The European Court of Human Rights' approach to cultural rights and cultural diversity
The European Court of Human Rights' approach to cultural rights and cultural diversity

Summary/Abstract: The classical approach to culture and to its implications, in the field of social sciences, in general, was no, so to speak, ʺculturally friendlyʺ. In the 90ʹs, as Michael Keating put it, “there was something of a rediscovery of culture” and of its relation with all the areas of social life. Cultural approaches in social sciences, in general, have emerged as a response given to methodological individualism and to the rational choice theories. It has been asserted that taking culture into account will help us to better locate individuals, within their social context, in which context their choices can actually have a meaning; it will help us to bring into question forms of action that cannot be easily explained in the calculated language of the rational choice theory. This type of approach was also reflected in international law and translated, among other things, into the increased preoccupation for the legal and judicial protection of cultural rights, cultural diversity and the extensive preoccupation for the identity protection of persons belonging to minorities. All these evolutions also attempt to substantiate and build up a new approach to human rights, calling for a reevaluation of several of theirs fundamental principles, such as, for instance, the value of individual autonomy ‐ reflected in the liberal, individualistic orientation of the great majority of treaties on human rights ‐ or that of ʺinternalʺself‐determination. In line with the above mentioned trends in international law, in my paper I will focus, firstly, on the approach that the European Court of Human Rights took on cultural rights protection and, secondly, on the existence of a distinctive legal right to cultural identity. Although the European Convention does not explicitly protect cultural rights, the Court, through a dynamic interpretation of the different articles of the Convention (especially, Articles 8, 9, 10 and Article 2 of Protocol no. 1), has gradually recognized substantive rights which may fall under the notion of ʺcultural rightsʺ, in the broad sense. The Court also approached cultural rights bearing in mind the anthropological definition of culture, as in its jurisprudence referred to the need to protect a certain way of life, the right to maintain a minority identity or to lead oneʹs private and family life in accordance with the tradition and culture. Although the Court does not always ruled in favor of cultural rights, it certainly established several principles that could serve as basis for future developments, including in relation with a possible right to cultural identity.

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