European Alliance of Academies
Study Visit to Krakow, 21-22.09.2023

Rights and freedom of culture in times of political change
Special Rapporteur in the field of cultural rights
, Alexandra Xanthaki

Thank you so much.

My role and its functions
I’m an Independent expert- selected by the UN Human Rights Council for a period of 6 years
My latest thematic reports were on

• Migration and cultural rights
• Sustainable development and cultural rights

Every year, each mandate holder is allowed to conduct 2 official country visits.

• I visited Germany
• My predecessor visited Poland in 2018 and published her report in 2020

Communications

• I cannot take a position or talk publicly about a situation in a country, unless I have received credible information from civil society, not merely the press, and I have discuss the allegations first with the state concerned.

This function gives me some power, but maybe not as much power as one would still want. The international system is still made of states and we have to recognise this.

States have international obligations. These obligations are based on treaties they have signed and ratified. They have the obligation to respect the art and protect and implement the cultural rights of artists. Germany and many European states do not protect cultural rights, but only culture, as they understand it.

Cultural rights protect the rights of each person, individually and in association 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.

According to GC21 of the Committee on Economic, Social and Cultural Rights, contribution to cultural life is also to be understood as

• a right to take part in the development of the society to which one belongs, and in the definition, elaboration and implementation of policies and decisions that have an impact on the exercise of a person’s cultural rights (para. 15 (c)).
• the freedom to join and leave any cultural groups and be associated with different groups simultaneously, as well as the freedom to create new groups of shared cultural values and new cultural meanings and practices without fear of punitive action, including any form of violence.

Everyone should have the freedom to embrace or reject particular cultural practices as well as to revise and (re)negotiate existing traditions, values or practices, regardless of their provenance.

Active engagement in the cultural sphere offers crucial possibilities to (re)shape meanings and helps to build central traits of democratic citizenship such as critical thinking, creativity, sharing and sociability.

Cultural rights are important in and of themselves, and are also essential tools for achieving development, peace and for building social cohesion, as well as mutual respect and understanding between individuals and groups in all their diversity, and enhancing the enjoyment of other human rights.

Cultural rights require the implementation of policies promoting cultural interaction and understanding between people and groups, the sharing of perspectives about the past and of visions about the future, and the design of a cultural landscape that is reflective and respectful of cultural diversity and universal human rights. The vitality of artistic creativity is necessary for the development of vibrant cultures and the functioning of democratic societies.

Freedom of artistic expression is guaranteed by article 15 (3) of the International Covenant on Economic, Social and Cultural Rights, which requires States parties to respect the freedom indispensable for creative activity, and by article 19 (2) of the International Covenant on Civil and Political Rights, which asserts that everyone has “the right to freedom of expression, including the 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 the media of [their] choice”.

All persons, without discrimination, enjoy the right to freedom of artistic expression and creativity, which includes:
the right to freely experience and contribute to artistic expressions and creations through individual or joint practice,
to have access to and enjoy the arts, and to disseminate their expressions and creations, as part of
the right to participate in cultural life.

This also includes the right of individuals and groups, through their artistic and cultural expression, to contribute to social debates, challenge assumptions about accepted beliefs and revisit culturally inherited ideas and concepts.

Controversial works are not excluded from the right to freedom of expression.

Art can only be restricted for through the application of the limitations to freedom of expression and artistic expression that are allowed in international law. Limitations must meet the high threshold of article 19 (3) of the International Covenant on Civil and Political Rights and must be aim to promote general welfare in a democratic society and must be necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. In particular, decision makers, including lawmakers and judges, when resorting to possible limitations to artistic freedoms should take into consideration the nature of artistic creativity (as opposed to its value or merit) as well as the right of artists to dissent, to use political, religious and economic symbols as a counter-discourse to dominant powers and to express their own belief and world vision.

Protection of freedom of expression, including expression through the arts, is especially significant for those artists and cultural workers who are contributing to addressing intolerance and exclusion, or rebuilding trust in deeply divided societies or societies coping with the aftermath of human rights violations or violence, because their cultural productions are likely to be controversial to those whose understanding of the world is defined by single, often rigid, narratives, as well as to members of institutions, Governments or non-State actors who might prefer to leave past atrocities unexamined and unexplored.

Article 20 of the International Covenant on Civil and Political Rights does not limit expressions considered “controversial”. On the contrary, it states that any propaganda for war, as well as any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, shall be prohibited by law.

The contribution of cultural freedom and rights in times of conflict

Actions in the field of arts and culture can make significant contributions towards creating, developing and maintaining societies in which all human rights are increasingly realized. By engaging people and encouraging their interaction through artistic and cultural expression, actions in the field of culture can open a space in which individuals and groups can:

• reflect upon their society,
• confront and modify their perception of one another,
• express their fears and grievances in a non-violent manner,
• develop resilience after violent or traumatic experiences, including human rights violations, and
• imagine the future they want for themselves and how to better realize human rights in the society they live in.

Humanity dignifies, restores and reimagines itself through creating, performing, preserving and revising its cultural and artistic life. Artistic expressions can:

Keep the minds open

• Emotions, creativity, identity.
• Tackle mindsets that create exclusion
• Help restore understanding among groups

Raise our emotions

• Continues to move us, makes us human, focus on our common stories
• Develop our empathy
• Acceptance of difference

Forge innovative ways to go past the crisis

• Culture not just as human capital but also as a greenhouse for new ideas
• Fresh outlooks at the past

Throughout human history and in every society, people have improved their lives through engagement with creative and expressive forms. Cultural heritage, cultural practices and the arts are resources for marshalling attention to urgent concerns, addressing conflicts, reconciling former enemies, resisting oppression, memorializing the past, and imagining and giving substance to a more rights-friendly future. People often express values and ethical commitments through aesthetic forms and processes.

Participate in the political debate of the country.
Art can be political, and artists must be allowed to participate through their art to the political tensions and discussions. Even more so, artists have the right under international human rights law to take part, to participate in the big debates of the society in which they live. Disagreeing with the state policies does not constitute unpatriotism. In actual truth, it constitutes patriotism as it pushes people to reflect on the society’s decisions and the state’s policies. It means that artists take a stance, contribute to the debate and to the decision-making. Being an active citizen: what more could anyone ask for from its artists, from its inhabitants?

Attacks on cultural rights in times of crisis:

International human rights law explains that restrictions of artistic freedom, which includes management and curating of works, are violations of the legal obligations states have under international law.
Sometimes, attacks on cultural expressions and cultural rights are obvious. But sometimes, they are “under-the-radar” threats that are less well recorded, if at all. Yet it is these that have an impact as much, if not more so, on artists’ ability to create freely.

Unnecessary restrictions can result from disproportionate administrative requirements and duties for artists to fulfil. These are wide ranging and include undue government pressure on cultural institutions, artists “blacklisted” because of their political viewpoints, their gender, minority or other status, and so on. For example, during her visit to Poland, the former UNSR was told of the criminal penalties that were removed from the law on the Institute of National Remembrance, which limited language that can be used to refer to certain historical events related to the Second World War, including the Holocaust. However, the remaining possibility of civil liability may still have a chilling effect on cultural institutions.

More generally, and just as subtle but at times difficult to pin down, are the administrative restrictions that are applied more harshly against some artworks than others. These may be regulations that might otherwise seem reasonable, but are being more frequently applied to work that is critical of those in power, or created by persons from certain groups. These measures have included health and safety regulations used as excuses to close down an event, and denial of performance in a public place that would otherwise be granted to other artists. Curfews and decibel restrictions have been applied to music seen to be political or that upsets traditional values. Limits on the type of advertising that can be displayed, such as bans on alcohol advertising for religious reasons, may not be directly linked to a performance but can remove important sponsorship in the name of protection against immoral behaviour.

The denial of production and presentation spaces is another aspect of subtle censorship, as are local authorities evicting cultural sector tenants working on critical topics. There have been instances where governments have implemented “nuisance” measures, such as implementing repeated audits to shut down an organisation for a time, extended by detailed information requests, with tax or other officials ensconced on their premises for long periods while these checks are carried out.”

Access to funding, and in particular public funding, is an important aspect as well.

Hate speech and polarisation: Using the label “anti-Polish” to characterize those in the cultural fields with a different vision of Polish society and history stifles freedom of expression and should be avoided. Hate speech, intolerance and discriminatory attitudes, including anti-Semitism, must be combated with urgency.

Art used for political gains and propaganda

In her visit to Poland, the UNSR commented on attempts at official cultural engineering aimed at reducing cultural expression to reflect a monolithic vision of contemporary society and a simplistic version of Polish history. These trends undermine human rights, including cultural rights.

Emphasis on one art, usually the national one, can also be problematic. Attacks on minorities and the undermining of their values, philosophies, practices and expressions, but also dehumanising narratives about them. Also, hierarchies in the society. We have seen minorities suffer in times of political change.

Ultimately, voices are being squashed. The voices that are not loud are lost; there is no space anymore for self-reflection.
Sarah Wyatt, the author of a report on artistic freedom for the CoE published this year (2023), talked about self-censorship as a “gentler” censorship, that make the repercussions for transgressing boundaries of what can or cannot be said more unclear compared to when explicit censorship, “heavier” legislation, is applied. This makes traversing the terrain of creative freedom in some ways more perilous.

As a participant at the meeting in Ljubljana said, “Subtle political pressure or barriers are worse than being able to see the enemy clearly.” Another expanded on this: “We always know which subjects are sensitive, but we never know clearly where the lines are drawn, and you never know how things are going to be interpreted [by those who are in power or don’t agree].”
The problem with self-censorship is that the individual has only two routes: hero or non-hero and wounded. With self-censorship, the emphasis is on the individual artist or curator, rather than on the obligation of the state.

• In times of political change, we are moved to the extremes. Everyone has to be the hero or the devil. There are no real discussions.
• This affects the youth. They do not learn about dialog, nuances, debate on the basis of arguments, and are therefore pushed to extremes.
• Lack of empathy and emotional stability. Lack of appreciation of art that contributes exactly to these.

Recommendations: Human rights and the protection of cultural expressions in times of political change

Insist on legal obligations

• Highlight the importance of multilateralism
• Use international law. Do not fall in the trap of disrespecting international law. This is what states want you to do.
• The emphasis is not the human recastions to censorship, whether we are weak or strong, the focus should be on the state.
• Equal and non-discriminatory frameworks as a way to realise cultural rights

Recognise all forms of power and power relations

• State funded bodies represent the state and they themselves have power
• Power of the strong curator or theatre producer towards its staff or the new talent
• Power to allow audiences to also shape the debate, and not always be driven by ‘the experts’ only
• Power to give opportunities to the vulnerable, the disabled, the different or even the conventional.

Focus on maintaining strong institutions

• The previous UNSR in her visit to Poland referred to the importance of the independence of the Commissioner for Human Rights, a key mechanism for ensuring cultural rights, and guarantee all the necessary conditions for this institution to effectively fulfil its mandate.

Focus on maintaining a strong and vibrant civil society

• UNSR human rights defenders
• Continue to engage with the big problems of our times
• Continue to promote art not as luxury, not as financial resources but as a greenhouse for new ideas, new visions and new fresh ways of looking at things.