Culture and Human Rights: The Wroclaw Commentaries

Andreas J. Wiesand, Kalliopi Chainoglou, Anna Sledzinska-Simon, Yvonne Donders, Andreas J. Wiesand, Kalliopi Chainoglou, Anna Sledzinska-Simon

• Publisher: De Gruyter
• Year: 2016
• ISBN:
  9783110432367
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Derechos humanos

The WROCLAW COMMENTARIES address legal questions as well as political consequences related to freedom of, and access to, the arts and (old/new) media; questions of religious and language rights; the protection of minorities and other vulnerable groups; safeguarding cultural diversity and heritage; and further pertinent issues.

Specialists from all over Europe and the world summarise and comment on core messages of legal instruments, the essence of case-law as well as prevailing and important dissenting opinions in the literature, with the aim of providing a user-friendly tool for the daily needs of decision or law-makers at different juridical, administrative and political levels as well as others working in the field of culture and human rights.

Part I:Overview articles Scientific Committee)

Culture and Human Rights: Concepts, Instruments and Institutions

Andrzej Jakubowski, Warsaw

Culture and Legal Regulation

Culture and cultural rights have always been uneasy subjects for the law and its practice. Legal instruments usually refer to culture in the singular, restricting its working notion to determined areas of people’s life. In fact, most of the existing legal frameworks in matters of culture, both on national and international levels, though relating to the variety of cultural manifestations and distinct societal contexts, are generally the product of the West, and Western traditions in managing and administrating the spheres of art and culture. Unsurprisingly, legal instruments and institutions in the cultural domain are predominantly characterised by a top-down approach, within a given operating mandate. Even though legal scholarship has gradually tended towards the concept of cultural law, encompassing ‘(t)he core themes of linguistic and other cultural rights, cultural identity and differentiation, cultural heritage, traditional knowledge, sports, and religion’ being ‘of fundamental importance to people around the world’ (Nafziger, Kirkwood Paterson, Dundes Runteln: 2010; intro), culture is still operated by the law within methodologically differentiated areas of legal regulation. Indeed, cultural law is profoundly fragmented and comparted into specialised almost ‘self-contained’ regimes, often marked by the lack of harmony between various norm-systems and institutions.

At the national level, legal regulation in cultural matters has traditionally referred to freedom of conscience, belief and expression (including the protection of the moral and material interests resulting from any scientific, literary or artistic production). In this guise, cultural rights have essentially been associated with freedom of art and creativity seen as rights and entitlements enjoyed by individual persons. On the other hand, national legislation has set out for the rules for the protection and management of spiritual, artistic and historical heritage. Thus, the latter area has related to state or more generally broader community interests, whereas the former has referred to the protection and enforcement of rights and interests of individuals. With time, cultural law and policy have greatly expanded, covering various areas of social life, including minority rights. Moreover, a number of references to culture, cultural heritage and cultural guarantees have also been introduced to national constitutional regulations. Yet the proliferation of legal instruments in cultural rights has been only partially developed within the realm of administrative and judicial institutions. Thus the recognition and enjoyment of cultural rights of entitlements of individuals and groups is usually subject to institutional systems and practices characterised by horizontal, unequal relations of power and cultural hegemony between rights holders and law-enforcement authorities.

At the international level, the legal regulation of cultural matters mirrors the traditional nature of international law made by states and for states. In other words, international law has long perceived cultural issues as an exclusive domain of states and their vital, pragmatic interests, including their joint action undertaken in the name of their collective cultural interests (particularly, the 1972 Convention concerning the Protection of World Natural and Cultural Heritage). Accordingly, international legislation in cultural matters mostly refers to the protection of human creativity and the protection and preservation of →cultural heritage. These conceptual and methodological limitations have resulted in detaching cultural legislation from the realm of international human rights, originally focused primarily on the advancement and implementation of civil and political guarantees.

Culture Rights as International Human Rights

International human rights law does not offer a formal definition of ‘culture’ or ‘cultural rights’. Only few binding international human rights instruments address the protection of cultural elements of human existence, thus making the catalogue of cultural rights and their conceptualisation as international human rights a contested issue (see Francioni and Scheinin, 2008; Jakubowski, 2016). Although certain human rights which are cultural in nature, such as the protection of literary and artistic works, or religious and linguistic rights of →national and ethnic minorities had been enshrined in international law instruments at least since the late nineteenth century, the link between culture and human rights became universally addressed for the first time within the United Nations system. The →Universal Declaration of Human Rights (UDHR) recognises several human rights guarantees as having a direct connection with culture (freedom of thought, speech, right to education). It also enshrines the rights explicitly referring to culture: the right to freely participate in the cultural life of the community, and to enjoy the arts and to share in scientific advancement and its benefits (Article 27(1)). Yet the fierce debate over the exclusion of group rights and minority rights in relation to culture from the text of the UDHR, and the simultaneous failure of broadening the legal notion of →genocide, beyond its biological dimension in the text of the Convention on the Prevention and Punishment of the Crime of Genocide, cast a shadow on the entire international cultural rights’ debate (Stamatopoulou, 2007: 11–35). In fact, the UN system tied minority rights, including their cultural rights within the broader human rights regime, for the sake of the protection of states’ internal stability and their internal cultural policies. Accordingly, the two fundamental, universal human rights treaties, the →International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were driven by the individualist approach to cultural rights (see →Rights and Protection of Social/ Socio-cultural Groups). Moreover, both of them are rather enigmatic in determining which protected human rights guarantees are to be considered cultural ones. Significantly, the ICESCR, though including cultural rights in the title, does not make clear which of its provisions belong to the category of cultural rights.

Indeed, this deficit of culture in the UN human rights treaties essentially arises from the inherent nature of cultural rights which may belong to individuals and collectivity, e.g. specific communities, thus transcending the individualistic framework of human rights regimes, as well as traditionally exclusive, state-oriented notions of culture and cultural heritage in international legal relations. This is also the case of regional human regimes established after WW II: the American Convention on Human Rights (San José, 1969 (ACHR)) and the →European Convention of Human Rights and Fundamental Freedoms (Rome, 1950 (ECHR)). Although the →Inter-American system of human rights does address certain cultural rights (in particular see the 1988 Protocol of San Salvador on Economic, Social and Cultural Rights), the ACHR hardly pays attention to such guarantees as substantive rights. Similarly, the ECHR and its protocols, enforcing basic rights set out in the UDHR, does not provide for any explicit cultural guarantees. Moreover, the individual nature and scope of the rights protected by the ECHR seems to preclude their interpretation in a collective dimension.

Important developments in this regard occurred at the time of decolonisation. In particular, the International Convention on the Elimination of All Forms of Racial Discrimination (New York, 1965) enshrines the principle of non-discrimination in relation to the access and participation in cultural life and activities, while the African Charter on Human and Peoples’ Rights (Banjul, 1988) contains several cultural rights and provides for collective (→Peoples’ Rights), including the right to cultural development and →cultural identity (Article 22). A separate regime has emerged in respect of indigenous peoples, treated as distinctive groups due to their differing historical circumstances, linked to colonialism and foreign domination. Moreover, the representatives of indigenous communities have claimed that their suppression did not cease with the emancipation of former colonies. The first efforts to accommodate the rights of these groups were undertaken by the International Labour Organization (ILO) and led to the adoption of the Indigenous and Tribal Populations Convention (No. 107, 1957) applicable to members of tribal or semi-tribal populations in independent countries. The Convention inter alia required states parties to respect the cultural differences of such communities and to promote their cultural development. In 1989, the ILO revised the 1957 treaty. The new adopted instrument (No. 169) acknowledged the collective rights of →Indigenous Peoples to preserve and develop their own cultural identity. Yet the most extensive explicit catalogue of cultural rights is enshrined in a recent UN instrument: the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which states inter alia that indigenous peoples have ‘the right to practice and revitalize their cultural traditions and customs’, including ‘the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature’ (Article 11(1)). The UNDRIP also places upon states positive commitments to ‘take effective measures to recognize and protect the exercise of these rights’ (Article 31(2)), and to ‘provide redress through effective mechanisms’ of their cultural claims arising from the past injustices (Article 11(2)). Notwithstanding the non-binding nature of this instrument, it is claimed that many of its provisions correspond to rules of customary international law (ILA Resolution No. 5/12).

The end of the Cold War,followed by territorial and political transformations in East-Central Europe reopened the question of minority protection. The fulfilment of minority standards formed one of the requirements of the conditional recognition of new states. After 1989, this question became part of the broader human and cultural criteria established by the →European Union (at that time still ‘European Communities’). Importantly, the 1989 Vienna Concluding Document issued by the Conference on Security and Co-operation in Europe (cf.→OSCE – Organization for Security and Co-operation in Europe). According to this document, the participating states ‘will ensure that persons belonging to national minorities or regional cultures on their territories can maintain and develop their own culture in all its aspects, including language, literature and religion; and that they can preserve their cultural and historical monuments and objects’. Moreover, the ethnic conflicts in the territory of the former Yugoslavia also accelerated work on the universal and European instruments for the protection of minorities: the UN 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and the 1995 →Framework Convention for the Protection of National Minorities, adopted by the CoE member states. Both instruments often mention ‘culture’ as one of the fundamental spheres of minority protection. Importantly, the latter instrument obliges its state parties to undertake ‘to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage’ (Article 5(1)). Yet, it does not treat such cultural minority rights as ‘truly’ enforceable rights. Moreover, the adoption of this treaty stopped the initial works on an additional →cultural protocol to the ECHR, undertaken within the mandate of the CoE Ad Hoc →Committee for the Protection of National Minorities (CAHMIN). The decision not to extend the competences of the →European Court of Human Rights (ECtHR) in the field of individual cultural rights was driven by both the legal difficulties in defining such rights as substantive rights, whose protection would impose specific positive obligations on states (Thornberry, Martín Estébanez, 2004; 204–206).

Indeed, international human rights treaties focusing on substantive rights may seem impertinent for the protection of cultural rights in their complexity. Arguably, with very few exceptions, they do not devote the necessary attention to cultural rights, which in turn do not enjoy the same level of protection enjoyed by civil and political rights. Even if some of them directly refer to rights to culture, they do not entail concrete positive obligations on state parties and their organs, but rather certain political commitments in respect of the legitimate cultural expectations of the right holders. Moreover, the controversies surrounding the recognition of collectiveness and international collective standing in relation to cultural rights, beyond states, may undermine their fitting within international human rights instruments. The existence of collective rights is also often challenged by the traditional liberal approach to human rights, which perceives them as individual rights. Accordingly, it is often claimed that collective cultural rights cannot be ‘truly’ accepted as human rights since they are group-differentiated rather than universal to all people just by virtue of being human (Nimni, 2008), involving potential clashes between them and fundamental human rights.

International Cultural Law and Human Rights

Fragmentation, Compartmentalisation and Expertisation of International Cultural Law As already addressed, international cultural legislation has long been detached from the realm of human rights, leaving ‘culture’ and ‘cultural heritage’ as the exclusive domain of states. In particular, the international cultural heritage law originally consisted in recognition of the right of every state to identify, physically control, and protect its tangible cultural heritage against irreparable loss in the event of armed conflict (1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict) and its unlawful removal from a state’s territory during both war and peacetime (1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property). This state-oriented perspective of international cultural heritage legislation, aimed at preserving national heritage against ‘external’ threats to its integrity, has been gradually broadened, and today encompasses a vast range of cultural manifestations and interests attached to them.

The expansion of multiple regimes relating to cultural matters has also led to their compartmentalisation according to the different types of cultural human activities, within their tangible and intangible dimensions. Moreover, various aspects of cultural domain are regulated under distinct instruments and fall under the competences of numerous authorities and monitoring bodies, undermining the global cultural governance. This often makes ‘meaningful communication’ between them (and other actors and stakeholders involved) as well as ‘solution-oriented thinking’ very difficult (Burri, 2012: 579). Another feature of international cultural law is its alleged ‘expertisation’. In fact, cultural issues are handled on the international level by institutions of different (universal and regional) origin and composition. Most importantly, cultural matters are managed by →UNESCO and its associated bodies and agencies dealing with specific topics and areas of governance. All of them use ‘impartial’ expert knowledge aimed at translating cultural concepts into law and policy constructions. The recourse to ‘external’ expertise is also designed to smooth out conflicts and social differences (Lixinski, 2013: 432). On the other hand, cultural experts and professionals strive to expand their self-created professional legitimacy and importance. This may lead to a lack of communication and harmony amongst cultural regimes under UNESCO. It may also contribute to unequal power/ knowledge relations between the interests of experts and those of individual and collective rights holders, thus undermining the effective enforcement of international cultural instruments and their objectives (Smith, 2006).

Arguably, these shortcomings of international cultural law also characterise regional legal and institutional systems. In particular, numerous initiatives of the →Council of Europe (CoE) provide a very broad legal framework for cultural and heritage policies. Culture entered on the agenda of the CoE with the European Cultural Convention (Paris, 1954), which created a legal platform for cultural cooperation between the CoE member states with the objective to safeguard and develop European culture ...

Table of contents

• Cover
• Title Page
• Copyright
• Acknowledgements
• Table of Contents
• List of Abbreviations
• Preface I
• Preface II
• Introduction
• Part I: Overview articles (Scientific Committee)
• Part II: Keyword articles
• Part III: Subject index
• Part IV: Biographical notes of contributors