A vibrant array of high-quality →media content will contribute substantially to achieving the 2005 UNESCO-Convention’s objectives, while at the same time becoming a driver of diversity in the media sector and the cultural economy as a whole. This clearly indicates the need to use the knowledge exchange through the 2005 UNESCO-Convention as well as the technical assistance in cultural governance to go for integrated policies concerning media, culture and networks, adapting their regulatory frameworks to the new digital conditions.

CONCL: Given the current dominance of vertically-integrated media conglomerates and of the internet’s oligopoly, policies for the diversity of media 3.0 will need to give priority to highquality content, most likely through the means of production investment/subsidies across the cultural value chain and through investing in the next generation 4.0 of public service media. More specifically, existing national broadcasting and media laws are required to take the 2005 UNESCO Convention fully into account through heeding various HR principles such as freedom of information and securing access for users and providers, in addition to safeguarding technological neutrality and promoting cultural diversity via competition policies and consumer protection. →Gender equality as a top priority of the UN needs to be reflected, also as regards the diversity of cultural expressions, with a ‘gender lens’ in the reporting of PSM, in order to enhance the visibility of women as creators, producers, innovators and decision makers in the cultural economy. Media diversity needs media freedom: Implementing the 2005 UNESCO-Convention means taking up pro-actively freedom of expression and connected basic rights as well as still existing problems, including gender issues, self-censorship or the safety and impunity of journalists and other media professionals. Therefore, the announcement of German broadcaster ZDF that it will provide – despite the debatable content of a satirical poem insulting Turkish President Recep Tayyip Erdoğan (telecasted end of March 2016) – legal assistance to comedian Jan Böhmermann in his upcoming court proceedings could be considered a justified, pro-active behaviour.

REFERENCES:

Bernier, Ivan: “Article 6, Rights of Parties at the National Level. Drafting History, Wording, Conclusion”, in Sabine von Schorlemer, Peter-Tobias Stoll (eds.): The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Explanatory Notes. Heidelberg: Springer (2012).

Council of Europe: The role of independent productions in promoting cultural diversity. CoE Doc.H/Inf, Strasbourg (2009).

Council of Europe/ERICarts: Compendium of Cultural Policies and Trends in Europe. County Profiles, Chapters 4.2.6 and 5.3.7 (accessed 04/2016 via www.culturalpolicies.net).

European Commission: Green paper, Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values, Brussels (2013).

Merkel, Christine M.: “New voices: Encouraging media diversity”, in UNESCO: Re/Shaping Cultural Policies. 2005 Convention Global Report, Paris (2015).

UNESCO: World Trends in Freedom of Expression and Media Development. Paris (2014).

UNESCO: Global Survey on Gender and Media, Paris (2015).

UNESCO, IGC Information document: Assessment of policies and measures aimed at enhancing diversity of the media, including through Public Service Broadcasting, prepared by Christine M. Merkel, CE/14/8.IGC/INF.6, Paris (2014).

MANOLE AND OTHERS v. MOLDOVA (ECtHR 13/07/2010, 13936/02).

UTECA v. ADMINISTRACIÓN GENERAL DEL ES-TADO (CJEU 05/03/2009, C-222/07).

EBU – European Broadcasting Union: http:// www3.ebu.ch/about/public-service-media (accessed 04/2016).

Christine M. Merkel

Public Space

DEF: According to the definition of the ‘Charter of Public Space’, adopted during the II Biennial of Public Space in Rome (2013), public spaces are ‘all places publicly owned or of public use, accessible and enjoyable by all for free and without a profit motive’. Concretised by UN-HABITAT resolutions, this includes streets, open spaces and public facilities.

INSTR/VIEWS: Although public space is occasionally claimed to be a human right (e.g. in 2014 by the UN Secretary-General’s Envoy on Youth, Ahmad Alhendawi), this opinion so far is not reflected in official UN texts (cf. UN-HABITAT Resolution 23/4, 2011). Clearly, public space is not an end in itself. However, it fulfills very important functions for the exercise of freedoms of expression, information, assembly and association. This is why, for example, the UN Special Rapporteur in the field of cultural rights, Farida Shaheed, recognised the regulation over the use of public space as a central topic to cultural (human) rights. In her 2013 report, she identifies the main difficulties for people engaged in creative activities in public spaces, and encourages states, private institutions and donors ‘to find creative solutions so as to enable artists to display or perform in public space’ (General Assembly, A/HRC/23/34). The above-mentioned trends indicate that a subsidiary (human) right to public space is developing, which requires an adequate minimum amount of effective public space in every municipality, and access to it for unlimited political, cultural and social purposes. Remarkably, the contemporary discourse on public space in a human rights context is strongly linked to the notion of an ‘increasing encroachment of public space by private properties’ (loc. cit.) and commercial interests (cf. World Charter on the Right to the City, 2004/2005, Preamble), exemplified also by the 2013 Gezi Park protests in Istanbul/Turkey.

CONCL: The United Nations Conference on Housing and Sustainable Urban Development (Habitat III), held 2016 in Quito, already benefited from the ‘Charter of Public Space’. On that basis, further legal clarifications and policies relating to public space issues are to be expected.

REFERENCES:

Smithsimon, Gregory and Zukin, Sharon: “The City‘s Commons: Privatization vs. Human Rights”, in: van Lindert, Thijs and Lettinga, Doutje (eds.), The Future of Human Rights in an Urban World, Amnesty International Netherlands (2014), 41.

APPLEBY AND OTHERS v. THE UNITED KINGDOM (ECtHR 06/05/2003, 44306/98).

FRAPORT decision (German Federal Constitutional Court 22/02/2011, 1 BvR 699/06).

Jörg Michael Schindler

Refugees

(Cultural Rights of R.)

DEF: According to the Convention Relating to the Status of Refugees (Geneva Convention, 1951), a ‘refugee’ is a person who, ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence (...) is unable or, owing to such fear, is unwilling to return to it’ (Article 1(A)(2)). In Africa the meaning of the term extends to ‘every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality’ (1969 AU Convention, Article I(2)).

INSTR: Just like all other human beings, refugees are entitled to the enjoyment of the full measure of internationally recognised human rights, including cultural rights. As emphasised by the ESCR Committee, the rights established by the ICESCR ‘apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation’ (General comment No. 20, 2009, para. 30). Moreover, to a large extent the situation of refugees overlaps with that of other →Migrants, implying that many specific rules applicable to the latter also extend to the former. In some cases, violations of cultural rights can be the cause triggering refugee flows, when encroachment of such rights can be qualified as persecution. At least three of the grounds of persecution included in the definition of ‘refugee’ (i.e. religion, membership of a particular social group and political opinion) are – or may be – directly linked with culture.

As for cultural rights explicitly recognised to refugees, Article 4 of the 1951 Geneva Convention requests states parties to ‘accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children’. Article 14 of the same Convention establishes that, with respect to artistic rights and industrial property, ‘a refugee shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country’, while in the territory of any other state party ‘he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence’.

VIEWS: The 1984 Cartagena Declaration, in Part III, para. 11, emphasises the need to ‘make a study, in countries in the area which have a large number of refugees, of the possibilities of integrating them into the productive life of the country (...) thus making it possible for refugees to enjoy their economic, social and cultural rights’. Furthermore, per effect of Article 27 ICCPR – stating the right of members of ethnic, religious or linguistic minorities, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language – states parties have an obligation to provide refugees with ‘schooling (...) in their own language (...) or (...) a venue for cultural and religious practice’ (Persaud, 2006, 24); the Human Rights Committee has confirmed that refugees may well belong to ethnic, religious or linguistic minorities, as members of such minorities ‘need not be nationals or citizens, they need not be permanent residents’ (General Comment No. 23, 1994, para. 5.2).

The UNHCR (2002) has underlined that integration of refugees in the host state should not lead them ‘to forego their own cultural identity’, that ‘host governments and relevant institutions should (...) promote the principles of mutual respect, cultural diversity and tolerance for differences, and support opportunities for cultural exchange and education’ (da Costa, 2006, 32), as well as that host states must ‘ensure that all refugee children benefit from primary education of a satisfactory quality, that respects their cultural identity’ (ExCom Conclusion, 1987, para. (o)).

CONCL: International law, traditionally, has not been particularly concerned with refugees under the perspective of cultural rights, mainly concentrating on their most urgent and primary need, i.e. protection from persecution. This reality is confirmed by the main international instruments applicable in the field – particularly the 1951 Geneva Convention and the 1969 AU Convention. In recent times, however, international monitoring bodies and other institutions are increasingly em-phasising the need that integration of refugees within host states is carried out through modalities adequate to ensure that the →Cultural Identity of the persons concerned is appropriately safeguarded, including as regards the education of refugee →Children. As emphasised by UNHCR in 2002, refugee integration must be ‘the end product of a multi-faceted and on-going process (...) which requires a preparedness on the part of the refugees to adapt to the host society, without having to forego their own cultural identity. From the host society, it requires communities that are welcoming and responsive to refugees, and public institutions that are able to meet the needs of a diverse population’ (emphasis added), including in particular cultural needs.

REFERENCES:

Cartagena Declaration on Refugees, 1984, (1984 Cartagena Declaration).

Committee on Economic, Social and Cultural Rights: General comment No. 20, UN Doc. E/C.12/GC/20 (2009).

da Costa, Rosa: “Rights of Refugees in the Context of Integration: Legal Standards and Recommendations”, UNHCR, Legal and Protection Policy Research Series, June 2006, (available at www.unhcr.org accessed 06/2016).

Goodwin-Gill, Guy S. and McAdams, Jane J.: The Refugee in International Law, 3rd edn., Oxford: OUP (2007).

Human Rights Committee: General Comment No. 23, UN Doc. CCPR/C/21/Rev.1/Add.5, 1994.

OAU (now AU) Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 AU Convention), (www.achpr.org/instruments accessed 06/2016).

Persaud, Santhosh: “Protecting refugees and asylum seekers under the International Covenant on Civil and Political Rights”, New Issues in Refugee Research, Research Paper No. 132, Nov. 2006, (available at www.unhcr.org accessed 06/2016).

UNHCR: “Refugee Children” ExCom Conclusion No. 47 (XXXVIII), (1987).

UNHCR: Refugee Resettlement: An International Handbook to Guide Reception and Integration, (2002).

Federico Lenzerini

Regional and Minority Languages

DEF: The most comprehensive definition of regional and minority languages (RML) is provided in the European Charter for Regional or Minority Languages (ECRML),which points to the following features of such languages: (1) having traditional presence in a particular state, (2) being used by nationals of that state who form a minority, (3) being different from the official language. It covers both languages with a defined historical territory as well as those that are non-territorial (ECRML: Article 1(a)(i-ii)). The inclusion of the terms ‘regional’ and ‘minority’ languages does not render any difference in their status despite their potential distinctive features (ECRML Explanatory report: para. 18) usually embedded in the legal terminology of a particular state (e.g. Kashub in Poland).

RMLs differ in terms of their language vitality, i.e. demographic situation, their active use in public life and the level of the speakers’ linguistic competence. Due to these differences between RMLs, it is clear that ECRML instruments of ratification, which provide a uniform set of undertakings for all RMLs covered in a particular state (Bosnia & Herzegovina, Poland, Serbia), pose significant challenges in their implementation and evaluation.

INSTR: The ECRML obliges the ratifying party to recognise RMLs as ‘an expression of cultural wealth’ (ECRML Article 7(1)(a)). The importance of culture is manifested in the structure of the ECRML with a separate Article devoted to cultural activities (Article 12), one of the obligatory fields to be selected by the ratifying state (→Language Rights). Its significance is also obvious in other fields such as education (Article 8), media (Article 10), transfrontier exchanges (Article 14). Hence culture is interpreted by the ECRML as ‘the community’s way of life and thought’ (Donders 2008, 5) and not elitist or purely folkloristic activity.

Article 12 on culture obliges the state to encourage various types of cultural expression (Article 12(1)(a)), translation and dubbing both into and from RML (Article 12(1)(b-c)), incorporation of the use of RMLs by bodies responsible for organising cultural activities also through staff competent in the RML (Article 12(1)(d-e)), direct participation of RML speakers in planning cultural activities (Article 12(1)(f)), creation and maintenance of bodies collecting works in RML (Article 12(1)(g)), financing the creation of appropriate terminology in the RML to enable its use in public life (Article 12(1)(h)), promoting cultural activities outside the traditional area (Article 12(2)) and finally, cultural policy abroad (Article 12(3)). The scope of Article 12 comprises preservation measures but more importantly actions that foster the development of RML culture as a living experience of the community (Oszmiańska-Pagett, 2015, 14–16). The state is obliged to choose at least three of the undertakings contained in this Article.

The ECRML is a Council of Europe convention and thus not obligatory within the EU. Some of its important member states have not ratified it, e.g. France, Italy, Portugal, while several non-EU states are parties to the convention, e.g. Ukraine, Norway, Armenia.

CASES: Since the ECRML grants neither individual nor group rights (ECRML. Explanatory Report, para. 17), this section will focus on the Committee of Experts (COMEX) evaluation reports and CM recommendations.

Despite this legal reservation, the monitoring mechanism emphasises the speakers’ needs in policy development (UK 1(2004)). Therefore, the conclusions on the fulfilment of the undertakings are always determined by the unique situation of a particular RML and concerns raised by its speakers (Poland 1(2011), para. 108).

Articles on culture and media require the involvement of RML speakers in planning and organising cultural activities and decisions made by programming boards. In both cases, COMEX insists on the speakers’ participation in the process (Croatia 1(2001)).

Culture as representing the community’s life and thought is manifested in the evaluation of media coverage in the RML. The focus is on the quality of programmes and broadcast time to reach a wide audience, including the younger generation (Hungary 4(2010) paras. 163–164).

In education, the teaching of history and culture related to the RML is covered by a separate undertaking (Article 8(1)(g)).However, the COMEX has always seen RML teaching not only as facilitating →children’s proficiency in the language but also their cultural competence (Sweden 4(2011) paras. 115, 166).

The teaching of history and culture is also seen as contributing to awareness raising required in the curricula for both minority schools and mainstream education, especially in the RML’s traditional area (Croatia 5(2015) paras. 113–114).

VIEWS: RMLs are treated as an essential aspect of European linguistic and cultural diversity, whose importance is perceived as a value in itself (White Paper on Linguistic Diversity, 2016, 17). Reasons for promoting RMLs are also interpreted in terms of environmental sustainability and adaptation (Skutnabb-Kangas, 2002). Criticism of RML promotion points to the roots of their minority status in historical inevitability, in turn rendering the promotion of RMLs a futile task, which hampers the social mobility of RML speakers (cf. May 2003 for discussion). On the other hand, the right to use the RML is interpreted as an inalienable human right, especially in the field of education (Skutnabb-Kangas, 2008). Despite its merits as a convention for setting standards for promoting RMLs, the ECRML has been criticised for lacking the power to punish non-complying states (Romaine, 2002).

CONCL: Analysing the case of RMLs in the context of cultural rights makes it clear how inseparable culture and language are. Access to culture is provided not only through cultural events or cultural heritage, but also through education and media. In this way RMLs play an essential role in fostering culture understood as developing the ‘everyday life and thought’ of their respective communities. For some RML communities,which have lost competence in their language, traditional heritage (e.g. literary works or songs) provides the only access to their culture. Both the right to culture as heritage and as a ‘way of life’ are included in the obligations of the ECRML and in its monitoring practice.

However, granting non-discrimination and the right to use the language is a hollow phrase if the authorities do not facilitate the conditions that enable RML speakers to use it.

REFERENCES:

Donders, Yvonne: Cultural Life in the context of Human Rights, Geneva: UN (2008) (available at www.ohchr.org accessed 06/2016).

ECRML: “Explanatory Report to the European Charter for Regional or Minority Languages” (Strasbourg, 5.XI.1992) (available at www.coe.int accessed 06/2016).

ECRML Evaluation Reports (available at www.coe.int): Croatia 1, ECRML (2001) 2 (20/09/2001); Croatia 5, ECRML (2015) 2 (15/04/2015); Hungary 4, ECRML (2010) 2 (10/03/2010); Poland 1, ECRML (2011) 5 (07/12/2011); Sweden 4, ECRML (2011) 4 (12/10/2011). UK 1, ECRML (2004) 1 (24/03/2004).

Lainio, Jarmo: “White Paper on Linguistic Diversity” (2016) (available at www.mercatornetwork.eu accessed 06/2016).

May, Stephen: “Rearticulating the case for minority language rights”, 4(2) Current Issues In Language Planning (2003).

Oszmiańska-Pagett, Aleksandra: The protection of children’s rights under the European Charter for Regional or Minority Languages, Strasbourg: Council of Europe (2015).

Romaine, Suzanne: “The impact of language policy on endangered languages”, 4(2) International Journal on Multicultural Societies (2002) 194.

Skutnabb-Kangas, Tove: Why should linguistic diversity be maintained and supported in Europe? Strasbourg: Council of Europe (2002).

Skutnabb-Kangas, Tove: “Human rights and language policy in education”, in Stephen May and Nancy Hornberger (eds.): Encyclopedia of Language and Education, New York: Springer (2008) 107.

Aleksandra Oszmiańska-Pagett

Religious Education

DEF: Religious education (RE) differs in its goals, actors and scope from ‘catechesis’ or ‘religious instruction’, since the latter denotes the instruction conducted by churches or religious groups, with a view to the inculcation of adherence to their faith. In almost all European countries (with the exception of France and Albania), RE is part of the curriculum in primary and secondary state schools. RE may adopt two main models: (1) ‘nondenominational’ teaching about religions (as in Sweden), which may comprise learning about religions and /or learning from religions; (2) denominational teaching of religion (as in Spain, Finland or Romania).

INSTR: In both of the two main models of RE, three fundamental/human rights are implicated: (1) the right to education (Article 26.1 UDHR; Article 14.1 CFREU; Article 13 ICESCR; Article 2 1st Protocol ECHR): RE guarantees a more comprehensive knowledge for a full and informed participation in religiously diverse societies; (2) the right of parents to choose the kind of education that shall be given to their children (Article 26.3 UDHR; Article 18 ICESCR) in conformity with their religious, philosophical and pedagogical convictions (Article 14.3 CFREU; see also Article 2, 1st Protocol ECHR and Article 5, 1981 UN Declaration): given the responsibilities attached to parents concerning their children, the law guarantees the accomplishment of this task according to their convictions, harmonising that right with child’s age and evolving maturity. (3) freedom of religion or belief (Article 18 UDHR; Article 18 ICCPR; Article 10 CFREU; Article 9 ECHR) both of parents and of children, in the positive and negative dimension of this fundamental right. The Parliamentary Assembly of the Council of Europe has invited member states to promote education about religions (Recommendation 1396 (1999) “Religion and democracy”).

CASES: The ECtHR has addressed several issues concerning RE:

–As long as a non-denominational subject gives preponderant weight to Christianity, the opt-out system must be workable and consistent with the rights enshrined in the ECHR [FOLGERØ AND OTHERS, 2007];

–Denominational teaching of religion should not generate any sort of discrimination in pupils’ marks [GRZELAK, 2010];

–Religious culture and ethics lessons must respect the religious and philosophical convictions of religious groups (like in this case the followers of Alevism, a branch of Islam) and provide a possibility of exemption (which Christians and Jews actually have in Turkey) [HASAN AND EYLEM ZENGİN, 2007; see also MANSUR YALÇIN AND OTHERS v. TURKEY, 2014].

In a recent case, the Supreme Court of Canada found: The Ministry of Education should not impose to private denominational institutions the RE neutrality standards of the curriculum of Ethics and Religious Culture (ERC), as long as an alternative equivalent course is guaranteed [LOYOLA HIGH SCHOOL v. QUEBEC, 2015]. In general, RE is consistent with international instruments. However, specific national practices may encroach fundamental rights recognised for parents, students or professors.

VIEWS: The two main models of RE have been criticised by scholars and religious actors: (1) ‘Non-denominational’ teaching about religions: Religion, as multi-faceted reality, cannot be understood in all its implications but from within (Jamal and Panjwani, 2011). Besides, ‘if religious education is limited to a presentation of the different religions, in a comparative and ‘neutral’ way, it creates confusion or generates religious relativism or indifferentism’ (Congregation for Catholic Education, 2009); (2) Denominational teaching of religion: international legal instruments and the principle of state neutrality leave no room for providing denominational teaching in state schools. ‘However, teaching about religion in a neutral and objective way in public schools is ultimately compatible with international human rights law’ (Temperman, 2010).

The ECtHR affirms that RE is not contrary to the Convention: ‘The Convention safeguarded against indoctrination, not against acquiring knowledge: all information imparted through the school system would – irrespective of subject matter or class level – to some degree contribute to the development of the child and assist the child in making individual decisions’ [FOLGERØ AND OTHERS, 2007].

CONCL: Due to its sensitive nature, RE may involve contentious issues (syllabus content, optout system, non-discrimination, teachers’ training, appointment and removal, etc.). Preventing, avoiding or solving these issues requires a nuanced and balanced approach and comprises several minimum standards, which depend on the model of RE, among others:

1. Teaching about religions may be mandatory. However, educational authorities should implement an opt-out system to avoid any illegitimate conflict with parents’ and/ or pupils’ consciences (especially when RE isn’t taught in an objective, critical and pluralistic manner, or when it promotes relativism).
2. Where RE is offered, it should be always optional for students (according to parents’ and/or pupils’ preferences). Depending on various factors (like religious demography, agreements with religious denominations, teachers’ training, educational budget, etc.), denominational teaching of religion should be extended to as many relevant religious groups as possible. The system should avoid discrimination, both to those pupils who do not attend classes and to those who attend them. Educational authorities should respect religious autonomy (especially concerning RE content).

REFERENCES:

Congregation for Catholic Education: “Circular Letter to the Presidents of Bishops’ Conferences on Religious Education in Schools”, (5/5/2009).

Davis, Derek; Miroshnikova, Elena (eds.): The Routledge International Handbook of Religious Education, Milton Park, Abingdon, Oxon: New York: Routledge (2012).

Jamal, Arif; Panjwani, Farid: “Having Faith in Our Schools: Struggling with Defintions of Religion”, in Myriam Hunter-Hénin (ed.) Law, religious freedoms and education in Europe, Farnham; Burlington: Ashgate (2011).

Martínez López-Muñiz, José Luis; De Groof, Jan; Lauwers, Gracienne (eds.): Religious education in public schools: study of comparative law, Dordrecht: Springer (2006).

Office for Democratic Institutions and Human Rights (ed.): Toledo guiding principles on teaching about religions and beliefs in public schools, OSCE. Office for Democratic Institutions and Human Rights, Warsaw (2007).

FOLGERØ AND OTHERS v. NORWAY (ECtHR 29/06/2007, 15472/02).

GRZELAK v. POLAND (ECtHR 15/06/201, 7710/02).

HASAN AND EYLEM ZENGIN v. TURKEY (ECtHR 09/10/2007, 1448/04).

LOYOLA HIGH SCHOOL v. QUEBEC (2015 SCC 12).

Rafael Palomino

Religious Minorities

DEF: International human rights law does not define (religious) ‘minorities’ and the concept has not been internationally agreed upon. The most influential interpretation has been provided by Francesco Capotorti, defining a minority as:

INSTR: International human rights law stipulates that in those states in which religious minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to profess and practice their own religion (Article 27 UN International Covenant on Civil and Political Rights).

While the right to freedom of religion or belief is formulated as an individual right, international human rights law firmly underscores that persons must be able to enjoy this freedom ‘in community with others’ (Article 18 ICCPR and Article 9 ECHR).

The right to freedom of religion or belief, moreover, contains an internal dimension (forum internum) and an external dimension (forum externum). The former part includes the right to have or to adopt a religion or belief of one’s choice. The forum internum includes the freedom to change one’s religion (Article 18 UDHR; Article 9 ECHR). The forum externum covers manifestations of one’s religion, including worship, observance, practice and teaching. The freedom to manifest one’s religion has been further proclaimed by the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981).

CASES: In [KOKKINAKIS, 1993] the ECtHR makes a distinction between proper and ‘improper proselytism’ and found that Greece had breached Article 9 ECHR since Greece’s ban on proselytism was not sufficiently specific.

The ECtHR has held that state parties must eradicate, in addition to direct discrimination of members of religious minorities, also indirect discrimination. The applicant, a Jehovah’s Witness, in [THLIMMENOS, 2000] was refused an appointment as chartered accountant on account of a previous criminal conviction which had resulted from his refusing military service. The ECtHR held that ‘unlike other convictions for serious criminal offences, a conviction for refusing on religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or moral turpitude likely to undermine the offender’s ability to exercise this profession’.

In [DAHLAB, 2001], [LEYLA ŞAHIN, 2004], and [S.A.S., 2014] the ECtHR respectively held that a ban on a teacher’s headscarf, restrictions on university students’ religious dress, and the French generic law on prohibiting face-covering dress (including the burqa and niqab) all did not violate Article 9 of the ECHR.

VIEWS: Judge Tulkens’ dissent in [LEYLA ŞAHIN, 2004] is among the most influential minority opinions in the area of religious dress. In particular, she vehemently attacked the notion, used by the ECtHR, of a headscarf as a ‘powerful external symbol’ and also questioned the Court’s paternalistic assumptions premised on gender equality. She stated that it ‘is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. The applicant, a young adult university student, said – and there is nothing to suggest that she was not telling the truth – that she wore the headscarf of her own free will. In this connection, I fail to see how the principle of sexual equality can justify prohibiting a woman from following a practice which, in the absence of proof to the contrary, she must be taken to have freely adopted. Equality and non-discrimination are subjective rights which must remain under the control of those who are entitled to benefit from them.’

Furthermore, UN experts, including the UN Special Rapporteur on freedom of religion or belief, and the UN Human Rights Committee, notably in [RANJIT SINGH, 2011], concerning a Sikh turban, are far more critical of restrictions on religious dress than the ECtHR.

CONCL: The ECtHR’s recognition in [THLIMMENOS, 2000] of the need for the state to eradicate indirect discrimination is useful. However, the exact ramifications for religious minorities remain unclear since additional findings by this Court of violations premised on this notion are scarce.

The ECtHR’s approach to religious dress deviates from the one adopted by UN experts. The ECtHR could and arguably should realign itself by applying the necessity test more rigorously. The argument that ‘it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect’ [DAHLAB, 2001] or that headscarves necessarily foster gender inequality [SAHIN, 2004] are not convincing. Where limits on religious freedom are concerned both state parties and the ECtHR may be expected to concretely show the need to sacrifice fundamental rights in favour of another important good.

REFERENCES:

Evans, Carolyn: Freedom of Religion under the European Convention on Human Rights, Oxford: Oxford University Press, 2001.

Evans, Malcolm: Religious Liberty and International Law in Europe, Cambridge: Cambridge University Press, 1997.

Kirkham, David (ed.): State Responses to Religious Minorities, Aldershot: Ashgate (2013).

Temperman, Jeroen: State–Religion Relationships and Human Rights Law, Leiden/Boston: Martinus Nijhoff Publishers (2010).

Temperman, Jeroen (ed.): The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, Leiden/ Boston: Brill (2012).

Temperman, Jeroen: Religious Hatred and International Law, Cambridge: Cambridge University Press (2016).

DAHLAB v. SWITZERLAND (ECtHR 15/02/2001, 42393/98).

LEYLA ŞAHIN v. TURKEY (ECtHR 10/11/2005, 44774/98).

KOKKINAKIS v. GREECE (ECtHR 25/03/1993, 14307/88).

RANJIT SINGH v. FRANCE (Human Rights Committee 22/07/2011, 1876/2009).

S.A.S. v. FRANCE (ECtHR 01/07/2014, 43835/11).

THLIMMENOS v. GREECE (ECtHR 06/04/2000, 34369/97).

www.strasbourgconsortium.org (accessed 2/2016).

Jeroen Temperman

Religious Symbols

DEF: Religious symbols are symbols or clothing worn or displayed based on a religion or belief, including not only those symbols worn or displayed by people because they see it as an obligation of their religion or belief, but also those linked to, or inspired by religion or belief, even if there is no obligation. Skull caps, headscarves, face covering veils, burqas, crosses or crucifixes, turbans, Kara bangles and dreadlocks are all seen as religious symbols.

The terms ‘religion’ and ‘belief’ have been given a wide interpretation by the ECtHR and include all traditional religions and beliefs as well as non-religious beliefs (e.g. pacifism, veganism and atheism). Religious or philosophical convictions or beliefs are also protected if they attain a certain level of cogency, seriousness, cohesion and importance; are worthy of respect in a democratic society; are not incompatible with human dignity; do not conflict with fundamental rights; and, relate to a weighty and substantial aspect of human life and behaviour [CAMPBELL AND COSANS, 1982].

The display or wearing of religious symbols is considered a manifestation of religion or belief. Manifestations can be restricted when this is prescribed by law and necessary in a democratic society for the protection of public safety, public health or morals or for the protection of the rights and freedoms of others (Article 9(2)). Restrictions can thus be justified under certain circumstances.

INSTR: [LAUTSI AND OTHERS, 2011] concerned the display of a crucifix on classroom walls in schools. The Italian Government argued that the cross was not only a religious symbol, but also a cultural one. Moreover, it was a passive symbol that did not influence teaching. The Grand Chamber of the ECtHR held that it was not for the Court to take a position as to the meaning of the crucifix but that it was, above all, a religious symbol. The ECtHR stated that there was no evidence that the display of a religious symbol on a class room wall has any influence on pupils and is not in itself sufficient to denote a process of indoctrination on the part of the state. It was a matter falling within the state’s margin of appreciation to decide whether crucifixes should be present in class rooms.

On the other hand, the ECtHR has held [DAHLAB, 2001], that it was difficult to assess the impact of a powerful external symbol such as the Muslim headscarf on the freedom of conscience or religion of very young children, but that this might have some proselytizing effect. The ECtHR came to this conclusion even though there was no evidence of the teacher trying to influence the children in her class. In fact, the teacher had worn the headscarf for five years without any complaints from the head of the school, parents or pupils. The ECtHR did not mention anything about whether the headscarf was a religious symbol but it seemed to readily accept that it was, and that the applicant was manifesting her religion through wearing it. The ECtHR then considered whether the interference was justified.

In Germany, several courts have held that exemptions for Christian and occidental symbols in laws prohibiting the wearing of religious clothing or symbols by teachers did not breach the constitutional prohibition of discrimination, because these symbols were traditional, cultural and historical, and were divorced from their religious meaning (Howard, 2012, 92–93).

In [DAHLAB, 2001], and many subsequent cases, the ECtHR has quite readily accepted that the wearing of a headscarf, face veil, cross, turban and other forms of dress is a manifestation of the individual claimant’s religion or belief, and has moved swiftly on to examine the justification of alleged interferences with these manifestations. The term ‘necessary in a democratic society’ in Article 9(2) means that the interference must fulfil a pressing social need and must be proportionate to the legitimate aim pursued. The justification test is thus a proportionality test and this means that a balancing of all rights involved needs to take place.

CASES: There has been a shift in the way the ECtHR deals with cases about bans on the display or wearing of religious symbols. Not only does the ECtHR now readily accept that the applicant is manifesting their religion or belief, the application of the proportionality test has also changed. In earlier cases [e.g. DAHLAB, 2001 and SAHIN, 2004/2005] the ECtHR did not seem to give much attention to the importance of the manifestation for the religious applicant themselves when balancing the interests of applicants with the interests of the State Party. But, in later cases, the ECtHR considered this in some more detail. In [ARSLAN AND OTHERS, 2010], members of a religious group were convicted for touring the streets of Ankara while wearing turbans and distinctive trousers and tunic, a dress code based on their religious beliefs. The ECtHR found a violation of Article 9 because the Government had not convincingly established the necessity of the restriction. The ECtHR also considered that there was no evidence that the applicants had represented a threat to public order or had been involved in proselytizing by exerting inappropriate pressure on passers-by.

In [EWEIDA AND OTHERS, 2013], two applicants, Eweida, an airline check-in person, and Chaplin, a nurse, were refused permission to wear a small cross with their uniform. The ECtHR gave greater weight to the importance of the manifestation for the applicants themselves, considering that ‘on one side of the scales was Eweida’s desire to manifest her religious belief’ and that ‘the importance for the second applicant (Chaplin) of being permitted to manifest her religion by wearing her cross visibly must weigh heavily in the balance’. The ECtHR held that the refusal in Eweida’s case was not justified, but in Chaplin’s case it was justified for health and safety reasons.

In [S.A.S., 2014], a challenge to the French ban on the wearing of face covering clothing in all public spaces, the ECtHR referred to the face covering veil as being ‘a full expression of a cultural identity’ but also accepted it as a religious manifestation. In assessing the justification of the ban, the ECtHR considered the impact on women who wear the face covering veil for religious reasons, especially because they were forced to choose to go against their religious belief and not wear the veil when going out or, to go out while wearing the veil and thus laying themselves open to criminal sanctions. The ECtHR concluded that the ban was justified as it pursued the legitimate aim of ‘living together’ which fell under the ‘protection of the rights and freedoms of others’.

VIEWS: There are some contradictions in the different decisions of the ECtHR (for example, between [DAHLAB], 2001 and [LAUTSI, 2009]). A Muslim headscarf is seen as a ‘powerful external symbol’ which could have a proselytizing effect on schoolchildren, but a crucifix on a class room wall is seen as a passive symbol which does not, of itself, influence them.

In [ARSLAN AND OTHERS, 2010], the ECtHR stressed that there was a distinction between wearing religious dress in public areas open to all and wearing it in schools or other public establishments where religious neutrality might take precedence over the right to manifest one’s religion or belief. This would suggest that the French general ban in all public space (at issue in [S.A.S., 2014]), would also be held to be an unjustified interference with Article 9 (Vickers, 2014). But the ECtHR distinguished the two cases because the full-face Islamic veil entirely concealed the face, while in [ARSLAN AND OTHERS, 2014] the face remained visible. The ECtHR has been praised for rejecting the arguments that the ban was necessary for public safety in the absence of concrete evidence of a safety threat; that bans were necessary to guarantee gender equality; and, that bans were necessary to protect human dignity. But, the ECtHR has been criticised for stretching the legitimate aims in Article 9(2) too far in accepting ‘living together’ as a legitimate aim (Berry, 2014; Brems, 2014; Howard, 2014; Vickers, 2014). The ECtHR said that ‘living together’ was a flexible notion which needed careful examination, but then it did not appear to do so in this case and concluded that it was a legitimate aim. The dissenting judges called the aim far-fetched and vague and concluded that the ban was disproportionate. They also stated that there is no right not to be shocked or provoked by different models of cultural and religious identity and there is no right to enter into contact with other people in public places against their will.

There is also divergence between the ECtHR and the UN Human Rights Committee (HRCee) under Article 18 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees freedom of religion in similar terms to Article 9 ECHR. The question was whether the French requirement to appear bareheaded in identity photographs (without a turban), was a breach of Article 9 ECHR / 18 ICCPR. In [MANN SINGH, 2008 – identity photograph on a driving licence], the ECtHR found that this requirement did not breach Article 9 as it was justified by the legitimate aim of public safety. The HRCee came to the opposite conclusion regarding the same applicant, but this time concerning a passport: that it was a violation of his right to manifest his religion in Article 18 ICCPR [MANN SINGH, HRCee, 2013]. See also: [RANJIT SINGH, HRCee, 2011 – identity photograph for a residence permit].

CONCL: Mixed messages are sent out by the ECtHR in relation to the display and wearing of religious symbols and whether bans on doing so are a breach of Article 9 ECHR. The case law does not always seem consistent, and debates on restrictions on the manifestation of religion or belief will continue both in the ECtHR and beyond.

But there have been some positive developments in more recent case law. First of all, the ECtHR does accept a broad range of manifestations as qualifying for the protection of Article 9. In [EWEIDA AND OTHERS, 2013], the ECtHR accepted that, in order to establish that an act is a manifestation of religion or belief for the purposes of Article 9, the applicant does not have to establish that he/ she acted in fulfilment of a duty mandated by the religion in question. It is sufficient to establish the existence of a sufficiently close and direct nexus between the act and the underlying belief. In fact, the ECtHR does now appear to accept reasonably easily that a manifestation is at stake and moves quickly on to the question whether the interference is justified. This is a positive development, because the justification test includes a proportionality test, a balancing test where all interests can be taken into account, the interests of the applicant as well as the interests of the state and the rights of others.

A second positive development is that the ECtHR appears to apply a more rigorous proportionality test when assessing whether a restriction or limitation is justified under Article 9(2). The proportionality test requires, as mentioned, a balancing of all interests involved and, recently, the Court has given more attention to the importance of the manifestation for the individual applicant and how the restriction on this right affects them.

A third positive development is the abandoning of the view that, if an individual cannot manifest his/her religion at work by the wearing of religious symbols, there is no interference because he/ she can solve this problem by getting another job. In [EWEIDA AND OTHERS, 2013], the ECtHR considered that, where an individual complains of a restriction on his or her freedom of religion in the workplace, rather than holding that the possibility of changing jobs would negate any interference with the right, the better approach would be to weigh this possibility in the overall balance when considering whether or not the restriction is proportionate. This moves the decision under Article 9(2) and the justification and proportionality test, where a balancing of all interests can take place, rather than rejecting a claim under Article 9(1). It also recognises that choosing between your religious principles and your job, is not as simple as it was previously made out to be, and that resigning is often not a realistic option for many people.

REFERENCES:

Berry, Stephanie: “SAS v. France: Does anything remain of the right to manifest religion?”, (Blogpost 2/7/2014) (available at www.ejiltalk.orgaccessed 3/2016).

Brems, Eva: “S.A.S. v. France as a problematic precedent, Strasbourg Observers”, (Blogpost 9/7/2014) (available at www. Strasbourgobservers.com accessed 3/2016).

Evans, Malcolm: Manual on the wearing of religious symbols in public areas, Strasbourg: Council of Europe Publishing (2009).

Howard, Erica: Law and the wearing of religious symbols. European bans on the wearing of religious symbols in education, London/ New York: Routledge, (2012).

Howard, Erica: “S.A.S. v. France: Living Together or Increased Social Division?”, (Blogpost 7/7/2014) (available at www.ejiltalk.org accessed 3/2016).

Vickers, Lucy: “S.A.S. v. France: The French burqa ban and religious freedom”, (Blogpost 10/9/2014) (available at www.e-ir.info accessed 3/2016):.

ARSLAN AND OTHERS v. TURKEY (ECtHR 23/02/2010, 41135/98).

CAMPBELL AND COSANS v. THE UK (ECtHR 22/03/1983, 7511/76).

DAHLAB v. SWITZERLAND (ECtHR 15/02/2001, 42393/98).

EWEIDA AND OTHERS v. THE UK (ECtHR 15/01/2013, 48420/10, 59842/10, 51671/10 and 36516/10).

LAUTSI AND OTHERS v. ITALY ECtHR 18/03/2011 (GC), 30814/06.

MANN SINGH v. FRANCE (ECtHR 13/11/2008, 24479/07).

MANN SINGH v. FRANCE (HRCee 26/09/2013, CCPR/C/108/D/1928/2010).

RANJIT SINGH v. FRANCE (HRCee 27/09/2011, CCPR/C/102/D/1876/2009).

S.A.S. v. FRANCE (ECtHR 01/07/2014, 43835/11).

SAHIN v. TURKEY (ECtHR 29/06/2004 (Chamber), 10/11/2005 (Grand Chamber) 44774/98).

Erica Howard

Restitution and Return of Cultural Objects

DEF: Restitution is the restoration of freedom, legal rights, social status, citizenship or goods. Restitution aims at reversing the effect of a former breach of the law. Within the context of cultural heritage disputes, this applies both to looting during war, and theft or illegal export during times of peace. It may also apply to colonial removal of cultural objects. Although restitution and return are often used inconsistently, restitution regards primarily stolen objects (theft), whereas return regards illegally exported cultural objects.

INSTR/VIEWS: Although restitution and return have both clear legal connotations (see 1995 UNIDROIT Convention), the notions are frequently used interchangeably. The inconsistent use of terminology, however, leaves the door open to further negotiations, as claims are often made on ethical and historical rather than legal grounds, thereby deliberately avoiding legal terminology. In particular, the term restitution often raises concerns among the parties involved, as it is implicitly connected to other legal questions of compensation and non-retroactivity, and might conflict with third party (ownership) rights. Thus, either ‘return’ or the rather neutral and unencumbered notion of ‘transfer’ is frequently utilised in bilateral agreements between states and/ or museums. Whereas the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property uses both ‘repatriation’ (Article 2) and ‘return’ (Article 7), more recent legal texts use ‘return’ (Directive 2014/60/EU). In case of theft or illegal export / removal, a cultural object can be restituted / returned / transferred to a state (UNIDROIT and UNESCO Convention and EU Directive), the private (former) owner or its heirs (e.g. Nazi looted art), a people (indigenous people; e.g. U.S. 1990 Native–American Repatriation Act, NAGPRA) or (religious) community.

CONCL: Return and restitution are often used interchangeably. The use of the term ‘return’ – or sometimes simply ‘transfer’ – by negotiating parties in disputes has become frequent in settings that ought to use legal terminology to designate legal rights. Whereas the term ‘restitution’ is generally associated with claims or disputes and theft, it almost never appears in the wording that attests the actual legal and/ or moral settlement of cultural heritage disputes. Claims in national/ international courts are rare, voluntary returns more frequent.

REFERENCES:

Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material, adopted by the International Law Association (2006).

Prott, Lyndel: “The History and Development of Processes for the Recovery of Cultural Heritage”, in Art, Antiquity and Law XIII (2008) 175.

The International Bureau of the Permanent Court of Arbitration (ed.): Resolution of Cultural Property Disputes, The Hague: Kluwer (2004).

Vrdoljak, Ana Filipa: International Law, Museums and the Return of Cultural Objects, Cambridge: Cambridge Press (2006).

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

IRAN v. BARAKAT GALLERIES Ltd. (UK Court of Appeal, 21/12/07, EWCA Civ. 1374).

Robert Peters

Right to Science and Culture

DEF: ‘Science’ is ‘the enterprise whereby mankind, acting individually or in small or large groups, makes an organised attempt, by means of the objective study of observed phenomena, to discover and master the chain of causalities; (and) bring together in a coordinated form the resultant sub-systems of knowledge by means of systematic reflection and conceptualisation’ (UNESCO, 1974). It encompasses the life, physical, social and behavioural sciences (Shaheed, 2012). It is an iterative, logical and empirically based process (AAAS, 2013) as well as a body of knowledge (Shaheed, 2012). Peer review and adherence to ethical standards are essential elements of science (AAAS, 2013). Science and culture are considered by some as being linked, both relating to the ‘pursuit of knowledge and understanding and to human creativity’ (Shaheed, 2012). Except in commentary concerning →intellectual property, the rights are almost never treated together.

INSTR: The rights to participate in cultural life and to enjoy the benefits of scientific progress and its applications are recognised in the UDHR, the ICESCR, the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, and the Arab Charter of Human Rights, but not in the ECHR. They are both closely tied to other civil, political, economic and social rights. Specific aspects of the right to science are also recognised in international and regional instruments related to biomedicine. Interpretation of the right to enjoy the benefits of scientific progress should avoid the limited view that reduces the right to a necessary prerequisite for other rights (e.g. the rights to food and health). It is also a right unto itself. The benefits of science for society include the knowledge generated by science and the material benefits that result from that knowledge (e.g. medicines and technology) but also conceptual, methodological, and cultural benefits. The right to access those benefits exists along a bi-directional continuum.Aperson’s position on this continuum can change over time, depending on their interests, ability and training (AAAS, 2013). Realisation of the right requires international cooperation (Shaheed, 2012), including open availability of data and publications, and the free circulation of scientists (Chapman, 2009, Claude, 2002). The obligations of states to implement the right include a responsibility to build an appropriate enabling environment (UNESCO, 2007), including funding for research and development, quality science education, and information and communication technologies (AAAS 2013). Though the right is not explicit on this topic, it is important to recognise that scientific freedom is not absolute. Scientists bear internal responsibilities to their profession and research subjects, and external responsibilities to society (UNESCO, 2009).

The increased commercialisation of both the scientific endeavour and cultural expressions needs to be counter-balanced by government initiatives that promote and protect science and culture in a manner that ensures equality and nondiscrimination and emphasises their social benefit rather than their economic values.

CASES: Due to a lack of a conceptual understanding about the meaning of the right to benefit from scientific progress, it has seldom been used as the basis for litigation. One known exception arose in Venezuela. In that instance, a national administrative law court found a violation of the right in the case of 37 patients who were denied access to HIV/AIDS treatment by the Venezuelan Social Security Institute [CITIZEN’S ACTION AGAINST AIDS vs. MINSTRY OF HEALTH, 1999].

The right has the potential to inform cases concerned with protection of the welfare of scientists, dissemination of accurate scientific information on key issues (e.g. HIV/AIDS transmission), and the non-discriminatory provision of quality science education.

Despite the absence of the right to participate in cultural life in the ECHR, the ECtHR has been willing to address issues of cultural concern (e.g. artistic expression, linguistic rights, cultural heritage, historical truth) as they relate to rights recognised in the Convention, including the rights to freedom of expression, respect for private and family life and freedom of thought, conscience and religion (ECtHR, 2011).

VIEWS:

(1)Several commentators are exploring how/whether the right to enjoy the benefits of scientific progress could become the basis for a new conceptual framework for addressing intellectual property protections in the context of human rights. One potentially promising argument emerging from the literature starts from the premise that science and culture are public goods (e.g. Shaver 2010, Haugen 2012).

(2)Chapman argues that, although the right to benefit from scientific progress is recognised in human rights treaties, perhaps it should not be considered legally binding because of the challenges associated with requiring states at all levels of development to implement the right, given the significant human and financial resources needed to ensure full implementation (Chapman 2009).

(3)Ensuring broad dissemination of scientific literature and scientific information, generally, is consistent with the right. Scholarly publishers argue that any model for open access should take into account the costs and value associated with ensuring peer review of scientific articles. Professional societies that are also publishers add that funding from publications helps support programs that strengthen the scientific enterprise for the benefit of society (AAAS 2013).

CONCL: The meaning of the right to benefit from scientific progress is still being debated and is yet to be definitively addressed by the Committee on Economic, Social and Cultural Rights, the UN body responsible for monitoring implementation of the right at the international level. Nonetheless, existing literature on the right suggests several key potential consequences of this right for contemporary social challenges and the legal and policy options for addressing them, including the responsibility of governments to:

–regulate and/ or incentivise industry to ensure adequate funding and appropriate pricing for neglected fields of medicine affecting marginalised and vulnerable populations;

–disseminate to the public and/ or support the sharing of accurate and actionable health, environmental and other important scientific information;

–provide or ensure the provision of quality science education at the primary and secondary levels;

–appropriately regulate dual-use technologies.

In addition to the obligations of governments are the obligations of the scientific community with regard to ensuring the responsible conduct of research, and defining the social responsibilities of scientists, including with regard to the broad dissemination of scientific information.

When this right has been better understood and an authoritative interpretation adopted, the opportunity and challenge will then exist to define the relationship among the rights in Article 27 of the UDHR and Article 15 of the ICESCR. For the moment, principally that discussion is occurring in the context of efforts to redefine intellectual property protection to ensure greater access to the benefits of scientific progress as well as of cultural expressions in their various forms.

REFERENCES:

AAAS Science and Human Rights Coalition: “Defining the Right to Enjoy the Benefits of Scientific Progress and Its Applications: American Scientists’ Perspectives” (Report prepared by Margaret Weigers Vitullo and Jessica Wyndham), Washington, DC (October 2013).

Chapman, Audrey: “Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications”, Journal of Human Rights (2009).

Claude, Richard P.: “Scientists’ Rights and the Human Rights to the Benefits of Science”, in Chapman, A and Russell, S (eds.): Core Obligations: Building a Framework for Economic, Social and Cultural Rights, Cambridge: Intersentia (2002).

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).

Haugen, H.M.: “Technology and Human Rights – Friends or Foes? Highlighting Innovations Applying to Natural Resources and Medicine”, Human Rights Series 2 (2012).

Shaheed, Farida: The Right to Enjoy the Benefits of Scientific Progress and its Applications, A/HRC/20/26, HRC, Geneva (2012).

Shaver, Lea: “The Right to Science and Culture”, Wisconsin Law Review, (2010).

UNESCO: Recommendation on the Status of Scientific Researchers, 18C/Res.40, adopted on 20 November 1974.

UNESCO: Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and Its Applications (2009).

Jessica M. Wyndham

Roma Culture

DEF: The term ‘Roma’ includes all groups that self-identify as such, including those who selfidentify as Sinti, Kale, Travellers or Gypsies (UN Special Rapporteur for Minority Issues 2015). The Council of Europe uses the term ‘Roma and Travellers’ in an operational sense, covering a) Roma, Sinti/Manush, Calé, Kaale, Romanichals, Boyash/Rudari; b) Balkan Egyptians (Egyptians and Ashkali); c) Eastern groups (Dom, Lom and Abdal); and groups such as Travellers, Yenish and the populations designated under the administrative term ‘Gens du voyage’, as well as persons who identify themselves as Gypsies.

INSTR: The cultural rights of Roma are protected by the ICPPR (Article 27) and other international human rights instruments. In Europe, they are in many countries covered by international conventions under the aspects of the rights of →national minorities (FCNM) and/or linguistic rights (ECRML).

The FCNM, ratified by 39 European states including most countries with important Roma populations (except Turkey and Greece), demands adequate measures to promote full equality also in cultural life, in order to enable persons belonging to minorities to ‘maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’ (Article 5).

Under the ECRML (ratified by 25 European states, excluding several countries with large Roma populations), the Romani language is protected in 16 states; 14 of these have included Romani in their respective instrument of ratification. Only a limited number of Charter provisions can be applied to Romani as a traditionally present non-territorial language, including Articles 7(3) and 7(5). The far-reaching protection under Part III ECRML (concerning education, interaction with judicial and other public authorities, media, cultural activities, economic and social life, transfrontier exchanges) is currently offered only in Bosnia & Herzegovina, Germany, Hungary, Montenegro, Serbia and the Slovak Republic.

CASES: The →ECtHR has not often decided on the cultural rights of Roma. In several cases the Court proscribed discriminatory segregation of Roma in the education system of various member states [e.g. D.H. AND OTHERS, 2007]. In 2002, an attempt to overturn the local injunction against holding a traditional Gypsy Horse Fair through the ECtHR failed [GYPSY COUNCIL, 2002].

The opinions of the FCNM monitoring mechanism (Advisory Committee) concentrate on education (other priority themes being housing, health and the labour market), and only occasionally on other Roma-related cultural issues such as the insufficient participation in the cultural life of the community; the scope and modalities of state support for cultural activities; or the role of regular TV and radio programmes in Romani language.

The ECRML monitoring mechanism (Committee of Experts) has published critical comments and recommends improvements e.g. on the often inadequate teaching of Romani in school, the absence of dual-language street signs, and the situation of Romani-language media content.

VIEWS: Roma culture is complex and multilayered, marked by internal diversity as well as by similarities (Matras 2016). Its protection through international human rights instruments must therefore be sufficiently flexible in order to strike a balance between a dynamic understanding of culture, (local and regional) traditions, human rights standards, assimilatory pressures and withdrawal tendencies. So far, the cultural, economic and social situation of Roma—often described as Europe’s most discriminated minority—is generally understood as highly vulnerable, so that European institutions and member states are giving priority to an improved access of Roma to education, health provision, housing and employment. The protection and promotion of Roma culture is hence frequently seen as secondary, not least also because policy makers often have a distorted and biased understanding of what Roma culture actually is. A greater attention to cultural aspects would however also strengthen the selfconfidence of Roma, facilitating their social inclusion in other areas.

CONCL: Millions of European Roma live at the extreme margins of society and lack access to essential infrastructures and services. The current basic-needs strategy for Roma inclusion can however only succeed if the widespread anti-Roma sentiment (‘anti-Gypsyism’) in mainstream society is tackled and Roma culture and Roma identity are adequately supported and protected. The new ‘European Roma Institute for Arts and Culture’ (set up in Berlin in 2016 by the Council of Europe, the Open Society Foundations and a group of Roma artists) is expected to fill this gap at least partly; its mission is to strengthen the public awareness that Roma possess a rich culture worthy of appreciation and support, and are making important contributions to European culture.

REFERENCES:

Advisory Committee on the FCNM: (www.coe.int/en/web/minorities/country-specific-monitoring-2016 accessed 06/2016).

Committee of Experts on the ECRML: Reports and Recommendations (available at www.coe.int accessed 06/2016).

Matras, Yaron: Roma Culture: An Introduction, in: University of Graz/Council of Europe, Education of Roma children in Europe (available at romafacts.uni-graz.at accessed 06/2016).

UN Special Rapporteur on Minority Issues: Comprehensive study of the human rights situation of Roma worldwide, with a particular focus on the phenomenon of anti-Gypsyism, (A/HRC/29/24) Geneva: Human Rights Council (2015).

D.H. AND OTHERS v. THE CZECH REPUBLIC (ECtHR 13/11/2007, 57325/00).

THE GYPSY COUNCIL AND OTHERS v. THE UNITED KINGDOM (ECtHR 14/05/2002, 66336/01).

Ulrich Bunjes

Secularism and Islamic Law

DEF: A general stance that modern democracy is based on ‘secularism’, i.e. the separation of religion from the state, opens extremely complex theological, philosophical and legal questions in the relationship between state and religion. Clearly, the idea of popular sovereignty as the main source of law contrasts with the Islamic belief that sovereignty belongs exclusively to God. The Qur’an (central religious text of Islam) and Sunnah (portion of Islamic law based on the words and acts of the Prophet Muhammad) define the standards of Islamic divine law, while Shari’ah (religious legal system of Islam) is the foundation of Islamic law. The relationship between the Shari’ah and political power is burdened with the problem of limiting the power of the ruler who has an obligation to support the divine law. The concept of consultatative deliberation (ahl al-shura) includes resistance towards autocratic governance (al-hukm bi’li hawa wa al-tasallut) and despotism (al-istibdad).

VIEWS: Secular democracies were developed on the basis of three distinct categories: liberty, equality and fraternity. There are many overlaps between these secular categories and social and moral principles of Islamic divine law: pursuing justice through social cooperation and mutual assistance; establishing a non-autocratic / consultative method of governance; and institutionalising mercy and compassion and social interactions. The principles of liberty, equality and fraternity are addressed in the Qur’an where it says that ‘God created people different and grouped them into nations and tribes so that they would come to know one another.’ This provision of the Qur’an indicates the need for harmony and equality among people, groups, tribes and nations in order to achieve justice as the divine imperative and represents the sovereignty of the divine (49:13). Such signs of compatibility between Islamic divine law and secularism largely disappear in interpretations of the divine law by human agents that raise the question of the appointment, removal and power of the ruler (Caliph), who implements the will of God on earth and determines the role of law in Islam. Hence, the main problem is not the Islamic law as such and rather the human interpretation of Islamic divine law and its application.

CONCL: Shari’ah law and Fiqh (Islamic Law) are not the divine law. While Shari’ah proposes a human ideal of interpretation of divine sovereignty, Fiqh is a human interpretation of understanding how Shari’ah law can be applied. The obligation to live in accordance with God’s law, specified through interpretations by human agents (Shari’ah and Fiqh), leaves much room for human errors in the interpretation of the divine law. Law applied by the state is only potentially God’s law (school themukhatti’ah), ‘unless the person to whom the law applies believes it to be God’s will and command’ (school musawwibah). Solving the legal conflict between the Qur’an and Sunnah (Islamic Divine Law), from one side, and the Shari’ah and Fiqh, on the other hand, could open a much broader space for determining responsibilities in Islamic law and thus the possibility to address the problem of a ‘closed cycle of violence in Islam’, which contributes to the growth of global terrorism.

REFERENCES:

Hamidullah, Muhammad: The Prophet’s Establishing a State and His Succession, Islamabad: Pakistan Hijra Council (1988).

Khaled Abou El Fadl: “Islam and the Challenge of Democracy”, 1(1) Journal of Scholarly Perspectives (2005) 3.

Rosenthal, Erwin IJ: Political Thought in Medieval Islam, Cambridge: Cambridge University Press (1988).

Nedzad Basic

Social Media

(and Freedom of Expression)

DEF/ INTRO: The emergence of social media had already been predicted before the invention of web and mobile apps that are now being used by these information and exchange platforms: Such ‘new practices of subjectification of a post media’would be ‘facilitated by a concerted re-appropriation of information and communication technologies’, leading to ‘innovative forms of consultation and collective interaction, and, a reinvention of democracy’ (Guattari, 1989).

However, it was also observed that cyber freedom as ‘the post-mediatic promise of singularity was easily corrupted by the intrusion of corporate mediocrity into the medium at every level’ (Genosko, 2009). We look at such intrusions and challenges faced by social media users and groups mostly from a European perspective.

INSTR: Despite the existence of more general conventions like the ICCPR or the ECHR, the lack of a globally adopted, specific set of social media regulations or firmly binding and deterrent common legal instruments of regional institutions such as the EU or the Council of Europe endangers rights and freedoms of the users in individual countries. For example, some national authorities tend to focus on punitive measures for existing and potential misuses of social media, which can seriously impact on the safeguarding of rights and freedoms of social media communities, sometimes resulting in the banning of the entire platform in question. For example, Turkey’s comprehensive Law No 5651, Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications, has been systematically used since 2007. Following the mass protests around Gezi Park in Istanbul in June 2013, this has raised the number of blocked websites to 40,000.

Social media companies have their own Terms of Service which allows them to monitor and filter content, and suspend or remove user accounts under defined criteria or through system filters such as: content with spam; incitement of violence; hate speech; threats; pornography; or copyright violation.

In principle, social media presence enables users to generate or share content for publicising charitable causes, defending human rights and social justice, promoting diversity and cultural heritage, and highlighting the importance of a culture of peace, tolerance and solidarity. However, according to a recent workshop at the European Dialogue on Internet Governance (EuroDIG 2016), it is not always possible to maintain a balance between freedom of expression and compliance with the rules when acting on social media.

CASES: National authorities’ interpretation of a misuse of social media varies greatly, ranging from inciting riots in the case of the British Facebook users Jordan Blackshaw and Perry Sutcliffe-Keenan (2011), to criticising the Turkish President Recep Tayyip Erdogan via Twitter in the case of Dutch–Turkish journalist Ebru Umar (2016), or to insulting the dog of the King of Thailand via Facebook in the case of Thanakorn Siripaiboon (2015).

A number of cases on banned social media sites reached the ECtHR, among them many applications against Turkey (one of the member states of the Council of Europe with the highest number of cases brought against them). Regarding Turkey’s outright ban of YouTube between May 2008 and October 2010, the ECtHR ruled in favour of the applicants [CENGIZ AND OTHERS, 2016].

VIEWS: With regard to the unclear legal status of social media, the prevailing opinion holds that further guidelines and a set of recommendations could motivate the national authorities into taking constructive steps towards legislative reforms and improved practices. There is also a general belief that such standardswould make it easier for social media companies to deal with queries of state authorities about social media user accounts or contents.

The UN Human Rights Council has recently adopted a resolution on human rights on the Internet (2016)which follows earlier ones, but reaffirms that the same rights that people have offline must also be protected online. It also condemns measures to prevent or disrupt access, and calls on all states to refrain from and cease such measures. It further recognises the importance of access to →information and →privacy online for the realisation of the right to freedom of expression and to hold opinions without interference.

Based inter alia on a recent report on laws and practices of 47 →Council of Europe member states on blocking, filtering and removal of Internet content (Institut suisse de droit comparé, 2015), which found many of the national regulatory practices not to be in compliance with Article 10 of the ECHR, the CoE Committee of Ministers urged governments to ensure that their legal frameworks and procedures are clear, transparent and to provide safeguards for freedom of expression and access to information; this Recommendation on Internet Freedom (2016) also contains ‘Internet Freedom Indicators’ on the basis of which states are urged to ‘periodically evaluate the level of respect for and implementation of human rights and fundamental freedom standards with regard to the Internet’.