The right to participate in cultural life is rarely considered being a human right in France. Rather the opposite, culture and luxury are almost used as synonyms. Not merely it is often perceived as an area deserted by the poor but even as something that should be the least of their consideration. As evidence, the current covid-19 crisis carries the benefice of making obvious what is being considered as ‘essential’ and what is not. While multiple non-essential retails could re-open, cinemas, theatres, and museums are still closed. Images of resistance embodied by artists are not being theatrical as we imagine their nature commands.  Beyond the mere considerations of artistic expression, the closing of physical access to the cultural areas was also done with very little consideration to the existing ‘digital divide’ in France. Indeed, inequalities in access to digital materials, including for people who cannot afford the proper material, are aggravated by the crisis although being an essential means to access culture. When looking at the ones bound to dread the everyday satisfaction of their human needs, much attention is given to employment issues, food, and shelter. In an article about the Needs and Social Determinants of Health during the covid-19, inspiration is taken from Maslow's Hierarchy of Needs. According to this concept, “[t]he basic physiological needs are the foundation of the hierarchy, which include having water, food, and shelter met at a certain degree”. The article continues explaining that in Maslow’s theory, “the more the physiological needs are satisfied, the more the person will attempt to satisfy the safety and security needs, and so on.” The very need to access and participate in cultural life is not even cited in the article, although in Maslow’s hierarchy creativity appears in the fifth position, a place yet much less important. I will not claim that food, water and shelter are not essential human needs; rather that they are part of an essential whole. One among many learnings about extreme poverty, that comes from the organization ATD Fourth World created by Joseph Wresinski in a French slum, is that “[h]uman beings require beauty and creative expression as much as they require food, clothing, and shelter.” Moreover, considering culture as a secondary need is misleading. In relating it surviving conditions in concentration camps, a member of the organization and prominent personality, Geneviève Antonioz De Gaulle, explained the importance of beauty and spirituality in order to cope. As the Committee on Economic, Social and Cultural Rights (CESCR) puts it “[c]ulture shapes and mirrors the values of well-being and the economic, social and political life of individuals, groups of individuals and communities.”
The capability of human beings to get involved in cultural life is thus as essential for their survival as being part of the society. Not only art and other human expressions should be apprehended through the cultural property, but also as the mere right to access and take part in cultural life. This later right will be the focus of this article. It will not discuss the closure of cultural establishments such as theatres and cinemas because the legal aspect of this issue was already debated before the highest court of the French administrative order. It rather tends to reflect on the State’s obligation under the right to participate in cultural life taking as an immutable fact the closure of public places and the restrictions in cultural expression. Indeed, since the need for culture of the peoples living in precarity is that overlooked, one may wonder if French laws provide sufficient enforcement of the State’s minimum core obligation to allow individualized access to culture in such circumstances. To assess so, in further development, I will use the cursor of relevant human rights core instruments on cultural rights and compare it to French legal and judicial texts or decisions that relate directly or indirectly to the right to participate in cultural life.
II. The human rights laws regarding the right to take part in cultural life
The current situation mentioned above raises three dilemmas. One is the issue as to whether the closure of all public infrastructures may command to fill immediately the gap in the access to culture left by the impossibility to enter freely public infrastructures. The second is whether States should fulfill such obligation in a period of limited resources, as the one imposed by the crisis. The third is whether the state of emergency allows derogating the right to culture for the sake of countering the crisis. This section will be dedicated to discussing these three dilemmas.
a. The nature of States’ obligation to provide access to culture
Article 27 of the Universal Declaration of Human Rights, as well as Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), provides a right to participate in cultural life. According to the general comment of Article 15, this right entails a notion of accessing and contributing to cultural life. Thus, the implementation of this right necessitates positive steps toward a progressive diffusion of cultural expressions. Moreover, a States’ obligation of democratization and affordability are also present in the drafters’ minds. They considered that “[i]t is not enough, […] to build and maintain the infrastructure necessary for cultural life in its traditional sense. The right […] implies the accessibility of cultural activities to the widest possible audience.”  The CESCR confirms it in a general comment explaining how to implement States’ obligation to submit their periodical reports. Indeed, the Committee specifies that “States in their reports concerning the implementation of article 15 of the Covenant should give greatest attention to […] the measures States are taking to allow access to culture by the greatest number of people.” It appears that the Article commands States’ active steps toward the participation of everyone in cultural life. In times of restricted social interaction as the one we are currently living in, such diffusion is likely to be limited to private spheres excluding social interactions. The digital divide becomes, hence, a critical point, being the latest remaining access to culture.
Lea Shaver and Caterina Sganga consider that the right to cultural participation encompasses an obligation of the State to “realize the goal of universal access to the Internet.” Indeed, three elements are supporting such a theory. First, culture, as understood by the international instruments, comprises “the technological methods used in creation and dissemination of the former [written and oral literature, music].” Second, a purely practical assessment of the possibility to take part in culture implies access to materials and media allowing its diffusion and its creation. Third, under economic, social, and cultural rights (ESCR), the State has an obligation to take steps toward the full realization of the rights by all appropriate means including “financial, educational and social measures.”
However, if such obligation exists, it remains a progressive one. Thus, it does not provide sufficient information regarding the State’s obligation in a situation of limited resources such as the one provoked by the covid-19 crisis. A useful and more certain point remains, however. Technological tools are part of cultural rights and may thus also incorporate other immediate obligations of States.
b. The right to participate in cultural life in limited-resources times
Regarding discrimination, the obligation of the State is no longer a progressive one but an immediate one. It means that States should not only take progressive steps in consideration of their resources but, instead, implement immediately the right. Poverty is a prohibited ground of discrimination. Thus, “States parties must adopt, without delay, concrete measures to ensure adequate protection and the full exercise of the right of persons living in poverty and their communities to enjoy and take part in cultural life.” This is part of the States’ “minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights set out in the Covenant.” The imposed withdrawal of the population to the private sphere created a consequent disadvantage for the poor who do not have the necessary means to access culture through an internet connexion and technological materials. This may be considered indirect discrimination in light of international instruments. It “refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination.” The recent measures should be interpreted as indirect discrimination because it impacts disproportionately the people living in poverty whose access to culture is rendered completely impossible in the absence of an internet connexion. It should be compensated immediately to allow effective access to culture. Closing the digital divide is one means but not the only one.
The last issue remains. France declared a state of emergency. It is a derogatory regime under international laws taking place “[i]n time of public emergency which threatens the life of the nation”. It allows for the State to restrict rights for a limited period. Thus, the right to culture may have been lawfully restricted.
c. Derogation in States’ obligation regarding culture during the state of emergency
The State of emergency is a derogatory regime created to respond to situations of crisis. In such context, it appears legitimate of the State to derogate to its human rights obligation in order to primarily respond to the crisis. However, in a Statement on the coronavirus disease (COVID-19) pandemic and ESCR, the CESCR specified that in any way, restrictive measures must follow certain conditions, including to “be necessary to combat the public health crisis posed by COVID-19, and be reasonable and proportionate. […] In responding to the pandemic, the inherent dignity of all people must be respected and protected, and the minimum core obligations imposed by the Covenant should be prioritized.” As already mentioned, the closure of public cultural places may entail a complete impossibility to access cultural life for people living in poverty. The crisis does not discharge the State from its core obligation to protect from discrimination. In the complete absence of any alternative to allow people living in poverty to access cultural life, the State would place itself in violation of Article 15 of the ICESCR. Indeed, the core minimum obligation is not prioritized, and the measure appears to be disproportionate.
In order to assess whether French authorities sufficiently protected the right to participate in cultural life in respect of the ones living in poverty, it is necessary to look deeper into the way it is enforced in France.
III. French enforcement of the right to participate in cultural life.
As already mentioned, the crisis of coronavirus had a consequent impact on the right to participate in cultural life. Indeed, the collective dimension of culture yielded to individualistic access to culture, mostly with the use of digital materials. To analyze the enforcement of the right to participate in cultural life in France, it is thus necessary to research how it is generally enforced and how the derogatory regime took into consideration the potential impact of restrictions of liberties to the right to participate in cultural life.
a. Enforcement in regular times
In general, ESCR have been hardly made directly enforceable before Courts. Very few international provisions on social rights are considered as sufficiently clear and straightforward by the Administrative Courts to confer subjective rights to individuals. As an illustration, the Council of State, higher jurisdiction competent in matters involving administration, did not consider Article 12 of the ICESCR as being directly enforceable. However, when looking at the constitutional enforcement of these rights, some relevant points are to be noted. Since 1971, The Constitutional Council decided that the Preamble of a former 1946 Constitution acquired a constitutional value.  In this text, a number of social rights are mentioned, including the right to culture in Alinea 13. According to this provision, the Nation guarantees equal access to instruction and culture. While the right to participate in cultural life is absent as an autonomous one, from the jurisprudence of the Constitutional Council under its competence ‘a posteriori’, another avenue is to be explored. Through the procedure of “référé liberté”, the Council of State recognized multiples social rights enshrined in the 1946 Preamble as being fundamental rights and accepted to interpret it. It did so regarding the above-mentioned Alinea 13 in the matter of equal access to instruction of people with disabilities. In the recent decision regarding the closure of cinemas, theatres, and other cultural places, the same jurisdiction considered that free access to cultural works was a fundamental right.  However, the Alinea 13 is not mentioned, and the access to culture is approached through an obligation of abstention but not as an obligation to take a positive step toward its implementation.
According to Laurence Gay, a common feature of the decisions recognizing the direct enforceability of ESCR in the preamble is that the right is also enshrined in the law. The Judiciary historically considers itself as being solely the “mouth of the law” and thus is reluctant to involve in an assessment of its validity and moreover in competencies attributed to the parliament involving resource settings. When looking at the laws, several provisions are relevant. The first is Article 140 of the law against social exclusion, No 98-657. It provides that the equal access of everyone to culture, sportive activities, and leisure constitute a national purpose. The provision further acknowledges that such guarantee is essential to an efficient exercise of citizenship. The provision is particularly far-reaching in terms of recognition of the need to participate in the cultural life of people living in poverty. It also sets a goal of equality, which tends to align with international obligations to protect from discrimination. However, it remains a mere goal and does not entail obligations, neither it prohibits expressly direct or indirect discrimination. It is thus unlikely that the Council of State would recognize the right of people living in poverty to access cultural life if a case were to be filled on this issue. The second provision is Article 103 of law No 2015-991 of 2015. Although a clear responsibility of local authorities to respect cultural rights is affirmed, it does not expressly refer to an obligation to provide sufficient access to culture. Finally, in a law adapting European instruments on discrimination, a general provision prohibits as a criminal matter, discrimination. However, criminal laws are submitted to a stronger burden of evidence. In civil matters, it is forbidden in areas related to labor and job security, health, social benefits, education, and access to goods and services. The right to participate in cultural life is not mentioned in the law.
None of these provisions are sufficient to meet the requirements set in international instruments. Yet even though the enforcement is insufficient, it may be supposed that several policies are developed to achieve the goal of equal access to culture in regular time, so that all in all, the right to participate in cultural life is implemented. In times of crisis, insufficient enforcement may lead to more severe abuses and violations of this right. It is thus necessary to look into the guarantee provided in the emergency regime.
b. Enforcement during the covid-19 crisis
In order to cope with the crisis of covid-19, the French State created specific provisions enabling the State to take particular measures in accordance with the sanitary emergency. Indeed, a law of March 2020 introduced an Article L3131-15 in the law framework specifying the measures that could be taken under the State of emergency. Among them, the authorities can limit or forbid assemblies and gatherings of any nature. In the following article, the law provides that the measures should be implemented in a way strictly necessary and proportionate to the sanitary risk and in a manner that is appropriate to the circumstances of time and place. The provision does not mention that the measures should be implemented in a non-discriminatory manner. Neither the law itself imposes an impact assessment of the emergency measures on marginalized groups, including in access to culture, after a certain period. The enforcement of the state of emergency does not provide, as such, sufficient protection of the right to culture of the groups the most marginalized. In its statement on the response to the coronavirus, above-mentioned, the CESCR specified that particular attention should be given to these groups.  No guarantee that sufficient alternatives will be allocated to counter the absence of assembly and gathering to ensure that the right to participate in the cultural life of the people living in precarity remains accessible.
Culture is among the most important needs of human beings, is essential to their dignity, and the right to participate to cultural life is enshrined in international treaties. It does not merely entail the obligation to respect cultural life but also an obligation to protect the right from direct and indirect discrimination as an immediate obligation of the State. Moreover, the right to participate in cultural life encompasses an obligation of the State to make culture accessible to the ones living in precarity. The enforcement of this right in France does not provide sufficient guarantees that the most marginalized ones are able to access cultural life in absence of gathering and in a situation of long-term closure of cultural places such as in the context currently occurring. The French enforcement does not guarantee that sufficient alternatives would be provided to the people who do not have individual access to cultural life, including through technologies. Indeed, the French digital divide aggravated the situation of the people who suffer from unequal access to digital means, while technologies are yet considered as being part of cultural life under international laws.
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