Music and the Universal Declaration of Human Rights
01 January 2001
Compiled by Karen Hald, Research assistant, The Danish Centre for Human Rights
FREEDOM OF EXPRESSION
The European Court of Human Rights has interpreted artistic freedom of expression in a broad way. In a judgement from 1988 the Court observed, that “Those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression”.
For musicians, freedom of expression particularly implies:
• Freedom to play music in public as well as in private
• Freedom to give concerts
• Freedom to release CDs
…regardless of which expressions or points of view may be expressed by the lyrics or music itself.
Therefore, as a point of departure, no censorship can be imposed or subsequent legal steps be taken against musicians because of what they express in their music.
However, there are exceptions:
• Propaganda for war is always unlawful, as is advocacy for national, racial or religious hatred.
• States may also limit freedom of expression if it is necessary for a certain number of other reasons:
• Respect of the reputations of others (defamation),
• Protection of national security, public order, or of public health or morals.
In any case such limitations must be prescribed in a national law.
This for instance implies that a government official cannot on his or her own decide to ban certain types of music from radio or television, if no law proscribes so. And the government is not allowed to pass a law on censorship for instance in order to silence certain religious groups or to combat opponent political opinions, because these are not legal grounds on which freedom of expression can be limited.
Individuals can complain about violations of the freedom of expression to several international human rights bodies such as the UN Human Rights Committe, the European Court of Human Rights and the Inter-American Court of Human Rights.
THE RIGHT TO PARTICIPATE IN CULTURAL LIFE
For musicians, the right to participate in cultural life particularly implies:
• Freedom to perform and produce music
• Freedom to listen to and enjoy music made by others
• The right to protection of the interests resulting from one’s own musical production
• Freedom for ethnic minorities to play the music of their own culture
Unlike the freedom of expression, there are no legal grounds for limiting the right to participate in cultural life. So unless the music contains defamatory lyrics or other expressions which can legally be limited within the scope of the freedom of expression, the right to perform and enjoy music in itself can never legally be prohibited.
On the other hand, the international human rights system offers no courts or committees to consider complaints about violations of the right to participate in cultural life, as is the case for alledged violations of the freedom of expression.The UN has established a Committe for Economic, Social and Cultural Rights to supervise Member States implementation of for example cultural rights, but at present it is not possible for individuals to submit complaints about violations to the Committee.
The supervision of cultural rights also falls under the mandate of UNESCO. One of the most important functions of UNESCO is to prepare standard-setting declarations, recommendations and conventions. Here, UNESCO has for example expressed an understanding of culture to comprise not only the culture of an Èlite, but also films, mass media and popular music and furthermore set up guidelines for how artists should be respected in society. UNESCO also runs a special programme on music to encourage attitudes which promote the respect for cultural diversity and stimulate tolerance, solidarity, cooperation, dialogue, and reconciliation. The International Music Council which is a non-governmental organisation, functions as an advisory body to UNESCO on musical matters.
WHAT ARE HUMAN RIGHTS?
The basic international human rights were first established on a global scale by the UN in the Universal Declaration of Human Rights in 1948. This document, however, holds no possibilities for the international community to take action against Member States who do not respect the Declaration. In 1966 the UN therefore issued two international Covenants to establish means of international reaction against human rights violations: the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights.
In relation to civil and political rights, a special Human Rights Committee has the power to consider requests of concrete violations from individuals who claim to be victims. The mandate of the corresponding Committee for Economic, Social and Cultural Right is limited to supervising and entering into dialogue with Member States and holds at present no possibility for individual complaints.
Apart from the two Covenants, UN Member States have over times agreed upon a number of so-called thematic documents on human rights for certain groups of people: the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of Discrimination Against Women (1979), the Convention Against Torture (1984), and the Convention on the Rights of the Child (1989). These Conventions elaborate on many of the same rights as are stated in the Universal Declaration.
The same is the case for a number of regional documents on human rights. European and American countries have created their own human rights systems with regional human rights courts. African countries have agreed upon a human rights charter with a Commission to promote human rights, but so far no court has been established. Finally, Asiatic countries and the Arabic world have each their charter on human rights in the pipeline.
Before a person can complain about an alleged violation of his or her human rights to an international human rights body, the country in question must have signed and ratified documents on the specific human right. Most countries have signed the two UN Covenants, but many countries still fail to transform the paper promises into national law. However, if a country in this way tries to postpone the consequences of its signature, it should be possible to make complaints even if a signed document is not yet ratified.
Information on which countries have signed and ratified UN documents is most easily found at the UN High Commissioner for Human Rights website: www.unhchr.ch/tbs/doc.nsf
|A Miniguide to Composer’s and Musician’s Rights
Compiled by Dr. Krister Malm, General Director of the Swedish National Collections of Music and board member of Freemuse
Similar to author’s rights is mechanical rights. This is the right of composers/lyrics writers to remuneration when their music is published on record or some similar medium. This remuneration is usually related to the number of records published.