Critical opinions question the implementation and sustainability of judgments delivered by the ECtHR in this domain, seeing that national authorities continue with their banning practices after a while. They also question whether social media companies would genuinely be combining their skills and energies with other non-state actors in developing long term constructive campaigns for greater tolerance by the national authorities.
CONCL: Social media platforms will indeed continue to be an essential part of the contemporary way of life due to their accessibility, instantaneity, sociability and the sentiments of achievement and appreciation offered to the user. However, the freedom of expression on these platforms is often challenged, when users provide content regarding their own cultural heritage, ethnic background, political views and gender or faith orientation.
Since they do not have to disclose their true name and identity and thus can avoid direct physical confrontations, some users will continue to operate as voluntary or recruited online →trolls that show abusive behaviour. Social media companies will possibly continue to invest their research and development resources on containing the users within the online sphere rather than venturing into the offline world with physical human communication and interaction.
Judgments by the ECtHR against repressive practices in some states send powerful messages; however, they are currently not perceived as sustainable deterrents. Legal action should be supported with other forms of preventive and dissuasive alternatives. One such initiative is, since 2012, the Council of Europe’s youth-led campaign No Hate Speech Movement (NHSM); it aims to tackle online →hate crimes and develop counter narratives through social media and other online techniques against stereotypes, intolerance, →discrimination, racism, and sexism.
REFERENCES:
Council of Europe: Recommendation of the Committee of Ministers to member States on Internet freedom, CM/Rec(2016)5.
Fuller, Thomas: “Thai Man May Go to Prison for Insulting King’s Dog”, New York Times, (14/12/2015) (accessed 06/2016 via www.nytimes.com/).
Genosko, Gary: Felix Guattari – A Critical Introduction, London: Pluto (2009).
Guattari, Felix: “From Postmodernism to the Postmedia Era” (1989), in Schizoanalytical Cartographies, London: Bloomsbury (2013).
Institut Suisse de droit comparé: Comparative Study on Blocking, Filtering and Take-Down of Illegal Internet Content, Lausanne (2015) (accessed 06/2016 via www.coe.int).
Schenkkan, Nate: “May 2013 – July 2014: Turkey’s Long Year of Content Restrictions Online”, Freedom House Reports (accessed 06/2016 via freedomhouse.org).
UN Human Rights Council Resolution on The promotion, protection and enjoyment of human rights on the Internet (27/06/2016, A/HRC/32/L.20, accessed 07/2016 via documents-dds-ny.un.org).
CENGIZ AND OTHERS v. TURKEY (ECtHR 01/03/2016, 48226/10 and 14027/11).
www.eurodig.org/eurodig-2016 (accessed 06/2016).
nohatespeechmovement.org (accessed 06/2016).
Umit Ozturk
Status of Artists
DEF: An ‘artists’ statute’ is generally understood to mean legal and administrative measures taken by the authorities to adapt the general legal system to artists’ specific working conditions and way of life. Artists generate →intellectual property rights but, despite the expansion of the cultural and creative sectors, artistic activities take place in conditions which are clearly less secure than those of other professions. Small businesses, unremunerated research/ development, irregular and uncertain income, short-term project-based contracts, accelerated physical and mental strain, high levels of mobility and multi-tasking are elements which the ordinary framework of laws too often ignores in tax and social-security legislation.
INSTR: The UNESCO Recommendation concerning the Status of the Artist (1980) asserted – for the first time – the need to devise a status for artists as cultural workers. Based on the fundamental social rights recognised by the 1948 Universal Declaration of Human Rights (especially articles 22 to 25, 27 and 28) and the 1966 International Covenant on Economic, Social and Cultural Rights (articles 6 and 15), this status should improve the legal, social and fiscal conditions for creative and performance-related artistic activities, whilst respecting creative freedoms, to allow artists to live with dignity. More recently, the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions recognises the dual economic and cultural nature of artistic activity. As stipulated especially in articles 7, 13 and 16, this activity should therefore enjoy a specific and targeted legal, social and fiscal environment which encourages artistic activity (status) and facilitates the movement of artists (visas, taxation). The European Parliament adopted two resolutions: in 1999 on the role of artists in the European Union, and in 2007 on the social status of artists, focusing particularly on their unusual contractual situation, on access to social security and on fairer tax arrangements.
Several states have adopted partial measures which take certain aspects of the artist’s condition into account: for example, special social insurance for self-employed artists (Germany, France), supplementary or guaranteed income for artists (Luxembourg, the Netherlands), the artist’s choice between employee or self-employed status (Belgium), access to unemployment insurance for all artists (Belgium), special unemployment insurance rules (Belgium, France), reduced socialsecurity contributions (Belgium), special socialsecurity contributions for certain businesses (Austria, Germany, France), collective employment agreements in the sector (Belgium, Canada, Germany, France), taxation of staggered income, flatrate costs, and partial or total tax exemptions. But these steps do not generally constitute a set of measures that is sufficiently integrated and consistent to result in a more satisfactory status.
CASES: The European Court of Justice has removed major restrictions on the movement of artists within the EU, for example by recognising the self-secondment of self-employed opera singers in their member state of origin [BANKS v. THEATRE ROYAL DE LA MONNAIE, 2000] and by regarding as a block to the free provision of services the French definition of wage-earner applicable to performance artists established as selfemployed workers in the member state of origin where they regularly provide analogous services [EUROPEAN COMMISSION v. FRANCE, 2006].
VIEWS: Some questions remain unanswered: Who is an artist? Current discussions focus on the personal application of measures favourable to artists, particularly in terms of social security (e.g. AT: opinion of the Künstlerkommission; BE: Visa Artiste granted by the Commission Artistes). Who is a professional artist? The Slovak Coalition for Cultural Diversity operates by defining the professional artist compared with the amateur artist (2013).
What measures should be taken in the 21st century? Some professional bodies, such as the FIM and FIA, consider that the 1980 Recommendation should be brought into line with the aims of the 2005 UNESCO Convention, for example by providing new legal frameworks that offer all artist-performers, whatever their legal status, a package of professional rights, ongoing training, special social protection, accident insurance, fair taxation and the advantages of collective agreements. The Convention Européenne des artistes des arts visuels et plastiques (2008) also demands the assurance of fair pay, that peripheral activities be taken into account in the extension of creative work, social protection extending to occupational illnesses, and a policy for diffusing artistic knowhow. These associations wish to be included in processes of decision-making.
CONCL: Even if the 1980 Recommendation remains relevant, it seems necessary to revise it in light of the 2005 UNESCO Convention by taking account of the place of artists in a globalised world, together with three aspects – social, economic and cultural – of creative and performancerelated activities. A new Charter for the Status of the Artist and Artistic Activities could be an instrument that is more specific, relevant and restrictive. This Charter could be accompanied by an Orientation Guide containing a set of clear, simple and integrated proposals for the use of decision-makers in the various areas of activity. The definitions of artist and artistic activity should be more specific and take account of developments in artistic expressions and techniques. They should incorporate both peripheral activities and those involving the diffusion of artistic knowhow. New legal structures (for example, the shared project contract) which transcend the notion of subordination should be devised. New resources could be earmarked to provide financing for adjustments to social security, ongoing training and other necessary measures.
If the status of the artist is not properly defined, can freedom of creation really exist?
REFERENCES:
Capiau, Suzanne: La création d’un environnement juridique et économique approprié pour les activités artistiques – Nécessité et urgence d’une intervention publique, Council of Europe, DGIV/CULT/MOSAIC(2000) 22.
Capiau, Suzanne and Wiesand, Andreas Johannes: The Status of artists in Europe, ERICarts Study for the European Parliament, CULTURE AND EDUCATION IP/B/CULT/ST/2005-89, PE 375.321 (2006).
Convention Européenne des artistes des arts visuels et plastiques: Livre Blanc, Paris: Maison des Artistes (2009).
Eurostat: Cultural statistics, Luxembourg (2011).
FIM-FIA: Manifesto on the Status of the Artist / Manifeste sur la Condition de l’Artiste, Brussels (2014).
Jones, Susan: “Artists low income and status are international issues”, The Guardian, 1. 12. 2015.
Slovak Coalition for Cultural Diversity: Status of the Artist. Working Document for a General International Debate, Bratislava (2013).
UNESCO: World Observatory on the Status of the Artist (available through en.unesco.org).
Suzanne Capiau
Trolling and Shitstorms
DEF: A ‘troll’ is a person who posts inflammatory material on the Internet with the intention of upsetting other users, usually on forums and blogs. A troll may single out victims such as in the case of the two twitter trolls who threatened to kill and rape the feminist campaigner Caroline Criado-Perez. A ‘shitstorm’ is a public outcry, primarily on the Internet, which can reach epic proportions. The slang term seems to be particularly popular in Germany and Finland.
INSTR: Several treaties provide against →hate speech, without actually referring to it as such. For example, the CoE Additional Protocol to the Cybercrime Convention requires Parties to adopt measures to criminalise racist or xenophobic material, while Articles 6 and 9 of the Framework Convention for the Protection of National Minorities (FCPNM), read together, pre-empt hate speech of an intercultural nature. Drafted in a pre-smartphone, presocial media era, the online dimension of hate speech is nonetheless seen as increasingly important for the monitoring activities of the FCPNM under its Article 9 on Freedom of Expression (FoE). The ECtHR examines hate speech cases under Article 10 (FoE), and under Article 17 (prohibition of abuse of a right) ECHR, in cases of racism, antisemitism or Islamophobia. Anonymity, a key ally of online hate speech, is recognised as important for FoE by principle 7 of the CoE Declaration of Freedom of Communication on the Internet, but it also encourages Member states to take measures to prevent criminal acts. Section 127 of the UK Communications Act 2003 prohibits the sending of electronic communications that are grossly offensive, indecent, obscene or menacing. Also drawn up in a pre-social media era, it has been used to prosecute content normally protected by FoE, such as jokes on Twitter. Guidelines have now been issued to aid its application.
CASES: Expression becomes hate speech at the point it crosses the threshold of ‘offend, shock and disturb’ [HANDYSIDE, 1976]. Trolling and shitstorm episodes that reach this point are helped by online anonymity. Recognising anonymity’s importance for FoE, in [DELFI, 2015], the ECtHR said a person can be anonymous publicly on the Internet, but identifiable to a service provider, as long as there are effective remedies for violations of personal rights. In [KU, 2008] the release of private information was made subject to restrictions. In a seminal trolling case (BROOKES, 2012) in the UK, the High Court compelled Facebook to reveal identities and in doing so extended its jurisdiction to the US. The responsibility of portals for thirdparty hate speech was examined in [DELFI, 2015]; the ECtHR held that a portal must remove hate speech ‘without delay’ on constructive knowledge of its unacceptability. In an earlier case, [KRONE VERLAG, 2006], it held that shifting liability for defamation to a media company, usually better off financially, from the defamer was not a disproportionate interference with the company’s FoE. However, the ECJ in [SCARLET, 2011], a case on copyright infringement, said intermediaries had no obligation to monitor and filter social media posts, since this could undermine citizens’ FoE. The ECJ has also said that information can only be removed on request if it is inaccurate, inadequate or no longer relevant [GOOGLE SPAIN, 2014].
VIEWS: A comprehensive overview of the dissenting opinions on hate speech is given in [DELFI, 2015]. In this case, a minority of judges cautioned against extending liability of portal operators for third party hate speech since it may provide a strong incentive to discontinue offering comments sections. It might also lead to self-censorship of operators and private-party→censorship, as posts are removed prior to publication, affecting speech ordinarily protected by FoE. They disapproved of the court’s endorsement of a constructive knowledge approach for potential violations, requiring operators to remove hate speech comments ‘without delay’, which they said, was not the prevailing standard of genuine democracies. The comments may have been excessive or impermissible, but the matter, they said, was of public interest and the comments were part of the debate. They questioned whether a call for violence or a wish to see someone killed on the Internet would have the same effect as a similar statement made in a face-to-face encounter, since it was not a call to arms by an extremist group. They acknowledged that racist comments could not be protected by freedom of expression, but the judgment nonetheless lacked proper analysis as to what extent the comments constituted a real threat.
CONCL: Internet and public platforms have inadvertently built an effective delivery mechanism for hate speech. A European HR framework to counter this is emerging: increasingly, more Internet cases are treated by the ECtHR, the CoE Cybercrime Convention and FCPNM that address hate speech, although they do not refer to hate speech per se. Some argue against the regulation of the Internet because it obstructs the flow of ideas, and democracy depends on a plurality of voices. Anonymity and the Internet’s global reach, however, have made it an ideal tool for hatemongers, leading to a stark rise in online hate groups and activities. Domestic regulation has not always been easy, e.g. the UK Communications Act (s127) led to people being convicted for jokes on Twitter. Critics say [DELFI, 2015] has given private companies a free rein to censor, leaving free expression unprotected by the courts which then have lesser opportunity to develop this grey area further. The problem of jurisdiction, once a major online obstacle, is slowly being resolved in cases such as [PERRIN v. UK, 2005] and in [BROOKES v. FACEBOOK, 2012] in which the UK High Court agreed to extend its jurisdiction to the USA, issuing a disclosure order on Facebook.
In resolving these issues, encouraging responsible Internet behaviour may be a better alternative to regulation. Legal and policy decisions require IT expertise to ensure they don’t give rise to extra rights’ problems and the international community may need to come to an agreement on jurisdiction issues to avoid incoherency.
Council of Europe: Declaration on freedom of communication on the Internet (Adopted by the Committee of Ministers on 28 May 2003 at the 840th meeting of the Ministers’ Deputies).
Cruz-Cunha, Maria Manuela, Portela Irene Maria (ed.): Handbook of Research on Digital Crime, Cyberspace Security, and Information Assurance, Pennsylvania: ICI Global (2015).
Halliday, Josh, “Facebook forced into revealing identities of cyberbullies”, (The Guardian 8 June 2012).
DELFI v. ESTONIA (ECtHR 16/06/2015 64569/09).
GOOGLE SPAIN SL, GOOGLE INC. v. AGENCIA ESPAÑOLA DE PROTECCIÓN DE DATOS, MARIO COSTEJA GONZÁLEZ (ECJ 13/05/2014 C-131/12).
HANDYSIDE v. UK 1976, (ECtHR 07/12/1976 5493/72).
KRONE VERLAG v. AUSTRIA (no. 4) (ECtHR 09/11/2006 72331/01).
KU v. FINLAND (ECtHR 02/12/2008 2872/02).
SCARLET EXTENDED SA v. SOCIETE BELGE DES AUTEURS, COMPOSITEURS ET EDITEURS SCRL (SABAM) (ECJ 24/11/2011 C-70/10).
blogs.lse.ac.uk (accessed 31/01/2016).
blogs.spectator.ac.uk (accessed 31/01/2016).
shura.shu.ac.uk/6901/ (accessed 31/01/2016).
spiked-online.com (accessed 31/01/2016).
ukhumanrightsblog.com (accessed 31/01/2016).
Siobhan Montgomery
UN Treaty Bodies
All of the core human rights treaties have a body of independent experts that monitors the implementation of the relevant treaty. The treaty bodies are composed of between 10 and 23 elected persons of high moral character and with recognised competence in the field of human rights. Members serve in their personal capacity and may be re-elected if nominated.
All states parties to the relevant treaty are required to submit regular reports to the treaty body on the implementation of the norms of the relevant treaty. All treaty bodies have emphasised the importance of the contribution of NGOs, who often submit ‘shadow’ reports to treaty bodies. Consideration of reports takes place in public session and once the hearings are done the treaty body adopts ‘concluding observations’ which identify progress, along with highlighting remaining problems and concerns, and recommendations on improving implementation. Where a state fails to submit a report the states performance is examined on the basis of existing information from relevant stakeholders.
All treaty bodies issue ‘General Comments’ or ‘General Recommendations’, which provide authoritative guidance on general treaty obligations or interpretations on the provisions of the treaty. Although not legally binding, General Comments are often invoked by states and complainants in complaints procedures, and increasingly, by international, regional, and national courts.
An important part of the UN human rights system is the complaints procedures of the treaty bodies. There is an inter-state complaints procedure available but to date there have been no inter-state complaints. Seven treaty bodies, the Human Rights Committee, the Committee against Torture, the Committee for the Elimination of Discrimination against Women, the Committee on the Rights of Persons with Disabilities, the Committee on Enforced Disappearances, and the Committee on Economic, Social and Cultural Rights, have optional individual complaints procedures. In order for an individual complaint to be brought against a state, the state must have accepted the competence of the committee to hear the complaint. Admissibility criteria are that the complainant must be personally affected by the state action, the complaint must relate to events which occurred after the entry into force of the complaint mechanism, the matter must not be under review by another international procedure, and the complainant must have all domestic remedies. The decisions made by treaty bodies are not legally binding.
Since several treaties monitored by the treaty bodies contain cultural rights, the treaty bodies regularly deal with these rights. They have also adopted several General Comments on specific human rights provisions or cultural rights issues. Examples are General Comment 21 on the right to take part in cultural life by the Committee on Economic, Social and Cultural Rights, General Comment 24 on the right of members of minorities to enjoy their culture and the joint General Recommendation/General Comment 31 of the Committee on the Elimination of Discrimination against Women and 18 of the Committee on the Rights of the Child on harmful practices.
REFERENCES:
Alston, Philip: “The General Comments of the UN Committee on Ecomomic, Socialand Cultural Rights” American Society of International Law Proceedings (2010) 3.
Connors, Jane and Schmidt, Markus: “United Nations” in Moeckli, Daniel; Shah, Sangeeta and Sivakumaran, Sandesh (eds.): International Human Rights Law, 2nd edn., Oxford: Oxford University Press (2013).
Lintel, Ida and Ryngaert, Cedric: “The Interface between Non-governmental Organisations and the Human Rights Committee” 15 International Community Law Review (2013) 359.
McMahon, Edward and Ascherio, Marta: “A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council” 18 Global Governance (2012) 231.
Spohr, Maximilian: “United Nations Human Rights Council” 14 Max Planck Yearbook of United Nations Law (2010) 169.
Yvonne Donders
Underwater Cultural Heritage
1. The UNCLOS
Today the capacity of a few states and private entities to use advanced technological means to explore the seabed at increasing depths not only allows access to a huge amount of cultural heritage, but also entails the risk of such heritage being looted. In this regard, rules of international law are far from being satisfactory.
The regime provided by the 1982 United Nations Convention on the Law of the Sea (UNCLOS) for underwater cultural heritage is composed of only two provisions, namely Article 149 and Article 303. They are in a conceptual contradiction with one another and the latter can be interpreted as a covert invitation to loot underwater cultural heritage. The fact that the subject of underwater cultural heritage was taken into consideration only in the last period of a negotiation that lasted for about ten years cannot be a justification for such a regime.
Article 303(1), of the UNCLOS sets forth a general obligation of protection and cooperation which applies to all archaeological and historical objects, wherever they are found at sea. Despite its broad content, some legal consequences can be drawn from this provision. A state which knowingly destroys or allows the destruction of objects belonging to underwater cultural heritage can be held responsible for breach of an international obligation. A state which persistently disregards any request by other states to negotiate on forms of cooperation aimed at protecting underwater cultural heritage can also be held responsible for an internationally wrongful act.
It is implied in the UNCLOS that the full sovereignty which the coastal state enjoys within the internal maritime waters and the territorial sea also covers underwater cultural heritage. Beyond the territorial sea, Article 303(2), UNCLOS allows the coastal state to prevent the removal of archaeological and historical objects in the waters between the 12 and the 24 nautical mile (so-called archaeological contiguous zone).
The UNCLOS does not establish any regime relating to underwater cultural heritage found in the space located between the 24-mile contiguous zone and the 200-mile exclusive economic zone. The rights of the coastal state within such a zone are limited to the exploration and exploitation of the natural resources and cannot be extended to man-made objects, such as those belonging to underwater cultural heritage. This legal vacuum greatly threatens the protection of cultural heritage, as it brings into the picture the principle of freedom of the seas that could easily lead to a first-come-first-served approach. Availing himself of this principle, any person on board a ship could explore the exclusive economic zone adjacent to any coastal state, bring any archaeological and historical objects to the surface, become their owner under domestic legislation (in most cases, the flag state legislation), take the objects away and sell them on the private market. If this were the case, there would be no guarantee that the objects are disposed of for public benefit rather than for private commercial purposes and personal gain. Nor could a state which has a direct cultural link with the objects prevent the continuous pillage of its historical heritage.
The danger of freedom of fishing for underwater cultural heritage under the UNCLOS regime is increased by Article 303(3), which subjects the whole of Article 303 to ‘the law of salvage and other rules of admiralty’. If there is a conflict between the general objective to protect underwater cultural heritage (Article 303(1)), on the one hand, and the provisions of salvage law and other rules of admiralty, on the other, the latter prevails. In many countries, the notion of salvage is only related to the attempts to save a ship or its cargo from imminent marine peril on behalf of its owner, but is never intended to apply to ancient sunken ships which, far from being in peril, have been definitively lost since hundreds, or even thousands of years. On the contrary, in a minority of common law countries, and in particular in the United States, the notion of salvage law has been enlarged by some court decisions to cover also activities which have very little to do with ships in peril, but are aimed at underwater cultural heritage. In particular, the law of finds seems to mean that a person who discovers a shipwreck in navigable waters that has been long lost and abandoned and who reduces the property to actual or constructive possession becomes the property’s owner. In its turn, the law of salvage gives the salvor a lien (or right in rem) over the object.
Yet the expression ‘the law of salvage and other rules of admiralty’ simply means the application of a first-come-first-served or freedom-of-fishing approach, which can only serve the interest of private commercial gain. If this is the case, a state which has a cultural link with the underwater archaeological or historical objects is deprived of any means to prevent the pillage of its historical heritage. In fact, the body of ‘the law of salvage and other rules of admiralty’ is today typical of a few common law systems, but remains a complete stranger to the legislation of many other countries. Because of the lack of corresponding concepts, the very words ‘salvage’ and ‘admiralty’ cannot be properly translated into languages other than English. In the French and Spanish official text of the UNCLOS they are rendered with expressions – ‘droit de récupérer des épaves et (...) autres règles du droit maritime’; ‘las normas sobre salvamento u otras normas del derecho marítimo’ – which give the provision a broader and quite different meaning. This worsens the picture of Article 303, at least if read in the English version of the UNCLOS. Does this provision, while apparently protecting underwater cultural heritage, strengthen a regime which results in the use of much of this heritage for commercial purposes, regardless of its importance from the cultural point of view? Does Article 303 give an overarching status to a body of rules that cannot provide any effective means for the protection of the heritage in question? This doubt is far from being trivial, especially for those countries (for example Italy) where national legislation is based on priority given to the duty of the state to preserve cultural heritage for the purposes of public interest, in particular research and exhibition.
The second UNCLOS provision on underwater cultural heritage (Article 149) deals only with heritage found in the so-called Area, that is, the seabed and ocean floor beyond the 200-mile limit of national jurisdiction. It provides that ‘all objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin’. The provision appears complicated in its wording and devoid of details that could ensure its practical application. However, it embodies two excellent ideas. First, Article 149 shows a preference for uses of archaeological and historical objects that promote the ‘benefit of mankind as a whole’. Private interests, such as the search for and the disposal of the objects for trade and personal gain, are given little weight, if any. Second, some categories of states which have a link with the objects, namely, the state of cultural origin, the state of historical and archaeological origin, the state or country of origin tout court, are given preferential rights, although Article 149 does not specify either the content of these rights or the manner in which they should be harmonised with the concept of ‘benefit of mankind as a whole’. Despite its vague wording, Article 149 is in total contradiction with the freedom of fishing regime implied by Article 303(3).
2. The CPUCH
The 2001 Convention on the Protection of the Underwater Cultural Heritage (CPUCH) was adopted within the framework of the UNESCO. It defines underwater cultural heritage as ‘all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years’. Notable, as far as human rights are concerned, is Article 2(9) CPUCH, according to which ‘States Parties shall ensure that proper respect is given to all human remains located in maritime waters’.
The CPUCH builds on the excellent ideas contained in Article 149 UNCLOS, in particular the preservation and use of cultural heritage for the benefit of mankind and the preferential rights granted to certain states, and essentially aims to prevent the risks posed by a freedom of fishing regime. It provides in general that states parties are bound to ‘preserve underwater cultural heritage for the benefit of humanity’ and that ‘underwater cultural heritage shall not be commercially exploited’.
While most states participating in the negotiations for the CPUCH concurred in rejecting the application of the law of salvage and the law of finds to underwater cultural heritage, a minority of states were not prepared to accept an absolute ban. To achieve a reasonable compromise, Article 4 CPUCH provides that any activity relating to underwater cultural heritage is not to be subject to the law of salvage or law of finds, unless it is authorised by the competent authorities, is in full conformity with the CPUCH and ensures that any recovery of the underwater cultural heritage achieves its maximum protection. Although it does not totally exclude the law of salvage and law of finds, the CPUCH regime has the practical effect of preventing all the undesirable effects that would result from the application of these rules. Freedom of fishing for archaeological and historical objects is definitely banned.
The majority of the states participating in the negotiations for the CPUCH were ready to extend the jurisdiction of the coastal state to the underwater cultural heritage found within the 200-mile exclusive economic zone. However, a minority of states assumed, as they did during the negotiations for the UNCLOS, that the extension of the jurisdiction of coastal states beyond the limit of the territorial sea would have altered the delicate balance embodied in the UNCLOS between the rights and obligations of the coastal state and those of other states. Finally, as an attempt to reach a compromise, a procedural mechanism was envisaged which involves the participation of all the states linked to the heritage. It is based on a three-step procedure (reporting, consultations, urgent measures).
As regards the first step (reporting), the CPUCH bans secret activities or discoveries. states parties must require their nationals or vessels flying their flag to report activities directed at underwater cultural heritage or discoveries to them.
As regards the second step (consultations), the coastal state is bound to consult all states parties which have declared their interest in being consulted on how to ensure the effective protection of the underwater cultural heritage in question. This declaration is based on a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned. No attempt was made to define the rather vague concept of ‘verifiable link’. The coastal state is entitled to coordinate the consultations, unless it expressly declares that it does not wish to do so, in which case the states parties which have declared an interest in being consulted are called to appoint another coordinating state.
As regards the third step (urgent measures), the coordinating state may take all practicable measures and issue any necessary authorisations to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. It would have been illusory to subordinate the right to adopt urgent measures to the final outcome of consultations that are normally expected to last for some time. It would also have been illusory to grant this right to the flag state, considering the risk of activities carried out by vessels flying the flag of non-parties or a flag of convenience. By definition, in case of urgency a state must be entitled to take immediate measures without losing time with procedural requirements. The CPUCH clearly sets forth that in coordinating consultations, taking measures, conducting preliminary research and issuing authorisations, the coordinating state acts ‘on behalf of the States Parties as a whole and not in its own interest’.
Regrettably, the text of the CPUCH, which was the outcome of a difficult negotiation, could not be adopted by consensus. It was put to vote (87 States in favour, 4 against and 15 abstentions). Some states cast a negative vote or abstained because they could not accept the coastal state’s right to adopt provisional measures and considered it as a sign of ‘creeping jurisdiction’. Today the CPUCH, which entered into force in 2009, is binding for only 55 states.
In fact, the CPUCH may be seen as a reasonable defence of the underwater cultural heritage against the results of the counterproductive regime of the UNCLOS. If the looting of the heritage is the result of the UNCLOS regime, it is the UNCLOS that is wrong on this specific matter, irrespective of all the balances that it might wish to preserve.
Tullio Scovazzi
UNESCO
DEF: The United Nations Organization for Education, Science and Culture (UNESCO) was founded on 16 November 1945. It has 195 Members and 8 Associate Members (states) and is governed by the General Conference and the Executive Board. The Secretariat, headed by the Director-General, implements the decisions of these two bodies. The Organisation has over 50 field offices globally.
For UNESCO, culture encompasses ‘art and literature, lifestyles, ways of living together, value systems, traditions and beliefs’. Recognising the transformative power of culture, the organisation protects heritage as the embodiment of identity and fosters creativity as a cornerstone for open, inclusive and pluralistic societies.
INSTR: The unique constellation of eight cultural conventions constitutes the bedrock on which UNESCO’s action is founded, including the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005); the Convention for the Safeguarding of the Intangible Cultural Heritage (2003); the Universal Declaration on Cultural Diversity (2001); the Convention on the Protection of the Underwater Cultural Heritage (2001); the Convention for the Protection of the World Cultural and Natural Heritage (1972); the Convention on the Protection of Copyright and Neighbouring Rights (1952, 1971) the Convention on the Means of Prohibiting and Preventing the Illicit Traffic of Cultural Property (1970); the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954).
To ensure culture is a constant reference in development strategies and processes, UNESCO pursues a three-pronged action:
(a)Leading worldwide advocacy in relation to the implementation of the 2030 Agenda for Sustainable Development;
(b)Engaging with other actors to set up clear policies and legal frameworks; and
(c)Supporting governments and local stakeholders to safeguard heritage, strengthen creative industries and encourage cultural pluralism.
CONCL: Issues of attention are: the elaboration of tools and approaches tailored to the specific needs within the 2030 Agenda; special provisions within humanitarian and peace-building frameworks to protect against attacks on cultural heritage; and the further entrenchment in human rights principles and standards in the context of implementing cultural conventions.
REFERENCES:
UNESCO (ed.): Re|Shaping Cultural Policies – A Decade of promoting the diversity of cultural expressions for development. 2005 Convention Global Report, Paris (2015).
UNESCO WorldReport – Investing in Cultural Diversity and Intercultural Dialogue. Paris (2009).
en.unesco.org/themes/protecting-our-heritage-and-fostering-creativity (accessed 5/2016).
Konstantinos Tararas
Universal Declaration of Human Rights (UDHR)
DEF: The Preamble to the Charter of United Nations (1945) reaffirms ‘faith in fundamental human rights’ and in ‘the dignity of the human person.’ The Universal Declaration of Human Rights (1948) results from the mandate established in the Charter, which states that the ‘General Assembly shall initiate studies and make recommendations for the purpose of ... assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. Thus, one of the main traits of the rights contained in the UDHR is their universal character. This is why, as proposed by one of the drafters of the UDHR, R. Cassin, the title of the document uses the word ‘Universal’ instead of ‘International’ (Gross Spiell, 1998).
INSTR: Being a declaration, the UDHR has not the same legal value as a treaty. However, many of its dispositions are currently part of international customary law – that is, international law generated through states’ practice (von Bernstorff, 2008). Some of them are even norms of ius cogens from which no derogation is permitted, e.g. in the case of the prohibition of torture.
The Cold War ideological division prevented the transformation of the UDHR into a whole and unitary treaty and, as a declaration, the UDHR does not provide for the monitoring of states’ compliance. However, several United Nations HR treaties further developed its dispositions and Committees have been established for the monitoring of such treaties. This is the case, among others, of the →Human Rights Committee which monitors states’ compliance with the International Covenant on Civil and Political Rights and the Committee on Economic, Social and Cultural Rights which does so with the →International Covenant on Economic, Social and Cultural Rights, both signed in 1966.
HIST: It has been claimed that the UDHR uses a Eurocentric understanding of HR. Sometimes, such critiques confuse the principles of the UDHR with justifications of ‘imperialist’ actions, which sadly have been not infrequent. In fact, concerning the text of the UDHR itself, it must be noted that it was achieved through a process dominated by acute awareness of the need for an intercultural basis for HR, following their neglect during WW II. Moreover, the text is silent concerning the identification of the cultural / philosophical / ideological ‘foundations’ of such rights. The UDHR establishes in its Preamble that ‘a common understanding of these rights and freedoms is of the greatest importance for the full realization [of their respect and observance]’. The drafters were thus aware that finding common grounds of HR is essential to achieve their effectiveness. Only on the basis of these common grounds can its universal application be legitimated. But, as mentioned above, the UDHR did not identify this ‘common understanding’ of the HR that it recognises. The text does not even refer to human dignity as the source of HR, as would be done later by other HR instruments (Gross Spiell, 1998). Such a lack of identification of the ‘common understanding’ of human rights was intentional: the impression that a specific understanding might have priority over others was to be avoided. Such silence can rightly be seen as a refreshing opportunity for the intercultural embodiment of HR and also as a convincing argument against those claiming the absolute Eurocentric approach of the UDHR.
Indeed, it can legitimately be said that Western ideas were overrepresented in the genesis of the UDHR. Supporting this interpretation is the Western education of Charles Habib Malik (from Lebanon) and P. C. Chang (China), members of the Commission charged with the formulation of the UDHR. Other members of the Commission were Alexandre Bogomolov (Soviet Union), René Cassin (France), Eleanor Roosevelt (USA), Charles Dukes (United Kingdom), William Hodgson (Australia), Hernan Santa Cruz (Chile), John P. Humphrey (Canada).
However, the diversity of the origins of the members of the Commission is not the sole indicator for the intention of creating a culturally universal text. The importance of the Report on ‘The grounds of an international declaration of human rights’ of the Committee on the Philosophic Principles of the Rights of Man to the Commission on Human Rights of the United Nations (UNESCO, 1947) must be emphasised, in that context. The General Director of →UNESCO at that time, Julian Huxley, sent a questionnaire concerning the principles that might sustain a future declaration to several philosophers as well as to governments. Based on the answers received, this Report was elaborated and sent to the United Nations. Among the philosophers asked were Mahatma Gandhi, Jacques Maritain, Aldous Huxley and Pierre Teilhard de Chardin. The final report of the Committee set down ‘a schematic formulation of basic rights which in its opinion can and should be vindicated by all men’ (ibid). The open character of the common grounds of HR and the implicit inappropriateness of identifying precise and definitive grounds of HR were both noted in the final report of the Committee which called for a deeper re-examination of the bases of HR. In fact, enriching HR or their interpretation, based on new developments and insights, should be seen as a never-ending process.
In his answer to Julian Huxley’s question of where he would place the basis of HR, Gandhi wrote: ‘I learned from my illiterate but wise mother that all rights to be deserved and preserved come from duty well done.’ (UNESCO, 1969). This view proves the intercultural embodiment possibilities of such rights and is far from Western concepts, in which human duties have a role for the guarantee of HR, as derived from them, but not in their foundation, which is only of a ‘individualistic’ nature. The differences between the Western and the Indian conception of HR are evident. There is not, in fact, a translation in Sanskrit for the word ‘Rights’: following Pandeya, there exists only the word ‘Adhikara’ (just claim) that is used ‘in the context where one has performed some act, or performed a duty’ (Patel, 2005). ‘Adhikara’ must be understood in the light of a central doctrine of Hindu thought: ‘Dharma’, where Human Rights lawyers and philosophers place the grounds of HR in Indian culture. This word ‘means to uphold, sustain and nourish. It is a comprehensive term, which includes duty, morality, ritual, law, order and justice... It is a mode of life or a code of conduct, which regulates a man’s work and activities as a member of society and as an individual.’ (ibid).
Therefore, it is clear that philosophical ideas other than the European were taken into account in the elaboration of the UDHR. Concerning the Indian ideas and Gandhi’s aforementioned contribution it must be emphasised that the UDHR in its Article 29 specifically establishes that ‘everyone has duties to the community in which alone the free and full development of his personality is possible.’ It is not by coincidence that the very first article of the UDHR establishes that ‘all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’. Other cultural regions like Latin America were also important in giving philosophical foundation to the UDHR (Sikkink, 2015). If the European ideas were important, they were not the only ones. Nevertheless, the UDHR was finally approved with the abstention of the communist countries, as well as South Africa and Saudi Arabia.
CASES: Consistent with the erroneous failure to take into account the diversity of foundations of the UDHR is the trend to place the controversies regarding the universal nature of human rights only in ‘cultures’ other than the European. The truth is that, fortunately, there is not a wholly homogenous ‘culture’ where perfect agreements regarding all social issues exist. Europe is not exempt from such controversies, as can be seen in the ECtHR case-law [JOHNSTON, 1986].
VIEWS: As already mentioned, there are many criticisms of the UDHR, and specifically of the universal character of the rights it contains. Such criticisms are more broadly criticisms of the intended →universalism of HR and sometimes, for that reason, also of the very notion of human rights itself.
Two of the most important criticisms were, firstly, that formulated by the American Association of Anthropology (AAA) in 1947 and, secondly, that stated by some Asian countries in the context of the Vienna World Conference on Human Rights in 1993. Both are linked to the often manipulated and misunderstood debate between universalists and cultural relativists. In opposition to universalism, which maintains that common HR standards can apply to all human beings, →cultural relativism has been generally understood by international HR lawyers to mean the rejection of the possibility of making moral judgements – and thus, of establishing common human rights – for all human beings regardless of the culture to which they belong. However, the debate between universalists and cultural relativists seems to have arrived at an impasse. B. de Sousa Santos rightly describes this blocked situation: ‘The debate ... is an inherently false debate, whose polar concepts are both and equally detrimental to an emancipatory conception of human rights. All cultures are relative, but cultural relativism, as a philosophical posture, is wrong. All cultures aspire to ultimate concerns and values, but cultural universalism, as a philosophical posture, is wrong ...’ (de Sousa Santos, 2004). Ultimately, the misconception of what culture truly is, is at the bottom of such an impasse.
The criticism of the UDHR formulated by the AAA in 1947 was wrongly understood by international HR lawyers as ‘a denial of the ability to make moral judgements’ instead of as an assertion ‘of moral values that includes tolerance for cultural difference as one of those values’ (Merry, 2003). Besides, criticisms of the AAA statement tend to forget the context in which it was issue which was the pressures experienced by minority societies to ‘change under influence of euroamerican expansion and colonialism’ (ibid; see also Goodale, 2003).
The criticisms of the notion of human rights (including those contained in the UDHR) during the Vienna World Conference on Human Rights (1993) were made by some Asia states through the ‘Bangkok Declaration’ in the name of the preservation of their own culture. The final Declaration of the Vienna Conference recognised that ‘while ... cultural particularities ...must be borne in mind, it is the duty of states, regardless of their ... cultural systems, to promote and protect all human rights.’ Such a recognition was not meaningful in practical terms. The actors involved have assumed a wrong concept of culture.
It is only very recently that international HR law can be said to definitively abandon such and attitude and start to put into question the wrong conceptions of culture that have been used. During several years, international HR law has been using an essentialist conception of culture, which understood it as ‘a coherent, static, and unchanging set of values’ (Merry, 2003). Like current anthropology, which considers culture as something ‘fluid, contested, and connected to relations of power’ (ibid.), current international HR law recognises that ‘actual (cultural) practices on the ground are usually more varied than suggested by formalised versions projected in discourse as well as under the law’ (Special Rapporteur in the field of cultural rights, 2012). This shift in the concept of culture within international HR law is neatly represented by the approach to culture of the United Nations Special Rapporteur in the field of Cultural Rights, who was appointed in 2009.
CONCL: Actions to overcome the problems and misunderstandings concerning HR and ‘culture’ need to be taken by different players, beyond those belonging to the cultural sphere:
There is a need to emphasise the extra-European elements present at the genesis of the UDHR. This action, together with that of critical reflection of the real enforcement of ‘our’ European cultural values would contribute to a more accurate and fair description of the reality of how people truly live their cultures. It might be useful to stress the internal diversity of each culture which is also present in ‘European culture’, and to avoid the use of the old-fashioned essentialist concepts of culture which tend to contribute to the creation ‘imagined communities’ (Roy, 2006).
Emphasising the dynamic role of culture in ‘the questioning by human beings of (their) own achievements, and in their seeking untiringly for new meanings’ (Mexico City Declaration on Cultural Policies, 1982) can be helpful to recognise the relevance and the need of including the diversity of cultures in the foundation and the creation of common human rights standards.
The inclusion of cultural diversity issues of the UDHR in its teaching need to be promoted. It would be interesting to teach it together with the Universal Declaration of Cultural Diversity (UNESCO, 2001). The design of adequate educational policies in cultural diversity is essential (Carbó, 2015). It would contribute to avoiding the creation of stereotypes which also concerns the relation of the diverse communities with human rights. Stressing the fact that the right to equitable →participation in cultural life is a human right recognised in the UDHR is also important, as well as insisting on the firm impossibility of invoking culture as an excuse for the violation of human rights. When addressing violations to human rights occurring in the context of minority cultures, power, economic and social issues need to be addressed together with the cultural ones (Cismas, 2014).
All this calls for a serious engagement in the study of such a complex relation between cultural diversity and HR (Donders, 2010) as well as the decided will of different actors: designers of cultural policies, social activists, anthropologists, human rights lawyers and defenders, education professionals and politicians.
REFERENCES:
Bernstorff, Jochen von: “The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law”, in EJIL, Vol. 19 n$$$ 5 (2008).
Carbó, Gemma: “From intercultural education to critical education in cultural diversity: the UNESCO Diversity Kit for Youth”, in Revista de Educación, Year 6, n$$$ 8 (2015).
Cismas, Ioana: Religious Actors in International Law, Oxford: Oxford University Press (2014).
De Sousa Santos, Boaventura: “Toward a multicultural conception of Human Rights” in Felipe Gómez Isa and Koen de Feyter (eds.): International Protection of Human Rights: Achievements and Challenges, Bilbao: Universidad de Deusto (2004).
Donders, Yvonne: “Do Cultural Diversity and Human Rights Make a Good Match?” ISSJ (November 25, 2010).
Goodale, Mark: “Anthropology and the Grounds of Human Rights” in Dinah Shelton (ed.): The Oxford Handbook on International Human Rights Law, Oxford: Oxford University Press (2013).
Gross Spiell, Héctor: “Universality of Human Rights and Cultural Diversity”, in ISSJ, 158 Paris: UNESCO (1998).
Merry, Sally: “Human Rights Law and the Demonization of Culture (And Anthropology Along the Way)”, in PolAR, Vol. 26, n$$$ 1 (2003).
Patel, D.: “The Religious Foundations of Human Rights: A perspective from the Judeo–.Christian Tradition and Hinduism”, in Human Rights Law Commentary, Vol. 1 (2005).
Roy, Oliver: Globalized Islam: The search of a New Umah, Columbia University Press (2006).
Special Rapporteur in the Field of Cultural Rights: Report on the Enjoyment of Cultural Rights by Women on an Equal Basis with Men (2012).
Sikkink, Kathryn: “Latin America’s Protagonist Role in Human Rights” in Sur, 22 (2015).
UNESCO: The grounds of an International Declaration of Human Rights (31/07/1947), Doc. Phil/10.
UNESCO: “Ghandhi’s views on education” in The UNESCO Courier (October 1969).
JOHNSTON v. IRELAND (ECtHR 18/12/1986, 9697/82).
Gemma Carbó/Beatriz Barreiro
Universalism and Cultural Relativism
DEF: The term ‘cultural relativism’ originally denotes a school in anthropology, in the first half of the 20th Century. Famous relativists include F. Boas, M. Herskovits, R. Benedict and W.Sumner. Relativists state that the principles used for judging behaviour are only valid inside a particular culture. Hence they reject the idea of universal human rights. Later, the same term was used to indicate culture-based critiques of human rights, expressed mainly by government representatives and scholars from East and Southeast Asia, Sub-Sahara Africa and the Islamic World. These critiques claim that human rights are overly Western,and should be allowed to take different shapes in other contexts. Relativism is generally opposed to universalism, i.e. the belief that universal norms are desirable.
INSTR: The ‘universalism vs. cultural relativism’ debate on human rights focused at its origins around the →UDHR. When the UN Commission on Human Rights was drafting the UDHR, the American Anthropological Association published a ‘Statement on Human Rights’ in 1947, advising to drop the whole idea of universal rights. In that sense, the adoption of the UDHR of 1948 can be read as a setting aside of cultural relativist objections
More recently, the debate took centre stage in the course of the preparations for the UN World Conference on Human Rights in Vienna in 1993. In particular, the Asian regional conference issued a Bangkok Declaration that was largely perceived as relativist. Also, the Organisation of the Islamic Conference submitted the Cairo Declaration on Human Rights in Islam, a document that was widely seen to state the priority of Islam over human rights. The final document of the World Conference, the Vienna Declaration, explicitly confirmed the universality of all human rights, adding that ‘while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’.
CASES: Today, it is widely accepted that universality does not imply uniformity, i.e. that the same human rights can be formulated in different manners in different contexts, and that similarly formulated HR can be interpreted differently in different countries. When supranational courts deal with this issue of ‘universality and diversity’, it is generally either by discussing the room that national authorities have to devise ‘culturally specific’ human rights interpretations, or by engaging themselves in such ‘cultural’ interpretation.
An example of the former is the ECtHR use of the doctrine of the →‘margin of appreciation’ of the member states, to accommodate national cultural context. A famous early example is the [HANDYSIDE v. UNITED KINGDOM, 1976] case, in which the Court held that a UK ban on grounds of obscenity of a publication that freely circulated in other European states, did not violate the freedom of expression. The Court held that ‘by reason of their direct and continuous contact with the vital forces of their countries’, domestic authorities are ‘in principle in a better position than the international judge’ to give an opinion on the exact content of the requirements of the protection of morals.
An example of the latter is the Inter-American Court of Human Right’s interpretation of the HR to property of indigenous peoples in such a way as to include both a collective dimension and a spiritual dimension, e.g. [AWAS TINGNI v. NICARAGUA, 2001].
VIEWS: Today it is largely accepted that the idea of a ‘trench war’ between ‘cultural relativists’ and ‘universalists’ is more mythology than reality. It is now widely recognised that cultural critiques have a point, as Western dominance in international relations has indeed led to a degree of Western bias in HR. Some developments, such as the upgrading of economic, social and cultural rights, the recognition of a human right to development, and the recognition of group rights for indigenous communities, can be read as attempts to correct that bias.
In literature, consensus has emerged that universal HR can accommodate cultural differences. Universality does not require uniformity. Across academic disciplines, similar conclusions are reached through different methodologies. Roughly, a distinction can be made between authors who have examined the issue in a topdown manner and others who have used a bottomup approach. The former, mainly lawyers and political scientists, have taken international HR standards, and the international HR protection system, as a starting point, and have argued that it is both desirable and feasible to integrate contextual diversity within these domains. At the same time, those examining human rights in action in the field – mainly anthropologists – have described how local communities instrumentalise and adapt HR discourses, norms and procedures in their quest for justice and fairness, and have argued the value and legitimacy of such ‘vernacularisation’ of human rights.
CONCL: The remaining challenges in this field are huge, as the consensus in scholarly literature about the principle of diversity within universality is not necessarily shared by political actors. Moreover, the agreement about the principle goes hand in hand with disagreement about the degree of diversity that can be accepted within universal HR, the criteria for determining this, and especially the application to concrete cases. It is widely recognised that this matter can only advance through constructive inter-cultural dialogue on human rights.
REFERENCES:
An-Na’im, Abdullahi Ahmed (ed.): Human Rights in Cross-Cultural Perspectives: a Quest for Consensus, Philadelphia: University of Pennsylvania Press, 1991.
Brems, Eva: Human Rights: Universality and Diversity, Leiden, Nijhoff (2001).
Cowan, Jane K., Marie-Bénédicte Dembour and Richard A. Wilson (eds.): Culture and Rights: Anthropological Perspectives, Cambridge: Cambridge University Press (2001).
Donnelly, Jack: Universal Human Rights in Theory and Practice, Cornell University Press (2013).
Goodale, Mark and Sally Engle Merry (eds.): The Practice of Human Rights; Tracking Law Between the Global and the Local, Cambridge: Cambridge University Press, (2007).
Mutua, Makau: Human Rights: A Political and Cultural Critique, Pennsylvania: University of Pennsylvania Press (2002).
Wilson, Richard (ed.): Human Rights, Culture & Contest; Anthropological Perspectives, London: Pluto Press (1997).
Eva Brems
Urban Planning
DEF: ‘Urban planning’ (the most important subset of ‘spatial planning’) is the anticipatory arrangement of future living conditions from an architectural and engineering perspective. Under the rule of law, its concept implies the juridification of urban plans (legal urban plans). Legal urban plans serve as a main basis of building regulation.
INSTR: On the one hand, urban planning usually aims at intensifying the use of land for various purposes of individuals and communities (‘development plans’); in this case it serves as a political instrument to create: 1. more space for housing (Article 25 UDHR and Article 34(3) CFR) and working (Article 6 ICESCR and Article 15 CFR) or 2. Better conditions, especially for safe and healthy housing (Article 25 UDHR) and working (Article 7 ICESCR and Article 31(1) CFR). On the other hand, legal urban plans define the freedom of property (Article 17 UDHR, Article 17(1) CFR and Article 1 protocol 1 ECHR) and limit the general right to liberty (Article 6 CFR), e.g. the freedom to settle (Article 12(1) ICCPR) or to stay settled ‘at home’. It has various (including external) effects on the establishment, the persistence and the removal of, amongst others, →public space, cultural infrastructure (e.g. studios, religious buildings) and cultural property (e.g. →architectural heritage). The Council of Europe’s ‘European regional/ spatial planning Charter’ (Recommendation No. R (84) 2 of the Committee of Ministers) stresses the need to take into account (especially regional) cultural aspects.
CONCL: The two most important topics concerning urban planning from a cultural human rightsbased approach currently are:
- a human right to home(-land), which could help people living in old parts of towns or cultural landscapes that are endangered by ‘development’ projects; it could be deduced in a synopsis of a) the freedom of residence (e.g. Article 13(2) UDHR and Article 12(1) ICCPR) and b) the right to respect for private life (e.g. Article 17(1) ICCPR and Article 7 CFR).
- the question, whether the right to a sociocul-tural minimum existence (GFCC, 2012) and Article 15(1)(a) ICESCR or Article 25 CFR could lead to a commitment of urban planning to a minimum of (especially public) space open for cultural action.
REFERENCES:
Bishwapriya, Sanyal (ed.): Comparative Planning Cultures, New York/ London, Routledge (2005).
United Nations: Habitat III Issue Papers, 4 – Urban Culture and Heritage, New York (31/05/2015).
van Lindert, Thijs and Lettinga, Doutje (ed.): The Future of Human Rights in an Urban World, Amsterdam: Amnesty International Netherlands (2014).
GFCC – ASYLUM SEEKERS BENEFITS ACT (Judgment of the First Senate 18/07/2012, 1 BvL 10/10, available at www.bverfg.de accessed 04/2016).
Jörg Michael Schindler
Values
(Cultural /Traditional V.)
DEF: Values are powerful convictions about right and wrong, worth, truth and beauty, that inform the behaviour of individuals and groups. Value is imparted on objects, sentiments and actions on the basis of intrinsic considerations (e.g. respecting life forms) or extrinsic/ utilitarian considerations (i.e. means to ulterior ends). Reconciling between those two ways of valuing is a key aim of moral reasoning (Singer, 1989). Values arise from and inform dogma, jurisprudence, cultural norms and traditions. At the individual level, values develop according to personal experiences, socialisation and enculturation. Thus, values are cultural when they are shared, and individual when they are constructed from experience.
INSTR: Values manifest in legal codes, cultural rules and taboos, discourse, political programs (e.g. multiculturalism) and organisational agenda. They determine attitudes and decision-making through which they inform behaviour. They are mainly perpetuated as memes by ideologies, the collective conceptual constructs through which cultures make sense of and conduct themselves within their world. Thus, legislation implicitly reflects dominant ideologies. Values frequently clash and contradict. Sometimes an action that is arguably just, nevertheless contravenes legal norms, as in cases of →whistleblowing. Although jurisprudence addresses the relationships between utilitarianism, deontology and virtue ethics it often does not readily help reconcile them.
Provisions of human rights treaties established that certain fundamental rights cannot be the object of derogation or suspension even in time of public emergency threatening the security of the state (in particular, Article 4 ICCPR, Article 15 ECHR, Article 27 ACHR). Those rights are considered as reflecting fundamental values shared by the whole community (international or regional) to which the treaty relates. The UDHR provided the globally acknowledged cornerstone for national legislation and jurisprudence. Basic underlying values include autonomy, dignity, inviolability and welfare at the levels of the individual, groups and cultures.
CASES: Recognising the primacy of human rights led, on the one hand, to multiculturalism as a strategic goal to address the need for the cultural safety of minorities. On the other hand, universal human rights define the limits of cultural relativism in multicultural policies through principles like the common good and the →Golden Rule (e.g. supporting intolerance toward culturally sanctioned patriarchy). The European Union was founded on the →Common Values of freedom, equality and democracy.
The ECtHR tends to uphold universalist interpretations, as in a decision to uphold a French ban on wearing the hijab at the workplace [EBRAHIMIAN, 2015]. The ECtHR also has affirmed the prohibition of torture and inhuman or degrading treatment or punishment as those practices violate human dignity as ‘a fundamental value of a democratic society’. It thus prohibits the exercise of culture-specific punitive traditions.
The primacy of such universal values necessitates and facilitates that conflicting values be meta-ethically assessed for their universal benefits. This assessment can eventually lead to legislative change against the objections of some cultural groups, as with environmental strictures, disestablishing child labour, conscientious objection to military service, and women’s reproductive autonomy.
VIEWS: Socially acceptable limits to moral absolutism and universalism are constantly contended and amended. Some cultural groups dissociate themselves from this negotiation process, often invoking religious exceptionalism. Occasionally they are compelled by the courts to comply with legal norms such as providing standard medical care for children (including immunisation), desegregation of ethno-cultural groups and genders, and women’s freedom to make reproductive decisions.
In contrast to moral exceptionalism, moral nihilism negates the validity of any values as grounds to enforce certain behavioural norms. This view is sometimes extended to such basic values as the rule of law and the →Golden Rule, which renders it incapable of supporting any social order beyond anarchy. More moderate nihilists tend to associate with cultural relativism.
Sometimes the behaviour of individuals contradicts the values and norms they explicitly advocate: Religious canons often do not lead to individual compliance (Decety, 2015); legal norms are collectively set but individually transgressed when impunity beckons. Underlying value conflicts are often left unexamined. Values change over time as cultures transmute and intermingle (as in ‘globalisation’); as ideologies compete (e.g. in the Cold War); and as environments change (e.g. scarcities, technological innovation) (Finnemore & Sikki nk, 1998). Legislative examples of value transitions are environmentalism in the 20th century and the abolition of slavery in the 19th.CONCL: The European →refugee crisis has brought the significance of values and cultural norms to public attention. It signifies the prospect of a global crisis, as homelands worldwide become increasingly uninhabitable in the course of global change. Economic de-growth and the worsening socioeconomic inequity worldwide are pushing more people towards poverty. This elevates non-violence to the primary guiding value for conflict resolution. Resource depletion, pollution and climate change are straining humanity’s life support systems. Inappropriate value priorities are hampering decision makers’ efforts at coordination, prevention, and prediction.
The need for cultural safety and human security renders humanitarian values an indispensable focus for discussion. First and foremost, it is values that inform people’s behaviour. In order to ensure a safe operating space for humanity (Rockström et al, 2009), a Great Transition (Raskin et al, 2002) will be required, for which attention to value priorities under the ideal of global →citizenship and precaution (Sandin, 2004) will be indispensable. The 2015 UN Climate Conference of the Parties to the 1992 UN Framework Convention on Climate Change negotiated the Paris Agreement, representing the consensus of the 196 parties and will become legally binding if ratified by at least 55 countries representing at least 55% of the world’s greenhouse gas emissions – confirming sustainability as a universal value.
REFERENCES:
Decety, Jean and Jason Cowell: “Our brains are wired for morality: evolution, development and neuroscience”, 4(3) Neuroscience (2016) 1.
Finnemore, Martha and Sikkink, Kathryn: “International Norm Dynamics and Political Change”, 52(4) International Organization (1998) 887.
Raskin, Paul, Tariq Banuri, Gilberto Gallopín, Pablo Gutman, Al Hammond, Robert Kates and Rob Swart: Great Transition: The Promise and Lure of the Times Ahead, Stockholm Environment Institute Polestar Report no. 10, Boston: SEI (2002).
Rockström, J., Steffen, W., Noone, K., Persson, A., Chapin, F. S. III, Lambin, E., Lenton, T. M., Scheffer, M., Folke, C., Schellnhuber, H. J., Nykvist, B., de Wit, C. A., Hughes, T., van der Leeuw, S., Rodhe, H., Sörlin, S., Snyder, P. K., Costanza, R., Svedin, U., Falkenmark, M., Karlberg, L., Corell, R. W., Fabry, V. J., Hansen, J., Walker, B., Liverman, D., Richardson, K., Crutzen, P. and Foley, J.: “A Safe Operating Space for Humanity”, 461 Nature (September 24, 2009) 472.
Sandin, Per: “The precautionary principle and the concept of precaution”, 13 Environmental Values (2004) 461.
Singer, Peter: Practical Ethics, Cambridge: Cambridge University Press (1989).
United Nations Framework Convention on Climate Change (UNFCCC): The Paris Agreement, New York: United Nations (2015) (unfccc.int, accessed 03/2016).
EBRAHIMIAN v. FRANCE (ECtHR 26/11/2015, 64846/11).
Alex Lautensach
Whistleblowing
DEF: Whistleblowing is the raising of a concern by a worker (regardless of employment status) about illegal, illegitimate, or unethical workplace practices, to somebody who might be able to effect action. Whistleblower protection extends the right to freedom of expression into the workplace.
INSTR/CASES: Whistleblowing mechanisms ensure society will be warned when organisational wrongdoing cannot be stopped internally. Political activist Ralph Nader was the first in 1971 to use the term ‘whistleblowing’ in this sense, taking the position that public interests override organisational secrecy. By 2016, more than 30 countries, as well as some intergovernmental organisations have whistleblower legislation.
In an ECtHR landmark case [GUJA, 2008] the Court held that a Moldova government official’s disclosure to the →press was protected by Article 10 of the ECHR. The Committee of Ministers of the CoE adopted Recommendation (2014/7) on the protection of whistleblowers. These 29 principles grasp the current consensus of good practice. A crucial element is that protection is offeredwhen a whistleblower raises a concern successively inside the organisation, to a regulator, and then to the press. In practice, very little legislation at national level protects whistleblowing to the media. CONCL: Whistleblowing can be a counterweight to organisational secrecy. As such it is an activity that is crucial for maintaining democracy. In order to strengthen democracy a necessary condition for new legislation is that whistleblowers are protectedwhen they disclose to the press. However, this remains a point of concern.
REFERENCES:
Brown, AJ, Lewis, David, Moberly, Richard & Vandekerckhove, Wim (eds.): International Handbook of Whistleblowing Research, Cheltenham: Edward Elgar (2014).
GUJA v. MOLDOVA (ECtHR 12/02/2008, 14277/04).
www.whistleblowingnetwork.org (accessed 3/2016).
Wim Vandekerckhove
Youth
DEF: Youth is the transitional phase between childhood and adulthood. The UN Convention on the Rights of the Child (CRC) defines youth as persons between the ages of 15 and 24, while the African Union’s African Youth Charter (AYC) defines youth as any individual between 15 and 35 years old. Other bodies, including the EU, do not have a standard definition of youth. Moreover, it is defined differently in the various EU member states. The AYC can be considered a particularly interesting case as regards cultural perspectives of the younger generation and the nexus between youth and culture.
INSTR: There is no legally binding European treaty specifically on youth, but various instruments on youth policy exist. The ECHR (generally), the EU Lisbon Treaty (Article 165) and the Charter of Fundamental Rights of the European Union (Article 24) partially cover issues relating to young persons, other than children. Furthermore, in 2011 the Parliamentary Assembly of the CoE adopted Recommendation 1978: ‘Towards a European framework convention on youth rights’.
In the context of the United Nations, the CRC provides for the recognition and protection of the rights of some young people (those between the ages of 15 and 18 years). Youth, as a group, enjoy the human rights protected under the various international human instruments generally. However, only the Ibero-American Convention on the Rights of Youth of 2005 (in Article 22–34) and the AYC specifically address the rights of youth as such as well as issues of youth and culture. In particular, Article 20 of the AYC addresses some key cultural issues, including: harmful and positive traditional practices (20(1)(a) and (b)); dissemination of culture (20(1)(c)); African culture, values and indigenous knowledge (20(1)(d)); intercultural awareness (20(1)(g)); communication technology and youth cultures (20(2)(b)); and the nexus between contemporary youth culture and traditional African culture (20(2)(c)).
CONCL: The AYC aims to strengthen, reinforce and consolidate efforts to empower young people through their participation and equal partnership in driving Africa’s development agenda. The overall objective of the AYC is to encourage and support programmes and actions for youth in Africa. It also provides a basis for states to formulate informed individual national youth policies. Most significantly, the AYC is the only binding international legal instrument on youth that also articulates some cultural issues which are specifically relevant to the youth as a category of human rightsholders. It has established a template that future instruments can only improve upon.
REFERENCES:
Angel, William (ed.): The international Law of Youth Rights, (2nd rev. edn.), Leiden: Brill/Martinus Nijhoff Publishers (2015).
Council of Europe/PACE: Recommendation 1978 (2011): Towards a Framework Convention on the Rights of Young Peoples.
European Youth Forum: Policy Paper on Youth Rights, (Adopted by European Youth Forum General Assembly, Maribor, Slovenia 22–25 November, 2012).