Culture in law: where can an artist be offended?

By Natalia Averina, a student of the MGIMO International Law Faculty

The fixing of cultural rights and freedoms in the constitutions of various countries started relatively recently, these notions can only be found in the texts of constitutions adopted after WWII. At the same time, personal and political rights have been reflected in the earliest constitutions and constitutional acts, i.e. in the late 18th century. These groups of rights were fixed in the French Declaration of the Rights of Man and of the Citizen released in 1789 and the U.S. Bill of Rights with its first 10 constitutional amendments adopted in 1791. Only after one and a half centuries did lawmakers of different countries realize the need to recognize and fix cultural rights and freedoms at a state level. They include the right to a cultural life, access to cultural centers and values, the right to equal access to culture and use of its achievements; the right to art, science, creativity and teaching; the right to protection of intellectual work; the right to education.

The majority of world states officially recognize the importance of all the rights and freedoms, guarantees, protection and development by the government, comprehensive international cooperation in the cultural sector. However, if we take a look at the texts of the constitutions adopted in the late 1940s and until the mid-1990s, we can see that there are minimal cultural rights and freedoms fixed there or mentioned in the most generalized form possible. For instance, the documents usually fix and detail the right to education and freedom of art, science and creativity. And that is basically all the constitutions of most European countries have to say about regulation of the cultural sector. Yet it is Europe where development and support for culture and cultural interaction, that protection of human rights in the sector are declared a priority. The texts of the constitutions, the supreme legal documents containing the basis of state systems, listing the content and guarantees of all other groups of rights (personal, political, socio-economic), pay minimal attention and have only one or two out of 20-30 articles on rights and freedoms. That does not mean that the rights have no way of being fixed in such countries. 

The main part in their fixing and detailed coverage in such cases is a subject of organic laws (an analogy of Russian federal constitutional laws), or ordinary laws. The reasons for such “constitutional discrimination for cultural origin” remains a mystery.

 

For example, the French Constitution of 1958 fixes cultural rights and freedoms the following way: “The nation guarantees an equal access of children and adults to education, getting a profession, and culture. Organization of public free secular education at all levels is the state’s duty.”More details were given in the Constitution of FRG of 1949: one of provisions of the article 5 guaranteed freedom of art, science, teaching, and research (at the same time freedom of teaching didn’t cancel a duty of being devoted to the Constitution). One of following articles read about a right of parents to decide whether their child would get religious education, a right of establishing private schools, and a right of teachers not to teach religion against their will.In Constitutions of other European countries only a right to education is described in details. At the same time, public access and free elementary education (Denmark, Italy) and basic education (Spain), as well as its obligatory character (Spain, Italy, Portugal). The Constitution of Italy of 1947 stated that “talented and decent pupils have a right to turn to higher levels of education, even if they have no money to pay.” Constitutions of the Eastern European countries consider cultural rights and freedoms much more thoroughly. For example, the Constitution of Bulgaria of 1991 guarantees a right to “use national and panhuman cultural values, develop national culture, according to ethnic belonging,” protection of author’s and similar rights.In the countries of Asia and Latin America, the situation is almost the same. The Japanese Constitution of 1946 is rather brief in the sphere – “freedom of scientific activity is guaranteed,” “everybody has a right to a minimum level of healthy and cultural life.” However, unlike the Brazilian Constitution, the Japanese major law guarantees a right to education, “according to a person’s skills”, and its obligatory character.Constitutions of the South Caucasus differ radically in the context (all of them were adopted in 1995), and especially one of them – Azerbaijan. The Constitution of the country fixes, explains, and guarantees all possible in the modern constitutional law rights and freedoms in the cultural sphere. Moreover, the Constitution touches on cultural rights in several chapters, which is not typical for other countries. The chapter “Fundaments of the State” states that the Azerbaijani Republic provides “free speaking and development” languages, along with the national one, which are used by its population. It is also stated that “the state encourages development of culture, science, art, protects historic, material, and spiritual heritage.” The chapter “Basic Human Rights and Freedoms” contains norms on other important cultural rights. For instance, every citizen has a right “to participate in cultural life, use cultural facilities and cultural values”; a right to get education, a guarantee of free obligatory basic education and its continuation by talented students, notwithstanding their income. A right to speak a native language is described in details: every citizen has a right to be raised, get education and create in a language which the citizen chooses; and he or she cannot be deprived of the right. Artistic freedom, a right to intellectual property, and protection of all kinds of the right are guaranteed by the law. Finally, it is guaranteed that every citizen should “treat respectfully historic, cultural, and spiritual heritage, take care of it, protect monuments of history and culture.” Protection of monuments of history and culture is considered to be “a duty of every person.”In the sphere of cultural rights and freedoms, the Constitution of Azerbaijan of 1995 can be compared only with the Russian Constitution which considers the aspect most thoroughly.The Constitution of Armenia of 1995 pays a bit less attention to cultural rights and freedoms and their guarantees. A right to education and participation in cultural life, a freedom of various kinds of creativity, a right to intellectual property, a right of minorities to speak and develop their language are regulated just like in the Azerbaijani Constitution. However, the Armenian major law has its own peculiarities. For example, its chapter “Foundations of the Constitutional System” fixes that historic and cultural monuments and other cultural values are protected by the state. The principle operates not only on the territory of the state, but also abroad. According to the Constitution, it “encourages strengthening of contacts with the Armenian Diaspora, preservation of national Armenian historic and cultural values, development of Armenian educational and cultural life.” Another example: unlike the Azerbaijani Constitution, the Armenian Constitution doesn’t make every citizen protect and take care of historic and cultural monuments or treat them respectfully.The Constitution of Georgia has its own features. The Georgian Constitution “restricts” a right of minorities to preservation and development of ethnic languages and cultures. Its providing “shouldn’t contradict sovereignty, the state system, territorial integrity, and political independence of Georgia.” At the same time, the legislator refers to world-recognized principles and norms of the international law. In all other aspects the Georgian Constitution contains the majority of general provisions on the cultural sphere, which are typical for constitutions of the South Caucasus countries.The most “constitutionally non-cultural” country of the world is the USA: their Constitution (amendments to it had been being taken for 200 years till 1992) doesn’t say a word about cultural rights and freedoms. By the way, initially its main text didn’t contain any human and civil rights. For example, the French Constitution of 1958 fixes cultural rights and freedoms the following way: “The nation guarantees an equal access of children and adults to education, getting a profession, and culture. Organization of public free secular education at all levels is the state’s duty.”

More details were given in the Constitution of FRG of 1949: one of provisions of the article 5 guaranteed freedom of art, science, teaching, and research (at the same time freedom of teaching didn’t cancel a duty of being devoted to the Constitution). One of following articles read about a right of parents to decide whether their child would get religious education, a right of establishing private schools, and a right of teachers not to teach religion against their will.

In Constitutions of other European countries only a right to education is described in details. At the same time, public access and free elementary education (Denmark, Italy) and basic education (Spain), as well as its obligatory character (Spain, Italy, Portugal). The Constitution of Italy of 1947 stated that “talented and decent pupils have a right to turn to higher levels of education, even if they have no money to pay.” Constitutions of the Eastern European countries consider cultural rights and freedoms much more thoroughly. For example, the Constitution of Bulgaria of 1991 guarantees a right to “use national and panhuman cultural values, develop national culture, according to ethnic belonging,” protection of author’s and similar rights.

In the countries of Asia and Latin America, the situation is almost the same. The Japanese Constitution of 1946 is rather brief in the sphere – “freedom of scientific activity is guaranteed,” “everybody has a right to a minimum level of healthy and cultural life.” However, unlike the Brazilian Constitution, the Japanese major law guarantees a right to education, “according to a person’s skills”, and its obligatory character.

Constitutions of the South Caucasus differ radically in the context (all of them were adopted in 1995), and especially one of them – Azerbaijan. The Constitution of the country fixes, explains, and guarantees all possible in the modern constitutional law rights and freedoms in the cultural sphere. Moreover, the Constitution touches on cultural rights in several chapters, which is not typical for other countries. The chapter “Fundaments of the State” states that the Azerbaijani Republic provides “free speaking and development” languages, along with the national one, which are used by its population. It is also stated that “the state encourages development of culture, science, art, protects historic, material, and spiritual heritage.” The chapter “Basic Human Rights and Freedoms” contains norms on other important cultural rights. For instance, every citizen has a right “to participate in cultural life, use cultural facilities and cultural values”; a right to get education, a guarantee of free obligatory basic education and its continuation by talented students, notwithstanding their income. A right to speak a native language is described in details: every citizen has a right to be raised, get education and create in a language which the citizen chooses; and he or she cannot be deprived of the right. Artistic freedom, a right to intellectual property, and protection of all kinds of the right are guaranteed by the law. Finally, it is guaranteed that every citizen should “treat respectfully historic, cultural, and spiritual heritage, take care of it, protect monuments of history and culture.” Protection of monuments of history and culture is considered to be “a duty of every person.”

In the sphere of cultural rights and freedoms, the Constitution of Azerbaijan of 1995 can be compared only with the Russian Constitution which considers the aspect most thoroughly.

The Constitution of Armenia of 1995 pays a bit less attention to cultural rights and freedoms and their guarantees. A right to education and participation in cultural life, a freedom of various kinds of creativity, a right to intellectual property, a right of minorities to speak and develop their language are regulated just like in the Azerbaijani Constitution. However, the Armenian major law has its own peculiarities. For example, its chapter “Foundations of the Constitutional System” fixes that historic and cultural monuments and other cultural values are protected by the state. The principle operates not only on the territory of the state, but also abroad. According to the Constitution, it “encourages strengthening of contacts with the Armenian Diaspora, preservation of national Armenian historic and cultural values, development of Armenian educational and cultural life.” Another example: unlike the Azerbaijani Constitution, the Armenian Constitution doesn’t make every citizen protect and take care of historic and cultural monuments or treat them respectfully.

The Constitution of Georgia has its own features. The Georgian Constitution “restricts” a right of minorities to preservation and development of ethnic languages and cultures. Its providing “shouldn’t contradict sovereignty, the state system, territorial integrity, and political independence of Georgia.” At the same time, the legislator refers to world-recognized principles and norms of the international law. In all other aspects the Georgian Constitution contains the majority of general provisions on the cultural sphere, which are typical for constitutions of the South Caucasus countries.

The most “constitutionally non-cultural” country of the world is the USA: their Constitution (amendments to it had been being taken for 200 years till 1992) doesn’t say a word about cultural rights and freedoms. By the way, initially its main text didn’t contain any human and civil rights.