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Citation: 10 Maastricht J. Eur. & Comp. L. 117 2003

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Yvonne Donders*
The Protection of Cultural Rights in Europe: None of the

EU's Business?
Summary
Over the last decade, cultural diversity and the promotion and protection of
cultural human rights have become important issues in the European context.
States are trying to protect their national cultural identity within the European
integrationprocess, while at the same time several communities within States,
such as minorities, indigenouspeoples and immigrant communities, demand the
promotion and protection of their cultural identity. The Council of Europe has
established a human rights mechanism including the protection of culturalrights
and rights of minorities. Within the European Union, the promotion and
protection of human rights has slowly become a part of the internalpolicies, the
latest step being the proclamation of the Charter on Fundamental Rights.
However, the promotion of cultural diversity and of cultural rights or rights of
minorities hardly play a role in this respect. Bearing in mind the possible interState implications that these issues may have, Member States should co-operate
more closely and develop policies at the EU level in relation to the promotion
andprotectionofcultural diversity.
1. Introduction
Since December 2000, the European Union has had its own Charter of Fundamental
Rights. Looking at the content of the Charter, it is striking that not all categories of
Dr. Y.M. Donders works at the Human Rights Division of UNESCO Headquarters in Paris. The
research for this article was carried out at the Department of International and European Law and the
Centre for Human Rights of Maastricht University in the framework of the SARO Programme
'Foundations of a European Legal Order: Competition, Convergence and Cooperation', sub-project
'Heteronomy of the EU Human Rights Standard'. The author would like to thank Prof. B. de Witte,
Prof. E. Vos and Dr. L. Besselink for their cooperation and comments on earlier drafts of this article.
10 MJ 2 (2003)
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HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 117 2003
The Protection of Cultural Rights in Europe: None of the EU's Business?
human rights are equally incorporated. The Charter contains mainly civil rights and
some political, economic and social rights. Cultural human rights can, however, hardly
be found in the text. This seems odd, since the protection of cultural rights is
increasingly called for, not only at the international level, but also in the European
context. Within the latter, a paradox may be observed. On the one hand, the European
institutions are concerned with the promotion of a common European culture, but on the
other hand the Member States try to protect and promote their own national culture.
Furthermore, minorities and other communities within the Member States, for example
the Basques and the Bretons, but also immigrant communities, demand the promotion
and protection of their cultural identity. In view of the upcoming enlargement of the
EU, and the long record of minority problems and policies of some of the future
Member States, the issues of the protection of cultural identity and cultural rights will
become even more pressing.
The question is, therefore, to what extent the EU should be involved in the protection
and promotion of cultural identity through cultural human rights. To what extent is the
protection of cultural identity part of the EU and EC Treaties and the new human rights
Charter? Which cultural rights have been included in the Charter and how should they
be implemented and interpreted? An interesting point of reference is the human rights
system within the Council of Europe, especially because, according to Article 6(2)
TEU, the Union should respect fundamental rights as guaranteed by the European
Convention on Human Rights (ECHR). How have cultural rights been included in this
human rights system? To answer these questions, one should first identify what cultural
human rights are and why they are just as important as civil, political, economic and
social human rights.
Within the international human rights debate, cultural rights are beginning to receive
more attention, after a long period of neglect. Especially within the Council of Europe,
several important developments have taken place with regard to the promotion and
protection of cultural rights and rights of minorities. This article will examine whether
these developments could provide an example for possible developments within the EU
in the field of cultural rights.
2.
Cultural Human Rights
Cultural rights form one of the so-called 'categories' of human rights which are
included in the International Bill of Human Rights. These categories are civil, political,
economic, social and cultural rights. They were laid down in two separate international
instruments, the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), to
indicate the different character of these rights, particularly with regard to their means of
10 MJ 2 (2003)
118
Yvonne Donders
implementation. The ICCPR enumerates civil and political rights or 'classic freedom
rights', which are supposed to be immediately guaranteed by States.' It was argued that
the enforcement of civil and political rights mainly demanded that States do not
interfere and refrain from action in these fields.
The ICESCR contains economic, social and cultural rights to be 'recognised' by States.2
These rights were considered to require a proactive role of the State involving financial
and material resources. Since these resources might not necessarily be directly
available, the implementation of economic, social and cultural rights might be
undertaken progressively.' States should promote these rights, but national
circumstances may be taken into account. The supervisory mechanism is more modest
and consists only of a reporting procedure.
Some authors have expressed doubts as to whether economic, social and cultural rights
can be called human rights, or whether they should merely be considered as policy goals
or even as 'letters to Santa Claus'.4 They question the legal character of economic,
social and cultural rights mainly because they consider them to be non-justiciable, since
they are vaguely formulated, which makes their content and corresponding State
obligations unclear.5 However, Steiner and Alston correctly argue that the '...debate
over whether economic (and social and cultural, YD) rights are 'really' rights was
settled long ago.' 6 Recent developments have confirmed that there is general consensus
that economic, social and cultural rights are 'real rights', among others because they
have been included in legally binding human rights instruments. Although individuals
do not (yet) have a possibility of complaining directly to an international supervisory
body concerning economic, social and cultural rights, these rights may be invoked in
national procedures and national judges have referred to them.'
1.
2.
3.
4.
5.
6.
7.
In Article 2 ICCPR, it is stated that States Parties undertake to respect the rights in the ICCPR and to
undertake to take the necessary steps in the field of legislation and policy measures.
In Article 2 of the ICESCR, it is stated that a State Party will undertake to take steps, '...to the
maximum of its available resources, with a view to achieving progressively the full realisation of the
rights recognised in the present Covenant...' The ICESCR Committee in 1990 adopted a General
Comment on this provision. See 2.5 on State obligations.
See Article 2 of the ICESCR, which is discussed in more detail in 3.D.2 of this chapter.
C. Orwin and T. Pangle, 'The Philosophical Foundation of Human Rights', in M.F. Plattner (ed.),
Human Rights in Our Time - Essays in Memory of Victor Baras, (Westview Press, 1984), 15.
See, for an overview of several authors, M.K. Arambulo, Strengthening the Supervision of the
International Covenant on Economic, Social and Cultural Rights - Theoretical and Procedural
Aspects, (Hart Publishing/Intersentia, 1999), 53-97, in particular 55-56.
H.J. Steiner and Ph. Alston, Internationalhuman rights in context: law, politics, morals -texts and
materials,(Oxford University Press, 2000), 268.
The UN Commission on Human Rights has in April 2002 confirmed that cultural rights are an integral
part of human rights, see Commission on Human Rights Resolution 2002/26 'Promotion of the
enjoyment of the cultural rights of everyone and respect for different cultural identities', 22 April 2002,
5.
10 MJ 2 (2003)
119
A. THE IMPORTANCE OF CULTURAL HUMAN RIGHTS FOR PROTECTING HUMAN

DIGNITY
As stated above, the category of cultural rights is, compared to the other categories of
civil, political, economic and social rights, underdeveloped or neglected. UN Special
Rapporteur Tirk argued that these rights have received 'by far the least amount of
serious attention', which he blamed on the lack of clarification of cultural rights. 9 The
term 'culture' is vague, which makes the content of cultural rights unclear. A political
reason for the underdevelopment of cultural rights is that relatively few regimes have
been eager to control the cultural life of the community. Most States did not consider
cultural rights as implying positive State obligations. The few regimes that did interfere
in culture did it as part of a more or less totalitarian control over social life as a whole,
which included the denial of other human rights.'o Another argument is that States fear
that strengthening cultural rights might lead to tension in society, which might endanger
national unity, because communities could misuse these rights to obtain not only
cultural, but also political autonomy. Finally, it has been argued that the promotion of
cultural rights could be interpreted as supporting questionable cultural activities, such as
the subordinate position of women, mandate operations such as female circumcision
and ritual scarring, and the practice of cruel, inhumane and disproportionate
punishment."
The call for the clarification, promotion and protection of cultural rights has been
encouraged over the last 25 years, because of the numerous violations of cultural rights,
for example, the oppression of indigenous peoples or the enforced assimilation of
minorities. In many parts of the world, individuals and communities have been, and still
are, unable to express and preserve their cultural identity because of intolerance and
discrimination. The denial of the cultural rights of individuals and communities has led
to forms of discrimination, nationalism, xenophobia and racism, and can be a source of
violent conflicts.
Cultural identity is an important value for communities and individuals, since it
concerns their belonging, their 'roots', and way of thinking, feeling and acting. The
suppression or limitation of the development and expression of cultural identity can
make people feel alienated, which seriously affects their human dignity. Consequently,
8.
9.
10.
11.
See J. Symonides, 'Cultural Rights', in J. Symonides (ed.), Human Rights: Concept and Standards,
(UNESCO Publishing, 2000), 175 and Special Rapporteur Tirk UN Doc. E/CN.4/Sub.2/1992/16, 3
July 1992, 187, 49.
UN Doc. E/CN.4/Sub.2/1992/16, 3 July 1992, 198-199, pp. 51-52.
J. Donnelly, Universal Human Rights in Theory and Practice,(Cornell University Press, 1989), 154; J.
Donnelly, 'Human Rights, Individual Rights and Collective Rights', in J. Berting et al. (eds.), Human
Rights in a Pluralist World, (Meckler Westport, 1990), 55.
See, inter alia, Symonides, Human Rights in a PluralistWorld, 176.
10 MJ 2 (2003)
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Yvonne Donders
respect for cultural rights and the protection of cultural identity are constitutive
elements of respect for human dignity.
B.
THE NATURE AND SCOPE OF CULTURAL HUMAN RIGHTS
The nature and scope of cultural rights are closely tied to the concept of 'culture'.
'Culture' has developed from a narrow 6litist concept, which mainly included arts and
literature, to a broader concept, as a process in which aspects such as language, religion
and education play an important role. Culture should not only be seen as a consumer
product, but as an expression of the identity of individuals or communities, of
distinctive features and ways of thinking. Cultural rights should accordingly not only be
considered as rights to enjoy a (cultural) product, but also as an overlapping category of
human rights that relate to one's cultural identity as part of human dignity.12
Cultural rights have a so-called 'transversal character', because they can overlap with
the categories of economic, social, civil and political rights. Cultural freedoms, such as
freedom of religion, expression and communication, refer to civil rights, while the right
to participate in culture refers to social and economic rights. The right to education is an
example of a mixed right. The second part of this transversal character lies in the fact
that cultural rights can be considered as intermediate between individual rights and
collective rights. Cultural rights have an individual and a collective dimension and
individuals as well as communities can benefit from them. For example the individual
right to participate in cultural life makes no sense without a community.13
Which rights can be labelled as cultural rights? Again, the list of cultural rights depends
on the definition of 'culture'. As explained above, the term 'culture' may vary from the
intellectual and artistic achievements, to 'culture' in the anthropological sense as the
way of life of individuals and communities. Cultural rights can, accordingly, refer to
rights concerning creativity, such as copyright, artistic and intellectual freedom, and
rights to education, religion and expression. Cultural rights can also concern the right to
culture, in the sense of the right to preserve, develop and have access to a culture.14
12.
13.
14.
P. Meyer-Bisch, 'Les Droits Culturels Forment-ils une Cat6gorie Sp6cifique de Droits de l'Homme?
Quelques difficult6s logiques', in P. Meyer-Bisch (ed.), Les Droits Culturels, une catigorie sousddveloppde de droits de I'homme, Actes du VIle Colloque interdisciplinairesur les droits de I'homme,
(Editions Universitaires Fribourg Suisse, 1993), 18-20, 23-24; Symonides, Human Rights in a Pluralist
World, 180.
Meyer-Bisch, Les Droits Culturels, une categorie sous-diveloppie de droits de l'homme, Actes du
VIlle Colloque interdisciplinairesur les droits de l'homme, 18-19, 38-39; See, also, the conclusions of
a Colloquium in Fribourg on Cultural Rights in 1993, in P. Meyer-Bisch (ed.), Les Droits Culturels,
une categoriesous-diveloppe de droits de l'homme, Actes du VIIIe Colloque interdisciplinairesur les
droits de l'homme, 302-303.
L.V. Prott, 'Cultural Rights as Peoples' Rights in International Law', in J. Crawford (ed.), The Rights
ofPeoples, (Clarendon Press, 1988), 165.
10 MJ 2 (2003)
121
Cultural rights and the right to culture are often used interchangeably.15 In my view,
however, a distinction should be made between cultural rights as a category of human
rights that relate to culture, and separate cultural rights, such as the right to cultural
identity, that fall under this category.
Different legal provisions can be considered part of the category of cultural rights.
These provisions may fall under either what has been called cultural rights in the narrow
sense, or under the heading of cultural rights in the broad sense. Cultural rights in the
narrow sense, as a residual category, includes those rights that explicitly refer to
'culture'. Examples of such rights are the right to participate in cultural life, as laid
down in Article 15 ICESCR and the right to enjoy culture for members of minorities, as
incorporated in Article 27 ICCPR. Cultural rights in the broad sense is an overlapping
category that includes rights explicitly referring to culture, but also other civil, political,
social and economic rights that have a link with culture. It might be argued that almost
every human right has a link with culture, but the rights specifically meant here are the
rights to freedom of religion, freedom of expression, freedom of association and the
right to education.' 6
In short, cultural rights may have been neglected, but their protection and promotion is
essential to the protection of human dignity. They deserve the same attention as the
other categories of human rights. In fact, the UN Commission on Human Rights has
stated that '...the promotion of the cultural rights of everyone, of respect for distinct
cultural identities of peoples...advances the implementation and enjoyment of all
human rights by all.' 7
15.
16.
17.
See, for example, R. Stavenhagen, 'Cultural Rights: a Social Science Perspective', in A. Eide et al.,
Economic, Social and Cultural Rights - A Textbook, (Martinus Nijhoff Publishers, 2001), 89-93; R.
Stavenhagen, 'Cultural Rights: a Social Science Perspective', in H. Niec (ed.), Cultural Rights and
Wrongs, A Collection of Essays in Commemoration of the 50th Anniversary of the Universal
DeclarationofHuman Rights, (UNESCO Publishing, 1998), 4-8.
Donnelly, Universal Human Rights in Theory and Practice, 155-156; Meyer-Bisch, Les Droits
Culturels, une catigorie sous-developpde de droits de l'homme, Actes du VIlle Colloque
interdisciplinairesur les droits de l'homme, 25; P. Leuprecht, 'Le Sous-D6veloppement des Droits
Culturels, vu depuis le Conseil de l'Europe', in Meyer-Bisch, Les Droits Culturels, une categorie sousdeveloppe de droitsde l'homme, Actes du VIe Colloque interdisciplinairesur les droits de l'homme,
76; A. Eide, 'Cultural Rights as Individual Human Rights', in Eide et al., Economic, Social and
Cultural Rights - A Textbook, 292.
Commission on Human Rights Resolution 2002/26 'Promotion of the enjoyment of the cultural rights
of everyone and respect for different cultural identities', 22 April 2002, 5 and 11.
10 MJ 2 (2003)
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Yvonne Donders
3. Cultural Rights within the Human Rights System of the Council of

Europe
A.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN SOCIAL

CHARTER
The European Convention on Human Rights and Fundamental Freedoms (ECHR)

contains civil and political rights provisions and includes a supervisory mechanism in
the form of the European Court of Human Rights. The ECHR does not include a
specific provision concerning the protection of culture or cultural identity. In fact, the
term 'culture' is not mentioned anywhere in the text. The ECHR does, however, cover
cultural rights in the broad sense. The relevant provisions are, inter alia, Article 8 on
respect for private life and family life, home and correspondence, Article 9 on freedom
of thought, conscience and religion, Article 10 on freedom of expression, Article 11 on
freedom of assembly and association, and Article 2 of the First Protocol on the right to
education. Article 14 prohibits discrimination on the grounds of sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.' 8
The European Social Charter (ESC)19 contains social and economic rights, but no rights
are included that explicitly refer to culture. The only connection with culture and
cultural identity can be identified in the non-discrimination paragraph of the Preamble.
In this paragraph, it is stated that social rights should be enjoyed without discrimination
on grounds of race, colour, sex, religion, political opinion, national extraction or social
origin. In comparison with Article 14 of the ECHR, the ESC does not include
discrimination on the ground of language, association with a national minority,
property, birth or other status, although some of these aspects might be included in the
terms 'national extraction or social origin'.
B.
CULTURAL RIGHTS IN COUNCIL OF EUROPE INSTRUMENTS ON MINORITIES
The interest in the protection of cultural rights and cultural identity increased when
countries from Central and Eastern Europe acceded to the Council of Europe in the late
1980s and the early 1990s. These countries had minority problems that could have had a
destabilizing effect on the whole of Europe. Accordingly, the Member States of the
18.
19.
Article 14 is only applicable in combination with another provision of the ECHR. The twelfth Protocol,
adopted on 4 November 2000, will change this situation by adding to the ECHR a provision similar to
Article 14, which makes a direct application of the non-discrimination principle possible. This Protocol
needs 10 ratifications to enter into force. In June 2003, only Croatia, Cyprus, Georgia and San Marino
had ratified the Protocol.
The revised European Social Charter (ETS No. 163), adopted on 3 May 1996 and in force since 1 July
1999, will gradually replace the initial European Social Charter (ETS No. 35), adopted on 18 October
1961 and in force since 26 February 1965.
10 MJ 2 (2003)
123
Council of Europe considered it necessary to establish arrangements concerning

minorities, whereby cultural rights and the protection of their cultural identity played an
important role. The first European instrument adopted in this field was the European
Charter for Regional or Minority Languages, in force as of 1 March 1998.20 The
Charter contains various cultural and linguistic rights. The provisions of the Charter are,
in principle, not directly applicable. Furthermore, States Parties do not have to
implement all provisions of the Charter. They can choose 'a la carte' which provisions
they will implement, albeit with some minimum requirements established in Article 2.
Each State Party must, inter alia, apply a minimum of 35 paragraphs selected from the
provisions in Part III of the Charter, which concerns measures to promote the use of
regional and minority languages in public life. States Parties can, according to Article 3,
specify the languages to which they apply the Charter.
Another instrument adopted in this respect is the Framework Convention for the
Protection of National Minorities (Framework Convention), in force since 1 February
1998.21 The Framework Convention is the first legally binding international instrument
on the protection of national minorities. It contains mainly so-called 'programme-type
provisions' defining principles to be implemented by the States Parties. These principles
are formulated in terms of State recommendations and define policy objectives that
States Parties have to pursue. 22 According to the explanatory report, the programmetype provisions are not directly applicable and leave the Member States a measure of
discretion that allows them to take their particular circumstances into account.23
Although the definitive decision on direct applicability lies with the judiciary, the
general idea behind the Framework Convention was to provide a framework for State
policy instead of legally enforceable rights.24 Furthermore, States can upon ratification
25
define the territory and communities to which they apply the Framework Convention.
The provisions of the Framework Convention contain important rules in relation to the
protection of cultural identity. These provisions incorporate, for example, nondiscrimination, including the possibility of special positive measures for certain
communities (Article 4), freedom of peaceful assembly, freedom of association,
20.
21.
22.
23.
24.
25.
European Charter for Regional and Minority Languages, ETS No. 148, adopted on 5 November 1992
and in force since 1 March 1998.
Framework Convention for the Protection of National Minorities, ETS No. 157, adopted on 1 February
1995 and in force since 1 February 1998.
See the Preamble of the Framework Convention, which reads that '[b]eing determined to implement
the principles set out in this Framework Convention...' See also Article 3(2), which says that
'[p]ersons belonging to national minorities may exercise the rights and enjoy the freedoms flowing
from the principles enshrined in the present Framework Convention...'
'Explanatory Report on the Framework Convention for the Protection of National Minorities', NJCMBulletin 20-2 (1995), 11, p. 201.
Ibid., 10, p. 201.
H. Klebes, 'The Council of Europe's Framework Convention for the Protection of National
Minorities', 16 Human Rights Law Journal 1-3 (1995), 92.
10 MJ 2 (2003)
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Yvonne Donders
freedom of expression, and freedom of thought, conscience and religion (Articles 7, 8

and 9). Educational rights are laid down in Articles 12, 13 and 14. They include, for
example, the right to learn and teach knowledge of the minority culture and language,
and to set up private educational institutions, without however imposing any financial
obligations on the State involved.
The protection of cultural identity is specifically laid down in Article 5, according to
which States '...undertake to promote the conditions necessary for persons belonging to
national minorities to maintain and develop their culture, and to preserve the essential
elements of their identity, namely their religion, language, traditions and cultural
heritage'. The protection of cultural identity is part of a policy of non-assimilation.
Accordingly, the second part of Article 5 prohibits forced assimilation. The protection
of cultural identity is furthermore part of Article 6, which prohibits discrimination based
on ethnic, cultural, linguistic or religious identity. Articles 10 and 11 contain linguistic
rights, such as the right to use a minority language, including in relations with the
administrative authorities, and the right to use a name in the minority language. The link
between linguistic rights and the protection of cultural identity has been emphasized by
stating that these linguistic rights were in fact included, because the '...use of a minority
language represents one of the principle means by which such persons can assert and
preserve their identity.'26
The Framework Convention is the first legally binding instrument for minorities, which
includes significant rules on the protection of cultural identity. It has received wide
support: 35 States have ratified the Framework Convention, including one non-member
State. 27 Most States that have not ratified have specific legal problems with regard to
minorities.28 This support gives the Framework Convention moral authority and thereby
increases its value. The working of the Framework Convention has further been
encouraged by its supervisory mechanism as laid down in Articles 24 to 26 of the
Framework Convention, which consists of a State report procedure. These State reports
are made public and examined by an Advisory Committee, composed of experts in the
field of minorities and human rights, which can also use information from other sources
than the State before preparing an opinion. Having received the opinion of the Advisory
Committee, the Committee of Ministers can adopt conclusions and, where appropriate,
26.
27.
28.
'Explanatory Report on the Framework Convention for the Protection of National Minorities', NJCMBulletin 20-2 (1995), 63, 207.
See Article 27 of the Framework Convention. The Non-member State is Yugoslavia. (I January 2003)
France, for example, categorically denies that minorities live on its territory; this is based on its
Constitution, which lays down that all persons are equal before the law. The French Conseil
Constitutionnel has, in fact, decided that the Charter on Regional and Minority Languages is contrary
to the French Constitution, which leaves no hope for the French ratification of the Framework
Convention (D6cision No. 99-412 DC du 15 juin 1999: Charte europ6enne des langues rigionales ou
minoritaires). Turkey has a comparable argument that all minorities, including the Kurds, are Turks
according to the Constitution. Belgium has specific problems with regard to the French and Flemish
speaking parts of the country.
10 MJ 2 (2003)
125
recommendations with regard to the State Party concerned. The Advisory Committee
has established country specific and thematic working groups and visits all reporting
States and engages in an extensive dialogue with government officials, but also with
NGOs, local experts and representatives of minorities.2 9 The opinions of the Advisory
Committee are contained in extensive reports discussing the general situation in a State
and the implementation of specific provisions of the Framework Convention.
C.
AN ADDITIONAL PROTOCOL TO THE
ECHR ON
RIGHTS IN THE CULTURAL FIELD
The process described above should have been completed by an Additional Protocol to
the ECHR on Rights in the Cultural Field, but the Member States of the Council of
Europe did not succeed in drafting such a Protocol. This additional protocol would have
been part of the human rights system falling under the auspices of the European Court
of Human Rights. It would have laid down rights for all persons, not only those
belonging to national minorities. Many proposals passed the drafting committee, among
which was one concerning the right to cultural identity. The main criteria for judging
the proposals were that the proposed provisions should add something to the ECHR and
that they should be universal and justiciable. Most draft provisions did not pass this test
and, in the end, the drafting group could only agree on four provisions, mainly in the
linguistic sphere. In January 1997, the Committee of Ministers suspended the work on
the Additional Protocol.30
The negotiations on a draft additional protocol confirmed the difficulties in defining
cultural rights. In fact, all proposals that explicitly referred to 'culture' were rejected
during the drafting process, with the exception of the right to set up cultural institutions.
While it was recognized that cultural identity was an important value that deserved to be
protected, it appeared impossible to translate this value into a legal right. The concepts
of culture and cultural identity were considered to be too vague and therefore not
justiciable. Furthermore, it was argued that such rights could be interpreted as
supporting questionable cultural activities, and misused by communities to obtain
autonomy. Another important argument was that the proposed cultural rights provisions
did not provide more protection than the ECHR.3 ' As argued above, the provisions in
29.
30.
31.
See, for example, the Activity Reports of the Advisory Committee on http://www.humanrights.
coe.int/Minorities/Eng/SiteMap.htm.
See, inter alia, the following documents of the Council of Europe: CAHMIN (94) 33, Ad Hoc
Committee for the Protection of National Minorities, Meeting report, Strasbourg, 7-10 November
1994; CAHMIN (95) 1, Ad Hoc Committee for the Protection of National Minorities, Draft articles
and alternative versions for possible inclusion in a protocolcomplementing the ECHR in the cultural
field, Strasbourg I February 1995; CAHMIN (95) 22 Add., Ad Hoc Committee for the Protection of
National Minorities, Activity reportfor the attention ofthe Committee ofMinisters, January 1996.
See, inter alia, the following documents of the Council of Europe: CAHMIN (95) 9, Ad Hoc
Committee for the Protection of National Minorities, Meeting report, Strasbourg, 27 February - 3
March 1995; CAHMIN (95) 21, Ad Hoc Committee for the Protection of National Minorities, Meeting
10 MJ 2 (2003)
126
Yvonne Donders
the ECHR do not explicitly refer to culture or cultural identity. However, it appears that
the protection of cultural identity could be 'read' into several ECHR provisions.
D.
THE PROTECTION OF CULTURAL IDENTITY UNDER THE ECHR
In several cases before the European Commission and the European Court of Human
Rights, individuals and communities have used cultural rights provisions in the broad
sense, such as freedom of religion, expression, and association, the right to family life
and home, and the right to education not only to protect a certain interest in these fields,
but also in connection with the more general protection of their cultural identity. All
these cases concern minority protection, which is understandable, since the protection of
cultural identity is especially relevant in relation to minorities or other communities,
such as indigenous peoples or immigrant communities. 32 Several of these cases are dealt
with below. They illustrate that several ECHR provisions provide for the protection of
cultural identity, albeit implicitly.
1.
Cultural organizationsandfreedom ofassociation
In several cases, the European Court has determined that cultural organizations set up to
preserve and develop a minority culture and traditions are, in principle, protected under
Article 11 ECHR on the right to freedom of association. In the case of Sidiropoulosand
others v. Greece,33 the Court argued that Greece had violated this provision, because the
Greek courts refused to register a Macedonian cultural organization, because it was
suspected of undermining the territorial integrity and national security of Greece. 34 The
Court found that the organization's aim was to encourage consciousness of belonging to
a minority and the preservation and development of the culture and traditions of that
minority, which could not be seen as undermining the territorial integrity or national
security of Greece. The Court also argued that '...the existence of minorities and
different cultures in a country is a historical fact that a democratic society has to tolerate
and even protect and support according to the principles of international law.' 3 ' The
Court acknowledged, however, that it could be possible that such organizations, under
the cover of legitimate aims, would engage in illegal activities. This, however, could
only be proven by factual activities, which were absent in this case because the
organization had never been able to take any action. The Court concluded that the
32.
33.
34.
35.
report, Strasbourg, 11-15 September 1995; CAHMIN (95) 22, Ad Hoc Committee for the Protection of
National Minorities, Meeting report, Strasbourg, 6-10 November 1995.
See for a detailed overview, G. Gilbert, 'The Burgeoning Minority Rights Jurisprudence of the
European Court of Human Rights', 24 Human Rights Quarterly24 (2002), 736-780.
Sidiropoulos and others v. Greece, Application No. 26695/95, European Court of Human Rights,
decision of 10 July 1998, Report on Judgments and Decisions 1998-IV, No. 79.
Sidiropoulos and others v. Greece, 10 July 1998, 40.
Sidiropoulos and others v. Greece, 10 July 1998, 41 and 44.
127
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refusal to register the applicant's organization was disproportionate and, therefore,

constituted a violation of Article 11.36
In the case of Stankov and the UnitedMacedonian OrganisationIlinden v. Bulgaria,the
Court upheld its general line of reasoning and decided that Bulgaria had violated Article
11 by prohibiting meetings of this organization.3 7 The purposes of linden were,
according to its programme, to unite Macedonians in Bulgaria on a regional and cultural
basis and to achieve the recognition of the Macedonian minority in Bulgaria. The Court
followed the Sidiropoulos case and assessed that minority consciousness cannot in itself
justify interference with Article 11. The decisive factor is whether there has been a call
for the use of violence or any other rejection of democratic principles. It concluded that
there was no such real foreseeable risk, and, consequently, that Bulgaria had
overstepped its margin of appreciation, and that the measures that Bulgaria had taken
were not necessary in a democratic society.
It appears from these cases that the Court recognizes, albeit in abstract terms, the special
position of minorities and that cultural associations, important in relation to freedom of
cultural identity, are, in principle, protected under Article 11 ECHR.
In a similar case of Gorzelik and others v. Poland,39 the Court argued that there had
been no violation of Article 11. In this case, the Court placed special emphasis on the
nature of the organization to determine whether or not Article 11 had been justifiably
restricted. The applicants were Polish citizens of Silesian origin who wanted to have
their organization, the 'Union of People of Silesian Nationality', registered. The aims of
the Union were, according to its memorandum, inter alia, the awakening and
strengthening of the national consciousness of Silesians, the restoration of Silesian
culture and the protection of the ethnic rights of persons of Silesian nationality.
However, the crucial problem in this case was paragraph 30 of the memorandum, in
which it was stated that the Union was an organization of the Silesian national minority.
This paragraph together with the name of the organization were the main reasons that
registration was refused. The State argued that registration would imply recognition of
36.
37.
38.
39.
Sidiropoulos and others v. Greece, 10 July 1998, 44, 46 and 47.

The organization was also refused registration in 1990, but the Commission had declared events
between 1990 and 1993 inadmissible. Furthermore, several events relating to this case were still
pending in different applications before the Court. Accordingly, this case only concerned the
applicant's complaint that the authorities prohibited their meetings in 1994, 1995 and 1997. See
Stankov and the United Macedonian OrganisationIlinden v. Bulgaria,Application Nos. 29221/95 and
29225/95, European Court of Human Rights, 2 October 2001, 59.
Stankov and the United MacedonianOrganisationIlinden v. Bulgaria,2 October 2001, 111-112. The
Commission had earlier in this case limited its scope to the prohibition of meetings. Consequently, the
Court did not have to deal with the issue of whether or not the Macedonians were a minority, or with
the purposes of the organization itself.
Gorzelik and others v. Poland,Application No. 44158/98, European Court of Human Rights, Decision
of 20 December 2001.
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Yvonne Donders
the Silesians as a national minority, which implied special minority rights guaranteed by
Polish law, including special voting rights. The State admitted that there was no other
procedure in Poland for recognition as a national minority than the registration of
associations. Apart from this, several communities, such as Germans, Ukrainians,
Lithuanians, Slovaks and Czechs, had been recognized in bilateral treaties on friendly
co-operation. The authorities emphasized that had the organization changed its name
and removed paragraph 30 of its memorandum, it would have been registered without
any difficulty. The applicants claimed that their memorandum did not suggest that they
wanted to be recognized as a national minority or benefit from special privileges
granted to national minorities.4 0
While the Court did not concern itself with the question of whether or not the Silesians
were a national minority in Poland, it held that both the disputed paragraph of the
memorandum and the name of the association gave the impression that, in the future,
members of the association might, in addition to the other purposes, aspire to special
rights. The applicants could have dismissed the worries of the State by changing the
name and removing the disputed paragraph. These measures would not have prevented
the association from achieving its cultural objectives. Accordingly, the Court found no
violation of Article 11.4' This case concerned a cultural organization with allegedly
similar purposes as those dealt with in the Siridopoulos case and the Stankov case.
However, the possible consequences of registration and recognition as a national
minority, including special legal guarantees, proved to be decisive.
In other words, the Court's judgment in the Gorzelik case seems to imply that the
intentions of a minority organization should be strictly cultural in nature if it is to be
protected under Article 11. The Court thereby restricted freedom of association under
Article 11 in relation to minorities to cultural organizations without political aspirations,
even though Article 11 is in principle not restricted to any type of association. The
problem in this case was that the recognition of the association as representing a
national minority automatically entitled the association to favourable treatment for
electoral purposes. The Court in fact recognized that this was a lacuna in the Polish
system of minority protection, but it did not find that this, as such, had consequences for
the rights in Article 11.42 From the point of view of Article 11, however, there seemed
to be no reason to treat the Silesian organization differently than the organizations in the
other cases of Siridopulos and Stankov.
40.
41.
42.
Gorzelik and others v. Poland, 20 December 2001, 40-54.

Gorzelik and others v. Poland,20 December 2001, 55-66.
Gorzelik and others v. Poland,20 December 2001, 62-63.
10 MJ 2 (2003)
129
2.
Cultural Traditionsand Respectfor PrivateLife, Family Life and Home
Under Article 8 ECHR on the right to respect for private life, family life and home, the
European Court has dealt with several cases concerning gypsy families in the United
Kingdom, who were not allowed to camp on a certain piece of land. In these cases, the
Court made a remarkable link between the traditional way of life of the gypsies and
respect for their home and private life.
In Buckley v. the United Kingdom, 43 the applicant was a British citizen of gypsy origin,
who, after years of travelling, wished to live on a permanent spot. The applicant
indicated, however, that she would pick up her travelling life in the future and pass on
this tradition to her children. She subsequently lived in a caravan on land owned by her,
but was refused planning permission. The authorities found that the planned use of the
land would detract from the rural quality of the landscape, and would destroy the
character of the countryside, and further argued that adequate and sufficient provisions
had been made for gypsy caravans elsewhere in the area. However, according to the
applicant, the alternative accommodation was not suitable because criminal activities
and fights had taken place there.4 The European Commission on Human Rights had
concluded, by seven votes to five, that the UK had violated Article 8. It argued that
gypsies following a traditional lifestyle required special consideration in planning
matters, and that, in this case, a proper balance between the interests of the community
and those of the applicant had not been achieved.4 5
According to the Court, national authorities have a wide margin of appreciation in the
case of town planning, since they are best situated to evaluate local needs and
conditions. The Court concluded that the applicant had enjoyed sufficient procedural
safeguards within the regulatory framework to protect her interests and that the special
needs of the applicant as a gypsy with a traditional lifestyle were sufficiently taken into
account.4 6 The Court also argued that there was alternative accommodation available.
This accommodation might not be satisfactory, but '...Article 8 does not necessarily go
so far as to allow individuals' preferences as to their place of residence to override the

general interest.' 47 Finally, the Court alleged that the applicant had not been severely
punished, since she had not been forcibly evicted and only had to pay small fines.
43.
44.
45.
46.
47.
Buckley v. The United Kingdom, Application No. 20348/92, European Court of Human Rights,
decision of 25 September 1996, Reports of Judgments and Decisions 1996-IV, no. 16.
Buckley v. the United Kingdom, 25 September 1996, 7-27.
Ibid., 71-73.
Ibid., 74-80.
Ibid., 81-82.
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Yvonne Donders
Accordingly, the Court, unlike the Commission, held by six votes to three, that the UK
had not violated Article 8.48
Comparable to the Buckley case, is the case of Chapman v. the United Kingdom49 which
concerned the refusal of planning permission to a gypsy family. With regard to the
alleged violation of Article 8, the Court recalled its decision in the Buckley case and
emphasized that it was '...in the interest of legal certainty, forseeability and equality
before the law, that it should not depart, without good reason, from precedents laid
down in previous cases.' 5 0 According to the Court, this case did not just concern respect
for the applicant's 'home'. Instead, the measures had a wider impact and affected her
ability to maintain her identity as a gypsy and to lead her private and family life in
accordance with her tradition. Accordingly, the Court maintained, as distinct from the
Buckley case, that not only the applicant's right to respect for her home, but also for her
private life and family life were at stake.
After citing the relevant national law of the UK, the Court inserted several relevant
international texts to examine whether certain developments in relation to the ECHR
provisions had taken place, and whether there was European consensus on the
protection of minorities. It quoted, inter alia, Articles 1, 4 and 5 of the Framework
Convention for the Protection of National Minorities, which concern the right of
persons belonging to minorities to equality before the law and to protection of their
religion, culture, language and identity. The Court noted that the UK had signed and
ratified the Framework Convention and had established that, for the UK, gypsies fell
under the definition of a national minority. The Court also referred to a Resolution by
the European Parliament of the EU on the situation of Gypsies in the Community
48.
49.
50.
51.
Ibid., 81-85. Three judges wrote a (partly) dissenting opinion in which they argued that they would
find a violation of Article 8, based on the specific ethnic background of the applicant. They argued that
there were no alternative sites, because the gypsy site close by was unsafe and official sites were not an
option, since the applicant wished to travel during school holidays, a legitimate objective given the
traditional way of life of gypsies, and she could not be sure of a vacant place on returning from her
travels. Furthermore, the judges argued that, in order to achieve factual equality of minorities, different
treatment might be necessary to preserve their special lifestyle and cultural heritage.
Chapman v. the United Kingdom, Application No, 27238/95, European Court of Human Rights,
decision of 18 January 2001. The Chapman case was one of the five cases concerning the refusal of the
government to provide gypsy families with planning permission. The circumstances in each case
differed slightly, but the Court came to the same outcome in each case. The Chapman case was
considered the 'leading case' and will, as a result, be dealt with in detail. The other four cases are
Beard v. The United Kingdom, Application No. 24882/94, European Court of Human Rights, decision
of 18 January 2001; Coster v. The United Kingdom, Application No. 24876/94, European Court of
Human Rights, decision of 18 January 2001; Lee v. The United Kingdom, Application No. 25289/94,
European Court of Human Rights, decision of 18 January 2001; Jane Smith v. The United Kingdom,
Application No. 25154/94, European Court of Human Rights, decision of 18 January 2001. The
Commission had, by 18 votes to 9, decided that the UK had not violated Article 8 or Article 14 ECHR,
see Chapman v. the United Kingdom, 18 January 2001, 3-4 and 10-18.
Chapman v. the UnitedKingdom, 18 January 2001, 70.
Ibid., 71-74.
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131
(1994), calling upon States to improve the situation of gypsies. Protection of minorities
had, in fact, become one of the preconditions for accession to the EU.52 By citing
international instruments on minorities, especially the Framework Convention, the
Court observed that: '[t]here may be said to be an emerging international consensus
amongst the Contracting States of the Council of Europe that recognises the special
needs of minorities and the obligation to protect their security, identity and
lifestyle...not only for the purpose of safeguarding the interests of the minorities
themselves, but to preserve a cultural diversity of value to the whole community.' 53
However, the Court continued by stating that there was no concrete consensus among
States on which State action would be desirable in a given situation. The Court noted:
'[t]he Framework Convention, for example, sets out general principles and goals, but
signatory States were unable to agree on means or implementation. This reinforces the
Court's view that the complexity and sensitivity of the issues involved in policies
balancing the interests of the general population, in particular with regard to
environmental protection and the interests of a minority with possibly conflicting
requirements, renders the Court's role a strictly supervisory one.' 5 4
To determine whether the measures were proportionate to the aim pursued, the Court
argued that it was relevant whether or not alternative accommodation was available.
The Court observed that there might have been no alternative sites immediately
available either in the district or in the county as a whole. However, the applicant had
not shown evidence of efforts to find another site and had not given information on her
financial situation or on the qualities that a site should have to be suitable for her. The
Court was, therefore, not convinced that there were no alternative sites available." It
generally noted that the number of lawful places acceptable and affordable to gypsies
was inadequate. However, it did not find that this shortage in combination with the
refusal of a planning permit constituted a violation of Article 8. Article 8 did not imply
such far-reaching positive obligations of general social policy, including a right to be
provided with a home.56 It held, by 10 votes to 7, that Article 8 had not been violated.
With regard to Article 14 on non-discrimination, the Court noted that the authorities
could not treat a gypsy who illegally established a caravan site differently from a nongypsy who did the same. The Court referred to Buckley by stating that the vulnerable
position of gypsies as a minority required the special consideration of both their needs
and their different lifestyle in regulatory planning. However, in this case, the Court
52.
53.
54.
55.
56.
57.
Ibid., 55-67.
Ibid., 90-93, (quote in 93).
Ibid., 94. This statement reflects the judicial constraint of the Court, whereby it acts with selfrestraint to avoid overstepping its mandate. In such cases, the Court is not likely to be inclined to
impose positive obligations on States.
Chapman v. the United Kingdom, 18 January 2001, 110-113.
Ibid., 98-99.
Ibid., 115-116.
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132
Yvonne Donders
found that gypsies were not treated worse than non-gypsies who wished to live in a
caravan. The Court unanimously concluded that there had been no violation of Article
14. 5
Seven judges submitted a joint dissenting opinion in which they concluded that the UK
had violated Article 8.5 Firstly, they argued that the Court had put too much emphasis
on the Buckley case and on the fact that the Court should have compelling reasons to
change its position. These judges wished to pay more attention to the changing
conditions in States and to the emerging consensus in Europe concerning the standards
to be achieved. Secondly, they asserted that, although the essential purpose of Article 8
was to protect the individual against arbitrary action by public authorities, it could
imply positive obligations to make respect for private life, family life and home
effective. According to the dissenters, there was an emerging consensus among the
Member States of the Council of Europe that the protection of the rights of minorities,
including gypsies, required not only State abstention and non-discrimination, but also
positive action through legislation or specific programmes. They therefore disagreed
with the position that this consensus was not sufficiently concrete and that the Court had
merely a supervisory role. The dissenters also found that the authorities had not shown
that there was an alternative site available. In fact, according to the statistics of the
government itself, there was a significant shortfall of official sites available for gypsies.
The burden placed on the applicant to show very special circumstances was extremely
high, if not impossible. Accordingly, they argued that the planning measures could not
be regarded as necessary in a democratic society.o
With regard to non-discrimination, the dissenters did not agree with the view that in this
case special protection under Article 8 would cause problems with Article 14. Such an
approach ignored the previously acknowledged idea that the applicant's lifestyle as a
gypsy would give a wider scope to Article 8. The dissenters argued that discrimination
might arise if States fail to treat different situations differently. The judges concluded
that there had been a violation of Article 8 and that this article did impose '...a positive
obligation on the authorities to ensure that gypsies have a practical and effective
opportunity to enjoy their rights to home, private and family life, in accordance with
their traditional lifestyle...' 6'
It appears from the above, that Article 8 ECHR has, in principle, something to offer for
the protection of cultural identity in relation to a traditional lifestyle. It is interesting to
see that, in the Chapman case, the Court explicitly referred to the identity of the gypsies
58.
59.
60.
61.
Ibid., 18 January 2001, 95-97, 117-130.

Joint dissenting opinion of Judges Pastor Ridruejo, Bonello, Tulkens, Str6 Nickd, Lorenzen, Fischbach
and Casadevall
Ibid., 1-7.
lbid., 8-10.
10 MJ 2 (2003)
133
and their traditional lifestyle and argued that these involved respect for private life and
family life as guaranteed by Article 8 ECHR. However, the applicants lost their cases,
because the Court, although recognizing that the special position of certain communities
might demand positive obligations from States, did not deem these obligations
sufficiently concrete to conclude that Article 8 had been breached.
In Chapman, the Court was quick to state that it could only depart from its earlier case
law in Buckley if there were compelling reasons to do so. While this may, in principle,
be true for reasons of legal certainty, the dissenters in my opinion rightly softened this
argument by emphasizing that the Court should be aware of new developments within
the Member States that might make a different view desirable. This option should at
least be left open, especially in cases concerning such a developing issue as minority
protection.
The Court, however, was not totally insensitive to the developments that had occurred
since Buckley. In fact, in the Chapman case, the Court referred to various European
instruments on minorities and gypsies to determine whether there was an emerging
consensus on the treatment of minorities. However, the Court concluded that, while
there was consensus on the special needs of minorities and the obligation to protect
their identity, there was no agreement on the concrete action to be taken by States. The
Court thereby took away with one hand what was given by the other. It found that States
have certain obligations, but at the same time maintained that these are not concrete
enough to make a difference in this case.
With regard to positive obligations, the Court found that Article 8 could not be
interpreted as including the right of everyone to choose a place to live and a State
obligation to provide the means for granting this choice. The dissenters, in my view
rightly, disagreed and stated that Article 8 could indeed imply positive obligations in
this case, because the case did not so much concern the choice of place, but the fact that
no suitable alternatives were offered, which would have been a positive State
obligation.
With regard to the special treatment of gypsies in relation to non-discrimination under
Article 14, the Court adopted a rather curious view, which was in my opinion rejected
by the dissenting judges with good reason. On the one hand, the Court tried to show the
developments with regard to the treatment of minorities and the special position that
these communities may have in policy-making. On the other hand, however, the Court
argued that, if gypsies in this case had been treated differently from other UK citizens,
there would be a problem with Article 14. In my view, non-discrimination not only
implies that equal cases should be treated equally, but also that different situations
should be dealt with differently. The situation of gypsies in, for example, planning
policies is different from that of other UK citizens, in that gypsies may need special
measures to protect their interests.
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Yvonne Donders
In short, these cases illustrate that cultural rights in the broad sense in the ECHR, have,
in principle, something to offer for the protection of the cultural identity of individuals
and communities. Although the Court did not establish an explicit relationship between
these provisions and cultural identity, important aspects of cultural identity, such as
cultural organizations and traditional lifestyle, may be protected under the ECHR.
Furthermore, the instruments on minorities contain important rules for the protection of
the cultural identity of minorities. In other words, the Council of Europe has developed
an extensive human rights system since the 1950s, including the protection of cultural
rights. While the EU was founded in the same period, it did not concern itself with the
protection of human rights until recently. The following will elaborate on the role of the
EU in relation to the protection of cultural rights or cultural identity.
4. The European Union and Cultural Rights

A.
(CULTURAL) HUMAN RIGHTS IN THE TREATIES
Human rights have slowly but surely found their way into the primary law of the EU, in
other words, the Treaties. The founding treaties of 1950 did not contain a commitment
to the protection and promotion of human rights. The main purpose of the European
Community was economic co-operation based on liberal free market ideals. After the
Single European Act of 1986 had introduced the first reference to human rights in the
Preamble, the Treaty of Maastricht of 1992 went a step further. It reflected the
developed case law of the European Court of Justice (ECJ) and provided in Article F
that the Union was to respect fundamental rights as guaranteed by the ECHR, and as
they result from the constitutional traditions common to the Member States as general
principles of Community law. The Treaty of Amsterdam of 1997 changed Article F into
Article 6 of the Treaty on European Union (TEU). Article 6(1) TEU stipulates that the
Union is founded on the principles of liberty, democracy and respect for human rights
and fundamental freedoms, while Article 6(2) includes the text of the former Article F
as described above. Article 6(3) lays down that the Union shall respect the national
identities of its Member States. Furthermore, Article 7 includes a suspension clause for
a Member State's voting rights within the Council in case of serious and persistent
violations of human rights.62
Article 6 TEU may be argued to indirectly relate to the protection of cultural rights.
Firstly, according to Article 6(1), the Union is founded on respect for human rights. It
may be presumed that 'human rights' refers to all categories of human rights, including
cultural rights. Secondly, Article 6(2) determines that the Union should respect the
rights as laid down in the ECHR, as well as those that derive from the constitutional
62.
Article 7 has been changed by the Treaty of Nice to include a procedure to determine the risk and the
existence of a serious breach by a Member State.
10 MJ 2 (2003)
135
traditions of the Member States, as general principles of Community law. To examine

whether cultural rights as such are part of the constitutional traditions common to the
Member States falls outside the scope of this paper. However, in any case, the Member
States are bound by various cultural rights provisions in international human rights
treaties, such as the ICCPR and the ICESCR to which they are Parties. Furthermore,
cultural rights should be protected as principles of Community law, because they are
part of the ECHR. As shown above, the ECHR does not include rights explicitly
referring to culture, but the provisions reflecting cultural rights in the broad sense can be
used to protect cultural identity. Accordingly, the EU should, in defining its policies and
its decision making practice, not only respect these cultural rights, but also take into
account the broad interpretation given by the European Court of Human Rights.
Furthermore, the ECJ has broadened the scope of Article 6(2) to include human rights in
other international instruments. While Article 6 TEU refers to the ECHR, according to
the case law of the ECJ, especially in the Nold II case,63 fundamental rights set out in
other international treaties, such as the ICCPR and the ICESCR, are also part of
Community law. Consequently, it can be argued that cultural rights such as Article 27
ICCPR and Article 15 ICESCR are part of the acquis judiciaire of the ECJ. These
fundamental rights serve as general principles of Community law to be protected in
relation to the clarification and implementation of the Treaties.
Finally, according to Article 6(3) the EU should respect the national identities of the
Member States. The question is whether these national identities also include subnational communities, which together form the national identity of a Member State.
That would imply that the EU should also respect the (cultural) identity of these
communities.
The EC Treaty includes a few substantive human rights provisions, such as Article 12
on non-discrimination based on nationality and Article 141 on the principle of equal
pay. Although the EC Treaty does not include cultural human rights as such, several
provisions in the EC Treaty can play a role in relation to the protection of the cultural
identity of individuals and communities. Firstly, Article 13 EC provides that the
Council can take action to combat discrimination '...based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation.' This provision provides
that no one can be discriminated against because of his or her religion or ethnic
background, which are important elements of cultural identity. No reference to language
or membership of a minority are included here and this provision itself does not call for
positive action to develop and protect cultural identity. It has, however, been
63.
Case 4/73 J Nold, Kohlen- und Baustoffgrophandlungv Commission of the European Communities
[1974] ECR 491.
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Yvonne Donders
implemented by Council Directive 2000/43/EC on equal treatment between persons

irrespective of racial or ethnic origin, which includes a provision on positive action.6
Another provision in the EC Treaty that refers more explicitly to culture is Article 151
(ex. Article 128). This provision provides that '[tihe Community shall contribute to the
flowering of the cultures of the Member States, while respecting their national and
regional diversity, and at the same time bringing the common cultural heritage to the
fore.' The Community will do this, inter alia, by encouraging co-operation between
Member States and supporting and supplementing, if necessary, their action to improve
the knowledge and dissemination of culture and to preserve cultural heritage.
The Treaty of Amsterdam responded by the addition of the phrase in Article 151(4) that
'[t]he Community shall take cultural aspects into account in its action under other
provisions of this Treaty, in particular in order to respect and to promote the diversity of
its cultures.' This provision shows that the EU not only recognizes but also values the
culturally heterogeneous character of Member States and has determined that it should
take this cultural diversity into account in establishing policies in the various fields.
Cultural diversity has thereby become an important aspect of the European integration
process and the finalizing of the internal market, including the free movement of
persons, goods and services. In practice, several modest cultural programmes have been
developed based on this Article, but in general it can be concluded that '...the EC's
contribution to a flowering of regional cultural diversity has been only piecemeal.' 6 5
Part of its limited impact is caused by the fact that Article 151(5) prohibits the EC from
harmonizing national laws. It is only allowed to act through incentive measures.
However, without establishing substantive human rights for individuals or communities,
Article 151, especially paragraph 4, could be a basis for the development of further
policies in the field of the protection of cultural identity, together with the nondiscrimination provision of Article 13 of the EC Treaty.
B.
THE CHARTER OF FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION
For a number of years, it has been proposed that the protection of human rights should
be strengthened within the EU. At the meeting of Cologne in June 1999, the European
Council decided to draft a Charter of Fundamental Rights, which would make these
rights more visible and would promote citizens' awareness of their rights. The Charter
of Fundamental Rights in the European Union was solemnly proclaimed at the
European Council meeting in Nice in December 2000. Does the Charter concern itself
64.
65.
Council Directive 2000/43/EC implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, [2000] O.J. L180/22.
K. Henrard, 'The Impact of the Enlargement Process on the Development of a Minority Protection
Policy Within the EU: Another Aspect of Responsibility/Burden Sharing?', 9 Maastricht Journal of
European and ComparativeLaw 4 (2002), 383.
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137
with the protection and promotion of cultural identity? Which cultural rights have been
included in the text and what obligations correspond to these provisions?
Much has been written about the history of the Charter of Fundamental Rights in the EU
(the Charter) and its relationship with the ECHR, which will not be repeated here. 66 This
article will concentrate on the content of the Charter and the place of cultural rights in
this instrument. The Charter is to a large extent modelled on provisions of the ECHR
and contains seven chapters preceded by a Preamble in which the general background of
the Charter is outlined. The Charter includes substantive rights, as well as principles and
policy objectives. Chapter I is entitled Dignity and includes rights concerning the life
and integrity of persons, including the prohibition of torture. Chapter II on Freedoms
contains, for example, rights to respect for private life, freedom of expression, religion
and association and the right to education, to property and to asylum. Chapter III on
Equality includes provisions on non-discrimination, cultural diversity, equality between
men and women and the rights of children, elderly and disabled. Chapter IV is entitled
Solidarity and contains the right to information and various labour rights, but also
provisions on health care and environmental protection. Chapter V on Citizen's Rights
includes voting and administrative rights, and Chapter VI on Justice includes rights
relating to a fair trial and an effective remedy. Finally, Chapter VII contains General
Provisions concerning the status and scope of the Charter. The Charter is accompanied
by an explanatory text, which, although not of legal value, is an important document of
clarification of the provisions in the Charter.
The status of the Charter is, until now, that of a Declaration. This means that, formally,
it has no legally binding force. Yet it appears that since its proclamation, it has had an
important influence on the judgments of the ECJ and on policies of the EU institutions
and the Member States.6 t The Commission has in its Communication on the legal nature
of the Charter asserted that the Charter could become binding upon the institutions,
when the Court interprets it as belonging to the general principles of community law as
referred to in Article 6(2) TEU.6 9 However, this may not be the case for the whole
Charter. It is doubtful whether the provisions of the Charter that go beyond the acquis
66.
67.
68.
69.
See, inter alia, 8 Maastricht Journal of European and ComparativeLaw 1 (2001); K. Feus (ed.), The
EU Charter of Fundamental Rights - text and commentaries, (Federal Trust for Education and
Research, 2000).
Both the Charter and the Explanatory Note can be found on http://ue.eu.int/df/default.asp?lang-en.
See, inter alia, P. Eeckhout, 'The EU Charter of Fundamental Rights and the Federal Question', 39
Common Market Law Review 39 (2002) 945-994; B. de Witte, 'The Legal Status of the Charter: Vital
Questions or Non-Issue?', 8 MaastrichtJournal of Europeanand ComparativeLaw 1 (2001), 83-85
and W. Griffiths, 'A Charter of Fundamental Rights of the European Union: A Personal Political
Perspective', in Feus, The EU CharterofFundamentalRights - text and commentaries, 49; J. Cooper
and R. Pillay, 'Through the Looking Glass: Making Visible Rights Real', in Feus, The EU Charter of
FundamentalRights - text and commentaries, 109.
Commission's Communication on the Legal Nature of the Charter of Fundamental Rights of the
European Union, COM(2000) 644, 11 October 2000.
138
10 MJ 2 (2003)
Yvonne Donders
judiciaire of the ECJ, such as those included in Chapter III on Equality and Chapter IV
on Solidarity, could be considered general principles of Community law.o
The Charter is mainly directed towards the EU institutions and their actions in the
sphere of their competencies. Initially, the Charter specified in the Preamble that each
person was guaranteed the rights and freedoms in the Charter. This was, however,
transformed into the statement that the EU recognizes the rights and freedoms in the
Charter, implying that the Charter is not meant to reflect a general guarantee of human
rights, but instead is a statement of rights recognized by the EU.7 ' Furthermore, Article
51 provides that the provisions of the Charter are addressed to the EU institutions and
bodies and to the Member States '...only when they are implementing Union law.' This
means that it is mainly the EU institutions that should, while legislating at the EU level,
respect the catalogue of rights in the Charter. Furthermore, the Charter does not extend
the competence of the EU institutions.7 2
Member States are only addressed by the Charter when they implement EU legislation.
The Charter does not bind the Member States in areas of their national competence. Of
course, Member States are bound by various other human rights instruments that they
have ratified, such as the ECHR, the ICCPR and the ICESCR. However, this limitation
of the Charter is important because, although the area of EU legislation seems to be
expanding to include more and more non-economic issues, the protection and
promotion of cultural identity still belongs mainly to the area of national competence.
The future of the Charter will be determined by the European Convention.74 The
Convention was established in 2001 and consists of representatives of governments,
national parliaments, the European Parliament and the European Commission. The
Convention has set up a working group to study the incorporation of the Charter of
Fundamental Rights. This working group has stated in its final report that it strongly
supports the incorporation of the Charter into a future constitutional treaty, thereby
giving it legally binding status. With regard to the content of the Charter, the Working
Group stressed that the substance of the Charter should not be altered, apart from
several technical adjustments. The Working Group did in fact not re-open the discussion
on the content of the Charter and encouraged the Convention to respect the Charter's
70.
71.
72.
73.
74.
De Witte, 'The Legal Status of the Charter: Vital Questions or Non-Issue?', 8 Maastricht Journalof
European and ComparativeLaw I (2001), 86-87.
J. Smith, 'EU Charter of Fundamental Rights - A Local Government Perspective', in Feus, The EU
Charterof FundamentalRights - text and commentaries, 33, 71 and 75.
See, also, Lord Goldsmith, 'Consolidation of Fundamental Rights at EU level - the British
Perspective', in Feus, The EU Charterof FundamentalRights - text and commentaries, 31-32.
P. Eeckhout, 'The Proposed EU Charter of Fundamental Rights: Some Reflections on Its Effects in the
Legal Systems of the EU and of Its Member States', in Feus, The EU Charterof Fundamental Rights text and commentaries, 108-109.
For information on the Convention and reports of the various working groups, see http://europeanconvention.eu.int/.
10 MJ 2 (2003)
139
text." On the one hand, this approach is understandable, since a new debate on the
content would likely be complex and difficult, and would certainly slow down the
process of incorporation in the constitutional treaty. However, on the other hand, there
has been quite some criticism concerning several provisions in the Charter and
especially the lack of certain provisions in the Charter. It is however clear from the
discussion that no new provisions will be added, which is directly relevant in relation to
cultural rights, as discussed below.
C.
CULTURAL HUMAN RIGHTS IN THE CHARTER
The Charter did not intend to develop new human rights. Its main aim was to make
existing rights more visible. The mandate given to the drafters referred to several
sources from which provisions to be included in the Charter could be derived, such as
the ECHR, the constitutional traditions of the Member States and the general principles
of Community law. Furthermore, the drafters were instructed to include social and
economic rights as laid down in the European Social Charter and the Community
Charter of Fundamental Social Rights of Workers. Accordingly, the Charter contains
civil and political rights, comparable to the ECHR, citizenship rights derived from the
Treaties, and social and economic rights.
With regard to cultural rights it should be noted that no rights explicitly referring to
culture are incorporated in the text. The reason for this could be that the two main
sources of the Charter, the ECHR and the ESC, do not contain rights that explicitly refer
to culture either. Consequently, no general right to participate in cultural life,
comparable to Article 15 ICESCR, or a right for minorities to enjoy culture, as in
Article 27 ICCPR, is included in the Charter. As argued above, these international
provisions are part of the acquis judiciaire of the ECJ as general principles of
Community law, but they have not been included in the Charter as such.
Cultural issues have, however, not been totally forgotten by the drafters of the Charter.
Just as the ECHR includes several cultural rights provisions in the broad sense, these
can also be found in the Charter. The Charter includes, for example, freedom of religion
in Article 10, freedom of expression in Article 11, freedom of assembly in Article 12,
freedom of the arts in Article 13 and the right to education in Article 14. Apart from
Article 13 on freedom of the arts, these provisions correspond to similar provisions of
the ECHR and, according to Article 52 and 53 of the Charter and the explanatory note,
75.
76.
CONV 354/02, Final Report of Working Group II 'Incorporation of the Charter/accession to the
ECHR', 22 October 2002, 1.1 and 11.1.
Lord Goldsmith, 'Consolidation of Fundamental Rights at EU level - the British Perspective', in Feus,
The EU Charter of Fundamental Rights - text and commentaries, 33; Griffiths, 'A Charter of
Fundamental Rights of the European Union: A Personal Political Perspective', in Feus, The EU
Charterof FundamentalRights - text andcommentaries, 46-47.
10 MJ 2 (2003)
140
Yvonne Donders
their meaning and scope are the same as the ECHR. This also implies that limitations of
the Charter may not exceed the limitation clauses of these provisions in the ECHR.
Furthermore, according to Article 52(3), in applying the provisions of the Charter, the
ECJ is obliged to follow the interpretation given by the European Court of Human
Rights to corresponding rights in the ECHR.n As shown above, the provisions in the
ECHR on, for example, freedom of religion and association, and respect for private and
family life, could, according to the interpretation of the European Court of Human
Rights, play a role in protecting cultural identity, albeit indirectly. The ECJ is bound by
these interpretations, including the broad perspective given by the European Court for
Human Rights.
Several other provisions in the Charter are interesting in relation to the protection of
cultural identity. Cultural identity can generally be promoted and protected under two
headings, namely through non-discrimination and through special measures to promote
and protect cultural identity. Both headings can be found, more or less, in the Charter.
Firstly, Chapter III on Equality contains a provision on non-discrimination. Article 21
determines that '[a]ny discrimination based on any ground such as sex, race, colour,
ethnic or social origin, genetic features, language, religion or belief, political or any
other opinion, membership of a national minority, property, birth, disability, age or
sexual orientation shall be prohibited.' This provision draws upon Article 13 of the EC
Treaty, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and
Biomedicine. As distinct from Article 13 EC, Article 21 of the Charter includes a
reference to language and to membership of a national minority. This provision implies
that no matter which cultural community one belongs to, individuals may not be
discriminated against, and should receive equal treatment. Such a provision guarantees
not only formal equality, but might also demand positive action to obtain factual
equality. Members of minorities, for example, might need special measures to protect
their language or religion, in short, their cultural identity.
The second heading of special measures concerns positive support for cultural diversity,
including the protection of cultural identity. The Charter includes two references to
cultural diversity. In the Preamble it is stated that the Union contributes to the
preservation and the development of common values, such as human dignity, freedom,
equality, solidarity, democracy and the rule of law, '...while respecting the diversity of
the cultures and traditions of the peoples of Europe as well as the national identities of
the Member States...' This illustrates that the Union values cultural diversity, as also
expressed in Article 151(4) EC. It is interesting to note that this phrase refers to the
culture and traditions of the peoples of Europe, not of the Member States, which is
broad and can refer to the populations of States, as well as internal communities, such as
77.
See, also, K. Lenaerts, 'The Charter and the Role of the European Courts', 8 Maastricht Journalof
Europeanand ComparativeLaw 1 (2001), 99.
10 MJ 2 (2003)
141
minorities or other local communities, and even those outside the EU Member States.
Furthermore, the national identities of the Member States are mentioned, which may
also include the different communities in Member States that together form a national
identity.
In Article 22 it is determined that '[t]he Union shall respect cultural, religious and
linguistic diversity.' From this provision, it does not become clear which level of
cultural diversity is meant. Is it the diversity between the national cultural identities of
the Member States, or the diversity within Member States? And what is the relationship
between these diversities and the creation of an 'ever closer union' among the peoples
of Europe, as laid down in the Preamble of the Charter? According to the explanatory
note, Article 22 is based on Article 6 of the Treaty on European Union on general
respect for human rights, and Article 151(1) and (4) of the EC Treaty concerning the
flowering of cultures. No clarity is, however, given on the level of diversity. Article 151
speaks of the flowering of the cultures of the Member States and of respect for their
national and regional diversity, which would imply that cultural diversity refers to the
diversity between and within Member States. If one considers that the Charter is
formulated in a general way and that national cultures are built up around the various
cultural communities present in a State, a broad interpretation of Article 22 seems
appropriate. The EU institutions and the Member States should respect all forms of
cultural, religious and linguistic diversity, whether national or regional.
Another interesting aspect concerns the question of what kind of obligations and
responsibilities Article 22 of the Charter confers upon the EU institutions and the
Member States. To what extent does Article 22 imply an active policy to protect and
promote cultural, religious and linguistic diversity? Article 51 of the Charter, as quoted
above, generally determines that the institutions and Member States should respect the
rights and observe the principles of the Charter '...in accordance with their respective
powers'. This provision furthermore provides that the Charter does not establish new
powers for the institutions or change existing powers, and that the Charter is only
applicable to the Member States when they implement EU law. The role of the Member
States based on the Charter is, therefore, limited and dependent on the policies of the
institutions, some of which they are part of.
What role do the EU institutions as such have to play in implementing Article 22 on
cultural diversity? While it is clear that the EU institutions no longer focus merely on
economic co-operation, and have by adopting the Charter clearly indicated that the
promotion and protection of human rights is one of their activities, it remains to be seen
to what extent these activities concern more than the role of non-interference and
respect. Article 22 of the Charter clearly speaks of 'to respect', and not of 'to protect' or
'to promote', which would imply that this provision mainly imposes negative
obligations and non-interference. Article 22 does not mention affirmative action or
positive measures. However, it is part of Chapter III on equality. Equality may also
concern an active policy to achieve substantive equality, in addition to formal equality.
10 MJ 2 (2003)
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Yvonne Donders
For example, Article 23 on equality between men and women allows the adoption of
special measures '...in favour of the underrepresented sex'. It is furthermore interesting
to note that positive obligations are more explicitly required with regard to Article 25 in
the same Chapter. Article 25 refers to rights of the elderly, including the right '...to
participate in social and cultural life'. Obviously, such participation may require
positive measures from the States. Other groups or communities are not granted such a
right. For example, children and persons with disabilities are included in the Charter,
but they are not given a right to participate in cultural life. Other communities that may
need such a right, such as minorities or immigrants, have not been included in the
Charter at all. From the above, it must be concluded that on the basis of Article 22, the
institutions should respect cultural diversity, but it is unclear whether this provision also
implies more positive obligations."
To what extent can individuals or communities actually benefit from Article 22 on
cultural, religious and linguistic diversity? As argued above, the Charter in general was
not meant to reflect a guarantee of substantive human rights provisions. Instead it is a
statement of rights recognized by the EU, which implies that individuals or
communities can not directly apply the Charter. It should be noted that it is generally
rather difficult for individuals to enforce their rights before the ECJ, because of the
admissibility requirements as laid down in Article 230(4) of the EC Treaty. If the
Charter becomes legally binding, the provisions can be invoked directly before national
courts, but only if they have direct effect. Considering the scope and wording of the
Charter, it can be argued that most provisions will probably not have direct effect,
although the final decision lies with the judiciary. The wording of Article 22 confirms
that it is not an individual right, but more a recommendation to the EU institutions and
Member States. In that respect, individuals and communities can perhaps more directly
rely on Article 21 on non-discrimination, where both the institutions and the Member
States have a more active role to play. In general, it can reasonably be argued that,
compared to the Charter, the provisions of the ECHR can be more easily directly
enforced by individuals and communities, because they have direct access to the
European Court of Human Rights and because the provisions of the ECHR are directly
applicable to individuals.
The issue of cultural diversity is especially relevant for those communities that have the
most need for the protection of their cultural identity through cultural rights, such as
minorities. As argued before, the issue of minorities and the protection of their cultural
identity will become more pressing as new Member States accede to the EU. It is
noteworthy that although the EU does not have an explicit minority policy internally, it
78.
A.W. Heringa and L. Verhey, 'The EU Charter: Text and Structure', 8 MaastrichtJournal ofEuropean
and ComparativeLaw 1 (2001), 28-29.
10 MJ 2 (2003)
143
does have such a policy at the external level.7 9 At the external level, various types of
human rights clauses in the co-operation treaties with non-Member States include a
reference to minority rights and the protection of minorities is a prominent part of
several EU documents on the promotion of human rights in non-Member States.
Furthermore, candidate Member States should, according to the Copenhagen criteria of
1993, apart from general respect for human rights and democracy, also guarantee
respect for and protection of minorities.80 At the internal level, however, there is no
coherent policy for minority protection. Minority protection is still an issue of national
competence of the Member States. 8' Accordingly, no reference can be found in the
Charter to minorities, apart from the reference to membership of a national minority in
Article 21 on non-discrimination. The question is what will happen to the (external)
minority policies developed in relation to countries that will accede to the EU. These
policies might be abandoned in total. However, minority issues may have important
inter-State implications, which may affect the internal market. This underlines the
necessity for the EU to start developing a policy on minorities. In this respect it is
interesting to note that the OSCE High Commissioner on National Minorities has, in
November 2002, called upon the EU and the Member States no longer to ignore
minority-related issues, especially in relation to the enlargement of the EU.8 2 Apart from
minorities, immigrant communities in the various Member States increasingly demand
respect for and protection of their cultural identity. It appears that the EU institutions
will have to increase their activities to define policies not only to combat discrimination,
racism and xenophobia, fields where they are already quite active, but also in relation to
the specific protection of the cultural identity of (members of) minorities and other
communities.
79.
80.
81.
82.
B. de Witte, 'Politics versus Law in the EU's Approach to Ethnic Minorities', in J. Zielonka, Europe
Unbound Enlarging and Reshaping the Boundaries of the European Union, (Routledge, 2002), 464483; B. de Witte, 'The European Community and its Minorities', in C. Brollmann (ed.), Peoples and
Minorities in InternationalLaw, (Kluwer, 1993), 172.
Presidency Conclusions, Copenhagen European Council, June 1993. See, also, Henrard, 'The Impact
of the Enlargement Process on the Development of a Minority Protection Policy Within the EU:
Another Aspect of Responsibility/Burden Sharing?', 9 Maastricht Journal of European and
ComparativeLaw 4 (2002), 378-379; S. Kaur Stubbs, 'Fear and Loathing in the EU: Ethnic Minorities
and Fundamental Rights', in Feus, The EU CharterofFundamentalRights - text and commentaries; J.
Gower, 'The Charter of Fundamental Rights and EU Enlargement: Consolidating Democracy or
Imposing New Hurdles?', in Feus, The EU Charterof Fundamental Rights - text and commentaries,
207-238.
See, inter alia, de Witte, 'The European Community and its Minorities', in Brollmann, Peoples and
Minoritiesin InternationalLaw, 185 and Henrard, 9 MaastrichtJournalofEuropeanand Comparative
Law 4 (2002), 380-381.
Press release of the OSCE High Commissioner on National Minorities, 5 November 2002.
10 MJ 2 (2003)
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Yvonne Donders
D.
THE PROTECTION OF CULTURAL DIVERSITY: THE EU, THE COUNCIL OF EUROPE, OR

BOTH?
Although the above shows that respect for and protection of cultural diversity is part of
the EU language, no coherent policy to protect cultural rights or cultural identity has
been developed, and cultural rights were not given a prominent place in the Charter.
Should the EU develop policies in the field of cultural diversity based on cultural
rights? And, if so, what would be the relationship between these policies and the already
established mechanism of cultural human rights of the Council of Europe? Should there
be some kind of division of labour between both organizations?
Some would argue that the EU is not the proper body to develop policies in relation to
the protection of cultural identity, and that cultural rights and minority rights should
remain within the sphere of the Council of Europe, where already much work has been
done. It could indeed be argued that the Council of Europe, as a political body where all
European States participate, is a more suitable and experienced organization to adopt
cultural rights instruments and instruments on the right of minorities than the EU, which
is mainly an economic organization, of which not all European States are members. On
the other hand, the EU is already becoming more involved in various policies that do
not directly relate to economic co-operation. The EU has, for example, started to
become more active in the field of asylum policies. The EU can no longer stand aside
from the debate on cultural and minority issues. Several current Member States are
already concerned with minorities on their territory, such as the Basques and the
Bretons, and the accession of new Member States will increase the number of minorities
within the EU. Furthermore, the debate on the integration of immigrant communities
may demand closer co-operation between the Member States, including the
development of policies at the EU level. Lack of protection and promotion of the
cultural identity of communities and individuals can cause conflict situations and
tension within the European societies, which might lead to instability on the continent.
Following the Council of Europe, the EU will also have to develop policies in relation
to the protection of cultural identity of individuals and communities, including aspects
such as language, religion and education.
The question is, however, to what extent these policies should be based on cultural
human rights or rights of minorities. It seems that the adoption and implementation of
human rights instruments, including cultural rights as well as rights of minorities, are
more a matter for the Council of Europe. As described above, the Council of Europe has
developed an extensive system of human rights protection, including cultural human
rights, as well as rights of minorities. Cultural identity, although not explicitly included
in the ECHR, could be protected under various other provisions, and individuals and
communities could directly invoke these provisions.
However, the promotion and protection of human rights do not fall totally outside the
scope of the EU. As described above, the EC Treaty already includes several human
rights provisions. If the EU Charter of Fundamental Rights will be incorporated in a
10 MJ 2 (2003)
145
future EC Treaty, the promotion and protection of human rights will become a direct
responsibility of the EU institutions. However, as argued above, the Charter does not
reflect a general guarantee of human rights or directly enforceable human rights
provisions. It mainly provides for human rights to be taken into account by the
institutions and the Member States when developing policies at EU level.
It therefore remains unfortunate that cultural rights were not given a more prominent
place in the Charter. This would have made cultural rights more visible and given them
equal value to civil, political, economic, and social rights. The inclusion of cultural
rights, even if they were not directly applicable to individuals and communities, would
have implied that the EU institutions were obliged to respect and protect cultural rights
in their policies and actions. This should, however, not prevent the EU from developing
policies in relation to cultural diversity and cultural identity. Such policies are
necessary, as argued above.
In short, the Council of Europe will continue to be the main forum for the protection
and promotion of individual cultural human rights, although this is not an easy task. The
experience within the Council of Europe with the drafting of an additional protocol to
the ECHR on rights in the cultural field shows that Member States are hesitant to accept
binding human rights provisions in the field of culture. For its part, the EU should
respect these cultural rights and should develop policies to more actively protect
cultural diversity and cultural identities.
5.
Concluding Remarks: the EU and Cultural Policies
From the above it can be concluded that, although cultural diversity has been
recognized as an important value within the EU, specific cultural rights to protect
cultural diversity have not been developed. The provisions in the Treaties that concern
the protection of cultural identity mainly require that States and EU institutions
generally respect non-discrimination and cultural diversity. It appears that the Member
States have, for the time being, chosen to keep the development of cultural policies
within their national sphere of competence. The Charter of Fundamental Rights has not
changed that picture. It contains several rights that may indirectly be important for the
protection of cultural identity, but, apart from the provision on cultural diversity, no
specific rights to participate in culture, or to protect and promote culture or cultural
identity, were included in the Charter. It should, however, be recalled that such rights,
included in other international instruments, are part of the acquis of the ECJ.
At the national level, Member States define policies in relation to the protection of
cultural identity and the promotion of cultural rights. These policies concern the
protection of their national cultural identity, but also the cultural identity of minorities
or immigrant communities within their borders. These policies could, however, also
have important inter-State implications, because of the accession of new Member States
with specific minority problems, and because of the increasing calls from immigrant
146
10 MJ 2 (2003)
Yvonne Donders
communities for the protection and promotion of their cultural identity, and the tension
this can cause with the protection and promotion of national cultural identities. Cultural
issues should therefore also be of concern to the EU. The EU institutions and Member
States should start to develop policies at the EU level in the field of the protection of
cultural identity and cultural diversity. Cultural issues should be given a more
prominent role in the integration process of the EU Member States.
As argued above, although for the promotion and protection of cultural human rights the
Council of Europe is a more appropriate body than the EU, the EU can no longer ignore
the debate on cultural and minority issues, since they may have important inter-State
implications and affect the internal market. The protection of cultural identities at
different levels, such as a 'European culture', regional cultures, the national cultures of
the Member States, cultural identities of minorities and immigrant communities, as well
as those of individuals, in other words cultural diversity, demands closer co-operation
between the Member States, including policies at the EU level. Taking into account the
human rights instruments of the Council of Europe, as well as those of the United
Nations in this respect, the EU will have to develop policies in relation to the protection
of cultural diversity and the cultural identity of individuals and communities.
Such policies could be developed even without specific cultural rights in the Treaties or
the Charter. The EU could develop such policies on the basis of its existing anti-racism
and non-discrimination provisions and policies, but also in relation to Article 151 EC or
Article 22 of the Charter, or any other provision that appears appropriate.
Returning to the facts of today, co-operation between the Member States mainly
concerns the economic and the social area. Member States have not yet transferred
powers to the European level concerning cultural diversity and the protection of cultural
identities of individuals and communities. In fact, the free movement of goods and
services has been argued to be a threat to national and local cultural identities and some
States tend to 'close' their borders to outside cultural influences. The Member States
might wish to keep issues with regard to cultural identity and minorities within their
national sphere of competence. However, if the unification of the European peoples is
taken seriously, Member States should closely co-operate on issues regarding cultural
identity, and the EU should not remain aside. Immigrant communities and minorities,
those already present inside the EU and those becoming part of the EU after the
accession of new Member States, demand policies relating to the protection and
promotion of their cultural identity. They should become a concern of the EU, not only
because of stability in Europe, but also because it would reflect increasing integration
between .the Member States. The protection of cultural identity, an important aspect of
human dignity, should in the near future be given a more prominent place on the policy
agenda of the EU.
10 MJ 2 (2003)
147

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Citation: 10 Maastricht J. Eur. & Comp. L. 117 2003

The Protection of Cultural Rights in Europe: None of the

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 117 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

Cultural Human Rights

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 118 2003

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 119 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

A. THE IMPORTANCE OF CULTURAL HUMAN RIGHTS FOR PROTECTING HUMAN

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 120 2003

THE NATURE AND SCOPE OF CULTURAL HUMAN RIGHTS

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 121 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 122 2003

3. Cultural Rights within the Human Rights System of the Council of

THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE EUROPEAN SOCIAL

The European Convention on Human Rights and Fundamental Freedoms (ECHR)

CULTURAL RIGHTS IN COUNCIL OF EUROPE INSTRUMENTS ON MINORITIES

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 123 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

Council of Europe considered it necessary to establish arrangements concerning

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 124 2003

freedom of expression, and freedom of thought, conscience and religion (Articles 7, 8

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 125 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

AN ADDITIONAL PROTOCOL TO THE

RIGHTS IN THE CULTURAL FIELD

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 126 2003

THE PROTECTION OF CULTURAL IDENTITY UNDER THE ECHR

Cultural organizationsandfreedom ofassociation

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 127 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

refusal to register the applicant's organization was disproportionate and, therefore,

Sidiropoulos and others v. Greece, 10 July 1998, 44, 46 and 47.

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 128 2003

Gorzelik and others v. Poland, 20 December 2001, 40-54.

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 129 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

Cultural Traditionsand Respectfor PrivateLife, Family Life and Home

so far as to allow individuals' preferences as to their place of residence to override the

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 130 2003

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 131 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 132 2003

Ibid., 18 January 2001, 95-97, 117-130.

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 133 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 134 2003

4. The European Union and Cultural Rights

(CULTURAL) HUMAN RIGHTS IN THE TREATIES

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 135 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

traditions of the Member States, as general principles of Community law. To examine

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 136 2003

implemented by Council Directive 2000/43/EC on equal treatment between persons

THE CHARTER OF FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 137 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 138 2003

HeinOnline -- 10 Maastricht J. Eur. & Comp. L. 139 2003

The Protection of Cultural Rights in Europe: None of the EU's Business?

CULTURAL HUMAN RIGHTS IN THE CHARTER