124 | Cultural Autonomy
ted by member states (Article 36 TFEU). According
to the well-established case-law of the Court, cul-
tural policy aims may constitute an overriding
requirement relating to the general interest which
can justify a restriction on the freedom to provide
services [cf. COLLECTIEVE ANTENNEVOORZIEN-
ING GOUDA, 1991 and VERONICA OMROEP OR-
GANISATIE, 1993]. In addition, the Charter of Fun-
damental Rights of the EU covers culture with re-
gard to freedom of speech (Article 11) and artistic
freedom (Article 13). The CJEU noted [cf. UNITED
PAN-EUROPE COMMUNICATIONS BELGIUM SA,
2007 and TV10 SA, 1994] that the maintenance of
pluralism is connected with freedom of expres-
sion, as protected by Article 10 of the European
Convention on Human Rights and Fundamental
Freedoms, and constitutes one of the fundamental
rights guaranteed by the Community legal order
[TV10 SA, 1994].
CONCL: The CJEU, as the central judicial au-
thority of the EU, performs its function of con-
stitutional court of an autonomous legal system
through reviews of the legality of the acts of the
institutions of the European Union. It also over-
sees whether member states comply with obliga-
tions under the various Treaties, and cooperates
with national courts by delivering authoritative
interpretation of EU law. Since 1970, the Court ad-
judicates on cases concerning broadly understood
‘culture’ and cultural policy of member states vis-
à-vis internal market freedoms. Thus, the Court,
in cooperation with national courts, ensures a
proper balance between interests of economic in-
tegration and the preservation of national cultural
heritage.
REFERENCES:
Alter, Karen: The European Court’s Judicial Power,
Oxford: Oxford University Press (2009).
Bobek, Michal: “The Court of Justice of the
European Union”, College of Europe Research
Paper in Law 02/2014.
Chalmers, Damian/Davies, Gareth/Monti, Giorgio:
European Union Law: Text and Materials, in par-
ticular: “The Union Judicial Order”, Cambridge:
Cambridge University Press (2014).
De Witte, Bruno: “Market Integration and Cul-
tural Diversity in EU Law”, in Valentina Vadi &
Bruno De Witte (eds.), Culture and International
© Excerpt from Wiesand, Andreas Joh.; Chainoglou, Kalliopi; Śledzińska-Simon, Anna with Yvonne Donders (Eds.):
Culture and Human Rights: The Wroclaw Commentaries, Berlin/Boston: De Gruyter; Cologne: ARCult Media, 2016
Economic Law, London–New York: Routledge
(2015).
Iglesias Sánchez, Sara: “The Court and the
Charter: the Impact of the Entry into Force of
the Lisbon Treaty on the ECJ’s Approach to Fun-
damental Rights” (2012) 49 CMLRev 1565.
Psychogiopoulou, Evangelia: “The EU and Cul-
tural Rights”, in Ana Filipa Vrodljak (ed.), The
Cultural Dimension of Human Rights, Oxford:
Oxford University Press (2013).
Psychogiopoulou, Evangelia: The Integration of
Cultural Consideration in EU Law and Policies,
Leiden–Boston: Nijhof (2008).
COMMISSION v. ITALY (ECJ 10/12/1968, 6/68).
MALGOŽATA RUNEVIČ-VARDYN AND ŁUKASZ
PAWEŁ WARDYN v. VILNIAUS MIESTO SAVIV-
ALDYBĖS ADMINISTRACIJA AND OTHERS (ECJ
12/05/2011, C-391/09).
STICHTING COLLECTIEVE ANTENNEVOORZIEN-
ING GOUDA AND OTHERS v. COMMISSARIAAT
VOOR DE MEDIA (ECJ 25/07/1991, C-288/89).
TV10 SA v. COMMISSARIAAT VOOR DE MEDIA
(05. 10. 1994, C-23/93).
UNITED PAN-EUROPE COMMUNICATIONS BEL-
GIUM SA AND OTHERS v. BELGIAN STATE
(13/12/2007, C-250/06).
VERENIGING VERONICA OMROEP ORGANISA-
TIE v. COMMISSARIAAT VOOR DE MEDIA (ECJ
03/02/1993, C-148/91).
Oicial website of the CJEU: http://curia.europa.
eu (accessed 03/2016).
Izabela Skomerska-Muchowska
Cultural Autonomy
DEF: Although there is no oicially adopted legal
deőnition of the notion of ‘cultural autonomy’
in international law, its historical concept refers
to the establishment of self-governing minority
cultural councils, which enjoy the status of self-
ruled public law legal entities endowed with ad-
ministrative functions and public powers to take
binding decisions on minority cultural afairs (lan-
guage, education etc.) and may levy taxes. Based
on the personal principle of self-proclamation of
its members, cultural councils exercise, as govern-
mental institutions, jurisdiction over them, irre-
spective of their place of residence (non-territorial
element). Their decisions cannot be overruled by

the state authorities (autonomy element), unless
they go beyond the scope of their competence
(matters limited to issues of a minority culture).
INSTR: Cultural autonomy is argued to be a
valuable vehicle for the protection of minorities’
and indigenous peoples’ cultural rights. How-
ever, there are no explicit references to it in inter-
national ‘hard’ law instruments relating to minor-
ities. Only some weak provisions exist in very
few ‘soft’ law texts on minorities, mainly the 1999
OSCE Lund Recommendations (paras. 17–18) and
the 2008 Commentary on ‘Efective Participation’
(para. 135) of the Advisory Committee (ACFC) on
the Framework Convention for the Protection of
National Minorities (FCNM, 1995), which simply
note respectively that ‘non-territorial forms of gov-
ernance’/‘cultural autonomy arrangements’ – es-
pecially in őelds like education, culture, language
rights or religion – are useful for the safeguard-
ing of minority identity. Because of their general
nature and vague wording, these statements cer-
tainly do not constitute a holistic approach to the
issue. As regards indigenous peoples, ILO’s legally
binding Indigenous and Tribal Peoples Convention
of 1989 makes no direct reference to the notion,
though it emphasises, in a series of its stipula-
tions (e.g. in Articless 6(1), 7(1) and 27(3)), the
right to establish and develop their own institu-
tions. Further, the non-legally binding 2007 UN
Declaration on the Rights of Indigenous Peoples
proclaims in Article 4, that these peoples have
‘the right to autonomy or self-government’ as well
as the right to maintain their cultural institutions
(Article 5) and control their educational systems
(Article 12(1)). In both cases, however, the norms
have a declaratory tone and are quite ambiguous
regarding states’ obligations.
CASES: Given the fact that neither the ECHR nor
any other major international or regional human
rights instrument refers explicitly to the right to
cultural autonomy it comes as no surprise that
there is no case law on the matter. In the present
situation then, the ACFC is the body that could
fruitfully contribute, through its mild, comprom-
ised opinions, to the elucidation of the normat-
ive content of cultural autonomy arrangements
and to their proper implementation, at least to
the member states of the FCNM that have intro-
Cultural Autonomy | 125
duced this model in their national legislation
(e.g. Estonia, Hungary, Russia). Under this light,
a őrst useful, though very general, observation
regarding cultural autonomy that could serve as a
working guideline for further elaboration is the
one found in para. 136 of ACFC’s Commentary on
Efective Participation, namely that: ‘the corres-
ponding constitutional and legislative provisions
should clearly specify the nature and scope of the
autonomy system and the competencies of the
autonomous bodies. In addition, their legal status,
the relations between them and other relevant
State institutions as well as the funding of the en-
visaged autonomy system, should be clariőed in
the respective legislation. It is important that per-
sons belonging to national minorities be involved
and that their views be duly taken into account
when legislation on autonomy arrangements is
being prepared or amended.’
VIEWS: Adherents of the cultural autonomy
model argue that it could serve as an alternat-
ive to territorial autonomy, since the territoriality
principle on which the latter is based is seen with
suspicion by most governments as a őrst step on a
slippery path leading to secession. In this context,
they also assert that establishing non territorial
cultural autonomy arrangements is the best way
to avoid the phenomenon of creating ‘minorit-
ies within minorities’ that goes inevitably with
territorial autonomy settlements. Further, they
maintain that by de-territorialising the identit-
ies and demands of sub-state groups, cultural
autonomy could reduce or prevent ethnic ten-
sions between diferent cultural groups living in
the same area. Finally, they suggest that cultural
autonomy seems to be the most functional choice
for small and dispersed groups that are not in a
position, for obvious practical reasons, to seek
territorial solutions. On the other hand, there are
critical thoughts noting that there are examples
where cultural autonomy has been used as a pre-
text for enforced segregation. Others observe that
the assumption that all members of a group are
equally committed to the protection of their cul-
ture is problematic, overseeing internal power
conŕicts and interest diferences within the col-
lectivity. As well, they point out that non territorial
cultural autonomy challenges liberal conceptions
of equality by granting rights only to certain cul-
126 | Cultural Dimensions of Human Rights
tural communities. Finally, they suggest that it
may violate individual rights at the within-group
level.
CONCL: In order to come to some conclusions re-
garding cultural autonomy’s potential to prevent
ethnic conŕicts and safeguard cultural diversity,
one should comparatively study the relative na-
tional legal frameworks. At őrst glance the situ-
ation seems rather disappointing. In some cases
the regulations remained on paper and were never
realised in practice (e.g. Latvia, Ukraine), while
in others they did not function satisfactorily as
the cultural autonomy bodies do not have clear
legal status (e.g. Estonia) or enjoy a status sim-
ilar to ordinary NGO’s (e.g. Russia), with no real
public functions and competencies. However, it is
not the cultural autonomy model that is to blame
for these failures, but the various tacit political
motives behind its adoption in the speciőc spatial
and temporal national context (the presentation
of democratic credentials in the case of e.g. the
Baltic States). Indeed, cultural autonomy arrange-
ments, alone or in combination with some forms
of territorial settlements, seem to produce posit-
ive results, though not without several ŕaws and
shortcomings, for the protection of cultural rights
of small and scattered minorities. The examples
of Slovenia, Hungary and to a degree Serbia and
Croatia are indicative in this direction. Thus, be-
nevolence from the nation-states proves to be a
crucial factor for the practical, even partial, suc-
cess of the cultural autonomy model.
REFERENCES:
Eide, Asbjorn, Greni, Vibeke and Lundberg, Maria:
“Cultural Autonomy: Concept, Content, History
and Role in the World Order”, in Suksi, Markku
(ed.): Autonomy: Applications and Implications,
Hague: Kluwer (1998).
Kymlicka, Will: “National Cultural Autonomy and
International Minority Rights Norms”, 6 Ethno-
politics (2007) 379.
Lagerspetz, Mikko: “Cultural Autonomy of Na-
tional Minorities in Estonia: The Erosion of a
Promise”, 45 Journal of Baltic Studies (2014) 457.
Nimni, Ephraim: “National-Cultural Autonomy as
an Alternative to Minority Territorial National-
ism”, 6 Ethnopolitics (2007) 345.
Osipov, Alexander: “Non-Territorial Autonomy
During and After Communism: In the Wrong or
Right Place?”, 12 Journal on Ethnopolitics and
Minority Issues in Europe (2013) 7.
Smith, David: “Non-Territorial Autonomy and
Political Community in Contemporary Central
and Eastern Europe”, 12 Journal on Ethnopolitics
and Minority Issues in Europe (2013) 27.
Athanasios Yupsanis
Cultural Dimensions
of Human Rights
INTRO: The clariőcation of cultural rights ad-
dresses one of the major gaps in the human
rights protection system. Despite recent progress,
the weak development of cultural rights and the
massive attacks they still bear whenever they ap-
pear will require long and complex interpretation
in history. Fact is that they concern the heart of the
relationships between any person and cultural
environments full of contradictions, the intimate
experience each individual has with others, with
objects, with traditions.
The relation between culture and modernity
is sensitive, which is why cultural rights touch
at the core of human relationships with politics,
making us fear the worst deviations. For many,
cultural rights go against the universality of hu-
man rights. In reality, they are at the cross-road
between civil and social rights, in all the spaces
where knowledge resources, or cultural resources,
are essential, where freedoms have their roots. Cul-
tural rights are only conceivable in democracy if
they are őrmly embedded in the system of human
rights and share their universality. The develop-
ment of cultural rights guarantees the interface
between diversity and universality by securing
the human rights’ approach against four major
risks – relativism, particularism, communitari-
anism and culturalism (Meyer-Bisch, 2011). In
fact, cultural rights reside on all the frontiers, at
the most intimate of human capacities, in this
space of porosity where each of us can simultan-
eously be more dependent and more free. Cultural
freedoms, rights and responsibilities consist in
accessing, participating in and contributing to the
cultural resources necessary to live and develop
one’s identity throughout one’s life. Central to the