There are few other meaningful references to cultural rights and development in international texts. The 1986 United Nations Declaration on the Right to Development states that ‘the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms are fully realized’ (Article 1(1)). But it is hardly referred to or operationalised by ‘culture and development’ actors. The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions envisages ‘Cooperation for Development’ (Article 14) mainly as the strengthening of the cultural and creative industries in developing countries, despite references in the Preamble to cultural diversity as such or to ‘situations where cultural expressions may be threatened by the possibility of extinction or serious impairment.’
CONCL: The international normative arsenal barely addresses the entanglement between development and the respect (or not) of cultural rights.
REFERENCES:
Habermas, Jürgen: “The Concept of Human Dignity and the Realistic Utopia of Human Rights”. Lecture held at the International Congress Human Rights Today: Foundations and Politics, University of Frankfurt (2010).
UNESCO: International thesaurus of cultural development, Paris: UNESCO Publishing (1981).
Final Report of the World Conference on Cultural Policies (Document CLT/MD/1). Paris: UNESCO (1982).
United Nations: Declaration on the Right to Development (Document A/RES/41/128 (1986)).
United Nations: Declaration on the Rights of Indigenous Peoples (2008).
Williams, Raymond: Keywords: A Vocabulary of Culture and Society, London: Fontana (1988).
World Commission on Culture and Development: Our Creative Diversity. Paris: UNESCO Publishing (1996).
Yudhishthir Raj Isar
Digital Media
(Access to, and Freedom of, D. M.)
DEF: Digital media are any media that are encoded in a machine-readable format, which can be easily manipulated, distributed, and played by computers and transmitted over computer networks. Legal instruments and the related case law have barely succeeded in keeping pace with the digital revolution, in particular with its power to transcend national frontiers.
INSTR: The problems inherent in regulating digital media, particularly for human rights, means there is little in the way of law in this field, with softer instruments generally being preferred. The right to access the Internet, therefore, arises from provision existing prior to the digital age, and in particular the right to receive and impart information under Article 10, ECHR, on freedom of expression. Freedom of expression (FoE) is not absolute and can be restricted in certain ways, as long as these are according to the law and necessary in a democratic society.
Article 15(3) of ICESCR and Article 19(2) of ICCPR offer more explicit protection to artistic freedom respectively by requiring States Parties to ‘respect the freedom indispensable for ... creative activity’ and by specifying that FoE includes freedom to seek, receive and impart ... ideas of all kind ‘in the form of art’. Article 2 of the 2005 UNESCO Convention focuses on cultural diversity which ‘can only be protected and promoted if human rights such as freedom of expression, information and communication, as well as the ability ... to choose cultural expressions, are guaranteed’. More recently, the European Parliament, under the Digital Agenda, has adopted a set of rules for protecting net neutrality and ensuring access for all (2015). This means there can be no blocking or throttling of online content, applications and services.
CASES: Users are free to create, re-use and distribute content, including artistic content. According to the ECtHR, content can ‘offend, shock and disturb’, but not if it amounts to hate speech [LEROY v. FRANCE, 2008], or transgresses Convention values [NORWOOD v. UK, 2005], such as child pornography. FoE also includes the freedom to receive information which similarly extends to cultural expressions and entertainment: [KHURSHID MUSTAFA AND TARZIBACHI, 2008]. Duties and responsibilities may differ between Internet and traditional print [DELFI 2015], with platforms required to police content ‘without delay’ post publication to ensure compatibility with Human Rights standards. Excessive control of content, however, such that it substantially and arbitrarily affects the rights of Internet users, may violate Article 10 [AHMET YILDRIM, 2012]. This is less likely where content is restricted for copyright infringement [AKDENIZ, 2014], although a conviction here may nonetheless be seen as an interference with FoE. Similarly, a state restriction on commercial content is less likely to violate FoE than one on general interest content, even if it risks having a ‘chilling effect’ [ASHBY DONALD AND OTHERS, 2013]. The ECtHR has emphasized that control of State action must be effective [YILDRIM]. Blurred jurisdiction boundaries as a result of Internet’s global nature means State action may now cross international borders [PERRIN v. UK, 2005].
VIEWS: The ECtHR case-law on digital media is growing, but as one issue is regulated, others appear. As a judge in Northern Ireland said, Facebook has ‘created a monster it cannot control’ (UK Human Rights Blog, 24 April 2013). In a recent case [DELFI, 2015], a minority of judges cautioned against holding news sites liable for readers’ defamatory comments, exposing FoE to private-party censorship, as platforms may block content prior to publication to protect their liability, often with no court to deliberate on this censorship. According to the Parliamentary Assembly of the CoE, protection of authors’ copyright has made further inroads on FoE through the policing of Internet creativity to protect against copyright infringement, upsetting significantly the balance between authors, investors and the general public. In its Recommendation 1906 (2010) it felt this imbalance would endanger the creative professions’ survival, but also lead to the emergence of police states controlling all information exchanged by their citizens. Regulations pursuant to the EU’s digital agenda, meanwhile, are feared by some to have caused a legal loop hole which could lead to a tiered Internet service. Some ‘specialized services’ will be allowed to use an Internet fast lane, which makes sense for devices that deserve priority, e.g. remote medical operations. The legal language may however allow large companies to pay for faster access and ISPs to speed up or slow down traffic depending on data sent, with the attendant effects on the creative outreach that digital media also facilitate.
CONCL: Through Digital media, a wide range of data is made available to a global population for a relatively small cost. Individuals can express their views and thoughts to others, with equal opportunities for communication. However, new ways to be creative leave many ordinary people guilty of copyright crimes of which they are unaware. Jurisdiction now crosses international borders, meaning an act legal in one country, can be prosecuted in another, undermining the principle that law must be clear. World-wide access to content limited pre-digitally to a much smaller audience may now cause cultural controversy. Not all Internet traffic is treated equally, and the Internet’s development has given unprecedented power to a small number of companies from the US, with the attendant effects on European culture. The EC only adopted a set of rules aimed at protecting net neutrality and ensuring access for all in 2015. 8 EU countries, however, have warned against overregulation. Following [DELFI], private platforms may be over-policing comments boards, with the risk of free expression being governed by the private sector.
In resolving these issues, encouraging responsible Internet behaviour may be a better alternative to regulation, IT and social media experts’ involvement is crucial to ensuring legal and policy decisions 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.
REFERENCES:
Council of Europe: Journalism at risk: Threats, challenges and perspectives, Strasbourg: CoE (2005).
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’).
UN/Farida Shaheed: The right to freedom of artistic expression and creativity, Report of the Special Rapporteur in the field of cultural rights, 14/03/2013.
AHMET YILDRIM v. TURKEY (ECtHR 18/12/2012, 3111/10).
AKDENIZ v. TURKEY (ECtHR 11/03/2014, 20877/10).
ASHBY DONALD AND OTHERS v. FRANCE (ECtHR 10/01/ 2013, 36769/08.
DELFI v. ESTONIA (ECtHR 16/06/2015, 64569/09).
KHURSHID MUSTAFA AND TARZIBACHI v. SWEDEN (ECtHR 16/12/2008, 23883/06).
www.article19.org (accessed 01/2016).
www.coe.int/assembly.coe.int (accessed 01/2016).
ukhumanrightsblog.com (accessed 25/01/2016).
www.liberty-human-rights.org (accessed 01/2016).
Siobhan Montgomery
Disabilities
(Cultural Rights of Persons with D.)
DEF: The UN Convention on the Rights of Persons with Disabilities (CRPD) offers three dimensions to introduce cultural issues. The first is the right to culture, in its diverse expressions, that persons with disabilities enjoy and have access to. The second refers to the way in which persons with disabilities contribute to culture in society. The third is the culture developed by certain groups of persons with disabilities, generating a style of interaction and communication, as is the case of deaf persons.
INSTR: In the first dimension, the CRPD emphasises in Article 30(1), that states parties recognise the right of persons with disabilities to take part, on an equal basis, with others in cultural life, and shall take all appropriate measures to ensure access to cultural materials in accessible formats (e.g. TV programs, films, plays in theatres), to services such as museums, cinemas, libraries, theatres, and tourism services, and to monuments of national importance. This includes the obligation of states to take all appropriate measures, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access to cultural materials for persons with disabilities.
The second dimension of the CRPD emphasises that states parties will take appropriate measures to enable persons with disabilities to have the opportunity to develop and utilise their creative, artistic and intellectual potential, not only for their own benefit, but also for the enrichment of society.
The third dimension notes that persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture. This is corroborated when the CRPD addresses the right to education and the right to freedom of expression, opinion and access to information.
CONCL: In order to mark the current trends, it is important to group together the jurisprudential path of the Treaty Body and monitoring of the Convention, in three lines of specific recommendations for states parties:
(a)Ratify and implement the Treaty of Marrakech as soon as possible, and to make the printed text accessible to blind and visually impaired persons;
(b)Ensure access for persons with disabilities to libraries, audio-visual materials, and radio and television broadcasting services. This includes the accessibility in libraries for persons with cognitive or psychosocial disability, and deafblind persons;
(c)Ensure that policies and practices of tourism recognise the right to access and inclusion of persons with disabilities, and that the recommendations of the World Tourism Organisation for accessible tourism are disseminated, including among travel and tourism agencies.
REFERENCES:
www.ohchr.org/EN/HRBodies/CRPD (accessed 03/2016).
Maria Soledad Cisternas Reyes
Disability and Copyright
INSTR: In international copyright treaties, mention of disability is conspicuous by its absence: for instance, nothing related to this issue can be found in the Berne Convention (1886), in the WIPO Copyright Treaty (1996), or in the Agreement on Trade Related Aspects of Intellectual Property Rights (1994). Over 30 years ago, attempts commenced at international level to provide a mechanism that would result in meaningful ways in which the blind could access books through exceptions and limitations to copyright – a process that finally culminated in the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities which was finalised under the auspices of WIPO in 2013. The Marrakesh Treaty, as the name suggests, deals with access to works protected by copyright for the print disabled, and not with authorship of copyrighted works. Within the EU, the Copyright Directives do not mention disability – with the notable exception of the InfoSoc Directive (Directive 2001/29/EC), which exhorts member states to adopt necessary measures to facilitate access to works by persons suffering from a disability – once again the focus is on access and not authorship, and the measure has an unfortunate emphasis on the notion of ‘suffering’. National copyright legislations vary in their treatment of disability; some, but by no means all, have provisions to enable those with disabilities to access works protected by copyright. The UK for instance has two exceptions: one which enables the person with a disability to make a copy of a lawfully obtained work in a format that helps to access the work (Copyright Designs and Patents Act 1988 – CDPA, s 31A); and a second which grants this right also to educational establishments and charity organisations (CDPA s 31B). Beyond that, copyright says nothing about disability.
CASES: So how then should copyright deal with authorship and disability? It would deal with it no differently to any other investigation as to whether a copyrighted work exists and, if it does, determining who the author is. Under copyright law in Europe, shaped by the Copyright Directives and interpreted by the EU Court of Justice (CJEU), a new, harmonised standard of originality is emerging which may have interesting repercussions for authorship and disability. The CJEU has stressed that the European scheme of protection for copyright protects works where the subject matter is original in the sense of being the author’s own intellectual creation [INFOPAQ, 2008; BEZPEČNOSTNÍ, 2009]. What the work is called, in other words: whether it is a literary, dramatic, musical or artistic or any other kind is irrelevant, although it may be (in the UK at least) that a work would need to fall under the Berne Convention categories of literary or artistic works [SAS INSTITUTE, 2013]. The standard of originality for all types of work is the same: it has to be an intellectual creation [INFOPAQ, 2008; BEZPEČNOSTNÍ, 2009], (see also Rosati, 2011; Derclaye, 2010). To reach this level, the author should express her creative ability in an original manner by making free and creative choices and stamp her ‘personal touch’ on the work [PAINER, 2010]. Where choices are dictated by technical considerations, rules or constraints that leave no room for creative freedom, these criteria are not met [SAS INSTITUTE; 2013].
VIEWS: So how might this standard impact the relationship between copyright and disability? For many works, we would argue, not at all: seen through the lens of the law, the standard – creative ability, free and creative choices, personal touch – is one by which the creative input is judged, and one where the personal attributes of the author are irrelevant. Where originality sufficient for authorshipmay arise for authors with disabilities, but not for those without, is when works are developed where choices are dictated by technical considerations, rules or constraints that leave no room for creative freedom; in these circumstances no copyright would arise due to a lack of originality. In relation to performative works we have argued elsewhere that the creative input by an author with disabilities may be sufficient (Waelde, Whatley, Pavis 2014). In dance, for instance, a dancer with disabilities stamps her personal touch on a dance, including where interpreting the choreographer’s instructions. While many may consider the choreographer to be the author of the dance, and the dancer follows her ‘rules’, this may not be the case for the disabled dancer as only she knows her body and how it will interpret choreographic instructions. We would argue that the same considerations may apply to tangible works: the law may well consider the input of the artist with disabilities to be creative even where ostensibly limited by technical considerations, rules and constraints.
CONCL: The rights of persons with disabilities have been an issue on policy-makers agendas for many years – a process that led to the international Convention on the Rights of Persons with Disabilities in 2006. Recognising copyright authorship of persons with disabilities is one small, but significant, way in which the Convention can be operationalised to empower and make a difference to individual lives.
REFERENCES:
Derclaye, Estelle: “Wonderful or Worrisome? The Impact of the ECJ Ruling in Infopaq on UK Copyright Law”, 32(5) EIPR (2010) 248.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 10.
Rosati, Elanora: “Originality in a work, or a work of originality: the effects of the Infopaq decision”, 33(12) EIPR (2011) 746.
Waelde, Charlotte, Whatley, Sarah, and Pavis, Mathilde: "Let’s Dance! But Who Owns It?", 36(4) EIPR (2014) 217.
BEZPEČNOSTNÍ SOFTWAROVÁ ASOCIACE v. MINISTERSTVO KULTURY (CJEU 22/12/2010, C - 393/09).
INFOPAQ INTERNATIONAL A/ S v. DANSKE DAGBLADES FORENING (CJEU 16/07/2009, C-5/08).
PAINER v. STANDARD VERLAGS GMBH (CJEU 01/12/2011, C-145/10).
SAS INSTITUTE INC v. WORLD PROGRAMMING LIMITED (CJEU 02/05/2012, C-406/10).
SAS INSTITUTE INC v. WORLD PROGRAMMING LIMITED (EWHC 25/01/2013, 69 (Ch)).
Charlotte Waelde
Discrimination
DEF: Discrimination is a term with different connotations. In the legal sense to discriminate means to make unjustified distinctions based on personal characteristics which have negative consequences for the situation of persons discriminated against – i.e. in employment or access to goods or services. In the current human rights framework discrimination denotes different treatment of individuals on the basis of race, ethnic origin, gender, sexual orientation, religion or belief, disability, age or economic status which are commonly perceived as irrelevant in day-to-day social interactions. Using these grounds as justifications for different treatment is in principle prohibited unless there are objective reasons for drawing legal distinctions with regard to these characteristics.
INSTR: Discrimination is prohibited under international, regional (including European), as well as national laws. The prohibition of discrimination is also recognized as a fundamental principle of the European Union law. It is also a constitutive part of the human rights system of the Council of Europe. The prohibition of discrimination serves the realization of the principle of →equality which is rooted in international and European norms; constitutions and legal traditions of European states; as well as jurisprudence and legal doctrine. Non-discrimination is today not only an inherent element of human right law, but also a necessary instrument for their full implementation. It is a shared conviction that discrimination – including discrimination based on cultural grounds or discrimination in access to culture and cultural goods – significantly limits the chances of full and effective enjoyment of human rights. The legal standard of non-discrimination is evolving in result of the development of human rights treaty law, the migration of legal ideas and judicial dialogues. The European standard of protection against discrimination has been dynamically shaped by social and cultural changes, which constitute the context in which it operates.
CASES: The phenomenon of discrimination has been frequently dealt with by the ECtHR, the CJEU, national courts, as well as other competent bodies (e.g. UN expert bodies or national equality agencies). When assessing whether discrimination took place or not, courts, tribunals or other bodies need to ascertain whether individuals who were in a similar or comparable situation received a similar or comparable treatment. Yet, ‘the enjoyment of rights and freedoms on an equal footing...does not mean identical treatment in every instance’ (Human Rights Committee, 1989, para. 8).
The ECtHR established in its case-law that ‘only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination’ and ‘for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations’ [CARSON AND OTHERS v. UK, 2010]. The main factor determining the occurrence of discrimination is whether less favourable treatment grounded on the particular characteristic that is already protected under Article 14 ECHR or deserves to be protected by the Convention. Thus, in all discrimination cases the first step in the judicial analysis is to identify a person to whom the victim of discrimination can be compared. This test should lead to the conclusion whether a specific characteristic (ground of discrimination) was a motive of less favourable treatment. Still discrimination may also occur when a specific characteristic was not a direct motive of less favourable treatment. In such cases (indirect discrimination) the plaintiff needs to substantiate the fact of being adversely affected by an apparently neutral provision, policy or practice, while the defendant carries the burden of proving that such provision, policy or practice is objectively justified.
In the case-law of both European courts – the ECtHR and the CJEU – there is a noticeable trend towards a dynamic interpretation of antidiscrimination provisions and the expansion of the personal and material scope of protection of against discrimination. One of the most significant achievements of judicial interpretation has been the concept of ‘discrimination by association’ which refers to unequal treatment of persons who do not personally possess the protected characteristic but remain in association with persons belonging to the protected category – i.e. mothers taking care of children with disabilities [COLEMAN, 2008]. The dynamic interpretation of the Convention norms has also led to the development of anti-discrimination standards with regard to sexual orientation [E.B., 2008] or marital status [PETROV, 2008]. The ECtHR recognized that both categories deserve protection against discrimination even if the Convention does not explicitly cover them among the categories of protected grounds. This approach assures that antidiscrimination law is receptive to claims of various minority groups who seek legal remedies and social emancipation.
VIEWS: One of the most important issues in the discrimination discourse is the determination of the scope of anti-discrimination protection. Frequently, this debate leads to questions about the application of the →‘margin of appreciation’ doctrine or, on the contrary, about the limits of the dynamic and evolutionary interpretation of the ECHR. It also goes back to the question whether social and cultural changes taking place in Europe should have an impact on how the Convention is to be read and applied to the situation of individuals seeking protection. Another important theme in the legal discourse on combating discrimination concerns the notion of ‘positive obligations’ of the states and measures that should be employed not only in reaction to the manifestations of discrimination, but also with the view to promote equality as a fundamental value. This debate suggests a shift from the reactive to the proactive approach which seems to be necessary given the problem of structural discrimination. Hence, the core question is whether anti-discrimination laws effectively help to combat discrimination or perhaps the prohibition of discrimination needs to be complemented by the adoption of mandatory measures which aim to provide equal opportunities for all.
CONCL: The phenomenon of discrimination persists in Europe and other parts of the world and it has significant effects on the everyday-lives of millions of individuals. However, the current standard of anti-discrimination protection accepted at the European and national level allow for more and more effective responses. Recent achievements in this field result from progressive interpretation of the principle of nondiscrimination, which expanded the category of protected grounds, as well as the creation of more detailed substantive and procedural norms and the institutional architecture. It is expected that these legal developments will bring about a change in the situation of individuals seeking justice and equality. The development of anti-discrimination laws might also bring a change in public perception on the importance of equality and non-discrimination.
REFERENCES:
Bell, Mark; Waddington, Lisa: “Reflecting on inequalities in European equality law”, European Law Review (2003), Vol. 28.
Ellis, Evelyne (ed.): EU Anti-Discrimination Law, Oxford (2005).
Gerards, Janneke: “The Discrimination Grounds of Article 14 of the European Convention on Human Rights”, Human Rights Law Review (2013), Vol. 13.
Handbook on European non-discrimination law, Luxembourg (2011).
Human Rights Committee, General Comment No. 18, Non-Discrimination, 10 November 1989.
Schiek, Dagmar; Waddington, Lisa; Bell, Mark (eds.): Cases, Materials, and Text on National, Supranational and International Non-Discrimination Law, Oxford–Portland (2007).
www.equalitylaw.eu (accessed 10/2015).
CARSON AND OTHERS v. UK (ECtHR 16/03/2010, 42184/05).
COLEMAN v. ATTRIDGE LAW (CJEU 17/07/2008, C-303/06).
E.B. v. FRANCE (ECtHR 22/01/2008, 43546/02).
PETROV v. Bulgaria (ECtHR 22/05/2008, 15197/02).
Krzysztof Śmiszek
Dissidents
(Culture of Dissent)
DEF: Originally a characterisation of religious dissenters, the term dissidents (D.) has more recently been used mainly for artists, intellectuals and activists of new social movements that openly disagree with governments or political and economic systems, expressing their views in artworks, hidden journals and books (samizdat), in public actions (e.g. flash mob), Internet blogs and campaigns, or in semi-public political debates (like the Polish Flying University 40 years ago).
Different types of D. can be distinguished, for example: Political (opposition against a ruling ideology, a political system, etc.); nationalistic or ethnic (calling for specific, e.g. cultural rights); religious D. (demanding religious freedom or conformity). Another way of looking at D. is to assess their respect or backing in larger parts of the population, which could result in the identification of heroes (serving as role models), lonely voices (isolated in countries without social movements, e.g. Belarus) or so-called anti-patriots (hated or excluded from society, e.g. some Indian students’ movements). While opposition to a government, a ruling party or a whole political system may as such be risky enough, D. risk even more if they also oppose public opinion.
INSTR: Dissidence or civil disobedience gain importancewhen international guarantees of human and cultural rights, such as freedom of expression and information are not respected. In the past, and partly still today, certain topics or art forms could be subject to direct or indirect →censorship of state bodies or influential groups: Underground and alternative publications, musical editions etc. can disappear from (official) markets; films are barred in bunkers; books withdrawn from libraries; concerts blocked. Generally, defending the cause of dissidents can rely on international legal instruments such as the ICCPR (Article 19), or a number of regional instruments, including but not limited to the →ECHR (Article 10) or the EU →Charter of Fundamental Rights (Article 11).
However, these instruments are not always fully implemented or credibly monitored. For example, in some situations, dissidents come from a majority population, but are appalled with the treatment of minorities: caste, ethnic group or religious minority (Turkey, India, Albanians in the FYR of Macedonia...). Even in Europe, members of cultural and ethnic minorities often cannot count on collective rights related to their culture and heritage or use their language or script in the public realm (e.g. France has not ratified the European Charter for Regional or Minority Languages).
HIST/CASES: When creating a culture of dissent, numerous writers, artists, philosophers, historians, and other scientists have been, or still are, threatened, blacklisted, excluded from public life, if not put into jail. For example, trials against dissidents marked the history of the paranoid system of ‘real socialism’, often resulting in the alternative: forced labour in a Gulag or psychiatric treatment. For example, Alexandr Solzhenitsyn was sentenced an 8 year term in a labour camp, inter alia for ‘anti-Soviet propaganda’ (1945); Joseph Brodsky was found guilty of ‘social parasitism’: As non-employment was considered a subversive act against the state, the court ordered a psychiatric examination (1964–72); in Poland, Adam Michnik was sentenced to three years for ‘acts of hooliganism’ (1968); in former Yugoslavia, dissidents (e.g. Milovan Djilas; Mihajlo Mihajlov; Lazar Stojanović for his movie The Plastic Jesus) were convicted on grounds such as ‘verbal offense’ (§133 of the Criminal Law); debasing the ‘reputation of a foreign state’ (§175); or associating with ‘subversive actions’ (§136). In the absence of fair jurisprudence, dissidents often united and protested, despite all threats, through petitions, demanding from governments to respect human rights obligations (e.g. Charter 77 in Czechoslovakia).
In democracies, dissident voices also gained importance, from time to time, e.g. in the USA during McCarthyism and later with student movements against racial discrimination, that were inspired or supported by church leaders and artists. A specific type of contemporary activists are →whistleblowers, who can turn into dissidents if their good intentions are answered with state repression, like in the case of Edward Snowden, who revealed a global surveillance program and was charged, in 2013, by the US Department of Justice of violating the 1917 Espionage Act and of stealing government property.
Two trends can be observed during the last 50 years: Increasingly, activists are turning from a more defensive stand for individual freedom towards calling for ‘social justice’, like most of today’s dissidents in Africa, Arab countries, Asia, Latin America or Europe. The other trend is towardswhat could be called ‘organised dissidence’, as exemplified by e.g. Green, Right to the City, Pro Asylum or Occupy movements throughout the world and a growing number of interactive platforms on the Internet. Their focus is now often the governance of issues with a potential to hurt the whole of humanity (e.g. transnational economy and the banking system; global warming; investors’ urbanism and speculation on housing; etc.) and they frequently include activist artists and intellectuals.
VIEWS: Political dissidents did not have the CSCE Helsinki accords foremost in mind when founding movements or protest actions like the Charter 77. They wanted to obtain more freedom and contribute to change of the political system. Their open petitions or ‘underground activism’ became a strong political movement only with Solidarnošć (Poland), with its first working class dissident leader Lech Wałęsa. After the political changes (1989), many dissident intellectuals and artists played an active role in democratic developments in Central-Eastern Europe, some even became presidents of their countries, like Václav Havel, Árpád Göncz and Dobrica Ćosić, other ministers in charge of culture or information like Anton Vrdoljak and Hrvoje Hitrec in Croatia or Nikolai Gubenko in the USSR.
Territorial or nationalistic dissidence throughout the world is linked to demands for minority rights or to liberation battles. Palestinian intellectuals in Israel, Tibetan priests and intellectuals in China, Okinawa artists in Japan, Tamil in Sri Lanka are often dreaming about independence and became an inspiration for political or even military battles (intifada) staged by their compatriots, thus frequently accused to be ‘collaborators with terrorists’. In Europe several states were re-created (e.g. in the Baltic region), but Kosovo got partial international recognition for its independence via the imagination of a dissident national movement that, in 1997, took its military form.
Religious dissidence is mostly expressed in socialist states that officially proclaim atheism or in mono-faith countries. For example, emerging from the qigong movement (nationalistic revival of traditional Chinese medicine and knowledge), Falun Gong has been founded by Li Hongzhi and became popular in the 1990s, but is still banned today. Its ‘civil disobedience’ protest in April 1999 was seen as a challenge to the authority of the Communist Party, with the consequence of thousands of followers dead or in prison and some 100,000 sent to labour camps (Owenby 2008:15).
The strength and, at the same time, weakness of solidarity with or without support for dissidents can be seen in the fact that it usually involves mostly the intellectual community, which may somewhat limit the impact of e.g. giving the Nobel prize to Pasternak, Sakharov and Liu Xiaobo or the Berlin Film festival prizes to Makavejev, Žilnik and Iranian film directors.
CONCL: Still today, many regimes react with threats, torture and censorship against dissidents fighting for freedom of expression and association or political and economic change: They are imprisoned; sent to exile (or forced to ‘inner exile’); deprived from their passports; fired from their jobs, etc. The same can be said with regard to the persecution of dissidents on religious grounds or for those belonging to other minorities. This calls for an improved, global monitoring of the implementation of relevant legal instruments (or an improved support for those platforms and NGOs already engaged in this field). We should not forget: ‘Dissident speech, whenever it occurs, is both a test and a measure of the vitality of democracy’ (Elrod, 2008).
REFERENCES:
Bolton, Jonathan: Worlds of Dissent, Charter 77, the Plastic People of Universe and Czech culture under communism, Cambridge Mass: Harvard University Press (2012).
De Cuir, Greg: The Yugoslav Black Wave, Belgrade: Film Center Serbia (2011).
Elrod, Jennifer: “Critical Inquiry: A Tool for Protecting the Dissident Professor’s Academic Freedom”, 96 California Law Review (2008) 1669–1691.
Falk, Barbara: The Dilemmas of Dissidents in East-Central Europe; Citizen intellectuals and philosopher kings, Budapest: CEU press (2003).
Glasius, Marlies: “Dissident writings as political theory on civil society and democracy”, 38(2) Review of International Studies (2012) 343.
Judt, Tony: “The Dilemmas of Dissidence” 2(2) East European Politics & Societies (1988) 185–240.
Kott, Jan: “Polish Question”, in: Rajčić, B. (ed.) Polish question, Belgrade: SIC (1985).
Milosz, Czeslaw: The Captive Mind, New York: Vintage International 1981 (1953).
Ownby, David: Falun Gong and the Future of China, Oxford: Oxford University Press (2008).
Renvick, Alan: “Anti-Political or just Anti-Communist?Varieties of Dissidents in East Central Europe and their implications for the development of political societies”, 20(2) East European Politics and Societies (2006).
The VERSO Book of Dissent (from Spartacus to the Shoe-Thrower of Baghdad), preface by Tariq Ali, London: VERSO (2010).
Milena Dragićević Šešić
ECHR Cultural Protocol Debates / CAHMIN
DEF: In the process of implementing the Vienna Declaration of the CoE Heads of State and Government on 9 October 1993, an ad hoc Committee for the Protection of National Minorities (CAHMIN) was set up by the Committee of Ministers (CM). Its mandate was to draft a framework convention assuring the protection of national minorities and to start the work on drafting a protocol complementing the ECHR in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.
INSTR/VIEWS: The first task of the CAHMIN resulted in the elaboration of the Framework Convention for the Protection of National Minorities (Strasbourg, 1995), whose parties undertake to promote effective equality of persons belonging to minorities in all areas of life, including culture, and to create conditions that facilitate the expression, preservation and further development of e.g. their culture, language and traditions.
In contrast, the process of drafting an additional protocol to the ECHR came up against a number of difficulties of a legal, political and economic nature. These difficulties concerned e.g. the problem of defining the concept of ‘cultural field’ mentioned in the CAHMIN terms of reference; the issue of identifying new individual rights which are fundamental and whose protection is both required and justiciable; and finally questions of defining the scope of positive obligations which could be incumbent upon states under the new protocol. Among the numerous proposals for rights to be included in the protocol, the following were discussed by the CAHMIN experts: respect for choice of one’s cultural identity; the right to engage in cultural activities; the right to be treated as a member of a cultural community; the right to a name; the right to use the language of one’s choice; the right to education; the right to cultural heritage; and the right of access to information.
CONCL: As a result of the failure to find widely acceptable solutions and taking into account the risks examined by the CAHMIN, the CoE CM (Ministers’ Deputies) decided, in January 1996, to suspend the drafting of an additional protocol, but called for a continuation of reflections on the feasibility of further standard-setting activities in the cultural field. However, after the suspension of the CAHMIN’s work and despite Recommendation 1990 of the Parliamentary Assembly of the CoE (January 2012) on ‘The right of everyone to take part in cultural life’, none of the expert bodies within the CoE has been called to continue the debate on drafting an additional protocol to the ECHR that would address cultural rights directly.
Still today there are proponents of the idea of giving a normative character to cultural rights in Europe. They underline that a ‘right to culture’ is not sufficiently perceived and realised by European states due to the lack of its direct inclusion into the catalogue of rights protected by the ECHR. Therefore, they demand rethinking of the legal content of the right to culture by defining obligations of entities obliged to its protection and securing the accessibility to culture for all Europeans (Project ‘Right to Culture’, conducted since 2013 in the wider context of Wrocław– European Capital of Culture 2016).
REFERENCES:
Council of Europe: CAHMIN debates and documents (accessed 07/2016 via www.coe.int/en/web/minorities/cahmin1).
Aleksandra Mężykowska
Equality
DEF: Equality is a principle found in most European constitutions and international human rights instruments. It evokes ideas of fairness, opportunity and justice. It often enjoys rhetorical support across the political spectrum, but differences surround its meaning and how it can be implemented in practice. A common distinction is between formal or substantive equality. Formal equality focuses on the consistent treatment of individuals irrespective of characteristics such as gender, ethnicity, etc. Substantive equality places greater emphasis on combating the inequalities experienced by certain groups in society, such as women, ethnic minorities, or people with disabilities. It accepts that achieving equality may entail unequal treatment in favour of the disadvantaged (Sen, 1995).
INSTR: European legislation has evolved from a simple prohibition of discrimination towards more complex responses to inequality. EU legislation on sex discrimination emerged in the 1970s, but over time a longer list of protected characteristics have been added to the law, such as racial or ethnic origin, religion or belief, disability, age, and sexual orientation. This has gone in parallel with a broader scope for the legislation, stretching beyond the labour market into areas like education, housing, and access to goods and services. The concept of discrimination now extends beyond less favourable treatment (direct discrimination), to include indirect discrimination (neutral measures having discriminatory effects) and harassment. In relation to disability, a failure to provide reasonable accommodation is now a form of discrimination according to the UN Convention on the Rights of Persons with Disabilities (CRPD, 2006). As well, the CRPD includes ‘the right of persons with disabilities to take part on an equal basis with others in cultural life’, Article 30). Law is still mainly focused on prohibiting discrimination, but there is a growth in measures that create duties to promote equality. These typically place organisations under an obligation to take steps to ensure equality for their staff and service-users.
CASES: The ECtHR has an extensive body of case-law on the right to non-discrimination under Article 14 of the ECHR. It holds that a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. Over time, the Court has deepened its interpretation of what non-discrimination requires. Notably [in DH, 2006], it recognised that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’; this is the concept of indirect discrimination. It has also recognised that failing to accommodate difference can constitute a breach of the right to non-discrimination. This idea has been applied in relation to religious minorities [THLIMMENOS, 2000] and people with disabilities [GLOR, 2009]. In relation to certain characteristics, the Court holds that ‘particularly weighty reasons’ are needed to justify a difference of treatment. These characteristics include sex, sexual orientation, race or ethnicity, mental impairment, disability, HIV status [KIYUTIN, 2011].
VIEWS: There is a long-standing debate within equality law regarding the permissibility of positive action (also called affirmative action). In its most far-reaching form, this includes quotas; e.g. ensuring gender balance in company boards or in Parliamentary representation. In relation to employment, the CJEU has rejected laws that provide an ‘absolute and unconditional’ priority for the under-represented sex at the point of selection for a job [e.g. in KALANKE, 1995]. The debate exemplifies the question of the extent to which the law should pursue substantive equality.
More recent debates concern how the law responds to the intersection of characteristics such as gender and ethnicity. Critics have argued that equality law has tended to compartmentalise identities and that it fails to recognise that individuals often experience disadvantage due to a combination of characteristics (Crenshaw, 1998). CONCL: Equality is firmly established as core component of fundamental rights and European social legislation. Yet advocates of equality often remain disappointed by the extent of progress in eliminating disadvantage. Even though EU gender equality legislation has existed for four decades, there is still frequent evidence of women being under-represented in senior management or receiving less pay than men. This poses the question of whether anti-discrimination legislation, with its typical emphasis on enforcement via individual complaint and litigation, is a sufficient mechanism to transform the socio-economic position of those groups who have historically experienced disadvantage.
The law has moved beyond the idea that equality simply means treating people in an identical fashion. In the area of disability, it is well-established that equality entails a duty to provide reasonable accommodation. An emerging challenge surrounds the extent to which a duty of accommodation should extend to other characteristics, such as religion (Alidadi, 2012). It is particularly difficult to resolve this question where conflicts may emerge between equality characteristics, such as religion and sexual orientation.
REFERENCES:
Alidadi, Katayoun: “Reasonable accommodations for religion and belief: adding value to art.9 ECHR and the EU’s anti-discrimination approach in employment?”, 37 European Law Review 693 (2012).
Crenshaw, Kimberlé, “Demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory, and antiracist politics”, in Phillips, Anne (ed.): Feminism and politics, Oxford: OUP (1998).
Ellis, Evelyn and Watson,Philippa: EU Anti-Discrimination Law, 2nd edn., Oxford: OUP (2012).
Fredman, Sandra: Discrimination Law, Oxford: OUP (2011).
Hellman, Deborah and Moreau, Sophia (eds.): Philosophical Foundations of Discrimination Law, Oxford: OUP (2013).
Schiek, Dagmar, Waddington, Lisa and Bell, Mark (eds.): Cases, materials and text on national, supranational and international nondiscrimination law, Oxford: Hart Publishing (2007).
Sen, Amartya: Inequality Reexamined, Oxford: OUP (1995).
DH AND OTHERS v. CZECH REPUBLIC (ECtHR 13/11/2007, 57325/00).
GLOR v. SWITZERLAND (ECtHR 30/04/2009, 13444/04).
KALANKE v. FREIE HANSESTADT BREMEN (CJEU 17/10/1995, C-450/93).
KIYUTIN v. RUSSIA (ECtHR 10/03/2011, 2700/10).
THLIMMENOS v. GREECE (ECtHR 06/04/2000, 34369/97).
http://www.equalitylaw.eu (accessed 02/2016).
Mark Bell
European Committee of Social Rights
The European Committee of Social Rights (ECSR) is the regional human rights body responsible for monitoring compliance by the states parties to provisions of the 1961 Charter, the 1988 Additional Protocol, and the 1996 Revised European Social Charter. Established as treaty body of the Council of Europe, the ECSR is composed of 15 independent members. It is designed to complement the European Court of Human Rights, which oversees the civil and political rights set out in the European Convention on Human Rights. The ECSR oversees compliance with economic and social rights, some of which are also important in cultural contexts. It operates through a collective complaints procedure and a state reporting system. The latter holds that states parties to the Charter need to submit a national report every year, indicating how they implement provisions of the Charter. The ECSR examines these reports and publishes conclusions on whether the situation in the states are in conformity with the Charter. If a country does not act in response to the decision of the ECSR to the effect that it does not comply with the Charter, the ECSR will also issue a recommendation to that particular country. Moreover, the ECSR is entitled to hear collective complaints. This means that trade unions or their international organisations can collectively file a complaint with the ECSR in relation to non-compliance with the Social Charter against states parties that have accepted this procedure.
REFERENCES:
Benelhocine, Carole: The European Social Charter, Council of Europe Publishing (2012).
Betten, Lammy: “European Social Charter”, 6 Neth. Q. Hum. Rts. (1988) 69.
Churchill, Robin and Khaliq, Urfan: “The Collective Complaints System of the European Social Charter: an effective mechanism for ensuring compliance with economic and social rights?”, 15(3) European Journal of International Law (2004) 417.
Greer, Steven: “Europe” in Moeckli, Daniel; Shah, Sangeeta; Sivakumaran, Sandesh (eds.): International Human Rights Law, Oxford: OUP (2014).
Harris, D. J.: “The European Social Charter”, 13(3) International and Comparative Law Quarterly (1964) 1076.
Yvonne Donders
European Convention on Human Rights (ECHR)
DEF: The Convention for the Protection of Human Rights and Fundamental Freedoms (known as the European Convention on Human Rights, ECHR) was the first legally binding instrument to give effect to some of the civil and political rights stated in the →UDHR. The system of protection of human rights created on the basis of the ECHR proved efficient due to the existence of the →European Court of Human Rights (ECtHR) as a permanent judicial body supervising the fulfilment by member states of their obligations stemming from the ECHR, the applied methods of interpretation making the treaty a powerful living instrument for meeting new challenges and unique supervisory mechanism of the execution of the ECtHR rulings.
Although cultural rights are neither explicitly protected in the text of the ECHR, nor have they been explicitly recognised in ECtHR caselaw, the ECtHR, through a dynamic interpretation of the ECHR, has demonstrated that the rights falling under the notion of ‘cultural rights’ can be protected under the core civil rights.
The ECHR came into force in 1953. Adopted within the framework of the Council of Europe, it was the first legally binding instrument to give effect to certain rights stated in the Universal Declaration of Human Rights. Since its adoption, the ECHR has been amended a number of times through protocols whose aim was to supplement it with additional rights and to improve and strengthen its control mechanism.
The importance of the ECHR has three main aspects. Firstly, it is the scope of the rights and freedoms it protects; the ECHR protects fundamental civil and political rights but through a dynamic interpretation of the different Articles of the ECHR, the ECtHR has gradually recognised substantive rights which may fall under the notion of economic, social and cultural rights. Secondly, the functioning of the ECtHR to which individual or state applications can be made directly alleging violations of rights and freedoms guaranteed by the ECHR. Thirdly, in the supervision by the Committee of Ministers of the CoE of the execution measures undertaken by states to comply with final rulings of the ECtHR.
INSTR/CASES: The ECtHR adjudicates in the field of cultural rights mostly invoking the following provisions of the ECHR: Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the Convention, as well as Article 2 of Protocol No. 1 (right to education). Referring to those provisions the ECtHR has identified certain situations in which applicants can claim rights that can be perceived as constituting elements of the right to culture: right to artistic expression [OTTO-PREMINGER-INSTITUT, 1994], access to culture [AKDAS, 2010 ], cultural identity [CHAPMAN, 2001], linguistic rights [GŰZEL ERDAGŐZ, 2008; CASE RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM, 1968] (where however the ECtHR excluded the right to obtain education in the language of one’s choice), right to education [CAMPBELL AND COSANS, 1982], right to cultural and natural heritage (although the ECtHR has so far not recognised the right to the protection of cultural and natural heritage as such, it has accepted that the protection of heritage can constitute a legitimate aim that may justify state interference with individual rights, especially with the right to property guaranteed under Article 1 of Protocol No. 1., [BEYELER, 1996], right to historical truth [CHAUVY AND OTHERS, 2004] and academic freedom [SORGUC, 2009].
VIEWS: While identifying certain rights which can be perceived as constituting elements of the right to culture, the ECtHR has not so far recognised it as such. Having as a basis for its case-law the ECHR, the ECtHR refers also to other international agreements relevant in the field of cultural rights. In particular, the ECHR relied on the CoE Framework Convention on the Value of Cultural Heritage for Society as a basis of its decision that the conservation of cultural heritage and its sustainable use have as their goal human development [SCEA FERME DE FRESNOV, 2005]. The ECtHR also used the Framework Convention for the Protection of National Minorities as evidence of an emerging international consensus recognising special needs of minorities and the member states’ obligations to protect them in order to preserve cultural diversity [CHAPMAN, 2001]. It has also referred to the European Cultural Convention [LEYLA SAHIN, 2005].
An important contribution to the discussion about guarantees of cultural rights through the ECHR is an idea to draft proposals for an additional protocol to the ECHR designed to guarantee individual rights in the field of culture. The CoE entrusted the ad hoc Committee for the Protection of National Minorities (CAHMIN) with that task. The CAHMIN discussed related issues at its sessions in 1994 and 1995, in addition to drafting the Framework Convention for the Protection of National Minorities (1995). However, these →ECHR Cultural Protocol debates did not lead to widely acceptable solutions and the work of the CAHMIN on this subject was suspended.
It has to be underlined that new initiatives for the elaboration of a culture-related protocol to the ECHR might encounter difficulties for two main reasons: reluctance not only among CoE member states but also at the already overburdened ECtHR to further broaden the scope of protected rights due to the difficulties of defining individual cultural rights as substantive rights, whose protection would require states to fulfil certain well defined positive obligations. CONCL: There are numerous factors which may explain the growing importance of cultural rights in the ECtHR case law. Apart from the constant broadening of the scope of the rights protected through the application of the idea that the ECHR is a ‘living instrument’ that must be interpreted in the light of present-day conditions rather than what the drafters thought back in 1950, many ECtHR decisions in this field are prompted by applications lodged by persons or entities belonging to national minorities, including cultural, linguistic or ethnic minorities. Another important aspect influencing the ECtHR jurisdiction in the field of cultural rights is the increasing cultural diversity of European societies which gives rise to issues of striking a fair balance between different rights guaranteed by the ECHR. Bearing in mind the scope of issues raised in the ECtHR case law, including cases concerning not only civil and political rights but also social and cultural rights, onemay conclude that it realises in practical terms the idea of indivisibility of human rights.
Despite the proposals of drafting an additional protocol to the ECHR that will guarantee individual cultural rights, there are no prospects to realise it in the near future. Therefore, the ECtHR will have to face the challenge and adjudicate the incoming applications referring also to cultural rights on the basis of the current text of the ECHR.
REFERENCES:
Council of Europe website: www.coe.int (accessed 06/2016).
Cultural rights in the case-law of the European Court of Human Rights, (2011) report available at: www.echr.coe.int (accessed 1/2016).
Leach, Philip: Taking a case to the European Court of Human Rights, Oxford: OUP (2005).
Pickard, Rob (ed.): European Cultural Heritage: A review of policies and practice, Strasbourg: Council of Europe publishing (2002).
van Dijk, Pieter; van Hoof, Fried; van Rijn, Arjen, Zwaak, Leo (ed.): Theory and practice of the European Convention on Human Rights, Cambridge: Intersentia (2006).
AKDAS v. TURKEY (ECtHR 16/02/2010, 41056/04).
BEYELER v. ITALY (ECtHR 05/01/2000, 33202/96).
CAMPBELL AND COSANS v. THE UNITED KIDGDOM (ECtHR 25/02/1982, 7511/76).
CASE RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM (ECtHR 23/07/1968, 1474/62).
CHAPMAN v. UNITED KINGDOM (ECtHR 18/01/2001, 27238/95).
CHAUVY AND OTHERS v. FRANCE (ECtHR 29/06/2004, 64915/01).
GŰZEL ERDAGŐZ v. TURKEY (ECtHR 21/10/2008, 37483/02).
LEYLA SAHIN v. TURKEY (ECtHR 10/11/2005, 44774/98).
OTTO-PREMINGER-INSTITUT v. AUSTRIA (ECtHR 20/09/1994, 13470/87).
SCEA FERME DE FRESNOV v. FRANCE (ECtHR 01/12/2005, 61093/00).
SORGUC v. TURKEY (ECtHR 23/06/2009, 17089/03).
Aleksandra Mężykowska
The European Court of Human Rights (ECtHR)
DEF: The ECtHR is an international court set up in 1959. It handles individual and inter-state applications alleging violations of the civil and/or political rights set out in the →European Convention on Human Rights (ECHR) and the additional Protocols to this treaty. It has jurisdiction over 47 member states of the Council of Europe (CoE). The ECtHR is based in Strasbourg, France.
INSTR: The operation and organisation of the ECtHR is laid down in Section II of the ECHR. Each of the 47 member states of the Council of Europe has one judge in the court. A judge is elected for a nine-year term of office with no right of re-election. The judges are elected by the Parliamentary Assembly of the Council of Europe. Each member state nominates three candidates to run for one post. The Court may sit in a single judge formation, in committees of three judges, in Chambers of seven judges and in Grand Chamber composed of seventeen judges. The ECtHR may render a judgment on violation or non-violation of the rights and freedoms enshrined in the ECHR by a member state. The Court may also declare an application inadmissible or reject it by decision of one judge due to defects of form. The Court examines applications against a state party to the Convention (ratione personae) alleging a violation of a right guaranteed by the Convention (rationae materiae). Applications can be lodged by persons who are residents of or within the jurisdiction of one of the state parties to the Convention. An application must concern a violation of the Convention that occurred after the Convention had entered into force in the respondent state (ratione temporis) unless the violation is of a continuous nature. An application has to refer to a violation that occurred within the territorial jurisdiction of a member state or in a territory effectively controlled by a member state (ratione loci). Pursuant to Article 35 ECHR an application may only be lodged with the ECtHR when all domestic remedies have been exhausted. An application has to be filed within six months after a final decision of domestic authorities. The ECtHR shall not deal with any case that has already been handled under another international procedure. A victim to a violation is required to demonstrate that he or she has suffered a ‘significant disadvantage’ as a result of the state’s violation of the Convention. The enforcement of the ECtHR judgements is supervised by the Committee of Ministers of the Council of Europe composed from representatives of the 47 member states. The member states are required to provide the Committee of Ministers with regular progress status reports with regard to the implementation of the Court’s rulings. Recent years have seen the ECtHR subjected to widespread criticism, in particular centering on the protracted proceedings. With a high volume of applications filed with the Court (17,200 cases were brought in 2014) it takes several years to obtain a judgment. The majority of complaints come from Ukraine, Italy, the Russian Federation, Turkey and Romania.
The continuous problem with the enforcement of the ECtHR is the main challenge to its authority. Moldova, Russia and Ukraine are among the states, which due to political conditions have shown the greatest resistance to the implementation of the judgments of the ECtHR. Well-established democracies such as the United Kingdom also refuse to enforce certain judgments [e.g. HIRST, 2005]. The British government argues that the rulings of the Court interfere with its national policy.
CASES: The ECtHR has delivered more than 10,000 judgements since its foundation. The Court’s rulings are based on the European Convention of Human Rights and the additional Protocols to the Convention. In [TYRER, 1978] the Court stated that the Convention was ‘a living instrument’ which must be interpreted in the light of present-day conditions. The Court thereby defined the principle of an evolutive (or dynamic) interpretation of the Convention and held that its caselaw is to maintain the standards in the states parties to the ECHR. Over time the case-law began reflecting certain rights which were not directly laid down in the ECHR, e.g. the right to reputation [PFEIFER, 2007], the right to access to public information [SDRUZENI JIBOCESKE, 2006] or the right to a clean (healthy) environment [POWELL AND RAYNER, 1990]. These rulings are examples of the evolutive interpretation of the Convention adopted by the Court.
The Convention contains no direct provision on a right to culture. Nonetheless, many rights referred to in the ECtHR’s judgements may fall under the notion of ‘cultural rights’. Article 8 (right to respect for private and family life), Article 9 (freedom of thought conscience and religion), Article 10 (freedom of expression) and Article 2 of the First Protocol (right to education) are usually invoked in such rulings. The case-law on cultural rights began to expand as members of →national minorities were raising complaints against the barriers faced by them in maintaining their traditions in terms of culture, language and ethnicity [KHURSHID MUSTAFA, 2008]. Cultural rights comprise in particular: the right to artistic activities (inter alia [MULLER, 1988]), access to culture (inter alia [AKDAS, 2010]), right to cultural diversity (inter alia [CHAPMAN, 2001]), right to linguistic identity (inter alia [GUZEL ERDAGOZ, 2008]), right to education (inter alia [LEYLA SAHIN, 2005]), right to respect and protection of cultural and natural heritage (inter alia [BEYELER, 2000]), right to seek historical truth (inter alia [MONNAT, 2006]) or academic freedom (inter alia [SORGUC, 2009]).
CONCL: The Convention does not explicitly provide for the right to culture. The signatory states could only reach consensus on civil and political rights. Nonetheless, the ECtHR has through interpretation of the Convention recognised certain culture-related rights, among them the right to diversity, the right to →cultural identity and the right to linguistic identity. Therefore, individuals who stay or reside in the territory of a state party to the ECHR may lodge individual applications to the ECtHR if their cultural rights are violated. The state parties should treat the ECtHR’s rulings as a guidance in adopting policies and enacting laws, in particular those relating to cultural rights. The popularity of the individual application made the ECtHR the victim of its own success. To increase the effectiveness of the judicial process, Protocol 14 to the Convention was adopted (13 May 2004) introducing a single judge decision on the admissibility process and the criterion of a significant disadvantage. On 16 May 2013, the Committee of the Ministers of the Council of Europe adopted Protocol 15 which reduces the time-limit for making an individual application from 6 to 4 months, removes the state’s veto over the relinquishment of a case to the Grand Chamber and makes a reference to one of the interpretation principles established in the jurisprudence of the ECtHR – the doctrine of the →margin of appreciation. This is a doctrine which allows the Court to take into account the specific context of a state party to the Convention and grant national authorities discretion to tackle specific issues which do not yield to a uniform interpretation of the Convention. The Protocol will take effect when it is signed, accepted or ratified by each party to the Convention. On 2 October 2013, Protocol 16 to the Convention was adopted. The Protocol empowers the ECtHR to issue opinions at the request of national courts. To enter into force, the protocol must be signed by 10 member states. Additional protocols are limited to the modifications of procedures and do not extend to substantial rights. They make no reference to cultural rights either.
REFERENCES:
Borelli, Silvia: Cultural Heritage, Cultural Rights, Cultural Diversity. New Developments in International Law, Boston: Brill (2012) 3–29, 55–83.
Bychawska-Siniarska, Dominika and Bodnar, Adam: “Saving the Strasbourg Court”, EUractiv.com, (30 January 2014).
European Court of Human Rights: Cultural Rights in the Case-Law of the European Court of Human Rights, Research Division Report, Strasbourg: Council of Europe (2011).
Føllesdal, Andreas; Karlsson Schaffer, Johan and Ulfstein, Geir: The legitimacy of international human rights regimes: Legal, political and philosophical perspectives, Cambridge: Cambridge University Press (2013).
Francioni, Francsco and Scheinin, Martin: Cultural Human Rights, Boston: Brill (2008) 171– 186.
Harris, David; O’Boyle, Michael; Bates, Edward and Buckley, Carla: Law of the European Convention on Human Rights, Oxford: Oxford University Press (2014).
Keller, Helen; Fischer, Andreas; Kuhne, Daniela: “Debating the Future of the European Court of Human Rights after Interlaken Conference: Two Innovative proposals”, 21(4) European Journal of International Law (2011) 1025.
Leach, Philip: Taking a Case to the European Court of Human Rights, Third Edition, Oxford: Oxford University Press (2011).
Rulka, Marcin: “Problem wykonywalności orzecznictwa strasburskiego na przykładzie wyroku w sprawie Hirst przeciwko Wielkiej Brytanii”, 2 Europejski Przegląd Sądowy, (2015) 32–41.
AKDAS v. TURKEY (ECtHR 16/02/2010, 41056/04).
BEYELER v. ITALY (ECtHR 05/01/2000, 33202/96).
CHAPMAN v. THE UNITED KINGDOM (ECtHR 18/01/2001, 27238/95).
GUZEL ERDAGOZ v. TURKEY (ECtHR 21/10/2008, 37483/02).
HIRST v. THE UNITED KINGDOM (ECtHR 06/10/2005, 74025/01).
KHURSHID MUSTAFA AND TARZIBACHI v. SWEDEN (ECtHR 16/12/2008, 23883/06.
LEYLA SAHIN v. TURKEY (ECtHR 10/11/2005, 44474/98).
MONNAT v. SWITZERLAND (ECtHR 21/09/2006, 73604/01).
MULLER v. SWITZERLAND (ECtHR 24/05/1988, 10737/84).
PFEIFER v. AUSTRIA (ECtHR 15/11/2007, 12556/03).
POWELL AND RAYNER v. THE UNITED KINGDOM (ECtHR 21/02/1990, 9310/81).
SDRUZENI JIBOCKSE v. CZECH REPUBLIC (ECtHR 10/07/2006, 19101/03).
SORGUC v. TURKEY (ECtHR 23/06/2009, 17089/03).
TYRER v. THE UNITED KINGDOM (ECtHR 25/04/1978, 5856/72).
www.echr.coe.int / www.coe.int (accessed 07/2016).
Dominika Bychawska
European Union
DEF: The European Union (EU) is the political and economic association of 28 Member States in Europe. Established in 1993, the EU has enjoyed international legal personality since 2008. The EU’s main objectives are to promote peace, →common values (respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities) and the well-being of its peoples. The EU operates through a hybrid system of supranational and intergovernmental decisionmaking. In addition, 19 of its members are parties to the EURO monetary union. These features make the EU the most integrated international organisation worldwide. The EU also contributes to ‘the flowering of the cultures’ of its members, ‘while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’ (Article 167 TFEU). The EU co-ordinates, supports and supplements the actions of its member states in cultural matters, but does not attempt to harmonise the laws and regulations of itsmember states. However, the EU and its members must act and legislate consistently with the →Charter of Fundamental Rights of the European Union (CFREU), which enshrines certain cultural guarantees (such as freedom of speech and freedom of art). Moreover, the common action in other policy areas, including those where the EU enjoys exclusive or shared competences, often affect the realm of culture and cultural rights (e.g. free movement of goods and persons, intellectual property, customs, audiovisual industries, linguistic diversity).
INSTR: Until the adoption of the TEU in 1992, the European Communities focused predominantly on economic and political matters. Indeed, the Treaty of Maastricht introduced for the first time ‘culture’ as a part of the integration process and important element building the solidarity between the EU member states and their peoples in full respect for their history and traditions (Littoz-Monnet, 2013). Accordingly, the EU shall respect the ‘rich cultural and linguistic diversity’ of Europe and ’ensure that Europe’s cultural heritage is safeguarded and enhanced’ (Article 3(3) TEU). Article 6 TFEU defines the EU competences in the field of culture as supporting, coordinating or supplementing the actions of the member states, without thereby suspending their competence in this area, and without entailing harmonisation of member states’ law. As determined by Article 167 TFEU, the Union ‘shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’. The EU’s engagement relates to the following areas: ‘improvement of the knowledge and dissemination of the culture and history of the European peoples’; ‘conservation and safeguarding of cultural heritage of European significance’; ‘noncommercial cultural exchanges’; and ‘artistic and literary creation, including in the audiovisual sector’. The EU and its member states also commit themselves to ‘foster cooperation with third countries and the competent international organizations in the sphere of culture’, in particular the →Council of Europe. Moreover, the EU shall take cultural aspects into account in its action under others areas, particularly ‘in order to respect and to promote the diversity of its cultures’. The action of the EU in the sphere of culture is thus focused on encouraging the cooperation between member states, protecting their cultural diversity and promoting the cultural dimension of European integration in relation with states, international organisations and NGOs. In this regard, the EU operates various programmes and agencies. It supports prizes for cultural heritage, architecture, literature and music which highlight Europe’s artistic achievements. It promotes the mobility of artists and of collections in order to enhance the value and significance of cultural exchange between its member states and to facilitate the access to culture, creativity and cultural heritage. It also supports the programme of European Capitals of Culture. The EU’s culture-related action is of special importance as it reflects one of the core features of the EU attitude to culture, i.e. the linkage between cultural and economic development and individual and collective well-being. The Programme is run, typically in 7-year intervals, by the Commission. The current programme is called ‘Creative Europe’ (2014–2020). Culture and cultural policy are also closely linked to the main policies of the EU such as the internal market. Therefore, the TFEU also refers to culture in other provisions inter alia in Article 36 (limitations in free movement of goods), Article 107 (state aid to promote culture and heritage conservation), Article 165 (respect for cultural and linguistic diversity in execution of competences in the field of education) and Article 207 (special procedure in case of international agreements concerning trade in cultural and audio-visual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity). Moreover, the EU and its member states must act and legislate consistently with the CFREU, which provides for a catalogue of cultural guarantees, including freedom of speech (Article 11) and freedom of art (Article 13). The profound reform of the EU, introduced by the Treaty of Lisbon (2007) has not changed the EU competences in the areas of culture and cultural heritage. Yet the new legal and institutional framework, comprising a consolidated legal personality for the EU, deeper integration of member states, awaited accession of the EU to the ECHR as well as more efficient decision-making instruments and greater coordination and consistency in EU foreign policy, may bring new challenges to EU action in respect of cultural matters (Psychogiopoulou, 2008; Bátora & Mokre, 2011).
CASES/ PRACTICES: The EU is founded on common values, to be shared and respected by all member states and their peoples: ‘the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’ (Preamble, TEU). On the other hand, one of the crucial concepts of the European integration is that of →cultural diversity, respecting and emphasising cultural differences between its constituent parties (De Witte, 2006). Importantly, the EU and its members are parties to the 2005 UNESCO Convention. The EU does not aim towards cultural convergence, but perceives its common cultural identity as the product of interaction of various traditions. In this regard, the protection of national languages as an essential element of cultural heritage and cultural diversity is specially respected by the EU law and the →CJEU’s jurisprudence [MALGOŽATA RUNEVIČ-VARDYN, 2011]. Such an approach is also reflected in the area of tangible cultural heritage. The EU fully respects internal legal solutions of the member states with regard to protective regulations and policies, as long as they do not constitute a form of arbitrary discrimination [COMMISSION, 2003] or a disguised restriction on trade between member states [COMMISSION, 1968]. To this end, it provides the uniformed common licence system for the export of cultural objects, protected under domestic legal regulations, beyond the EU customs area. As regards the circulation of cultural goods within the EU, a special regime for the return of national treasures unlawfully removed from the territory of a member state has been introduced. This is aimed at providing the mutual recognition of relevant national laws for the protection of cultural heritage and facilitating cross-border exchange of information on unlawfully removed cultural goods. The EU is also more concerned with international efforts to protect cultural heritage globally, including the fight against the movement of illicit cultural material. Another significant expanding area of the EU common action in the field of culture relates to cultural cooperation agreements, in particular in order to respect and to promote the diversity of its cultures, negotiated and signed within the realm of its external economic relations.
VIEWS: Though the EU is the most integrated of all regional organisations worldwide, the level of its engagement in cultural issues is limited by the nature of competences in this area. Thus, its (in)action is frequently criticised by NGOs for inconsistency or even lack of common strategies in respect of culture, cultural rights and cultural heritage (cf. e.g. Arts Rights Justice). On the other hand, the understanding and meaning of common cultural values, such as freedom, democracy, equality and the rule of law are sometimes questioned in political discourse. Moreover, the results of the 2016 United Kingdom’s EU membership referendum, by the majority for a withdrawal of the UK from the EU (‘Brexit’), have revived calls for an institutional reform of the EU. The referendum’s outcomes have also questioned the supranational organisational structure of the Union, enhancing the value and importance of the principle of national sovereignty in relation to internal politics, law-making and cultural autonomy, including the management of economic, social and cultural rights. The possible de-accession of the UK will be negotiated within the period of two years (Article 50 TEU) and may have a significant impact on the EU’s political equilibrium, budget (comprising EU Cohesion funding) and cultural, scientific and educational sectors, both in the UK and EU member states (Exiting the EU, 2016).