rights are guaranteed to all workers, (including migrants), regardless of whether or not they are legally resident in the country’ (‘Juridical Condition and Rights of the Undocumented Migrants’, Advisory Opinion OC-18/03, 17 September 2003, para. 44).
VIEWS: Once it has been established that migrants are entitled to cultural rights, the key issue concerns the identification of the exact meaning of the term ‘migrant’. This operation is necessary to establish who is entitled to migrants’ cultural rights. There are different views concerning the meaning of the term ‘migrant’ under international law. For instance, according to UNESCO a narrow definition should prevail, on the basis of which the term in discussion should only include ‘people who make choices about when to leave and where to go, even though these choices are sometimes extremely constrained’ (‘International Migration and Multicultural Policies’). This position implies that refugees and other persons forced to leave their home country would be excluded. Differently, IOM and the UN Special Rapporteur on the human rights of migrants opt for a more comprehensive concept (see Key Migration Terms). The broader view is shared by the UN, which define the term ‘international migrant’ as ‘any person who changes his or her country of usual residence’ (Recommendations on Statistics of International Migration). The fact that a distinction is operated between ‘long-term immigrants’ (meaning persons who move to a country other than that of their usual residence for a period of at least a year) and ‘short-term immigrants’ (i.e. those who move to a country different than that of their usual residence for a period of at least three months but less than a year) is not significant in terms of entitlement to enjoy internationally recognised human rights (including cultural rights). In fact, relevant instruments refer to ‘migrants’ generally speaking, without operating any distinction based on the length of their stay in a country different than that of their usual residence.
CONCL: International law generally extends to migrants internationally recognised human rights. Among them, cultural rights attain a special significance, as their actual enjoyment allows migrants to preserve their own cultural identity in geographical and ‘environmental’ backgrounds where different cultural models are predominant. Preservation of migrants’ cultural identity may translate into different positive obligations for host states, depending on the specific circumstances of each case. Among the most significant cultural rights of migrants, that of having their children educated in accordance with their culture and ethnic traditions, as well as to be taught their mother tongue, emerges. The right to maintain their cultural links with their state of origin, or with the ethnic group to which they belong, is also of particular importance. In addition to refugees the category of migrants with regard to which international law is particularly concerned is that of migrant workers and their families, whose condition is regulated by several conventions at both the universal and regional levels. However, in order to ensure effectiveness of the measures of protection established by such conventions, it would be necessary to increase the number of ratifying states, which is at present quite poor, especially as far as European countries are concerned. Furthermore, it is obvious that the provision of cultural rights on paper, although indispensable, may not be enough to ensure their full enjoyment by migrants if it is not accompanied by the promotion in national societies of a social environment characterised by tolerance, mutual understanding and appreciation for cultural diversities.
REFERENCES:
Appleyard, Reginald (ed.): The Human Rights of Migrants, New York: International Organization for Migration and the United Nations (2001).
Bauböck, Rainer: “Cultural Minority Rights for Immigrants”, 30 International Migration Review (1996) 203.
Cholewinski, Ryszard, de Guchteneire, Paul and Pecoud, Antoine: Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights, Cambridge: Cambridge University Press (2009).
Dembour, Marie-Benedicte and Kelly, Tobias (eds.): Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States, London,New York: Routledge (2011).
International Organization for Migration: “Key Migration Terms” (available at www.iom.int,accessed 3/2016).
O’Nions, Helen: “Minority and Cultural Rights of Migrants”, in Chetail, Vincent and Bauloz, Céline (eds.): Research Handbook on International Law and Migration, Cheltenham: Edward Elgar Publishing (2014).
UNESCO: “International Migration and Multicultural Policies” (accessed 06/2016 via https: //epthinktank.eu/2013/07/09/migration-in-the-eu/).
United Nations, Department of Economic and Social Affairs, Recommendations on Statistics of International Migration. Revision 1, New York: United Nations (1998).
United Nations, Office of the High Commissioner on Human Rights, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation, New York and Geneva: United Nations (2014).
Federico Lenzerini
Movement of Cultural Objects
DEF: The legal provisions concerning the movement of cultural objects are expressed by international, European and domestic law, such as the 1954 Hague Convention for the protection of cultural property in the event of armed conflict, the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, the UNIDROIT 1995 Convention on stolen or illegally exported cultural objects, the 2001 UNESCO Convention the protection of underwater cultural heritage, as well as the EU Regulation 116/2009 on the export of cultural goods and the European Directive 2014/60 (recast) on the return of cultural objects unlawfully removed from the territory of a member state. During the last decades, there has been evidence of a ‘conflict of values’ between the reasons behind cultural nationalism – which see states as jealous guardians and supervisors of the circulation of cultural property and of their repatriation – and, conversely, the reasoning of the art market, which aims to grant the widest conditions for the circulation of goods, often characterised by a mannered universalism. While ‘all cultural heritage represents a human rights value’ (→Cultural Heritage in the Human Rights System), the difficult balance between the quest for safeguarding the integrity of a cultural heritage on the one side and for the free circulation of goods on the other, as well as the search for a compromise between the two is certainly one of the typical and recurring problems arising in this field.
INSTR: Each state retains control over the protection of its national heritage and import and export conditions concerning cultural objects differ substantially. The core provisions of the main relevant international conventions aim at both preventing the →illicit trafficking and urging states parties to take measures to facilitate the →restitution of stolen objects and the return of those illicitly exported from the country of origin. In particular, the 1995 UNIDROIT Convention – as a complement to the 1970 UNESCO Convention – establishes a principle providing for the restitution and return of stolen or illegally exported cultural objects at the request of a state or an individual, including the good faith possessor, who shall be entitled to the payment of fair and reasonable compensation provided that he can prove it exercised due diligence when acquiring the object. The failure to integrate the provisions of the 1970 UNESCO Convention in national legislations and the reluctance expressed by many states to the UNIDROIT Convention represent the main obstacles to applicate the machinery designed to facilitate the restitution and return of cultural objects. Whenever the international customary rules on the jurisdictional immunities of states and their property are not applicable, the protection of cultural objects on loan and the guarantee of their free and licit circulation mainly rely on the applicability of national legislations that provide for immunity from seizure. The problems of restitution and return have been more frequently and directly faced at a bilateral level, particularly over the last decades. This approach has been favoured by the unilateral adoption of domestic legislations by some importing countries (notably in relation to archaeological items), which refer to successive bilateral conventions aiming at a more effective struggle against the illicit trafficking of objects in provenance from certain specific states. This is the case of the Cultural Property Implementation Act adopted in the US in 1983, or of the Swiss Federal Law of 2005 on the International Transfer of Cultural Objects (LTBC).
CASES: Resort to the judicial settlement of disputes represents the first option for the parties to a dispute, as a rule after having exhausted without success any preliminary possibility of amicable resolution without success. Furthermore, according to the situation and under specific circumstances, judicial settlement may represent a fixed course that the parties must apply for, to their regret, in the absence of an alternative choice, or it may represent an instrumental tool used by the claimant to put the defendant under pressure, hoping to reach an agreement after a negotiation impossible to start at present. The application of the provisions contained in international conventions require that they be integrated by state parties in their domestic legislation. This is particularly true for the 1970 UNESCO Convention as the failure to implement its provisions constitutes an obstacle to its application. In fact, in 2006 the French Cour de Cassation – based on the same reasoning as the Italian Corte di Cassazione in 1996 – confirmed the rejection of a claim by the state of Nigeria, based on the provision of Article 13 of the 1970 UNESCO Convention, for the return of some Nok statues illicitly exported from its territory by a French antique dealer, arguing that the provisions of the Convention were not directly applicable in the domestic legal system, even though France had ratified the Convention without incorporating its main provision in domestic law. On the other hand, the Court of Appeal of England and Wales in [BARAKAT, 2007] recognised the application of Iranian public law on protection of the cultural heritage. The Court justified the recognition of such public law of a third state by referring to the principles of the 1970 UNESCO Convention, of the 1995 UNIDROIT Convention and of the EU Directive; it argued that even if some of the above instruments had no direct effect in domestic law, they nevertheless express the core of the principles shared by the international society and indicate the willingness of the UK to collaborate in the case of theft or illicit export.
VIEWS: According to one point of view, the practice of states should be investigated by looking for evidence of an attitude in favour of retention by the art rich (or art exporting) countries. According to an opposing point of view, any transfer of cultural objects is seen as a progressive impoverishment of the cultural heritage of countries with an important cultural tradition but with less economic power, in favour of countries less rich in art and cultural tradition but with a more competitive economic power. At the crossroads between the need to ensure both the protection of national heritages and the free movement of cultural objects, the search for the fair balance is crucial, even if it may not always fully satisfy all stakeholders (as demonstrated 2015/16 by the fierce opposition of art dealers and collectors against a German law project that tries to implement international rules against the illicit trafficking of protected objects). Furthermore, the outcome of the judicial claims for restitution and return of cultural objects is often uncertain and unpredictable due to reasons depending on factors such as the domestic applicable law, the rules of private international law, or the international conventions. In particular, the choice of the lex rei sitae – namely, the law of the place where the object is placed – is most frequently applied as the material law in order to decide on the request of the claimant, and this has often been criticised. With the aim of reducing these shortcomings, some commentators have suggested a departure from the above rule and the introduction of a rule of private international law making it possible to choose between the law of origin of the displaced item (lex originis) and the law of the situs in an action for recovery of a stolen item. Another suggestion aims at the introduction of a uniform law provision at the domestic level, based on the pattern of the 1995 UNIDROIT Convention. It should provide for the restitution of the stolen cultural object and the reversal of the burden of proof regarding the existence of good faith and/or the due diligence entitling the possessor to payment of fair compensation provided that the possessor neither knew, nor ought reasonably to have known, that the object was stolen and can prove that due diligence had been exercised when the object was acquired. In the absence of any clearly prevailing view, it is also to be noted that the judicial settlement of disputes may not always represent the best choice and not even a suitable solution in all cases concerning the circulation of cultural property. Such disputes are as well quite frequently settled by way of extra-judicial negotiations and agreements. Different kinds of disputes fall within this category, including those between states or public legal entities, where the settlement often relies on the so called diplomatic channels. In such cases a twofold outcome of the negotiation is theoretically possible: either the opposing parties may settle their dispute by way of a classic instrument of international law – namely the execution of an intergovernmental agreement – or they decide to resort to other tools of a contractual nature. Recent and contemporary international practice is marked by a variety of possible combinations: be they either an agreement on a long term loan or a deposit of the requested object, or on its donation, or on a restitution accompanied by scientific and artistic cooperation between the parties, or of the establishment of a trust in view of a future restitution, alternative solutions may be found. These have actually been found, notably in cases of disputes between states and individuals or public or private foreign entities.
CONCL: Unlike the Belgian code of private international law of 2004 which provides for the option between the application of the lex situs or of the lex originis (Article 90), the choice of the law applicable to claims for restitution or return of cultural objects is generally coincident with the lex situs. But even the choice of the lex originis – whenever this is possible – would not always assure the claimant as to the success of the relevant claim. At the European level, an approach method is being introduced that allows for a special jurisdiction, as it is the case with the EU Regulation 1215/2012 providing that a civil claim for recovery of cultural objects may be initiated in the courts for the place where the object is situated at the time when the court is seized (Article 7(4)). A similar solution was adopted under the Swiss law on private international law of 2003 (Article 98(a)), whereby a special jurisdiction was provided. Possibly and also with a view to overcoming the problems connected with the recognition of foreign public laws, the best solution would be for domestic legislations to be inspired by a uniform pattern, such as that provided for by the 1995 UNIDROIT Convention. These would concern to the duty to restitute or return, the above mentioned effects of possession in good faith and the relevant due diligence standards. In this respect it would be useful to follow the example of the German BGB (sec. 932, para. 2) defining the good faith a contrario and considering that the judge should determine the requirement of due diligence, taking into account both objective and subjective elements.
As a more general strategic policy, one should take into account the need for a combination of actions, including the adoption of multilateral and bilateral international conventions, as well as the implementation of these conventions at the domestic level, namely in the states where they are not directly applicable. At the European level, a number of measures to check the growth of illicit trafficking and of illicit sales of cultural objects on the Internet, as has been suggested by →UNESCO, Interpol and ICOM, could be taken up in the form of an EU rule; all online sales websites could, for instance, publish a warning with a prescribed form of words.
REFERENCES:
Carducci, Guido: La restitution internationale des biens culturels et des objets d’art, LGDJ (1997).
Cornu M., Fromageau J.,Wallaert C., (eds.): Dictionnaire compare du droit du patrimoine culturel, CNRS Editions, (2012).
Cornu M., Renold M.A.: Le renouveau des restitutions de biens culturels: les modes alternatifs de règlement des litiges, Clunet, 2009, 504.
Fellrath Grazzini, Isabelle: The Role of Arbitration in Resolving Non-Contractual Disputes, New York: Transnational Publishers, Inc. (2004).
Frigo, Manlio: Circulation des biens culturels, dtermination de la loi applicable et methods de règlement des litiges, Recueil des Cours, The Hague: Martinus Nijhoff (2015), 89.
Jayme, Erik: Identité culturelle et integration: le droit international privé postmoderne, Recueil des Cours, The Hague: Martinus Nijhoff (1996).
Nafziger James A.R. Paterson, Robert K (Eds): Handbook on the Law of Cultural Heritage and International Trade, Cheltenham: Edward Elgar (2014).
Prott Lyndel: « The Unidroit Convention on Stolen or Illegally Exported Cultural Objects. Ten Years On” Uniform Law Review (2009) 230.
Sanchez Cordero J.A. (ed.): The 1970 Unesco Convention New Challenges, C. Mexico, 2013.
Siehr Kurt: International Art Trade and the Law, Recueil des Cours, The Hague: Martinus Nijhoff (1994).
Van Woudenberg, Nout: State Immunity and Cultural Objects on Loan, The Hague: Martinus Nijhoff (2012).
Vrdoljak, AF: International Law, Museums and the Return of Cultural Objects, Cambridge: CUP (2006).
FRENCH MINISTRY OF CULTURE v. ITALIAN MINISTRY OF CULTURE AND DE CONTESSINI Foro italiano, 1996, I, 907 (1996).
IRAN v. BARAKAT (EWCA 21/12/2007, Civ 1374).
NIGERIA v. MONTBRISON, JCP, 2006, IV, 1917 (2006).
www.art-law.org/centre/liens_en.html (accessed 12/2015).
www.ial.uk.com/index.php (accessed 12/2015).
Manlio Frigo
Names
(Choice and Transcription of N.)
DEF: European countries have different norms governing names. A common tradition is for women to change their name when marrying, or rules securing linguistic cohesion of names. In Turkey, for example, a woman takes her husband’s surname in marriage [ÜNAL TEKELI, 2004], and Kurdish naming, after a long ban, is still hindered by transcription rules [KEMAL TAŞKIN AND OTHERS, 2010].
INSTR/CASES: A name, be it first or last, carries a cultural meaning of belonging. Traditionally considered a symbol of connection to a male ancestor, a community, or a nation state, a name is a matter of patrimony. The state’s interest of public order through cultural cohesion is expressed in rules governing names. With the rise of individual rights, the role of self-identification in determination of names becomes a legal and cultural issue.
The Courts in Strasbourg and Luxembourg seem to have developed different approaches. Before the ECtHR, rules governing personal names have primarily been evaluated as a matter of privacy and family life. Doing so, the Court has given a wide margin of appreciation to the state in determining the public interest of cultural cohesion [see e.g. STJERNA, 1994; REFAH PARTISI AND OTHERS v. TURKEY, 2003; GMB AND KM v. SWITZERLAND, 2001;MENTZEN ALIAS MENCENA v. LATVIA, 2004; BULGAKOV v. UKRAINE, 2007]. The CJEU, on the other hand, adhering to a regime of freedom of movement rather than privacy, has taken a more individual-oriented approach, focusing on the consequences of a name in everyday life for the individual at hand [see GARCIA AVELLO, 2003; GRUNKIN AND PAUL, 2008; SAYN-WITTGENSTEIN, 2010; RUNEVIČ-VARDYN, 2011]. Here, the individual is seen as a moving legal subject, with (some) right to choose her or his own cultural belonging.
CONCL: Looking at the European legal scene, we are left with a fragmented picture. The place for cultural agency in an internationalising context, where diverging national rules of patrimony and choice clash, leads to a series of questions for the future: Are harmonised legal regulations of names possible, or even desirable? Whose interests shall determine the transcription of a name? What ought to be the place for choice and cultural agency?
REFERENCES:
GRUNKIN AND PAUL (CJEU 14/10/2008, C-353/06).
KEMAL TAŞKIN AND OTHERS v. TURKEY (ECtHR 02/02/2010, 30206/04, 37038/04, 43681/04, 45376/04, 12881/05, 28697/05, 32797/05, 45609/05).
STJERNA v. FINLAND (ECtHR 25/11/1994, 18131/91).
ÜNAL TEKELI v. TURKEY (ECtHR 16/11/2004, 29865/96).
Daniela Alaattinoğlu
National Minorities
DEF: The explosion of minority rights in the early 1990s brought renewed attention to the cultural rights of national minorities. The right of members belonging to national minorities to practice their culture is recognised as an individual right in collective capacity (Article 27 ICCPR; Article 1 UN Declaration on Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN DeclonMin)). It has a negative aspect and a positive aspect, the latter pointing towards the obligation of states to take positive measures to protect minority cultures (Article 4 UN DeclonMin, Articles 4(2) and 5 Framework Convention on National Minorities (FCNM)). The scope of the right is very wide, including tangible, intangible and natural heritage, and the minority ways of life.
INSTR: Members belonging to national minorities have the right to participate in the national culture without any discrimination (ICERD) as well as the right to practice their own culture (Article 27 ICCPR, Article 15 ICESCR, Article 5 FCNM). Assimilation is clearly prohibited (Articles 5 and 12 FCNM). The participation of members of minorities to their culture must be effective (Article 2(2) UN DeclonMin, Article 15 FCNM); hence it may include cultural autonomy. Unfortunately, it is up to the state to decide on the implementation of the right. Members of minorities must be acknowledged as the owners of their cultural heritage and participate in the exhibition of their artefacts. →UNESCO provisions that viewed cultures as ownership either of the states or the individual are being re-interpreted in light of cultural rights of national minorities; yet, more needs to be done. Minority artefacts must especially be protected in times of ethnic conflict and war. Minority ways of life are protected unless cultural practices contravene international human rights standards. Education and media must promote mutual knowledge and understanding of minority and majority cultures (Article 6 FCNM), whereas cultural links with kin states must be respected (Article 2(5) UN DeclonMin). In 2011, the Faro Framework Convention on the Value of Cultural Heritage for Society came into force which refers to ‘heritage communities’ and recognises collective rights.
CASES: Although neither cultural rights, nor minority rights are included in the →ECHR, the →ECtHR has discussed such rights using a dynamic interpretation of the Convention. Often, the Court has used the right to private life: in [CHAPMAN, 2001], the Court accepted the positive obligation of states to facilitate the minority (Roma) way of life, including consideration of their needs and their different lifestyle. In [KHURSHID MUSTAFA AND TARZIBACHI, 2008], the Court held that the eviction of tenants on account of their refusal to remove a satellite dish that enabled them access to television programmes in Arabic and Farsi of their country of origin was contrary to the right of members of minorities. In [MUNOZ DIAZ, 2009], the Court also held that refusal to recognise a marriage according to the special rites of the minority community (Roma) for hereditary matters amounted to a violation of prohibition of discrimination and protection of property. The ECtHR has recognised a significant link between linguistic rights and the maintaining of the cultural identity of national minorities. The Court has also discussed issues related to minority religious manifestations, widely seen as part of minority intangible culture: Recently, the principle of ‘living together’ set out in [S.A.S, 2014] as a requirement for minorities has been widely criticised.
VIEWS: It is important not to essentialise minority cultures and not to protect past manifestations; rather states must allow national minorities to decide on which elements should be protected. Recognition of cultural rights of national minorities often raises questions on potential violations of individual rights by illiberal practices. International law has tools to deal with such possible conflicts. The [LOVELACE, 1981] case and the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights guide the international community in applying restrictions to human rights. Any affected individuals need to have their voices respected, while minority communities must be the main interpreters of their own cultural practices. Cultural practices may be curbed, only if they are contrary to international standards, and limitations to minority cultural rights have to be interpreted restrictively. It is important that the restriction to minority cultural rights responds to a pressing public or social need and is proportionate.
Integration has been widely viewed as a positive vehicle for inclusion of national minorities to the society. However, the current implementation of the concept by European states weakens the right of national minorities to their culture. The Europeanisation of human rights values lead to unnecessary suspicion towards minority cultures. Furthermore, the idea of ‘living together’ as discussed in [SAS, 2014] introduces further criteria for restricting minority cultures which go beyond the existing standards.
CONCL: The protection of indigenous cultural rights is a fairly recent discussion in international human rights law, which has been intensified by similar – albeit more detailed- new provisions on indigenous cultural rights. Even though viewing culture as a way of life is not new, tangible and intangible heritage has traditionally been granted to states, rather than non-state actors. Policies and practices allowing the true input of minorities in the exhibition, design and protection of their artefacts are still in an embryonic state in many states and more attention has to be given to this issue by international organisations. The UNESCO, the World Intellectual Property Organization (WIPO) and the World Bank are slowly opening their outlooks to accommodate minority cultural heritage and to make their documents and policies more consistent to minority rights standards. Redress of violations of minority cultural rights is still scarce. Easier are the discussions on intangible cultural rights, such as cultural practices, language and names. The standards are clearer and judicial and quasi-judicial international bodies have often been discussing them. The balance between minority cultural rights and other interests is ongoing but should not be tipped over by voices that use such debates to restrict minority cultural rights. In general, there is a gradual realisation that the right of national minorities to culture acts also as a prerequisite for the enjoyment of other rights related to land, education, food and natural resources.
REFERENCES:
Stamatopoulou, Elsa: “Monitoring Cultural Human Rights: the Claims of Culture on Human Rights and the Response of Cultural Rights” 34 Human Rights Quarterly (2012) 1170.
Ringelheim, Julie (ed.): Le droit and la diversite culturelle, Paris: Bruylant (2011).
Holt, Sally: “Family, Private Life and Cultural Rights” in Marc Weller (ed.): Universal Minority Rights, A Commentary on the Jurisprudence of International Courts and Treaty Bodies, Oxford University Press (2007).
Borelli, Silvia: “Of Veils, Crosses and Turbans: The European Court of Human Rights and Religious Practices as Manifestations of Cultural Diversity” in Silvia Borelli and Federico Lenzerini (eds.): Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in International Law, Boston–Leiden: Brill–Nijhoff (2012) 55.
Makkonen, Timo: “Minorities’ Right to Maintain and Develop Their Cultures: Legal Implications of Social Science Research” in Francesco Francioni and Martin Scheinin (eds.): Cultural Human Rights, Boston–Leiden: Brill–Nijhoff (2008).
Kymlicka, Will: Minority rights to culture, Oxford: Oxford University Press (1995).
Xanthaki, Alexandra: “Against Integration, In Favour of Human Rights” 20 International Journal of Human Rights (2016) 815.
Xanthaki, Alexandra: “Multiculturalism and International Law: Discussing Universal Standards” 32 Human Rights Quarterly (2010) 21.
CHAPMAN v. THE UNITED KINGDOM (ECtHR 18/01/2001, 27238/95).
KHURSHID MUSTAFA AND TARZIBACHI v. SWEDEN (ECtHR 16/12/2008, 23883/06).
MUNOZ DIAZ v. SPAIN (ECtHR 08/12/2009, 49151/07).
S.A.S v. FRANCE (ECtHR 01/07/2014, 43835/11).
SANDRA LOVELACE v. CANADA (HR Committee (1981), CCPR/C/13/D/24/1977).
Alexandra Xanthaki
Older Persons
(Participation in Cultural Life of O. P.)
DEF: There is no universally accepted definition of ‘older persons’, as virtually all provisions included in human rights treaties concerning older persons do not specify when old age begins. However, according to the CESCR (General Comment No. 6, 1995), the expression in point covers ‘persons aged 60 and above’.
INSTR: Article 25 of the UDHR attributes old aged persons the right to a standard of living adequate for their health and well-being as well as the right to security. At the European level, Article 23 of the 1996 Revised European Social Charter establishes the right of elderly persons to social protection, which is aimed at enabling them to remain full members of society for as long as possible through leading a decent life and playing an active part in public, social and cultural life, as well as through freely choosing their life-style. Article 25 of the 2000 Charter of Fundamental Rights of the European Union recognizes and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Last but not least, on 15 June 2015 the Organization of American States (OAS) adopted the Inter-American Convention on Protecting the Human Rights of Older Persons, which affirms ‘the right (of such persons) to their cultural identity, to participate in the cultural and artistic life of the community, to enjoy the benefits of scientific and technological progress and those resulting from cultural diversity, and to share their knowledge and experience with other generations in any of the contexts in which they participate’ (Article 21). According to the General Comments No. 6 (1995) and 21 (2009) of the CESCR, states must pay particular attention to the promotion and protection of the cultural rights of older persons, including through ensuring them appropriate access to education and to cultural institutions.
VIEWS/CONCL: As emphasised by the Population Division of the UN Secretariat, ‘(p)opulation ageing is one of humanity’s greatest triumphs. It is also one of our greatest challenges and places increasing economic and social demands on all countries. Worldwide, the proportion of people aged 60 years and over is growing and will continue to grow faster than any other age group (...) The number of older people over 60 years is expected to increase from about 600 million in 2000 to over 2 billion in 2050’ (World Population Prospects: the 2008 Revision). It is therefore essential that international law on elders’ human rights – including cultural rights – is appropriately improved. In this respect, Resolution 65/182 of 21 December 2010 – in which the UN General Assembly decided to establish a working group with the purpose of strengthening the protection of the human rights of older persons, including by considering the adoption of a new comprehensive and integral legal instrument – as well as parallel efforts of NGOs (see e.g. GAROP, 2015) are to be welcomed.
REFERENCES:
Dabbs Sciubba, Jennifer: “Explaining campaign timing and support for a UN Convention on the Rights of Older People”, 18 International Journal of Human Rights (2014) 462.
Global Alliance for the Rights of Older People (GAROP): Towards a Binding Convention on the Rights of Older Persons, 2015.
Martin, Claudia, Diego Rodríguez-Pinzón and Bethany Brown: Human Rights of Older People: Universal and Regional Legal Perspectives, Springer: Dordrecht, Heidelberg, New York, London (2015).
OAS: The Region’s Commitment to the Rights of Older Persons (available at www.oas.org accessed 3/2016).
Rodriguez-Pinzón, Diego, and Claudia Martin: “The International Human Rights Status of Elderly Persons”, 18 American University International Law Review (2003) 915.
UN Committee on Economic, Social and Cultural Rights: General Comment No. 6 – The economic, social and cultural rights of older persons (1995).