1.1 Justification for Undertaking Research
The subject undertaken in the current work, that is the guarantees of the cultural rights of third-country nationals and of their functioning in the legal system of the European Union, seems to be of particular significance and is worthy of an in-depth analysis for several reasons.
First of all, the European Union is experiencing the migration crisis, which consists in an intensive influx of third-country nationals to EU Member States. Only in 2016 almost 1.3 million persons coming originally from countries that are culturally distant from the orbit of the European culture, such as Syria, Afghanistan, Iran, Pakistan and Nigeria, applied for international protection in the European Union.1 As a result, the questions of effective cultural integration of immigrants and potential activities with a view of increasing the European identity have become widely debated issues. On the other hand, it turns out it is necessary to clearly define the ways in which third-country nationals might exercise their cultural rights, including the right to express their own cultural identity and cultivate their unique customs and traditions. It is also justifiable to define the scope of protection granted to foreign nationals in the case of persecution on cultural grounds that they might experience in their countries of origin.
It seems vital to analyse the problem of the guarantees of cultural rights from the perspective of the European Union, as it appears to be a common perception that the EU is not particularly involved in the issues of cultural policy, focusing rather on the issues of economic integration or security. However, in the legal system of the EU there are instruments, which, on the one hand, facilitate the exercise of cultural guarantees, and, on the other, which are conducive to the protection of European identity and culture.
In order to preserve European identity and culture, as well as diversity within geographically distant regions, it is necessary to undertake mindful activities at the European level. These activities should not only include the integration policies directed at third-country nationals but also clearly delineate the cultural responsibilities in terms of integration, which should be exercised by foreign nationals willing to reside within the territory of the EU.
1.2 Research Theses
The main research thesis of the current study assumes that there exists a catalogue of the cultural rights of third-country nationals in the legal system of the European Union. In accordance with the catalogue, the rights are protected in a sufficient way. At the same time, the catalogue allows for the possibility of defining the limits of exercising the above rights.
The cultural rights of foreign nationals in European Union law may be reconstructed on the grounds of the provisions of EU primary and secondary law, the case-law of the Court of Justice of the European Union (CJEU) and the guarantees of the European Convention on Human Rights (ECHR ),2 and the case-law of the European Court of Human Rights (ECtHR ).3 The cultural rights of foreign nationals include specific rights and powers, guaranteed in different legal acts. Thus, the catalogue consists of a divergent collection of rights and it has an essentially open character.
The so-called fundamental rights of a cultural nature are guaranteed in the provisions of primary law (Charter of Fundamental Rights) and constitute a specific type of metalaw. On the other hand, specific rights are guaranteed in the acts of secondary law and they most often concern a particular group of foreign nationals, for example, only persons seeking international protection. This allows for the adoption of a specific methodology, according to which within primary law, metalaws constitute the source and basis for interpretation of particular rights, guaranteed in secondary law.
Apart from the main thesis, the current study requires the formulation of the following supporting theses.
In accordance with the first supporting thesis, one of the values lying at the foundations and identity of the European Union is European culture. Despite the fact that the Union’s competence to support, coordinate or supplement the actions of Member States in the area of culture might be often viewed as a weak competence,4 in the system of EU primary and secondary law there exist instruments which facilitate policy-making in the area of culture and allow Member States to exert a real influence on the condition of European culture.
European migrations after World War II had a real impact on the sphere of culture. Due to globalization and uncritical support for the doctrine of multiculturalism, as well as increased migration influxes, the European culture is experiencing a phase of crisis and is in need of special protection and strengthening measures at the level of the EU. Along the lines of the second supporting thesis, the cultural responsibilities of foreign nationals in the sphere of integration, which can be implemented under the legal norms currently in force, allow for the real protection and strengthening of European identity and culture.5 They also contribute to the real participation of third-country nationals in cultural life.
In accordance with the third supporting thesis, the cultural rights of foreign nationals6 are, as a rule, of a derogable nature. In the case of a conflict of values, the protection of public order, public security and the rule of living together7 have key priority. By examining the provisions which might facilitate the derogation of the cultural rights of foreign nationals, it is also possible to define the extent of their application.
As for the fourth supporting thesis, it argues that there exists the right to protection against the culture of the country of origin. This right entitles a foreign national to protection against the oppressive culture of the country of origin, which prevents the said foreign national from the full exercise of their full cultural identity.8 In the case when a foreign national, as a result of exercising broadly understood cultural rights (including artistic expression, customs, rituals, as well as issues relating to religious practices), were to experience persecution within the meaning of the provisions of the asylum law, or were to be exposed to inhuman treatment if expelled to their country of origin, such foreign national has the right to stay in the receiving country and protection against the oppressive elements of the culture of the country of origin.
1.3 The Scope of Research
Along the lines of the title, the academic purpose of the current study is to provide an in-depth analysis and the evaluation of legal instruments relating to the guarantees of the cultural rights of third-country nationals in the legal system of the European Union. The research result of the study consists in a formulation of and presentation of a catalogue of cultural rights of third-country nationals, which at the same time entails the delineation of their limits.
The subject matter of the present study concerns third-country nationals, that is persons who come from the countries which are not EU Member States, and who are not the citizens of the Union within the meaning of Art. 20 of the Treaty on the Functioning of the European Union.9 For the purposes of the current study, third-country nationals are also referred to as “foreign nationals” or “immigrants.”10 They include both regular immigrants, who enter the EU territory legally, and involuntary immigrants—persons seeking international protection, as well as undocumented migrants—persons whose residence in the territory of Member States is of an irregular character.
The system of European Union law is understood in the current study as a legal system, including both primary law of the Union (Charter of Fundamental Rights with reference to protection standards afforded by the European Convention on Human Rights and the treaties in force—the Treaty on the Functioning of the European Union and the Treaty on European Union) and secondary law and the case-law of the CJEU, as part of acquis communautaire .11 For comparative and illustrative purposes, the study also describes specific incidental solutions implemented by Member States within their margin of discretion, entailed in the implementation of the provisions of the migration law directives. For the purpose of analysis of the particular areas of migration law, the current work also examines selected political documents of the EU from the Area of Freedom, Security and Justice.
The scope of the current study includes the concept of cultural rights and the limits of their execution. Defining the rights of such nature does not belong to the easiest of tasks, as they are not comprised in a finite catalogue. Moving further, the very concept of culture is such a multifaceted term that defining even its artefacts raises multiple obstacles. However, at this point it is worth quoting the definition of F. Znaniecki, which served as a basis for numerous research on the phenomenon of culture. In accordance with the philosopher’s definition, culture “includes religion, language, literature, art, customs, traditions, laws, social organisation, production techniques, economic exchange, as well as philosophy and science.”12
While defining cultural rights it was helpful to refer to the post-modern definition of the very culture and the accompanying phenomena. The classical definition of cultural rights includes the freedom of artistic expression, the right to have access to cultural goods and the right to participate in cultural life.13
Due to the multiplicity of identified and described rights, the current study proposes the terminology: “rights of a cultural character.” This is motivated by the fact that not all of the analysed rights of third-country nationals are cultural rights in the classical meaning of the term, for example, not all of them are listed in the International Covenant on Economic, Social and Cultural Rights14 or at the constitutional level. However, they refer to the broadly understood sphere of a person’s rights to exercise their needs in the area of culture—for instance the right of an individual to cultural identity.
It is equally difficult to define the concept of the limits of exercising one’s cultural rights, as most certainly due to the multifarious chara...