Access Control Technologies

(Digital Rights Management)

DEF: Access in the digital context, and controls over it, concerns digital content – within the meaning of ‘works’ as per the →Intellectual Property (copyright) system and including also content in databases protected under the sui generis right, excluding therefore the physical world, software per se and hardware. Consequently, this entry is about controlling access to such digital content. According to the Internet Security Glossary, ‘access’ means ‘the ability and means to communicate with or otherwise interact with a system to use system resources either to handle information or to gain knowledge of the information the system contains’, and ‘access control’ means ‘a process by which use of system resources is regulated according to a security policy and is permitted only by authorised entities (users, programs, processes, or other systems) according to that policy’. While the technical parts of access controls (identification and authentication, identity management, technical measures) are of no interest here, Digital Rights Management (DRM) is a term that may be used interchangeably with Access Control Technologies for the purposes of this entry, both denoting technologies that are used to restrict the use of digital content.

INSTR: Digital content is protected by (copyright) law and a right to access it without the rights holder’s permission (meaning reimbursement) is only permitted in rare cases and under exceptional circumstances (for instance, academic or library purposes or system interoperability). Access Control Technologies effectuate this system through technical means. In a way they constitute a ‘by design’ system or a rights holder-imposed system architecture or, even further, an application of the ‘code is law’ ideas into the Intellectual Property (IP) rights realm. As such, they ought to be perceived in principle as lawful (see Article 11 of the WIPO Copyright Treaty, introduced in the EU by the EU Copyright Directive, on Technical Protection Measures). Nevertheless, the fact remains that they are designed and implemented by rights holders without any state or other ratification as to the rules they force upon users. In fact, DRM technologies have been accused of enforcing unlawful business practices by technical means (see, for instance the Apple and SONY BMG class action lawsuits). Among others, DRM implementations have drawn criticism on the basis that they rarely adhere to the pro-user basic IP law principles of ‘fair use’ (in the USA) or ‘private copy’ (in the EU), as well as to the IP doctrine of the first sale (they attempt to regulate the sale of ‘used’ IP). Accordingly, the CJEU has ruled that ‘those measures must be suitable for achieving (their) objective and must not go beyond what is necessary for this purpose’.

CONCL: Access Control Technologies, while useful in enforcing IP rights in an on-line environment of mass unlawful downloading of proprietary digital content, are prone to unlawful implementations, because they are designed and implemented by rights holders alone. Users and the public are generally suspicious of their ‘false neutrality’, because they constitute enforced measures they cannot escape or negotiate. Stricter regulation and monitoring is imperative in order to achieve a balance of protecting both rights holders’ and lawful users’ rights and interests, according to the principle of proportionality, as prescribed by the CJEU.

REFERENCES:

Brousseau, Eric; Marzouki, Meryem and Meadel, Cécile (eds.): Governance, Regulation and Powers on the Internet, Cambridge: Cambridge University Press (2012).

Stamatoudi, Irini (ed.): Copyright Enforcement and the Internet, Alphen aan Den Rijn: Kluwer Law International (2010).

NINTENDO v. PC BOX (CJEU 23/01/2014, C-355/12). Paul de Hert and Vagelis Papakonstantinou

Administration

(Public Cultural A.)

DEF: Public cultural administration refers to all structures and behaviour affecting the fields of culture with the aim of planning, organising, directing, coordinating, and controlling government operations. Adopting another common definition of administration, it is the formation and implementation of public policy in these fields. The providers of public cultural administration are central addressees of culture-related human rights, insofar as the latter limit their power.

INSTR: In a narrow sense, as reflected e.g. in Article 4(6) of the 2005 UNESCO Convention, actions of cultural administrations are mainly ‘those policies and measures relating to culture (...) that are either focused on culture as such or are designed to have a direct effect on cultural expressions’. In this sense, public cultural administration is mostly focused on public management and funding of cultural institutions and projects – and in a number of countries, of course, on censorship. Such functions are often related to the domains of organisational units of national, regional or local →governments, which are explicitly responsible for ‘cultural affairs’ (e.g. a ministry or department).

In a wider sense, the term also covers policies and measures, which focus on other tasks, but have more or less direct, often unforeseen, effects on cultural life. In fact, the efficacy of cultural human rights is frequently more endangered by those ‘non-cultural’ policies and measures (e.g. action of public authorities in fields like taxation, labour laws, public space, venues or building regulations). In such contexts, cultural →values can be found in strong competition with various other norms and interests, many of them with more influential lobbies.

As regards legal approaches beyond typical cultural legislation in the narrow sense (e.g. for heritage protection or legislation concerning →libraries), so called mainstreaming or cross-cutting clauses were established to boost interdisciplinary administrative thinking. This was considered of particular importance in fields without a strong lobby tradition, e.g. environment, gender equality or culture (see the, not yet fully explored, ‘cultural awareness clause’ in Article 167(4) TFEU). Manifold culture-related soft norms in national and subnational constitutions (e.g. in Estonia (Preamble), Greece (Article 24), Lithuania (Article 42), Hungary (Article P), Italy (Article 9); Bavaria (Article 3, 140), Catalonia (Article 22), Lower Austria (Article 4(5)), Vaud (Article 53)) could potentially work in a similar way.Methodologically, especially in the view of the OECD, →Impact Assessment (IA) has proved to be an ideal-typical instrument to manage the variety of factors and interests (including public participation) in policy making. However, as IA pertains only to measures with a special importance and needs time, it does not help to restrain restrictions of cultural freedoms in the daily administrative practice, especially at the local and regional level.

CONCL: For ‘culture’ to flourish, the education and attitudes of administrative staff members are essential. In case these are ignorant, an effective implementation of cultural human rights depends on the capabilities and, often enough, good will of a judicial system, which has to regard administrative discretion, with its staff, which is not necessarily open for every sort of ‘culture’, and its costs, which mostly impede judicial review. →Intercultural competence as a developing key competence of civil servants in a globalising world could turn out to be an important strategy to generally increase administrative cultural awareness.

REFERENCES:

Laaksonen, Annamari: Making culture accessible, Strasbourg: Council of Europe Publishing (2010).

Norman-Major, Kristen A./Gooden, Susan T. (eds.): Cultural Competency for Public Administrators, Armonk, London: M. E. Sharpe (2012).

Psychogiopoulou, Evangelia: The Integration of Cultural Considerations in EU Law and Policies, Leiden, Boston: Nijhoff (2008).

Jörg Michael Schindler

Affirmative Action

DEF: Affirmative action (hereafter AA) is one of the most controversial and disputed aspects of equal protection. It rests on the notion of substantive equality and equal (enjoyment of) rights which complements the notion of formal equality and equal treatment in the realisation of the principle of →equality. Whereas formal equality requires that like are treated alike, substantive equality takes difference (race, national or ethnic origin, gender, disability, social status, etc.) into consideration and mandates unequal treatment with a view to achieve equality of opportunities or equality of results. AA means that a special or preferential treatment is provided to individuals due to their particular characteristics or minority status. It is based on the conviction that a formal legal or programmatic approach is not sufficient to achieve de facto equality which implies a redistribution of resources, an improved participation (e.g. in arts activities) or a balanced representation in various institutions and structures of power.

INSTR: AA is a legal term used in countries like the US, South Africa, Canada or Brazil. In India the system of quota-based policies facilitating promotion in education and employment of certain social classes (based on caste, gender, religion or other status) is called ‘reservation’. In Canada and South Africa the term ‘employment equity’ was coined to avoid negative connotations with AA. In France and the UK AA is called positive or reverse →discrimination which may be misleading because in some situations the failure to provide special or preferential treatment constitutes unlawful discrimination.

In comparison, international instruments use the notion of ‘positive measures’ or ‘temporary special measures’ to denote a special or preferential treatment (Article 1(4) ICERD, Article 4 CEDAW, Article 5(4) CRPD, Article 7(2) ECRML). This corresponds to ‘positive action’ used in the EU law (Article 23 CFR, Article 157(4) TFUE, Article 3 of the Directive 2006/54/EC (Recast Directive), Article 6 of the Directive 2004/113/EC (Gender Goods and Services Directive); Article 5 of the Directive 2010/43/EC (Race Equality Directive) and Article 7 of the Directive 2000/78/EC (Framework Employment Directive). EU member states apply a variety of positive actions with regard to gender, race, national and ethnic origin, disability and age in the area of education, access to goods and services, employment, civil service and elections (Equinet 2014).

Positive action as a term is broader in scope than the privileged treatment as it also covers apparently neutral policies (‘purposefully inclusionary measures’ known also as ‘indirect affirmative action’) aimed to address structural problems of underrepresentation and outreach measures aimed to remedy the lack of equal opportunities through targeted promotion of vacancies and recruitment, training and professional orientation (Fredman, 2013:237). Positive actions may also involve monitoring and redefinition of merits (McCrudden, 1986). However, some authors also define AA so broadly as to include indirect affirmative action, outreach measures and direct affirmative action (Sabbagh, 2011). This approach is now frequently found in European →cultural policies.

Under international human rights law states have the obligation to adopt special measures with regard to some protected categories of individuals. Such measures may have a temporary or permanent character. Article 2(2) CERD requires that states take special and concrete measures ‘when the circumstances so warrant (...) in the social, economic, cultural and other fields (...) to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.’ In contrast, the obligation to protect ethnic, religious or linguistic minorities stipulated in Article 27 ICCPR implies permanent facilitation of minority culture or language (HRC, General Comment No. 23 (1994)). Such understanding of equal rights implying a different treatment has been well-established under international law (PJIJ, Minority Schools in Albania, Advisory Opinion (1935)).

Although UN legal instruments promote the human rights approach, AA is also advanced in conflict prevention and management strategies at international level. On the one hand, AA could be used as a transitional justice mechanism, in particular in distribution of political offices and civil service (i.e. in South Africa, Sudan, Rwanda or Bosnia and Herzegovina). In post-conflict societies the goal of AA is to prevent social tensions and ultimately to include members belonging to a particular racial, national or ethnic group to decision-making and positions of power. In literature concerning responses to genocide and mass atrocities AA is presented as a collective remedy to victims for violation of their rights. According to Siri Gloppen ‘(i)nequality created by past repression is best addressed through social reform and affirmative action programs, rather than through individual compensation to victims.’ (Gloppen, 2005:39).

On the other hand, using AA in the postconflict context may reinforce racial or ethnic segregation and discrimination. For some authors special measures ‘fail to accomplish social solidarity necessary to remediate future risks’ (Kielsgard, 2015:222). In Europe many countries provide permanent advantages to minority groups through election rules regarding reserved seats, proportional representation, minority lists, exceptions to threshold requirements or the use of minority language. In some countries such minority-conscious arrangements are safeguarded in constitutions or international peace treaties (i.e. the Constitution of Bosnia and Hercegovina or the Doha Peace Agreement, 2011, paras. 19–21).

According to the CEDAW Committee, special temporary measures have a collective and compensatory character. Unlike permanent special measures (used in case of pregnancy or maternity), they are temporary (introduced for a particular period of time) and apply to all areas of life. They may take the form of ‘outreach or support programs; allocation and/or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems’ (General Recommendation (CEDAW) No. 25 on temporary special measures, 2004, para. 22). The Committee considers special temporary measures mandatory when accelerating de facto gender equality is necessary and appropriate.

In recent years gender quotas have become increasingly popular as the most effective mechanism changing the gender imbalance and the character of gender representation (Franceschet, Krook & Piscopo 2012). Gender quotas are mostly used in candidate selections for elections and corporate boards. In France and Italy, the adoption of electoral gender parity and quota laws necessitated constitutional amendments. Prior to these amendments, laws could not promote equal access of women to elective offices and posts as well as to professional and social positions. Also the EU recognized the need to promote gender equality by means of quota laws. Following the EU Strategy for equality between men and women (2010–2015), the European Commission proposed the introduction of gender quotas in companies listed on stock exchanges as a temporary measure improving the gender balance among nonexecutive directors (Women on Boards Directive). Under this proposal, which is still pending, member states would have to implement a 40% gender quota in corporate boards provided that priority given to equally qualified female candidates over male candidates was not automatic and unconditional but includes a ‘saving clause’ which warrants the possibility of granting an exception in favour of male candidates.

CASES: At national level, AA is legal either as mandatory or voluntary plans. Under the US Civil Rights Act 1964 private, voluntary affirmative action aimed at eliminating traditional patterns of racial segregation does not amount to discrimination. However, in the USA any classifications based on race are always suspect and need to pass a strict scrutiny test [BAKKE, 1978]. Hence, race could be taken into account only as one of the factors in individual assessments of candidates provided that the AA policy is narrowly tailored and that other racially neutral policies were not sufficient to attain the aim of racial diversity. According to the most recent decision of the Supreme Court, the Equal Protection Clause neither prohibits nor mandates AA [SCHUETTE, 2014]. In consequence, AA may be banned by state constitutions.

In the EU, positive action in employment is permissible provided that it passes the proportionality test. To date, the CJEU has decided only cases concerning gender-based positive measures. It found that women may be given priority in employment when there are fewer women than men in a particular sector of employment or post, only if they are equally qualified (in terms of their suitability, competence and professional performance) and there are no specific reasons that tilt the balance in favour of a male candidate [MARSCHALL, 1997]. Such reasons may not be indirectly discriminatory (i.e. refer to the ‘breadwinner’ status or company seniority). As well, the ECtHR has accepted that Article 14 does not prevent states from taking special measures in order to ‘correct factual inequalities’ [STEC, 2006].

In sum, AA varies across countries with regard to (1) groups of beneficiaries; (2) policies it introduces; (3) legal norms from which it derives (constitutional, statutory, administrative laws or voluntary rules); (4) domains of implementation; (5) the ultimate goals; and (6) the degree to which it targets the beneficiaries (Sabbagh, 2011:110). For example, in France the law is blind to racial, national and ethnic minorities, but permits allocation of resources to economically and socially disadvantaged areas whereby national or ethnic origin becomes only a secondary consideration. In the USA and EU affirmative/positive action is lawful as long as it does not result in segregation, absolute and unconditional preference for the privileged group or absolute bar to other groups.

VIEWS: The moral justification of AA is less certain than it is legality. Arguments used to justify AA have different strengths in different contexts and jurisdictions. Decisions in which courts upheld AA policies often refer to the history of oppression (segregation) and the need to compensate (remedy) for the past. Other dominant justifications rely on theories of justice which emphasise a particular function of this principle (i.e. restorative justice, distributive justice, compensatory justice), as well as transformative equality, social inclusion and democratic participation (i.e. Rosenfeld, 1993, Hepple, 2013). Today the most popular argument is based on the proven imbalance in representation and the need to ensure greater diversity. For example, in Northern Ireland AA is mandatory only in case a fair participation of religious groups (Protestants and Catholics) does not exist or is not likely to exist, while each employer has the duty to systematically monitor and review this situation. In the USA, courts gradually rejected justifications based on the reparation rationale and banned rigid forms of AA programs. The US Supreme Court also held that the decision as to whether to adopt AA and whom to cover by its scope should be in the hands of legislators rather than judges.

Although AA plans may invite other groups claiming access to similar benefits, it is hard to imagine schemes designed to promote sexual minorities, whereas persons with →disabilities may benefit both from AA and individualised measures (reasonable adjustments/accommodation). Opponents of AA programs argue that they reinforce biases and stigmatisation of the entire group and discourage individual beneficiaries from striving to maximise their capabilities. As a matter of fact, AA programs often result in discrimination complaints filed by those who are not covered by their scope. In consequence, social costs of AA may be significant. Yet, AA policies are usually expanded to other groups (i.e. economically disadvantaged members of the majority) and give priority to individuals from underprivileged groups only if they are equally qualified. Hence, the principle of meritocracy is compromised only in case AA policy does not require equal qualifications (i.e. the Employment Equity Act in South Africa (No. 55 of 1998, Sections 20(3) and (5)), which offers preferential treatment to nonwhiteswho lack necessary qualifications provided that a candidate has the capacity to acquire such qualifications in a reasonable time.

CONCL: While there is a broad consensus regarding the principle of equal treatment and nondiscrimination, the sentiment against AA proves to be persistent. Although the use of numerical standards to attain the objective of de facto equality may be more effective than equal treatment, quotas and inflexible targets are controversial due to their visibility, especially as they are intended to eliminate ‘invisible’ forms of discrimination. Many opponents of AA claim that constitutions and laws should remain blind to particular differences (‘colour’, gender, caste, etc.). Yet, AA takes differences into consideration in order to initiate a structural/institutional, social and cultural change (including free or reduced admissions to cultural services).

AA as a collective remedial mechanism may be problematic from the perspective of intersectional studies because it essentialises group characteristics and requires →community identification which prompts self-identification as members of a particular, often backward group. The intersectional approach also reveals the dilemma of improving the representation of women that may run against the goal of improving the representation of minorities (Lépinard 2013). AA may also lead to assimilation and adoption by members of the underprivileged or minority group of the social roles of the dominant group. However, there is a great potential that AA not only fulfils its remedial function, but also creates a specific culture – the culture of diversity within institutions and organisations.

REFERENCES:

Equinet: Positive Action Measures. The Experience of Equality Bodies, Brussels (2014).

Franceschet, Susan; Krook, Mona Lena and Piscopo, Jennifer, The Impact of Gender Quotas, Oxford: Oxford University Press (2012).

Fredman, Sandra: Discrimination Law. 2nd edn., Oxford: Oxford University Press (2013).

Gloppen, Siri: “Roads to Reconciliation: A Conceptual Framework” in: Skaar, Elin; Gloppen, Siri and Suhrke, Astri (eds.), Roads to Reconciliation, Lanham: Lexington Books (2005).

Hepple, Bob: “Transformative Equality: The Role Of Democratic Participation” in: Facing development: the North–South Challenge to Transnational Labour Law, LLRN Barcelona (2013).

HRC, General Comment No. 23, Article 27 ICCPR (1994), U.N. Doc. HRI/GEN/1/Rev.1 (1994), 38.

Kielsgard, Marc: Responding to Modern Genocide: At the Confluence of Law and Politics, Oxford: Routledge (2015).

Lépinard, Éléonore: “ForWomen Only? Gender Quotas and Intersectionality in France” 9 Politics and Gender (2013) 276.

McCrudden, Christoph: “Rethinking Positive Action”, 15 Industrial Law Journal (1986) 219.

PJIC, Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6).

Rosenfeld, Michel: Affirmative Action and Justice, A Philosophical and Constitutional Inquiry, New Haven: Yale University Press (1993).

Sabbagh, Daniel: “Affirmative Action: The US Experience in a Comparative Perspective”, 140 Dedalus, the Journal of the American Academy of Arts & Sciences (2011) 109.

UN Committee on Elimination of All Forms of Discrimination Against Women (CEDAW): General Recommendation No. 25 on Article 4 paragraph 1 of the CEDAW – Temporary Special Measures (2004).

Venice Commission: Report On Electoral Rules And Affirmative Action For National Minorities’ Participation In Decision-Making Process In European Countries, 15 March 2005, CDLAD(2005)009.

MARSCHALL v. LAND NORDRHEIN-WESTFALEN (CJEU 11/11/1997, Case C-409/95).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

SCHUETTE v. COALITION TO DEFEND AFFIRMATIVE ACTION, 572 U.S. (2014).

STEC and OTHERS v. UNITED KINGDOM (ECtHR 12/04/2006, 65731/01).

www.culturalpolicies.net (accessed 06/2014).

Anna Śledzińska-Simon

African Human Rights System

On 25 May 1963 the Organisation of African Unity (OAU) was established, with the main objective to rid the African continent of apartheid and colonisation. In 2002 the OAU was replaced by the African Union (AU), which today associates 54 member states. Under the auspices of the AU, an African human rights system was created. This regional human rights system is based on the African Charter on Human and Peoples’ Rights (Banjul or African Charter). The system is composed of two entities: the African Commission on Human and Peoples’ Rights (the Commission) and the African Court on Human and Peoples’ Rights (the Court). The Commission was established under the African Charter and is the premier African human rights body. Its responsibilities are monitoring and promoting compliance with the African Charter. States as well as individuals can bring complaints to the Commission alleging violations of the African Charter by states parties. Furthermore, every two years, each state party is required to submit a report on its efforts to comply with the African Charter. In addition, the Commission can appoint special rapporteurs and working groups to deal with thematic human rights issues, can conduct on-site visits and can adopt resolutions on human rights issues. To complement the work of the Commission, the Court was established by a Protocol on the Establishment of an African Court of Human and Peoples’ Rights. The Court has conciliatory, contentious and advisory jurisdiction under this Protocol. States parties, the Commission and African intergovernmental organisations have automatic access to the Court. The access for non-governmental organisations and individuals depends upon whether the concerning state has accepted the jurisdiction of the Court to hear relevant applications.

The African Charter contains several cultural rights, such as the right to take part in the cultural life of the community and the right to education (both in Article 17) as well as freedom of religion (Article 8). The African Charter also contains collective rights (→peoples’ rights), for instance the right of all peoples to their economic, social and cultural development, with due regard to their freedom and identity (Article 22). According to the African Charter individuals also have duties, including the duty to “preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation” (Article 29). The African Commission has dealt with several cases concerning (indigenous) peoples and their cultural rights. Landmark cases are those of the Ogoni people againstNigeria and Endorois against Kenya.

REFERENCES:

Evans, Malcolm and Murray, Rachel (eds.): The African Charter on Human and Peoples’ Rights: The System in Practice 1986–2006, Cambridge: Cambridge University Press (2008).

Heyns, Christof and Killander, Magnus: ‘Africa’, in Moeckli, Daniel, Shah, Sangeeta and Sivakumaran, Sandesh (eds.): International Human Rights Law (Oxford University Press 2014).

Killander, Magnus: ‘African Human Rights Law in Theory and Practice’ in Joseph, Sarah and McBeth, Adam (eds.): Research Handbook on International Human Rights Law, Cheltenham: Edward Elgar (2010).

Kufuor, Kofi Oteng: The African Human Rights System: Origin and Evolution, New York: Palgrave Macmillan (2010).

Ssenyonjo, Manisuli: (ed.), The African Regional Human Rights System, Leiden: Martinus Nijhoff publishers (2012).

Viljoen, Frans: International Human Rights Law in Africa, Oxford: Oxford University Press (2nd edn.) (2012).

CENTRE FOR MINORITY RIGHTS DEVELOPMENT KENYA AND MINORITY RIGHTS GROUP INTERNATIONAL ON BEHALF OF ENDOROIS WELFARE COUNCIL v. KENYA (African Commission on Human and Peoples’ Rights, Communication 276/2003, 2009).

THE SOCIAL AND ECONOMIC RIGHTS ACTION CENTER AND THE CENTER FOR ECONOMIC AND SOCIAL RIGHTS v. NIGERIA (African Commission on Human and Peoples’ Rights Communication 155/96, 2001).

Yvonne Donders

Alliance of Civilizations

HIST: The Alliance of Civilizations (UNAOC) was established in 2005, at the initiative of former UN Secretary General Kofi Annan and, at the outset, co-sponsored by the governments of Spain and Turkey. A High-Level Group of Experts was formed to explore the causes of polarisation between societies and cultures today. Their Report identified four priority areas for action: Education, Youth, Migration, Media and proposed practical recommendations that led to the establishment of the UNAOC. Later, the High Representative of the UNAOC added sports, music and entertainment and ‘other forms of collective expressions of human values’ to the priority areas to be addressed.

INSTR: In 2009, the UN General Assembly expressed its support for the Alliance and acknowledged it as a platform. Today, the UNAOC collaborates in its activities with other UN agencies such as UNESCO or the FAO, and has also signed agreements with regional organisations like the OAS and the African Union. In addition, a global network of partners, including states, civil society groups, foundations, and private companies supports the activities of the Alliance, focusing on improving cross-cultural relations between diverse nations and communities, fostering inter-religious dialogue and regional conflict-prevention and promoting social cohesion as well as ‘culturally sensitive’ development policies. For example, in 2011, the UNAOC launched, together with UNESCO, a public relations campaign entitled ‘Do one thing for diversity and inclusion’. Developed to enhance the profile of World Diversity Day, it was carried out in collaboration with private sector partners, including Dell, Pfizer, Deloitte, Intuit, Johnson and Johnson, and Sodexo. In 2014, the League of Arab States adopted the Unified Arab Strategy for Dialogue of Civilizations.

REFERENCES:

UN General Assembly: “The Alliance of Civilizations”, Resolution of 22 December 2009, A/RES/64/14.

http://www.unaoc.org (accessed 06/2016).

Andreas Joh. Wiesand

Archaeological Heritage

DEF: Archaeological heritage comprises of all traces of human existence having a cultural, historical or archaeological character, especially places relating to manifestations of human activity, abandoned structures, and remains of all kinds of human activity (including subterranean and →underwater sites), together with all the portable cultural materials associated with them (for complete definitions see ICOMOS Charter for the Protection and Management of the Archaeological Heritage, 1990 and UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage, Article 1(1)).

Installations still in use are mostly excluded from the definition of archaeological heritage, for example installations that are located at the seabed but are still in use, as provided for by the 2001 Convention, Article 1(1). In some cases a certain age is also required (ibid).

Archaeological heritage faces many challenges. It is threatened by commercial exploitation and pillage (both especially relevant for underwater cultural heritage), as well as by environmental, technical, social and economic challenges. Industrial activities threaten to accidentally destroy numerous sites, while in the context of →armed conflict and/ or occupation, or of treasure-hunting, archaeological heritage is intentionally destroyed, a practice which targets especially very important sites.

INSTR: The core purpose of legal instruments: securing professional standards for the protection of the archaeological heritage, as well as efforts to prevent looting, vandalism or the destruction of sites, e.g. during armed conflicts or by commercial exploitation, have long been major concerns of international bodies.

Instruments for achieving this include inter alia the UNESCO 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its 1999 Second Protocol (in particular, Article 9), the UNESCO 1956 Recommendation on International Principles Applicable to Archaeological Excavations, the UNESCO 1972 World Heritage Convention, as well as the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage. Other regulations are found in the Council of Europe Recommendation on the Underwater Cultural Heritage (No. 848, 1979) and in Recommendation Concerning the Protection and Enhancement of the Archaeological Heritage in the Context of Town and Country Planning Operations (No. R(89)5, 1989) as well as in the European Convention on the Protection of Archaeological Heritage (Revised) of 1992 (Valetta Convention).

In general, all these legal instruments aim at increasing the protection and conservation of archaeological sites. Through their corresponding guidelines, they suggest actions against commercial exploitation, pillage, and accidental industrial destruction or intentional destruction in the event of armed conflict and/ or occupation. They also call for the application of scientific methods in archaeological research and the prevention of illegal or unscientific excavations.

CASES: By providing legal interpretations, courts assist in indirectly creating guidelines on how matters endangering or destructing archaeological heritage are to be viewed by the law and also what sanctions are generally imposed. As it appears, questions of ownership and of appropriate jurisdiction are common issues in legal proceedings, see for instance a case in the USA [ODYSSEY MARINE EXPLORATION, INC., 2012] concerning the question of who owned the cargo of the Spanish Nuestra Señora de las Mercedes wreck and who held jurisdiction over the site. Also questions of damage caused by unscientific interventions are presented to courts, as for instance in the case of the French Palavas-Les-Flots shipwrecks in 2015. In this case, a group of persons were sentenced to up to four years in prison by the Court of Montpellier (France), for damage deliberately caused to archaeological sites and the pillage of Gallo–Roman, Etruscan and modern archaeological artefacts.

As seen above, there is existing case-law regarding pillaging or commercial exploitation of archaeological sites on land or under water. Until recently, no significant case-law for destruction of archaeological sites during armed conflict constituted sufficient precedent. In that regard, a case at the International Criminal Court [THE PROSECUTOR, 2016] changed the situation. The confirmation of charges hearing took place on 1 March 2016 before Pre-Trial Chamber I of the ICC. The charges against Ahmad Al Faqi Al Mahdi – which he conceded – consisted in directing attacks against a number of shrines, monuments and mosques in Timbuktu. In this regard, the Prosecutor submitted to the Pre-Trial Chamber on 15 January 2016 her written submissions gathering factual and legal elements to support the accusations. On 27 September 2016, the ICC ruled that the acts of Mr. Al Mahdi were indeed war crimes as defined by Article 8(2)(e)(iv) of the Rome Statute.

The timing of this proceeding is critical, due to the recent trend of rampant deliberate destruction of cultural heritage that constitutes damage to the cultural heritage of all of humankind, notably in Iraq and Syria.

VIEWS: Significant is the case of the Islamic Republic of Iran against the Barakat Galleries [GOVERNMENT ..., 2007], whereby the issue of ownership and right to possession was raised, when addressing the question of returning antiquities (illegally excavated) to the state. In particular, Barakat Galleries (based in London) had purchased antiquities from France, Germany and Switzerland under laws which allegedly had given it good title to them. Eventually, the Court of Appeal (UK) found that Iran’s rights were ‘so extensive and exclusive that they should be regarded as giving ownership’. Yet, for this conclusion to be reached, years of lengthy and expensive litigation passed. The initial ruling of the High Court dismissed Iran’s claim due to lack of proof of ownership.

It therefore becomes obvious that in disputes over movable property and particularly antiquities, issues of ownership and rights to possession create great controversy, especially when national legislation is either unclear or different from other legislation. Despite international acceptance of the desirability of protection of national heritage, national legislation should always be clear in matters of ownership, right to possession and protection of archaeological heritage to avoid lengthy litigation.

CONCL: The conservation, protection and management of archaeological heritage is essential for safeguarding the collective legacy of humankind and contributing to the sustainable development of society. Culture, including archaeological heritage, is a key element of the United Nations 2030 Development Agenda. To this effect, an improved cooperation between national and local authorities, managers, researchers and other experts, as well as the development of adapted national and regional policies, remain crucial goals.

REFERENCES:

Cameron, Christina and Rössler, Mechtild: Many voices, one vision: the early years of the World Heritage Convention, Ashgate Publishing Limited (2013).

Francioni, Francesco and Lenzerini, Federico (eds.): The 1972 World Heritage Convention: A Commentary, Oxford Commentaries on International Law, Oxford: OUP (2008).

Klesmith, Elizabeth A.: "Nigeria and Mali: The Case for Repatriation and Protection of Cultural Heritage in Post-Colonial Africa", Notre Dame Journal of International & Comparative Law: Vol. 4: Iss. 1, Article 1 (2014).

Korka, Elena (ed.): The Protection of Archaeological Heritage in Times of Economic Crisis, Newcastle: Cambridge Scholars Publishing (2015).

O’Keefe, Patrick J.: “The European Convention on the Protection of the Archaeological Heritage” 67(255) Antiquity (1993) 406.

O’Keefe, Patrick J. and Prott, Lyndel V. (eds.): Cultural Heritage Conventions and other Instruments. A compendium with Commentaries, Builth Wells: Institute of Art and Law (2011).

Pickard, Robert: European Cultural Heritage: Intergovernmental Co-operation: Collected Texts, Volume 1, Strasbourg: Council of Europe Publishing (2005).

Scovazzi, Tullio: “The Law of the Sea Convention and Underwater Cultural Heritage”, in David Freestone (ed.) The 1982 Law of the Sea Convention at 30: successes, challenges and new agendas, Leiden: Nijhoff (2013).

BEYELER v. ITALY (ECtHR 05/01/2000, 33202/96).

GOVERNMENT OF THE ISLAMIC REPUBLIC OF IRAN v. THE BARAKAT GALLERIES LIMITED (EWCA Civ 1374, 21/12/2007, WL 4368237).

KOZACIOĞLU v. TURKEY(ECtHR [GC] 19/02/2009, 2334/03).

ODYSSEY MARINE EXPLORATION, INC. v. UNIDENTIFIED SHIPWRECKED VESSEL (11th Cir. 2011, 657 F.3d 1159, cert. denied, 132 S. Ct. 2379).

POTOMSKA AND POTOMSKI v. POLAND (ECtHR 29/03/2011, 33494/05).

SEA HUNT, INC. v. UNIDENTIFIED, SHIPWRECKED VESSEL OR VESSELS (4th Cir. 2000, 221 F.3d 634, aff’g in part & rev’g in part 47 F. Supp. 2d 678, E.D. Va. 1999).

THE PROSECUTOR v. AHMAD AL FAQI AL MAHDI (Confirmation of charges Press Release and Pre-Trial Information Sheet, www.icc-cpi.int, accessed 1/2016).

Jan Hladík/Ulrike Guérin/Arturo Rey da Silva/ Gloria Lee/Irene Drakou/Khalid Ermilate

Architectural Heritage

DEF: Heritage – Latin: patrimonium – is the process of a ceaseless reinterpretation of the past in which the key roles are played by our memory and our choice. It must be pointed out here that although a monument belongs to the past, heritage serves contemporary purposes and heritage concerns not only the material objects of culture, but also our memory and identity. Not everything is heritage, but anything can become heritage. Therefore, the meaning of tangible heritage and, more specifically, of the built and architectural heritage is the crucial issue.

INSTR/CASES: Cultural heritage reflects both the society’s attitude to the world of values and the dynamic processes of creating and reinterpreting heritage. Heritagebelongstoallofusandtheaccess to it is inherent in the basic human right to participate in cultural life, as defined in the Universal Declaration of Human Rights. The social and human dimension of heritage and ‘the need to put people and human values at the centre of an enlarged and cross-disciplinary concept of cultural heritage’ is clearly underlined in the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (‘Faro Convention’, 2005).

Architectural heritage as a specific form of ‘social capital’ needs effective protection. Related systems and regulations for the protection of monuments can be seen as a significant criterion for the efficiency of a modem state under the rule of law. However, this protection system cannot be separated from a wider context – including not only cultural patronage of the state, but also principles of spatial policy, of social heritage education and, finally, systemic issues.

Heritage regulations are a domain reserved for the state, but some states also willingly appropriate architectural heritage for the needs of their own ideology. In Europe, a contemporary standard for state policies towards the protection of architectural heritage may be boiled down to a few principles. The first principle places an equation mark between the terms: culture goods and cultural heritage, leading to the term ‘our common heritage’. This should exclude the danger of a selective protection of monuments following ideological or political criteria and include, for example, the heritage of national minorities or religious communities as our joint responsibility. A second fundamental issue is the necessity to maintain a conservation service and its apolitical character. The third one concerns the mechanism of financing the protection of heritage. The basis of an effective protection of monuments in a democratic state is the principle of a limited ownership right, reflecting a general social interest. The limitation of ownership must not, however, infringe its essence. Thus the state creates a system of assistance compensating additional responsibilities of the owners of monuments. In a Grand Chamber judgment [KOZACIOĞLU, 2009], the ECtHR has underlined that the failure to consider specific architectural or historical characteristics of a listed building when assessing the compensation for an expropriation can be a violation of Article 1 of Protocol No. 1 to the ECHR, since it may impose an excessive and disproportionate burden on applicants. On the other hand, the Court also reiterated ‘that legitimate objectives of ‘public interest’ may call for less than reimbursement of the full market value of the expropriated property.’

CONCL: Architectural heritage today takes various dimensions: local, regional, national and – finally – universal. An effective protection of the cultural heritage is possible only once its diversity is accepted. Since heritage belongs to all of us, it is not the domain of a narrow group of experts.

Its value is determined by the users. Thus one of the fundamental questions related to cultural heritage is a question of its ownership and also a question of who creates, interprets, protects and manages heritage. A separate category today is the heritage of those disinherited and the heritage without heirs, the ‘product’ of the 20th century tragedies: the Holocaust and ethnic cleansings. Wroclaw – the largest city in Europe and in the world in which, as a result of WWII, the populationwas exchanged by one hundred per cent – is a very good example of this phenomenon. After 1945 Wroclaw became a polygon for conservation works consisting of the reconstruction of the destroyed city and a true laboratory of heritage understood as memory and identity: For the first Polish settlers, the ruins of the German Breslau meant the heritage of the enemy! For the next decades, the attitudes of subsequent generations of Wroclawcitizens to their small homeland evolved from the heritage of a neighbour to domesticating the heritage and noticing its universal values. The example of Wroclaw lets us better understand the strength and the importance of intangible heritage, our memory and identity as well as the dynamics of heritage as a process.

REFERENCES:

Compendium of basic texts of the Council of Europe in the field of cultural heritage, Strasbourg 1998.

Howard, Peter: Heritage: Management, Interpretation, Identity, London–New York: Leicester University Press (2003).

Second International Congress of Architects and Technicians of Historical Monuments: The Venice Charter (1964).

UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris (1972).

KOZACIOĞLU v. TURKEY (ECtHR 19/02/2009, 2334/03).

Jacek Purchla

Armed Conflict

(Cultural Property Protection in A. C.)

DEF: Access to, and interpretation of, an individual’s or group’s tangible cultural property (sites, buildings, objects etc.) and intangible cultural heritage (stories, songs, dances etc.) is a fundamental human right (UDHR 1948) (Stone, 2011). Cultural property is however frequently damaged during armed conflict and cultural heritage lost through loss of life and displacement. Most international humanitarian law (IHL) focuses on the protection of cultural property during conflict, rather than the protection of cultural heritage – as the latter is carried by individuals and noncombatants are protected under the 1949 Geneva Conventions. Recently work has addressed how to mitigate such damage during conflict.

INSTR: Avoidable damage to cultural property during conflict goes against customary international law and is specifically prohibited under the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols of 1954 and 1999 (see Gerstenblith, 2009); the 1977 Additional Protocol I to the Geneva Conventions (Articles 53 and 85[4] [d]); and in the 1998 Rome Statute of the International Criminal Court (Articles 8(2)(b)(ix) and 8(2)(e)(iv)). IHL also stresses that occupying forces should not withdraw until there are competent authorities to whom governance can be handed over. No-one implies that cultural property protection (CPP) in times of armed conflict is easy (e.g. Bevan 2006) but the responsibility of belligerents to plan to protect cultural property, under IHL is unequivocal. Since the failure of the US/ UK led coalition that invaded Iraq in 2003,Western militaries have begun to take CPP more seriously. The academic heritage community has also begun to accept its responsibilities to support their armed forces in the identification of cultural property and in helping to train those in uniform to be alert to their responsibilities for CPP. A ‘4 Tier Approach’ (Stone 2013) has been developed to act as a framework for this collaboration.

CASES: The protection of cultural property was explicitly mentioned in the Agreement on the Status of UNIFIL in Lebanon (REF) and in the UN MINUSMA deployment in Mali. As yet there have been no prosecutions under the Hague Convention. The UN International Criminal Tribunal for the former Yugoslavia (ICTY) has been the primary contemporary international court to address charges relating to the destruction of cultural property. Pavle Strugar and Miodrag Jokić were sentenced to 7.5 and 7 years imprisonment respectively for the shelling, not justified by military necessity, of the World Heritage site of Dubrovnik. The ICTY prosecution of Dusko Tadiç was the first that found the prohibition on attacking cultural property also applied to non-international armed conflicts and the ICTY prosecution against Dario Kardić and Mario Čerkez clarified further individual liability for cultural property destruction (Tusiray 2015). In 2015, the Niger authorities surrendered Ahmad Al Faqi Al Mahdi to the International Criminal Court (ICC) pursuant to an ICC arrest warrant charging him with war crimes in connection to the destruction of cultural property in Mali in 2012 (Tusiray, 2015).

VIEWS: Not all heritage professionals accept that they have a responsibility to assist the military in CPP. Critics suggest that any liaison with the military is wrong as it provides an academic legitimacy to war. Discussing in particular the 2003 invasion of Iraq, some of them focus on the appalling human tragedy of conflict and suggest that it ‘challenges seriously our (archaeologists) very ethical foundations and exposes the ethical crisis at the heart of the discipline’ (Hamilakis, 2003, 108). Bernbeck (2008), following the concepts of ‘neutrality’ and ‘impartiality’, two of the seven principles of the Red Cross (ICRC 1996), extends this argument by suggesting that archaeologists (and others) are carrying out ‘structural violence’ against the civilian populations caught up in the conflict, and also suggests that the drift of the armed forces into humanitarian work, previously the reserve of NGOs, causes confusion and puts NGO staff at considerable risk. Key to Bernbeck’s views is that humanitarian work should be carried out by impartial and neutral agencies thus by definition ruling out any military activity in such areas.

CONCL: While CPP has not been the subject of much legal success there is now a general agreement within the cultural heritage community that they need to engage with CPP. While much focus has been on the protection of museums and archaeological sites, colleagues working in both public and private libraries and archives are also increasingly engaging with such activity under the ‘Blue Shield’, an organisation originally set up under the 2nd Protocol to the Hague Convention. Given that many of the actors and requirements are the same, the Blue Shield has expanded its remit to include CPP following environmental disaster. UNESCO, with Blue Shield, is preparing generic training material for the military based on the ‘4 Tier Approach’ and addressing the seven reasons that cultural property gets destroyed during conflict (Stone, 2016). The military has also begun to take its responsibilities more seriously and proactively protected archaeological sites identified before conflict by the Blue Shield (NATO, 2012). More armed forces are including CPP as part of training; NATO is currently discussing the development of an organisation-wide CPP Doctrine; and the NATO affiliated CIMIC Centre of Excellence has just published Cultural Property Protection Makes Sense (Foliant 2015).

REFERENCES:

Bernbeck, Reinhard: “Structural Violence in Archaeology”, Archaeologies 4(3), 390(2008a).

Bernbeck, Reinhard: “Who Has, and Who Should Have Power over the Past and its Remains?”, Lecture at Culture Wars: Heritage and Armed Conflict in the 21st Century, Centre for Research in the Arts, Social Sciences & Humanities, University of Cambridge, December 2008 (2008b).

Bevan, Robert: The Destruction of Memory: Architecture at War, London: Reaktion Books (2006).

Foliant, Yvette: Cultural Property Protection MakesSense, The Hague: Civil–Military Cooperation Centre of Excellence – CCOE (2015).

Gerstenblith, Patty: “Archaeology in the Context of War: Legal Frameworks for Protecting Cultural Heritage during Armed Conflict”, Archaeologies 5 (1) 18–31 (2009).

Hamilakis, Yannis: “Iraq, Stewardship and ‘the Record’: An Ethical Crisis for Archaeology”, Public Archaeology 3(2), 104 (2003).

NATO: Cultural Property Protection in the Operational Planning Process, Fact Sheet, Lisbon: Joint Analysis and Lessons Learned Centre (2012).

Stone, Peter G.: “A four-tier approach to the protection of cultural property in the event of armed conflict”, Antiquity, 87(335), 166–177 (2013).

Stone, Peter G.: “The challenge of protecting heritage in times of armed conflict”, Museums International 265–268, 40–54 (2016).

Tusiray, Timur: “The International Criminal Court Takes on Attacks on Cultural Heritage, But is it Enough?” (2015), (available at www.itsartlaw.com (accessed 1/2016).

Blue Shield International, www.ancbs.org (accessed 1/2016).

Excellence – CCOE (2015), www.cimic-coe.org/ (accessed 1/2016).

International Criminal Tribunal for the former Yugoslavia (ICTY): www.icty.org (accessed 1/2016).

Peter Stone

Artists’ Freedom of Expression

DEF: Freedom of expression in the arts involves the right of artists to express beliefs and ideas in any artistic or creative form, free from private or public restriction. This right is closely linked to other human rights, including the right to take part in cultural life and freedom of expression, but requires distinctive treatment, not least because of artists’ resort to fiction and exploration of the imaginary (UN Special Rapporteur in the field of cultural rights, 2013). Restrictions on freedom of artistic expression may take the form of explicit or implicit →censorship, as well as limited opportunities for the production or distribution of certain works, authors or aesthetics.

INSTR: Artists’ freedom of expression is explicitly recognised in Article 15(3) of ICESCR, which establishes that states ‘...undertake to respect the freedom indispensable for... creative activity’. Strong links exist with other human rights, most notably including freedom of expression – as stressed by article 19(2) of ICCPR, which indicates that ‘(freedom) of expression... shall include freedom to seek, receive and impart information and ideas of all kinds... either orally, in writing or in print, in the form of art, or through any other media...’. The UN Special Rapporteur on Cultural Rights has also identified connections with other rights, including freedom of opinion and conscience and the right to leisure, among others (UN Special Rapporteur in the field of cultural rights, 2013). Freedom of expression in the arts may also be seen as a core part of the broader notion of ‘participation in cultural life’ (UN Committee on ESC Rights, 2009, para 15(a)). The connection with other rights, particularly freedom of expression, has enabled the ECtHR to underline the importance of artistic expression in the context of the ECHR (Council of Europe), even though the latter does not refer explicitly to this nor to other cultural rights [ECtHR, 2011]. Other relevant international standards include UNESCO’s 1980 Recommendation concerning the Status of the Artist.

CASES: By relating the right to artistic expression to freedom of expression, the ECtHR has emphasised that the former contributes to the exchange of information and ideas which is essential in a democratic society [MÜLLER and OTHERS, 1988]. Additional nuances stressing the specific nature of artistic expression have been introduced, including the recognition that satire ‘naturally aims to provoke and agitate’ and, accordingly, restrictions in this field should be examined with particular care [VEREINIGUNG BILDENDER KÜNSTLER, 2007]; as well as, interestingly, the fact that some artistic expressions, such as poetry or novels, appeal to a narrow public and thus tend to have limited social impact [KARATAŞ, 1994; ALINAK, 2005]. However, the Court has also recognised that limitations to freedom of expression in the arts may be applied, on grounds similar to those that apply to other forms of expression, including offending religious feelings [OTTO-PREMINGER-INSTITUT, 1994] and the protection of morals [MÜLLER AND OTHERS, 1988]. The Court has also argued that, when fiction works introduce non-fictional characters, such as political figures, respect for others’ reputation and rights should be considered, in a way not dissimilar to other forms of expression [LINDON, OTCHAKOVSKY-LAURENS AND JULY, 2007].

VIEWS: Overt violations of freedom of artistic expression are relatively rare in Europe nowadays, although some high-profile cases exist (e.g. the imprisonment of members of Russian punk band Pussy Riot). However, more subtle restrictions can be found in the form of social, political or economic pressure, self-censorship or limited production or distribution opportunities for certain works or authors. Examples include the pressure from fellow community members experienced by some artists, including those with a migrant background, when addressing religion (e.g. the cancelled presentation of the play Behzti in Birmingham, 2004) or because of their choice of a professional career in the arts (as in the case of Norwegian singer Deeyah), as well as the cancellation of installations seen to contain implicitly racist elements (e.g. Brett Bailey’s show Exhibit B, 2014 – see also Denselow, 2013; Polivtseva, 2015). Instances of corporate →censorship, e.g. legal or financial pressure, or the threat thereof, towards artists who publicly denounce private companies, have also been described (Denselow, 2013). European civil society groups and, to a lesser extent, public institutions have increasingly paid attention to freedom of artistic expression in other world regions – including the European Parliament’s inclusion of artists as human rights defenders in its Human Rights Reports (Cuny and Polácek, 2012).

CONCL: Freedom of expression in the arts stands as a cornerstone for the exercise of cultural rights and the development of a sustainable cultural sector. Its fulfilment can be enhanced through the adoption of enabling measures in cultural policy and other fields, such as the promotion of →arts education, enabling →children, young people and adults to interpret and critique cultural contents in a more positive way than that embodied by censorship or restriction (UN Special Rapporteur in the field of cultural rights, 2013). Attention should also be paid to the existence of bureaucratic procedures or selection criteria in public or private support schemes which may in practice prevent or limit the production or distribution of certain forms of artistic expression, when these may amount to covert censorship (see examples in countries outside Europe in Polivtseva, 2015). Local, national and international policies in this area could take inspiration from, or support, the increasing work done by civil society organisations, acting in a ‘watchdog’ and awareness-raising role (e.g. Freemuse; freeDimensional; Index on Censorship; Observatoire de la liberté de creation; Article 19; Arts Rights Justice) or providing shelter to writers and artists at risk (e.g. the International Cities of Refuge Network – ICORN or some Writersin Exile schemes that work closely with PEN International and its national chapters).

REFERENCES:

Cuny, Laurence and Polácek, Richard: Arts and Human Rights, Brussels: Access to Culture Platform (2012).

Denselow, Robin (rapporteur): All that is Banned is Desired.World Conference on Artistic Freedom of Expression, Copenhagen: Freemuse (2013).

European Court of Human Rights: Cultural rights in the case-law of the European Court of Human Rights, Strasbourg: Council of Europe (2011).

Polivtseva, Elena (rapporteur): The Cultural Sector: megaphoning free expression, Brussels: IETM (2015), available at: www.ietm.org.

UN Committee on Economic, Social and Cultural Rights: Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), Geneva: Economic and Social Council (2009), E/C.12/GC/21.

UN Special Rapporteur in the field of cultural rights. The right to freedom of artistic expression and creativity, Geneva: Human Rights Council (2013), A/HRC/23/34.

UNESCO: Recommendation concerning the Status of the Artist. Paris: UNESCO (1980).

ALINAK v. TURKEY (ECtHR 29/3/2005, 40287/98).

KARATAŞ v. TURKEY (ECtHR 8/7/1999, 23168/94).

LINDON, OTCHAKOVSKY-LAURENS and JULY v. FRANCE (ECtHR 22/10/07, 21279/02 and 36448/02).

MÜLLER and OTHERS v. SWITZERLAND (ECtHR 24/5/1988, 10737/84).

OTTO-PREMINGER-INSTITUT v. AUSTRIA (ECtHR 20/9/94, 13470/87).

VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA (ECtHR 25/1/2007, 68354/01).

Jordi Baltà Portolés

Arts Education

DEF: Arts education relates to all learning environments defined by the European Commission (2000) and UNESCO (2009): formal, non-formal, informal learning. However, due to more or less far-reaching concepts of ‘arts’ and ‘culture’, a binding definition of the term is difficult to reach – for example, in some European countries ‘cultural education’ is a more commonly used expression. Expert discussions are caught between a very narrow understanding of arts education, focusing mainly on the fine arts, music, literature, etc., and a very broad perception of the term, whose challenges could be seen in the fact that it can, potentially, reach out to many customs, manifestations and societal processes. At the individual level, a sensible usage of cultural tools in terms of translation and expression of individual experience, communication with society, and developing selfidentity is frequently emphasised. At the social level, the focus is often on handling traditions, cultural diversity, identity and creativity. Mediating the ‘arts’ is closely connected with fostering reception, production and reflection or positioning. The concept of ‘learning through the arts’, including the development of different learning contexts by means of arts education, is another option.

INSTR: In policy contexts, arts education is strongly connected with cultural expressions and participation. It contributes meaningfully to implementing human rights such as ‘the right freely to participate in the cultural life of the community, to enjoy the arts ...’ (Article 27, UDHR). This ‘right to culture’ is also spelled out in the ICESCR (Article 15) or in the UN Convention on the Rights of the Child (Articles 13, 29 and 31). Another reference source for arts education is the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Articles 10 and 11), which calls on states, together with civil society, to ‘encourage and promote... the diversity of cultural expressions, inter alia, through educational and greater public awareness programmes’. Similar provisions do not yet exist in Europe, even if case law has extended the guarantee of freedom of expression (Article 10, ECHR) to manifestations in the arts and media.

As regards national policies and infrastructures for arts education and its promotion in formal and non-formal contexts, conditions vary a lot between countries worldwide. At the second UNESCO World Conference on Arts Education 2010, the Seoul Agenda was adopted, which formulated development goals like ensuring accessibility to qualitative arts education for all and using its principles to cope with today’s social and cultural challenges.

CONCL: Empirical studies have demonstrated that arts education, especially in its non-formal and informal varieties, is key to the realisation of cultural participation (Keuchel/Larue, 2012). This underlines that providing arts institutions and related services alone will not be sufficient to implement a ‘right to culture’. What’s needed are also provisions that enable and foster access to arts education for all demographic and social groups.

REFERENCES:

International Yearbook for Research in Arts Education, Vol. 1–4, Münster/New York: Waxmann (2013–2016).

Keuchel, Susanne and Larue, Dominic: Das 2. Jugend-KulturBarometer, Cologne: ARCult Media (2012).

UNESCO Institute for Lifelong Learning: Global Report on Adult Learning and Education, Hamburg: UIL (2009).

Susanne Keuchel

Asian Values

DEF: The expression ‘Asian Values’ (AV), often synonymous with ‘Confucian values,’ became a powerful rhetorical tool in the 1990s, when it started to be used by prominent East Asian leaders – in particular the Former Senior Minister of Singapore, Lee Kuan Yew, and the former Prime Minister of Malaysia, Mahathir Mohamad – to define a system of values proper to Asia, also with a view on the ‘Asian economic miracle’. These values, broadly speaking, place economic development first and foremost above everything else, support collectivity and harmony rather than individual and personal freedom, and reaffirm the principles of sovereignty and non-interference. On the grounds of the relativity of values, AV have been set in opposition to what was perceived, at the end of the Cold War,when the Soviet alternative had lost much of its power, as a hegemonic process of universalisation of ‘Western values’ in the form of universal human rights instruments and democratic forms of government.

INSTR: Although many Asian leaders used the rhetoric of ‘Asian Values’ and a working group for an Association for Southeast Asian Nations (ASEAN) human rights mechanism was created in 1995, there still exists no Asian charter of rights in which such values are codified. The political movement promoting AV reached its peak in the Bangkok Declaration of 1993, which was adopted by Asian states in preparation for the World Conference on Human Rights held in Vienna in the same year. Through this declaration, the Asian states, while accepting the principle of human rights, reaffirmed the cultural, historical and religious specificities of Asian nations, and supported the principle of sovereignty and non-interference. Despite previous disagreements over which human rights could be considered truly universal since the proclamation of the →Universal Declaration of Human Rights (UDHR) in 1948, the Vienna Declaration of 1993 reaffirmed that all human rights are universal, indivisible, interdependent and interrelated. At the same time, the Vienna Declaration recognised ‘the significance of national and regional peculiarities and various historical, cultural and religious backgrounds.’

CASES: An analysis of the various Asian constitutions shows that they share some distinctive elements: the prevalence of collective rights over individual rights, the emphasis on rights guaranteed by the law and limitations or suspension of rights in the name of general interests. Moreover, Asian constitutions put special emphasis on national sovereignty and economic development. However, these similarities do not give a definite answer to what is meant by the label ‘Asian Values’. There are no court rulings that refer explicitly to AV. This is due partly to the lack of Asian human rights instruments and monitoring mechanisms like a regional court or similar bodies. Despite the absence of cases that directly mention AV, international courts are, nevertheless, inclined to take into account cultural specificities in the implementation of human rights (as explained under →Universalism and Cultural Relativism). This flexibility is also reflected in the doctrine of the →margin of appreciation developed by the ECtHR. Although human rights monitoring, led by the UN and supported by NGOs, continues to track human rights abuses in the Asian–Pacific region according to common standards, the particular social and cultural context of Asian countries is usually taken into account in this process.

VIEWS: The promotion of AV by political leaders has prompted a lively debate. One of the major points of critique has been the impossibility of defining Asia univocally, because of its complexity and its variety of economic, political, legal and religious traditions: As there is not a monolithic Asia, there cannot be a monolithic and static set of ‘Asian Values’. Critics also argue that it is misleading to set Asian and Western values into opposition to each other. Since supposedly AV such as family responsibilities and kinship can be found to differing degrees in all cultures, the same is true for alleged ‘Western Values.’ For instance, studies dismissed the perception that Confucianism would not support the idea of individual human personalities as well as of human rights and democracy. Human rights have their roots in many cultures and it is risky to essentialise any civilisation, whether ‘Asian’ or ‘Western’, and its corresponding set of values. Within a particular culture and civilisation, contestation is not uncommon, as people have different aspirations. Thus some political leaders have argued that the debate on AV is not so much about cultural values and cultural diversity, but rather about political power and structures: Political leaders promote the values that fit with their agenda.

CONCL: The ‘Asian Values’ debate experienced a setback after the Asian crisis in 1997. Today the strongest advocate for them is China. China’s economic prosperity allegedly linked to its alternative ‘Asian model,’ – which values more a central authoritarian government over pluralism, social harmony over dissent, economic development over civil and political liberties –, seems to question universalism of human rights. While acknowledging the important fact that Asia is as such not a homogenous geographical or political area, conceptually and historically, we could today take the ASEAN +3 countries (China, Japan, Korea) as a reference. However, the cultural or traditional communalities that might characterise the area of ASEAN+3 are difficult to render into law, and the similarities in the understanding of human rights found in Asian countries’ constitutions is not necessarily the result of the existence of a set of AV. These constitutions are constantly changing and evolving. This transformation, rather than being the result of AV, reflects the different cycles of constitutional development. The relativism promoted by AV seems to go against the aspirations of the UDHR 1948, which was to promote universal and indivisible human rights, so as to avoid people being treated as subhuman. The history of how the UDHR has been developed actually highlights the complexity of cross-cultural dialogue about fundamental rights and reaffirms the need to find a balance between universal rights and their implementation in local cultural and traditional environments. This task, reflected in inter alia the doctrine of the →‘margin of appreciation’, remains very much alive today.

REFERENCES:

Blondel, Jean: Political Cultures in Asia and Europe: Citizens, States and Societal Values, London: Routledge (2006).

De Bary, William Theodore: Asian Values and Human Rights: A Confucian Communitarian Perspective, Cambridge, Mass: Harvard University Press, (1998).

De Varennes, Fernand (ed.): Asia–Pacific Human Rights Documents and Resources, vol. 2, The Hague: Martinus Nijhoff Publisher (2000).

Groppi, Tania (ed.): Asian Constitutionalism in Transition: A Comparative Perspective, Milan: Giuffrè (2008).

Jacobsen, Michael and Brun, Ole (eds.): Human Rights and Asian Values. Contesting National Identities and Cultural Representations in Asia, London: Curzon Press (2000).

Pye, Lucian W.: “Asian Values: From Dynamos to Dominoes?” in Lawrence E. Harrison and Samuel P. Huntington (eds.): Culture Matters, How Values Shape Human Progress, New York: Basic Books (2000), 244.

Sen, Amartya: “Human Rights and Asian Values”, The Sixteenth Morgenthau Memorial Lecture on Ethics and Foreign Policy, Carnegie Council on Ethics and Foreign Affairs (1997) (available at: www.carnegiecouncil.org/ accessed 2/2016).

Tan, Hsien-Li: The ASEAN Intergovernmental Commission on Human Rights: Institutionalising Human Rights in Southeast Asia, Cambridge: Cambridge University Press (2011).

Yee, S: “The Role of Law in the Formation of Regional Perspectives in Human Rights and Regional Systems for the Protection of Human Rights: The European and Asian Models as Illustrations”, in Singapore Yearbook of International Law and Contributors (2004).

Maria Adele Carrai

Assembly and Association

(Freedom of)

DEF: This right enables people to form or join associations, e.g. political parties, trade unions, or in the context of national and ethnic minorities, associations for cultural, religious, socioeconomic and other purposes. It also covers assemblies, including for peaceful protests. It is not an absolute right and may be subject to restrictions. Further, it is essentially a negative right (the State must refrain from action that interferes with this right), but the State may also have a positive obligation to ensure the effective enjoyment of this right. In practice, this right is often read in connection with the freedoms of thought, conscience and religion and expression.

INSTR: Under Article 11, ECHR, all have a right to join or form an association or to assemble with others peacefully. The right is not absolute and can be restricted, as long as restrictions are according to the law and necessary in a democratic society. No explicit mention is made of culture in this Article, but the ECtHR case law has developed in this direction.

The Framework Convention for the Protection of National Minorities (FCPNM, 1995) is more specific and in a cultural context provides that national minorities have the right to freedom of peaceful assembly and association. Its preamble presupposes the right, giving it greater context by stating that a democracy should respect the ethnic, cultural, linguistic and religious identity of national minorities, and also create appropriate conditions for them to express, preserve and develop this identity.

The HRC, in its Resolution 15/21 (Sept. 2010), has recognised the importance of association for enabling individuals to “engage in literary and artistic pursuits”. In Resolutions 21/162 and 24/53 it has reiterated the key role of new information and communication technologies in enabling and facilitating association, which could be relevant for culture in connection with →digital media/ arts and freedom of expression.

CASES: In [SIDIROPOULOSANDOTHERS, 1998], the ECtHR held that the right was not limited to associations of a political nature, despite Article 11§1 only expressly referring to trade unions. More specifically, associations for preserving minority consciousness were not caught by the limitations in Article 11§2, as they were not a threat to democratic society. In particular, the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE and the Charter of Paris for a New Europe – both signed by Greece – allowed the applicants to form associations to protect their cultural and spiritual heritage.

Creative arts were more concretely referred to in [GORZELIK, 2004]. Here the ECtHR stressed that in addition to political parties, other associations were important for pluralism which depended, among others, on respect for artistic and literary ideas.

The right was delimited in [SCHIMANEK v. AUSTRIA, 2000], where the ECtHR emphasised that it did not extend to associations formed for purposes incompatible with democracy and human rights. As an example, in [REFAH PARTISI AND OTHERS, 2001], the Court found the dissolution of the Refah Party by the Turkish authorities did not violate Article 11 as the party’s principles could undermine democracy.

Finally, the UN Special Rapporteur in the field of cultural rights (2013) has recalled that the right of assembly and association is also a right for artists to enjoy in a political context, enabling them to form and join trade unions.

VIEWS: While the [REFAH PARTISI, 2001] case essentially dealt with the right to assemble of a political party, it also concerns this right in relation to a group of people with a set of cultural values which were seen as a threat to secularism and the democratic values of the Council of Europe. A minority of judges stressed, among others, that democratic debate required a diverse range of political views, including even those that may be considered incompatible with current State principles and structures.

CONCL: The freedom to join with others is essentially a political right, and most of the case law concerns a political context: i.e. attempts of people to assemble, e.g. in peaceful protest, or form an association, e.g. a trade union.