Nolwenn Guibert: “Legal framework: Is there a right to art?
” in Art and
Human Rights: A Multidisciplinary Approach to Contemporary Issues
(Edward Elgar Publisher, 2023), eds. Fiana Gantheret, Nolwenn
Guibert, and Sofia Stolk, 20–38.
1. Legal framework: Is there a right to
art?
Nolwenn Guibert 1
There is a misplaced notion that artistic creativity and expression is a luxury; nothing
can be further from the truth; artistic creativity and expression are essential inherent
components of how we express our humanity. Whenever we limit, try to control,
restrict or remove artistic expressions from the public eye, we impoverish humanity.
And, when we kill creativity, we kill a part of our humanity, and when this becomes
extreme, we end up with the grey silence of the graveyard. 2
Farida Saheed, the first mandate holder of the office of the United Nations
Special Rapporteur in the field of Cultural Rights (' Special Rapporteur'), 3
issued this powerful statement in 2013, a year into her mandate. It places
artistic creativity and expression at the heart of the cultural rights discourse. It
also effectively conveys the enduring stigma surrounding artistic expression as
a non-essential luxury and the ensuing grave consequences of such stigma. Is
it not still the case in the eye of many that other, more 'fundamental', human
rights should be protected first before starting to consider protecting artistic
creativity and expression? Opposition to placing cultural rights on the same
footing as other human rights may originate, variously, from a distorted per-
ception of culture, the intrinsic difficulty in defining the contours of 'cultural
Nolwenn Guibert is a Senior Legal Officer with an international organisation
in Switzerland. The views expressed in this chapter are her own and do not reflect the
views of the organisation in which she serves.
2
Farida Saheed, 'The right to freedom of artistic expression and creativity'
(address, European Parliament, 2 October 2013) <www.houseforculture.eu/upload/
Docs%20ACP /PresentationEuroParl iament2Oct2013 Shaheed speech. pdf> accessed on
11 July 2021 (Special Rapporteur 2013 Address).
3
In Resolution 10/23 (26 March 2009), the Human Rights Council established
a new special procedure entitled 'Independent expert in the field of cultural rights',
UN Doc A/HRC/RES/10/23. In Resolution 19/6 (22 March 2012), the Human Rights
Council conferred the mandate the title of 'Special Rapporteur in the field of cultural
rights', UN Doc A/HRC/19/L.18. Saheed served as the first Independent Expert from
2009 to 2012 and as the first Special Rapporteur in the field of Cultural Rights from
2012 to 2015. The next mandate holder, Karima Bennoune, was appointed in October
2015 and served until October 2021.
20
Legal framework 21
rights', an amalgamation between cultural rights as collective rights somehow
trumping individual rights, and finally the fear of cultural relativism. 4
That being said, when the Human Rights Council created the Special
Rapporteur mandate in 2012, it referred to some of the most fundamental
human rights instruments - namely the Universal Declaration of Human
Rights (UDHR), 5 the International Covenant on Economic, Social and
Cultural Rights (ICESCR), 6 the International Covenant on Civil and Political
Rights (ICCPR), 7 the United Nations Educational, Scientific and Cultural
Organization (UNESCO) Convention on the Protection and Promotion of
the Diversity of Cultural Expressions (Cultural Diversity Convention) 8 - and
recognised 'that cultural rights are an integral part of human rights, which are
universal, indivisible, interrelated and interdependent' .9
In her 2019 report, the Special Rapporteur discussed advances in the cultural
rights legal framework, including through an increase in the number of State
Parties to the ICESCR, the use of human rights language and approaches,
and the development of the freedom of artistic expression and creativity as an
autonomous right and not a mere subset of freedom of expression. 10
However, in her 2021 report, prepared a year into the Covid-19 pandemic,
the Special Rapporteur glaringly exposed the pandemic as 'a cataclysm for
cultural rights' and put forth the following proposition:
Cultural rights are core to the human experience, and essential for implementing
other universal human rights and achieving the Sustainable Development Goals.
They are not a luxury, even during a global health crisis. In fact [... ] culture is the
heart of our response to COVID-19. Rights guaranteed in article 15 of the [ICESCR]
and in article 27 of the [UDHR] [ ... ] are even more vital during a pandemic. 11
4
Celine Romain ville, "Neuf Essentiels pour Comprendre Jes 'Droits Culturels' et
le Droit de Participer a la Vie Culturelle" (Culture et Democratie, 2013) (Romainville
Droits Culturels) 12-13.
5 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res
217 A(III)).
6
International Covenant on Economic, Social and Cultural Rights (adopted 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.
7
International Covenant on Civil and Political Rights (adopted 16 December
1966, entered into force 23 March 1976) 999 UNTS 171.
8
UNESCO Convention on the Protection and Promotion of the Diversity of
Cultural Expressions (adopted 20 October 2005, entered into force 18 March 2007)
2440 UNTS.
9
Resolution 19/6 (n 3).
10
UN Human Rights Council, Report of the Special Rapporteur in the field of cul-
tural rights, Cultural Rights: tenth anniversary report, 17 January 2019, A/HRC/40/53
(2019 Report) [paras. 57-62].
11
UN Human Rights Council, Report of the Special Rapporteur in the field of cul-
tural rights, COVID-19, Culture and cultural rights, 17 February 2021, A/HRC/46/34
(2021 Report) [para. 5 (footnotes omitted)].
22 Art and human rights
Given its ongoing impact, this is the concrete current factual backdrop against
which any discussion on the applicable legal framework must be held and
which will ultimately affect discussions held throughout the book. This chapter
will first delve into the terminological contours of the foundational concepts on
which the discussions in the current and subsequent chapters are based, such as
culture, cultural rights, and art. In the context of the conversations in the book
regarding the synergies between art and human rights in times of peace, con-
flict, and post-conflict situations, the chapter will then examine whether a right
to art exists and, if so, where it fits within the applicable legal framework.
DEFINING TERMINOLOGICAL CONTOURS OF
FOUNDATIONAL CONCEPTS
The concepts of culture and art have been the subject of long and intense
discussions in various fields of study, such as anthropology, 12 philosophy, 13
sociology, 14 history, 15 and art history. 16 These discussions have produced
numerous attempted definitions or purported explanations as to whether these
concepts could or should even be defined. 17 ln the field of human rights, it has
been suggested that defining culture from a human rights perspective is diffi-
cult because human rights are in themselves a product of culture. 18 Because
the purpose of this contribution is not to draw an exhaustive terminological
analysis of these terms but rather to examine whether a right to art can be said
to exist, the focus will be on the main elements of definitions as they appear
relevant to the human rights framework.
12 Alfred Gell, Art and Agency: An Anthropological Theory of Art (Clarendon
1998).
13 Nickolas Pappas, 'Plato's Aesthetics', The Stanford Encyclopedia of
Philosophy (Fall Ed. 2020) <http://plato.stanford.edu/archives/fall2020/entries/plato
-aesthetics>; S.H. Butcher, 'Aristotle's Theory of Poetry and Fine Art' (Dover
Publications, 4th ed. 1957); G. Shapiro (1976), 'Hegel's Dialectic of Artistic
Meaning', The Journal of Aesthetics and Art Criticism, 23.
14 Orie Schwarz, 'Cultures of Choice: Towards a sociology of choice as a cultural
phenomenon' [Vol. 69, Issue 3, 2018] The British Journal of Sociology, 845.
15 Roger Chartier, 'Cultural History' in International Encyclopedia of the Social
and Behavioral Sciences (2nd Ed 2015), 420.
16
Beatrice Joyeux-Prunel, 'Art history and the global: deconstructing the latest
canonical perspective' [Vol. 4, Special Issue 3, 2019] Journal of Global History, 413.
17
For a critique as to why art should be defined, see Zachary Isrow, 'Defining Art
and its Future' [Vol. 6, Issue 6, 2017] Journal of Arts and Humanities, 84.
18
Yvonne Donders, 'Foundation of Collective Cultural Rights in International
Human Rights Law' in A. Jakubowski (Ed.), Cultural Rights as Collective Right: An
International Law Perspective (Brill, 2017) 111.
Legal framework 23
Further, because any right to art inevitably sterns from the body of provi-
sions pertaining to cultural rights and the right to participate in cultural life, the
terms of culture and cultural rights will be examined first. 19
Culture
From the outset, it bears highlighting that the term 'culture' should always be
construed in the plural form. 20 Indeed, in all definitions found, the term always
encompasses an array of values, features, or beliefs. Whatever the lens through
which culture is defined, one of the common traits of all attempted definitions
is the plural. 21 This is because culture can never be just one thing. 22 This
notion of plurality is perfectly illustrated in the UNESCO Cultural Diversity
Declaration, which, in its preamble, reaffirms that:
(c]ulture should be regarded as the set of distinctive spiritual, material, intellectual
and emotional features of society or a social group, and that it encompasses, in addi-
tion to art and literature, lifestyles, ways of living together, value systems, traditions
and beliefs. 23
19
In 1968, Boutros Boutros Ghali noted that it was impossible to define cultural
rights without first understanding and analysing the concept of culture, see Towards
a Definition of Culture: Discussion, in Cultural Rights as Human Rights (Studies and
Documents on Cultural Policies no 3) 15, 16 (UNESCO ed., 1970), available at http://
unesdoc.unesco.org/images/0000/000011/001194eo. pdf accessed on 11 July 2021.
20
This is in contrast with the use of the singular phrase 'cultural life of the commu-
nity' in Article 27 of the UDHR, which indicates that at the time, the drafters only bore
in mind one type of culture.
21
The Special Rapporteur noted that 'while it is customary to do so, referring to
culture in the singular has problematic methodological and epistemological conse-
quences. It must be understood that culture is always plural. "Culture" means cultures',
see General Assembly, Report of the Special Rapporteur in the Field of Cultural Rights,
The cultural rights approach to the universality of human rights and the close interre-
lationship between universality and cultural diversity, 25 July 2018, A/73/227, (2018
Report) [para. 56].
22
UN Committee on Economic, Social and Cultural Rights (CESCR), General
comment no. 21, Right of everyone to take part in cultural life (art. 15, para. I a of the
ICESCR), 21 December 2009, E/C.12/GC/21(General Comment 21) [para. 10], refer-
ring to culture's 'multifaceted content'.
23
This definition is based on the definition adopted at the 1982 World Conference
on Cultural Policies in Mexico. While praised for its broadness, the definition was
criticised as a mere enumeration of components, see Patrice Meyer-Bisch, Analyse
des droits culturels, Droits fondamentaux, n° 7, January 2008 - December 2009
(Meyer-Bisch Droits Fondamentaux) 3.
24 Art and human rights
In the mid- l 990s, Rodolfo Stavenhagen and Asbj0m Eide had proposed
a comprehensive three-fold definition, namely that culture is: (1) the accu-
mulated material heritage of mankind, either as a whole or part of particular
human groups; (2) the process of artistic or scientific creation, through arts, lit-
erature, music and so forth; and (3) a way oflife- the sum total of the material
and spiritual activities of a particular social group. 24
Jumping to 2007, the Fribourg Declaration, a landmark statement based on
20 years of research and consultations that consolidates cultural rights recog-
nised in different instruments into a single one, identified culture as covering
'those values, beliefs, convictions, languages, knowledge and the arts, tradi-
tions, institutions and ways of life through which a person or a group expresses
their humanity and the meanings that they give to their existence and to their
development' .25 This definition was praised for focusing on individual choice
and for allowing individuals to compose their own cultural background. 26
In 2009, in General Comment 21, commenting on the right of everyone
to take part in cultural life pursuant to Article 15.l(a) of the ICESCR, the
CESCR opined that culture is 'a broad, inclusive concept encompassing all
manifestations of human existence' that 'shapes and mirrors the values of
well-being and the economic, social and political life of individuals, groups
of individuals and communities'. It added that culture was 'a living process,
historical, dynamic and evolving, with a past, a present and a future'. It further
recognised that culture had both an individual and a societal27 aspect and
provided a non-exhaustive list of items 'through which individuals, groups
of individuals and communities express their humanity and the meaning they
give to their existence, and build their world view representing their encounter
with the external forces affecting their lives'. This list includes items such as
24
Rodolfo Stavenhagen, 'Cultural Rights: A Social Science Perspective' in A.
Eide, C. Krause and A. Rosas (eds.) (2001) 85; A. Eide, 'Cultural Rights as Individual
Human Rights', ibid., 289.
25
CulturalRights,FribourgDeclaration,Fribourg,7 May 2007, art. 2(a).
26
Meyer-BischDroits Fondamentaux(n 23) 3.
27
The societal aspect of culture had already been highlighted by UNESCO in its
1976 Recommendation on Participation by the People at Large in Cultural Life and
their Contributionto it: 'In its very essence, a social phenomenonresulting from indi-
viduals joining and cooperating in creative activities [and] is not limited to access
to works of art and the human rights, but is at one and the same time the acquisi-
tion of knowledge, the demand for a way of life and need to communicate'. See also
Stavenhagen,'Cultural Rights: A social science perspective', in H. Niec (ed.), Cultural
Rights and Wrongs: A collection of essays in commemorationof the 50th anniversary
of the Universal Declaration of Human Rights, UNESCO Publishing and Institute of
Art and Law, focusing on the 'material and spiritual activities and products of a given
social group'.
Legal framework 25
ways oflife, language, literature, music and songs, non-verbal communication,
religion or belief systems, rites and ceremonies, sport and games, methods of
production or technology, natural and man-made environments, food, cloth-
ing, shelter, the arts, customs, and traditions.
The Special Rapporteur adopted a different position. In her first report, she
explained that as there was no uniform, single, definition of culture, she would
decline to define the term, instead taking a holistic approach by building on
the various already existing working definitions. In particular, she referred to
the UNESCO Cultural Diversity Declaration, General Comment 21, and to
a lesser extent, the Fribourg Declaration. 28 The second mandate holder agreed
with this approach, adding that 'cultures are human constructs constantly
subject to reinterpretation' .29
Cultural Rights
Given the difficulty in defining culture, the challenges in ascertaining the
scope of cultural rights are explicable. One of the leading scholars on cul-
tural rights, Patrice Meyer-Bisch has provided a simple yet comprehensive
definition. He stated: 'From a theoretical point of vi'¤w, cultural rights are the
rights of an individual, alone or together with others, to choose and to express
his or her identity, to access cultural references and as many resources as are
necessary for his or her process of identification. ' 30 Meyer-Bisch went as far as
opining that, in short, cultural rights meant a right to identity. 31
This definition is valuable for a variety of reasons. First, it recognises both
the individual and the collective aspects of cultural rights. While this two-fold
element is, according to some experts, what makes cultural rights frightening,
it is also what constitutes their wealth and fundamental place in the human
rights framework, and sets them apart from other categories of human rights.
Second, by pluralising them and focusing on the notion of choice, this defini-
tion conveys the fundamental idea that the implementation of cultural rights is
28
Human Rights Council, Report of the Special Rapporteurin the Field of Cultural
Rights, The right to freedom of artistic expression and creativity, 14 March 2013, N
HRC/23/34 (2013 Report) [para. 5].
29
2018 Report (n 21) [para. 56].
30
Meyer-Bisch and Mylene Bidault, Declarer!es droits culturels.Commentaire
de la Declarationde Fribourg(Schultess Bruylant, 2010) [para. 0.12, 17], as trans-
lated by Meyer-Bisch, in 'Cultural rights, an ethical principle of cooperation and
a lever for development', Crossroads, 2018 <https://prohelvetia.ch/app/uploads/2018/
05/crossroads_meyerbisch.pdt>accessed on 11 July 2021.
31
Meyer-BischDroits fondamentaux(n 23) 5. For a critique of this approach, see
RomainvilleDroits Culturels (n 4) 28-29, 43-48.

26 Art and human rights
far from static or universal (while the very idea may well be). In short, cultural
rights are transversal rights. 32
In 2010, the Special Rapporteur posited that:
Cultural rights protect the rights for each person, individually and in community
with others, as well as groups of people, to develop and express their humanity, their
world view and the meanings they give to their existence and their development
through, inter alia, values, beliefs, convictions, languages, knowledge and the arts,
institutions and ways of life. They may also be considered as protecting access
to cultural heritage and resources that allow such identification and development
processes to take place. 33
Other instruments have instead proposed lists of what cultural rights would
encompass. For instance, Article 5 of the UNESCO Cultural Diversity
Declaration uniquely sets out a list ofrights expressly recognised as cultural:
All persons have therefore the right to express themselves and to create and dis-
seminate their work in the language of their choice, and particularly in their mother
tongue; all persons are entitled to quality education and training that full respect
their cultural identity; and all persons have the right to participate in the cultural life
of their choice and conduct their own cultural practices, subject to respect for human
rights and fundamental freedoms.
In tum, the Fribourg Declaration, already presented above, outlined a number
of cultural rights categorised as relating to: (1) identity and cultural heritage;
(2) freedom of identification with a community or communities; (3) access to
and participation in cultural life; (4) education and training; (5) information
and communication; and (6) cultural cooperation.
Art
Attempting to define art, from the Latin 'ars' - art, skill, craft- is demanding
because it is both a subset of culture and cultural rights - through the prism
of artistic expression - but also a much broader, constantly evolving, notion.
As a preliminary remark, it is important to address the distinction made
between the arts and art and why this book has chosen to refer to the latter in its
title. Generally, the phrase 'the arts' is used to refer to all the practices and the
32
Janet Blake, 'Collective cultural rights considered in the light ofrecent develop-
ments in cultural heritage law', in A. Jakubowski (ed) ( 1980) 66.
33
UN Human Rights Council, Report of the independent expert in the field of cul-
tural rights, submitted pursuant to resolution 10/23 of the Human Rights Council, 22
March 2010, AJHRC/14/36 (2010 Report) [para. 9].
Legal .framework 27
34
media through which creative expression is conveyed. The ''.111'
on ~he
other hand refers to the more encompassing concept or the d1sc1plmebehmd
these artistic activities. 35
Historically, art in the West was effectively constrained to what has bee~
coined 'high art' or 'fine arts', namely paintings exhibited in museums, classi-
cal music, and poetry. 36 Scholars have noted that the manner in which Article
27 of the UDHR is formulated makes it clear that what was targeted at the time
of drafting were the notions of 'high art' or 'fine arts', to be enjoyed by the
37
audience from afar in museums or concert halls.
Since then, what is 'accepted' as art has evolved greatly. This is in part due
to an increased recognition of different forms of art and a shift in focus from
the medium through which the aesthetic experience is conveyed to the orig\Ilal
intent of art and its deep roots. Art and artistic expression are about expressing
one's creativity, exploring one's intrinsic identity, it is about connecting and
appealing to one's feeling or emotions through a wide array of media.
Another positive evolution towards a more expansive notion of art has been
partly due to the nascent field of art law, whJre_art is defined in. the ~ontext
of copyright protection or border control regulat10ns. In art law, the existence
of a modicum of originality in the artwork examined is the central element
for a piece to be qualified as artwork. 38 This translates in a definition of art
which aptly focuses on the very essence of art without unduly restricting it,
namely: 'A universal legal definition of art probably cannot go much further
than stating that a work of art is an original expression of the creator, embod-
ying a creative process in which the creation is distinctively the work of that
creator. ' 39
ASCERTAINING THE LEGAL FRAMEWORK FOR
A RIGHT TO ART
While the first Special Rapporteur opined that the specific right to artistic
expression (a sub-set of a potential right to art) has 'quite a robust legal
34 Common examples are visual arts and performing arts.
35 See the Introduction in this volume.
36 John A. Fisher, 'High Art Versus Low Art' in Berys Gaut and Dominic Mclver
Lopes (eds), The Routledge Companion to Aesthetics (Ro~tledge:,2005) 52_7.
37 For the text of Article 27 of the UDHR, see the section on The applicable legal
framework" infra.
3& Leonard D. DuBoff, 'What Is Art - Toward a Legal Definition' (1990) 12
Hastings Comm. & Ent. L.J. 303 [311] <https://repository.uchastings.edu/hastings
comm ent lawjournal/vol12/iss3/3> accessed on 11 July 2021.
- 39 DuBoff (n 38) 351.
28 Art and human rights
framework' ,40 other authors have coined cultural rights more generally (the
broader set of rights from which a potential right to art would stem) as the
'Cinderella of human rights', being the ]east developed of all human rights. 41
An assessment of existing international, regional, and domestic provisions and
pronouncements, together with some regional human rights case law, indicates
that the legal framework has on the contrary evolved into a strong body.
The Applicable Legal Framework
The total array of cultural rights is fragmented with some provisions included
in international (or regional) treaties (hard law), several of which pertain to
specific categories of protected persons. Others are enshrined in recommenda-
tions, declarations, and non-binding resolutions (soft law).
On the global level, as the first universal guarantee of cultural rights and the
primary source of global consensus on human rights, the principal source of
inspiration for cultural rights remains Article 27 of the UDHR, which reads:
1. Everyone has the right freely to participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary, or artistic production of which he is the
author. 42
Despite its non-binding status and the caveat mentioned above that only an
elitist perception of culture and art were meant to be protected, the UDHR
remains the primary foundation upon which other instruments touching on
cultural rights were later constructed. 43
In 1966, the two International Covenants brought further specificities to
the framework. The large number of State Parties that have ratified these two
instruments reflect a robust worldwide consensus for the provisions therein.
40
Special Rapporteur 2013 Address (n 2).
41
H. Niec, 'Cultural Rights: at the end of the World Decade for Cultural
Development' (Conference on Cultural Policies for Development, Stockholm, 30
March-2 April 1998), UNESCO Doc. CL T-98/Conf.2 l 0/Ref.2, as referenced in
Yvonne Donders, 'Study on the legal framework of the right to take part in cultural life'
(2007), Leiden Journal of International Law (Donders 2017) (n 18).
42
In May 1948, prior to the adoption of the UDHR, the American Declaration on
the Rights and Duties of Man became the first general international human rights instru-
ment. Article XIII therein contains the same wording as Article 27 of the UDHR.
43
Hannum Hurst, 'The UDHR in National and International Law' (vol. 3, no. 2,
1998) Health and Human Rights <www.jstor.org/stable/4065305> accessed 28 May
2021.
Legal framework 29
The ICCPR, with Article 19(2), opened a first, albeit timid, 44 treaty-based
recognition of the freedom of artistic expression. It provides, in relevant parts,
that: ' [e]veryone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.'
In the ICESCR, through Article 15(1)(a), the focus is on 'State Parties to the
present Covenant recognis[ing] the right of everyone to take part in cultural
life'. For this to materialise, State Parties must take action. In a_rticle 15(3),
they 'undertake to respect the freedom indispensable for scientific research
and creative activity'. In its General Comment 21, the CESCR delved into
what is encompassed by the right to take part in cultural life under Article 15.45
In particular, the CESCR noted that
[t]he right to take part in cultural life can be characterized as a freedom [which]
requires from the State party both abstention (i.e., noninterference with the exercise
of cultural practices and with access to cultural goods and services) and positive
action (ensuring preconditions for participation, facilitation and promotion of cul-
tural life, and access to and preservation of cultural goods). 46
This is the first clear international expression of State obligations in the realm
of cultural rights.
As the UN' s specialised agency on education, science, and culture, whose
very purpose 'is to contribute to peace and security by promoting collaboration
among the nations through education, science and culture' ,47 UNESCO is
responsible for a wealth of hard law and soft law in relation to cultural rights.
First, in 1966, UNESCO State Parties adopted the Declaration of Principles
of International Cultural Co-operation, recognising that 'each culture has
a dignity and value which must be respected and preserved' and that 'each
people has the right and the duty to develop its culture' .48 I? 1980, they
44
See Article 19(3) for the possible restrictions that may be imposed on the exer-
cise of this right.
45
The CESCR provides its interpretation of the ICESCR in its general comments.
46
General Comment No. 21 (n 22), para. 6.
47
At Article 1(1) of the UNESCO Constitution (signed on 16 November 1945 and
entered into force on 4 November 1946) 4 UNTS 275 . See also ibid, Preamble: 'The
wide diffusion of culture, and the education of humanity for justice and liberty and
peace are indispensable to the dignity of man and constitute a sacred duty which all the
nations must fulfil in a spirt of mutual assistance and concern.'
48
Yvonne Donders, 'Cultural rights in the Convention on the Diversity of Cultural
Expressions: included or ignored?' in T. Kono and S. Van Uytsel (Eds.), The UNESCO
Convention on the Diversity of Cultural Expressions: a tale of fragmentation of inter-
national law? (Intersentia, 2012) (Donders 2012) 172-173.
 30 Art and human rights
approved a recommendation concerning the status of the artist.49 'Recognizing
that the arts in their fullest and broadest definition are and should be an integral
part of life', it sets the standards for the rights of artists and calls upon State
Parties to improve the status of artists through the implementation of concrete
measures. It also recognises the right of artists to represent and defend their
interests in organised unions. 50
In 2001, UNESCO State Parties issued another non-binding instrument, the
UNESCO Declaration on Cultural Diversity. This Declaration is important in
that it identifies culture as 'the common heritage of humanity' (Article 1) and
places cultural rights at the heart of human rights (Article 5 entitled 'Cultural
rights as an enabling environment for cultural diversity') while rendering the
defence of cultural diversity inseparable from the respect of human dignity and
the commitment to human rights and fundamental freedoms.
The Cultural Diversity Convention adopted by UNESCO State Parties in
2005 was hailed as a milestone in international cultural policy by UNESCO
itself or even more dramatically as 'the Magna Carta of cultural policy' .51 It
provides a new framework establishing improved systems of culture govern-
ance, as well as a new impetus for the 1980 Recommendation in recognising
the central role of artists in the creation and production of diverse cultural
expressions. 52 However, some critics have expressed their disappointment at
the lack of reaffirmation of cultural rights as the enabling environment for
cultural diversity and the absence of any further expansion of cultural rights. 53
It has also been criticised for not sufficiently addressing the areas of conflict
between culture and trade. 54 Yet, the Cultural Diversity Convention, and its
49
Recommendation Concerning the Status of the Artist adopted by the General
Conference at its twenty-first session, Belgrade, 23 September to 28 October 1980,
Annex l <www .aipu-isau-unesco.org/wp-content/uploads/2019/05/Records-of-the
-General-Conference-21 st-session-Belgrade-23-September-to-28-October-1980-v.-l
-Resolutions.pdt> accessed on 11 July 2021.
50
See Garry Neill, Culture & working conditions for artists: implementing the 1980
Recommendation concerning the Status of the Artist (UNESCO, 2019).
51
H. Aylett, 'An international instrument for cultural policy: The challenge of
UNESCO's Convention for the Protection and Promotion of the Diversity of Cultural
Expressions' (2005) International Journal of Cultural Studies, referring to an interven-
tion by Christine Merkel.
52
. Article 2( 5).
53
Yvonne Donders (2015), 'Cultural Human Rights and the UNESCO Convention:
More than Meets the Eye?' in C. De Beukelaer, M. Pyykkonen, & J. P. Singh (eds.),
Globalization, Culture, and Development: The UNESCO Convention on Cultural
Diversity (pp. 117-131) (Palgrave Macmillan) (Donders 2015), referring to Donders
2012 (n 48) 18.
54
R. Neuwirth, "'United in Divergency": A Commentary on the UNESCO
Convention on the Protection and Promotion of the Diversity of Cultural Expressions'
(2006), Heidelberg Journal of International Law, Vol. 66, 861.
legal framework 31
implementation by State Parties as shown through their reporting obligations,
reaffirm and strengthen the foundation of cultural rights, thus assisting~n
their further application at the national level.55 It has also sparked an intense
debate at the international level on the issue of cultural diversity, 56 and aims
to contribute to achieving several of the 2030 Sustainable Development Goals
(SDGs).57
At the international level, another important source for the development
of cultural rights consists in international treaties that protect specific groups
of individuals. For instance, in the 1965 International Convention on the
elimination of all forms of racial discrimination, 58 State Parties undertook to
adopt 'immediate and effective measures', including in the field of culture. In
1979, in the landmark Convention against all forms of discrimination against
women, cultural rights were put on an equal footing with other rights in the
convention, wherein State Parties undertook to take 'all appropriate measures
to eliminate discrimination of women, in particular in the right to participate in
all aspects of cultural life'. 59 ln the 1989 Convention on the rights of the child,60
State Parties recognised the right of the child to participate freely in cultural
life and the arts, 61 which they undertook to respect and promote. 62
Although non-binding, but highly reflective of the current position of State
Parties at the international level, several resolutions and declarations are indic-
ative of the place of cultural rights in the human rights framework. In 2009, in
55 Donders 2015 (n 53) 131. In 2016, a group of Ministers of Culture from
Scandinavian countries issued the Helsinki Declaration, declaring that '[a]rtistic and
creative expression, as an integral part of the human right to freedom of expression, is
critical both to the development of cultures and to the functioning of democratic socie-
ties' and undertaking to promote and support the diversity of cultural expressions in line
with the Cultural Diversity Convention. The Helsinki Declaration reaffirms the central-
ity of artistic freedom within the broader system of fundamental rights and pledges to
support and enhance global monitoring activities undertaken by UNESCO in the areas
of artistic freedom. •
56
Donders 2012 (n 48) 18I.
57 UNESCO, '2005 Convention Global Report - Reshaping Cultural Policies,
Advancing Creativity for Development' (2018) <https://unesdoc.unesco.org/ark:/
48223/pf0000260592> accessed on 12 July 2021, referring to SDG 4 (quality educa-
tion), 5 (gender equality), 8 (decent work and economic growth), IO (reshaping inequal-
ities), and 16 (peace, justice, strong institutions).
58 International Convention on the Elimination of All Forms ofRacial Discrimination
(adopted on 18 December 1979, entered into force on 3 September 1981), 1249 UNTS
I.
59
Article 13.
6
° Convention on the rights of the child (adopted on 20 November 1989, entered
into force on 2 September 1990) 1577 UNTS 3.
61
Article 31.
62
Article 32.
32 Art and human rights
the context of establishing the mandate of the independent expert in the field
of cultural rights, the Human Rights Council reaffirmed that 'cultural rights are
an integral part of human rights, which are universal, indivisible, interrelated
and interdependent' .63 In 2011, the United Nations General Assembly at its
66th session, issued a resolution ' [r]ecognizing that culture is an essential
component of human development, represents a source of identity, innovation
and creativity for the individual and the community and is an important factor
in the fight against poverty, providing for economic growth and ownership of
development processes' .64 In 2014, the Human Rights Council emphasised the
important role of artistic expression and creativity and, in 2015, reaffirmed
the right to freedom of expression, including creative and artistic expression,
stressing their critical relation to the human spirit, the development of vibrant
cultures, and the functioning of democratic societies. 65
Instruments at the regional level also constitute a robust body of provi-
sions that have contributed to important advancements. Within the Council
of Europe, the premise at the heart of the 1995 Framework Convention for
the protection of minorities 66 is based, inter alia, on the requirement that the
cultural identity of persons belonging to ethnic minorities must be respected
and that the expression of this identity must be enabled. However, the language
of the convention remains quite aspirational without a directly measurable
yardstick against which measures adopted by State Parties can be assessed. 67
The 1996 Revised European Social Charter, 68 guaranteeing a broad range of
social rights and laying particular emphasis on the protection of vulnerable
persons, 69 reaffinns the indivisible nature of all human rights, 'be it civil,
political, economic, social, or cultural' .70 Within the European Union, the 2009
63
Resolution 10/23 (2009) (n 3).
64
UNGA Res 65/166 (28 February 2011) UN Doc A/RES/65/166.
65
HRC Res 27/31 (3 October 2014) UN Doc A/HRC/RES/27/31; Joint statement
of 57 State Parties to the 30th Session of the Human Rights Council (2015) <www
.article} 9.org/resources/un-hrc-artistic-expression-must-be-protected> accessed on 12
July 2021.
66
Council of Europe, Framework Convention for the Protection of National
Minorities, 1 February 1995, ETS 157.
67
See terms such as 'encourage' in Article 6 or 'create the conditions' in Article 15.
68
Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163.
69
In Article 15 for instance, the Charter provides for the adoption of concrete meas-
ures for persons with disabilities to be fully integrated and participate in the 'life of
the community', through inter alia, 'cultural activities'. See also Article 23 for elderly
persons and Article 30 for the protection against poverty (wherein 'culture' is specifi-
cally mentioned).
70
Preamble.
Legal framework
Charter of Fundamental Rights of the European Union, 71 alongside undert~k-
ing that cultural diversity shall be respected (Article 22), also recognises the
freedom of the arts. 72 This is a significant advancement.
Although there is no explicit reference to cultural rights as such in the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), the European Court for Human Rights (ECtHR) has grad-
ually recognised certain substantive rights which may broadly fall under the
definition of 'cultural rights' .73 More particularly, it has underlined the impor-
tance of artistic expression in the context of the right to freedom of expression,
protected under Article 10 of the ECHR. The rationale is that '[t]hose who
create, perform, distribute or exhibit works of art contribute to the exchange of
ideas which is essential for a democratic society' and that '[a]rtistic freedom
enjoyed by, among others, authors of literary works is a value in itself, and
thus attracts a high level of protection under the [ECHR]'. 74 When assessing
whether State interference was justified, the ECtHR has considered the impact
of the form of artistic expression in question, i.e., literary work compared with
mass produced films. 75 This has resulted in the ECtHR often ruling in favour
of States in relation to the latter but securing a high level of protection for the
former.76 A telling example is the 2010 Akda$ v Turkey judgment, pertaining
to the case of the publisher of a 1997 Turkish translation of a sexually graphic
novel authored by French writer, Guillaume Apollinaire, who had been
sanctioned under the Turkish criminal code for immorality and obscenity.
The ECtHR reiterated its well-established principle that morals may vary
according to time and location and that, in principle, national institutions are
best placed to assess what is morally acceptable. 77 However, it also considered
that Apollinaire was a globally renowned author, and that the novel had been
published over a century ago in various languages in print and on the intemet. 78
71
European Union, Charter of Fundamental Rights of the European Union, 26
October 2012, 2012/C 326/02.
72
See Article 13: 'Freedom of the arts and sciences': The arts and scientific
research shall be free of constraint.
73
For instance, such rights have included the right to respect for private and family
life (Article 8), freedom of thought, conscience and religion (Article 9), and freedom of
expression (Article 10) and the right to education (Article 2 of Protocol 1).
74
ECtHR, Research Division, Cultural rights in the case law of the European Court
of Human Rights, 2011 (ECtHR Research).
75
ECtHR Research.
76
For instance, the ECtHR accepted the reasoning of Austrian courts, which did not
consider that the merits of a film as a work of art or as a contribution to public debate
outweighed those features which made it essentially offensive to the general public.
77
Akda.y v Turkey App no 41056/04 (ECtHR, 16 February 2010) [para. 27].
78
Ibid [para. 28].
34 Art and human rights
It found a violation of Article 10 as the margin of appreciation granted to
States does not go as far as preventing the public access in a given language to
a literary work which is part of the European heritage. 79 This judgment places
a questionable differentiation between European literary heritage and other
forms of artistic expressions. It has been argued that the ECtHR' s approach on
artistic freedom is a 'de minim is approach'. 8° Furthermore, while the ECtHR
has accepted that the protection of cultural heritage is a legitimate aim neces-
sary in a democratic society, it has yet to recognise such protection as a general
right. 81
Other important regional provisions include Article 17 of the African
Charter on Human and Peoples' Rights, according to which ' [e]very indi-
vidual may freely take part in the cultural life of his community'. On that
basis, the African Commission on Human and Peoples' Rights found that
Kenya had denied 'the very essence of the Endorois right to culture' when it
relocated them and threatened their 'pastoral way of life' .82 Article 42 of the
Arab Charter on Human Rights protects the right of individuals to take part
in cultural life and State Parties undertake to respect the freedom of creative
activity. 83
In the Inter-American human rights framework, Article 14 of the San
Salvador Protocol to the American Convention on Human Rights (American
Convention) recognises the right of everyone to take part in the cultural and
artistic life of the community and State Parties undertake to take the steps
'necessary for the conservation, development and dissemination of science,
culture and art'. Furthermore, the Inter-American Court found that Ecuador
had violated the American Convention by granting a permit to a private oil
company to engage in oil exploration on the territory of the Kichwa Indigenous
79
Ibid (paras 30, 32].
80
Laurence Cuny, 'Rights. Legal Framework for Artistic Freedom' (2019),
UNESCO Chair in Cultural Policy for the Arts in Development, referring to E.
Polymenopoulou, 'Does one swallow make a spring? Artistic and literary freedom
at the European Court of Human Rights', (2016) Human Rights Law Review, 16(3),
<https://doi.org/10.1093/hrlr/ngw0l l> accessed on 12 July 2021.
81
See for instance Syllogos Ton Athinaion v the United Kingdom App no 48259/15
(ECtHR, 31 May 2016), wherein the ECtHR held that 'the applicant has failed to point
to any case of this Court where it has held that Article 8 gives rise to a general right to
protection of cultural heritage of the nature contended for in the present case'.
82
Centre for Minority Rights Development (Kenya) and Minority Rights Group
international on behalf of Endorois Welfare Council v. Kenya, 276/2003, African
Commission on Human and Peoples' Rights, 4 February 2010, <www.refworld.org/
cases,ACHPR,4b8275al2.html> [accessed 8 July 2021] (para. 251).
83
League of Arab States, Arab Charter on Human Rights, 15 September 1994.
Legal framework 35
People.84 It found violations of the right to communal property, con&idering
'the serious impacts suffered by the [indigenous] People owing to their pro-
found social and spiritual relationship with their territory' and the 'suffering
caused to the People and to their cultural identity' .85 It also found Chile to be
in violation of the right to freedom of conscience and religion and freedom of
thought and expression through the judicial censorship of the cinematographic
exhibition of the film The Last Temptation of Christ. 86
There have also been substantial advancements domestically, which are
too numerous to all be enumerated in this chapter. For example, in France,
the 2016 law on the freedom of artistic creation, by explicit reference to the
Cultural Diversity Conventi_9n,declares that artistic creation and its dissem-
ination are free and 'provides a more favourable ecosystem for artists'. Any
infringement on artistic freedom is punishable by a one-year prison sentence
and a 15,000 euro fine. 87 What falls under this definition remains to be seen.
Under Article 56, ~here cultural heritage is at risk due to an armed conflict
or disaster occurring in the said territory, France, upon request of the State
or upon adoption of a United Nations Security Council resolution, may pro-
visionaliy offer secured premises to shelter cultural heritage while informing
UNESCO. In Belgium, the right to cultural fulfilment was integrated in Article
23 of the Constitution in 1993. Similarly, in 2011, Mexico incorporated cul-
tural rights into the Constitution, as did Egypt in 2014.
The Proposed Contours of a Right to Art
As shown above, a right to art can be said to exist in the sense that there are
concrete rights safeguarding the right to make art and the right to enjoy art.
A meaningful way to reflect on the contours of cultural rights, and within
that pool, a right to art, is the typology adopted by Meyer-Bisch. Recalling
Meyer-Bisch' s definition of cultural rights as 'the totality of the rights allow-
ing each individual to have access to the necessary resources for one's iden-
tification process', his categorisation differentiates between rights recognised
as cultural rights; rights recognised to authors of cultural expressions; and
the cultural dimension of civil rights, such as the right to freedom of thought,
expression, and association, and the right to education and information. 88
84
I/A Court H.R., Case of the Kichwa indigenous People of Sarayaku v. Ecuador.
Merits and Reparations. Judgment of June 27, 2012. Series C No. 245, para. 2.
85
Ibid [paras. 322-323].
86
'Last Temptation of Christ', Chile, 5 February 2001, IACHR Series C No 73.
87
Loin° 2016-925 of7 July 2016, Articles l and 2.
88
2013 Report (n 28) [para. 4], where the Special Rapporteur opined that:
'Expressions, whether artistic or not, always remain protected under the right to
freedom of expression'.
 ... '

36 Art and human rights Legal framework 37 ,

Concretely, a right to art would therefore at a minimum comprise: ·hich stems the fundamentality of )us cogens norms is often challenged in
" • 92
relation to cultural nghts.
1. The right to freedom of artistic expression and creativity;
2. The right to the preservation, development, and promotion of one's own
The Question of State Obligations
culture;
3. The right to access culture;
States have both positive and negative obligations. They have an obligation to
4. The right and freedom to participate in cultural life, which includes the
respect, protect, and implement cu1tural rights, including a right to art, without
right to have access and contribute to cultural life;
discrimination.93
5. The right to participate in the elaboration and the implementation of cul-
Some treaties have concrete obligations for State Parties, such as the Arab
tural policies;
Charter on Human Rights pursuant to which State Parties undertake to work
6. The right for the support, communication and remuneration of artistic
together and enhance cooperation among them at all levels, with the full
activities; and
participation of intellectuals and inventors, in order to develop and implement
7. The right to the protection of social and economic rights of artists, which
recreational, cultural and artistic programmes. More generally, Article 2(1) of
would include intellectual property rights. 89
the ICESCR provides that State Parties should undertake to take steps to the
maximum of their available resources, 'with a view to achieving progressively
The Fundamentality of a Right to Art and Its Place in the Hierarchy of
the full realization of the rights recognised in the present Covenant by all
Norms
appropriate means, including, in particular, the adoption of legislative meas-
ures'. The CESCR has commented that this obligation bears an immediate
The rights identified above all derive from the most fundamental and widely
character,94 and that at the very least, State Parties should guarantee minimum
ratified international and regional human rights instruments. Some have been
essential levels of each of the rights. 95 In relation to the right to take part in cul-
enshrined in domestic constitutions. From a source perspective, there is no
tural life enshrined at Article 15 of the ICESCR, State Parties are required to
denying the fundamentality of a right to art. From a substance perspective, as
not only allow individuals and communities to practise their cultures without
described above, a right to art has been determined to be per se fundamental
hindrance, but also to take active measures to preserve and foster them. 96 In
as a component of human dignity but also as part of the realisation of other
her 2021 Report, the Special Rapporteur recommended numerous concrete
human rights.
measures for States to fulfil their obligations on cultural rights. 97
Nonetheless, a right to art, and cultural rights in general, cannot be said to
have attained the status of a peremptory norm, orjus cogens. Within the limits
CONCLUSION
of this chapter, 90 it can be observed that the protection of these rights remains
within the confines of the treaties setting them out and no global consensus
From the above, a right to art, that is protecting both the making and the enjoy-
outside of these treaties has yet emerged that would render them automatically
ment of art, can be said to have emerged. •
legally binding upon every State.91 Furthermore, the ethical requirement from
However, the Special Rapporteur recently stated that she frequently con-
fronts the view that cultural rights are less important than other rights and can
be set aside in contexts of crises. She recalled that 'it is critical to insist on
89
See Fribourg Declaration (n25); Meyer-Bisch Droits Fondamentaux (n 23). .
9
°
For a comprehensive discussion around the notion of )us cogens, see Carnegie
Endowment for International Peace, The Concept of Jus Cogens in Public International 92
Romainvi!Je Droits Culturels (n 4) 37-38.
93
Law Papers and Proceedings (Geneva: Carnegie Endowment for International Pea~e Romainville Droits Culturels (n 4) 53.
94
(European Centre), 1967); Lauri Hakkinaiken, Peremptory norms (ju~ c?ge~s) . in UN Doc E/CN.4/1987, 'The Limburg Principles on the Implementation of the
international law: historical development, criteria, present status (Helsmkt: Fmmsh International Covenant on Economic, Social and Cultural Rights', No. 16, 21.
95
Lawyers' Pub. Co., 1988); Ulf Linderfalk, Understanding jus cogens a~d in interna- CESCR General Comment No. 3, The Nature of States Parties' Obligations (Art.
tional law and international Legaldiscourse (Elgar International Law Senes, 2020). 2, Para. 1, of the ICESCR), 14 December 1990, E/1991/23 (paras. 10, 11).
91
See Article 4 of the ICCPR, not listing Article 27 thereofamong its non-derogable 96
Donders 2017 (n 18) 257.
articles. 97
2021 Report (n 11) [para. 79].
38 Art and human rights
the "C" in "ESC" rights and to constantly reiterate the centrality of cultural
rights to the human rights framework and the human experience' .98 This is
because while the protection of cultural rights has evolved into a robust legal
framework stemming from the most fundamental and widely ratified existing
human rights instruments, these rights remain secondary for policy- and
law-makers alike, especially when other 'more urgent' considerations are
given precedence.
As such, the Covid-19 pandemic has demonstrated how fragile a right to art
remains despite all the great strides achieved. Despite some positive innova-
tions in the field of digital access, art and artists have greatly suffered during
this period. During the fifth annual lecture of the Human Rights Centre of the
University of Essex, the Special Rapporteur discussed her cultural framework
for action (CUL TURES) in this context, as a roadmap for States to take action
to protect, indiscriminately, those cultural rights which have been so gravely
affected. 99 Anecdotally, she shared a quote from writer Stephen King that truly
conveys that art is like 'food for the soul', especially in times of crises. He said:
'If you think artists are useless, try to spend your quarantine without music,
books, poems, movies, and paintings.'
98
2019Report(n 10) [para. 55].
99
C for consultation, U for urgency, L for legal obligations, T for twenty-first
century, U for upping the funding, R for rights-based approach, E for everyone, and S
for solidarity. See also 2021 Report [para. 77].
2. The human rights of artists: What did
the pandemic teach us?
Elsa Stamatopoulou
INTRODUCTION
Having lived for years in New York City (NY), traveling back and forth to
my native Athens in Greece, I have been used to a richness of available arts
enveloping me, a feeling of walking into a sweet-smelling orange orchard, as
if I would just need to lift my hand and pluck that fruit of music or theater.
Although in the back of my mind I know, as we all do, that most artists and
those working around the arts have unstable and often modest livelihoods, my
own enjoyment, as a consumer of the arts, is rarely diminished by such knowl-
edge. Our collective appreciation of the arts often transposes a glory onto the
artist, places the artist on a pedestal, as a cultural leader, as somebody to be
admired, a person having the good luck to constantly pursue and share their
artistic expression. Do we take artists for granted?
In October 2020, I received the following email from a friend, music pro-
ducer and teacher, who has a school of electronic music production in NY:
"Things are getting really scary, not sure how long we can hold up the busi-
ness. [ ... ] we aren't getting any paying students any longer due to Covid. This
is getting really scary, not sure what's coming next."
The message made me wonder how many music schools would be obliged
to close because of the pandemic. How many musicians and other artists would
stay in their profession despite lack of income due to Covid? How many young
people would be deprived of music and art classes at school because of this
economic crisis? Are we going to lose a generation of people whose work is
devoted to culture? At the same time, I have felt hopeful, because many people
who serve the arts continue, despite all odds, to be faithful to their passion of
creating, seeking a thousand new ways to survive and to share their creativity
with us. 1
1
The author is profoundly grateful for the interviews given for this chapter, for
the generosity of time and extremely valuable insights, to: Alexander (Alex) Barnes,
39