BACK TO BLACK PETE
freedom of expression and non-discrimination under the european court of human rights; a case study on zwarte piet
lonneke van der werff | dr. antoinette hildering 11.009 words | 27/07/2018
ABSTRACT ... 1
INTRODUCTION ... 2
I. ZWARTE PIET AS A MATTER OF PUBLIC INTEREST ... 6
I.ITHESCOPEOFARTICLE10(1)ECHR ... 6
I.IICULTURALHERITAGEANDINTERNATIONALHUMANRIGHTSLAW ... 8
I.IIICULTURALHERITAGEANDARTICLE10ECHR ... 11
I.IVLIMITATIONSTOTHERIGHTTOFREEDOMOFEXPRESSION ... 13
II. ZWARTE PIET AS A RACIAL STEREOTYPE ... 18
II.ITHEPRINCIPLEOFNON-DISCRIMINATIONINTHECONVENTION ... 18
II.I.ITHESCOPEOFARTICLE14ECHR ... 18
II.I.IITHESCOPEOFPROTOCOLNO.12 ... 20
II.IITHEDISCRIMINATIVEASPECTSOFZWARTEPIET ... 22
II.IIIZWARTEPIETUNDERARTICLE8ICWARTICLE14ECHR ... 25
II.IVLIMITATIONSTOTHEPRINCIPLEOFNON-DISCRIMINATION ... 28
III. FINDING A BALANCE ... 30
III.ICONSIDERATIONSONTHEWITDHOFTHEMARGINOFAPPRECIATION ... 30
III.IITHEMARGINOFAPPRECIATIONINTHECASEOFZWARTEPIET ... 32
CONCLUSION ... 37
ABSTRACT
In recent years, the discussion on Black Pete, or ‘Zwarte Piet’, has been a prominent topic in the Dutch media and everyday conversation. Every year, the subject of the discussion – the portrayal of Dutch’ Santa Claus’ (Sinterklaas’) helper Zwarte Piet – becomes an increasingly sensitive and polarizing subject. The issue at hand is that of the portrayal of the figure of Zwarte Piet. Where a significant part of the Dutch population feels discriminated by how the current portrayal enforces racial stereotypes, another group sees Zwarte Piet and the way he is portrayed as an intrinsic part of Dutch culture and the celebration of Sinterklaas.
In this case study, the discussion gets approached from a legal perspective. Removing emotion from the equation, it sets out how the European Court on Human Rights (ECtHR or ‘the Court’) would place the case of Zwarte Piet under the protection of the two human rights that are involved: the right to freedom of
expression and the principle of non-discrimination. It will analyse the relevant articles as laid down in the European Convention of Human Rights (ECHR or ‘the
Convention’), and use the interpretation the Court has attached to these articles to create an insight on to which extent the case of Zwarte Piet would fall within the scope of each opposing right. The conclusions that can be drawn from these two analyses will be used to find a potential balance in the discussion at hand.
INTRODUCTION
Over the recent years, one of the most discussed subjects in Dutch media has been Zwarte Piet. As soon as the festivities surrounding Sinterklaas come closer, and the stores start to sell kruidnoten1 again, the entire country concerns itself with the question: “Is the phenomenon of Zwarte Piet – in its current portrayal – still acceptable today?”
Sinterklaas is the Dutch Santa Claus, and Zwarte Piet – or Black Pete – is his servant and helping hand. Sinterklaas sits on the back of his horse and waves to the
enthusiastic children, Zwarte Piet hands out candy and is the one who goes down the chimney at night to put the gifts in the set-out shoes. There is not just one Zwarte Piet, but several; all of them in service to Sinterklaas. The holiday holds a special place in the heart of the Dutch public and culture; in 2015 the entire celebration – including Zwarte Piet – was put on a National Inventory concerning Immaterial Cultural Heritage.2 The problem with the figure lies in its portrayal. Zwarte Piet is originally portrayed by white people, dressing up in full blackface. The black-painted face gets (traditionally) combined with red lips, golden earrings, an afro-wig, and a matching costume.3 These elements combined enforce a strong stereotypical image of black people.
1 Kruidnoten are small, round, cookie-like confectioneries with a crispy texture, traditionally associated with the
early December Sinterklaas-festivities in the Netherlands
2 The entire event surrounding Sinterklaas, including Zwarte Piet, has been put on a National Inventory
concerning Immaterial Cultural Heritage in 2015 - Van der Ploeg J, ‘Sinterklaas (en Zwarte Piet) Immaterieel Erfgoed’ de Volkskrant (2015) < https://www.volkskrant.nl/binnenland/sinterklaas-en-zwarte-piet-immaterieel-erfgoed~a3830664/> accessed 5 April 2018. - https://www.immaterieelerfgoed.nl/nl/sinterklaas
The issue of Zwarte Piet has proven itself as a tough one to solve. The connection and cultural value that is attached to it on one side, versus the feeling of exclusion and discrimination on the other side makes for an emotional discussion, that appears hard to rationally approach – nevertheless solve. This thesis does not claim to have the solution for the ongoing issues surrounding Zwarte Piet. It will however approach the discussion from an objective, legal standpoint.
The main issue of the discussion is one side claiming that Zwarte Piet in the way it is currently portrayed attaches negative racial connotations to the figure, and that by not commenting on this portrayal, the Dutch government discriminates a significant part of its people.4 The other side maintains the point of view that Zwarte Piet is an integral part of Dutch culture, and that if the government would try to adapt or abolish this figure, they would infringe on the people’s freedom of expression. In the multicultural context of today’s society – Amsterdam houses 167 different nationalities and backgrounds5 – it is important to strike the right balance between these two basic human rights.6 The principle of non-discrimination is ‘a key aspect of European human rights law’7, while freedom of expression is ‘one of the basic
conditions for the progress of democratic societies and for the development of each individual’.8 Is it possible to find a balance or compromise between two rights that are both so highly valued and fiercely protected? This thesis aims to find this
4www.nederlandwordtbeter.nl ‘Organisatie’ <https://www.nederlandwordtbeter.nl/organisatie/> accessed 2
May 2018
5 ‘Amsterdam is toch niet de meest diverse stad ter wereld’ AT5 (2017)
<http://www.at5.nl/artikelen/176666/amsterdam-is-toch-niet-de-meest-diverse-stad-ter-wereld> accessed 20 July 2018
6 European Commission against Racism and Tolerance (2007) ‘Expert Seminar: Combating racism while
respecting freedom of expression’ 5
7 Council of Europe (2018) ‘Handbook on European non-discrimination law’ 3 8 Handyside v. UK App no. 5493/72 (ECtHR, 7 December 1976), para 49
possibility. It will provide a case study on the discussion of Zwarte Piet from the perspective of the European Court of Human Rights (ECtHR or ‘the Court’).
By approaching the discussion from a European point of view, this case study hopes to remove the (national) emotion regarding the issue from the equation and
approach the issue more objectively. The Court interprets the European Convention on Human Rights9 (ECHR or ‘the Convention’) as a living instrument10, meaning that they will interpret the standards laid down in the Convention according to ‘present-day’ standard. The provisions as laid down in the Convention are not intended to be static, but reflective of social changes.11 Where it is hard for a country to be critical towards its own cultural traditions, and to accept that these might be outdated or no longer acceptable, the Courts interpretation will place the issue in both a legal and social context. In conclusion, this thesis will answer the question:
How does the Court interpret and balance the right to freedom of expression and
the principle of non-discrimination in the context of Zwarte Piet?12
To answer this question, both rights will be applied to the figure of Zwarte Piet. How does the tradition fall under the protection of the right to freedom of expression, and how does it violate the principle of non-discrimination? After these
considerations, the possibility to a balance between the two will be discussed. The study will use the rights as laid down in the Convention and interpreted by the Court, as well as relevant case law and inter(national) reports.
9 Formally ‘the Convention for the Protection of Human Rights and Fundamental Freedoms’
10 Viljanen J, 'The Interpretation of the ECHR as a Living Instrument: Demise of the Margin of Appreciation
Doctrine?' Tampereeen Ypiolisto (2015)
<https://blogs.uta.fi/ecthrworkshop/2015/12/07/rachaelita/#_edn1> accessed 2 July 2018
11 Van Dijk P, Van Hoof GJH, Heringa AW, Theory & Practice of the European Convention on Human Rights (Kluwer Law International 1998) 77
12 Important to emphasize is that this thesis does not consider the entire Sinterklaas-celebration to be
The first chapter will look at how Zwarte Piet as a cultural tradition fits under the right to freedom of expression. It will set out the scope of Article 10 ECHR, set out the position of cultural traditions in international human rights law, and see how this provides a basis for the Court to qualify the figure as a form of expression. It will additionally look at the limits of the right to freedom of expression under Article 10. The second chapter will look at how the Court would define Zwarte Piet as racially discriminating. It will set out the scope of both Article 14 ECHR as well as Protocol no. 12. Subsequently, it will look at aspects of Zwarte Piet that are perceived as racially discriminating and whether and how these aspects fit within the scope of the provisions on non-discrimination. Subsequently, the possible limitations to the principle of non-discrimination will be set out. The third chapter will put the findings of the previous two chapters next to each other, and see whether there is a potential balance to be found in this specific case. The thesis will end with an advisory
I. ZWARTE PIET AS A MATTER OF PUBLIC INTEREST
To understand how the figure of Zwarte Piet enjoys protection under the right to freedom of expression, this chapter will first look at what falls within the scope of Article 10(1); the article that protects the right to freedom of expression in the Convention. Second, it will look at how and to what extent Zwarte Piet could fit within this scope. To do so, Zwarte Piet’s cultural status and the link between cultural heritage and the right to freedom of expression will be discussed. Lastly, it will set out the limits of the right to freedom of expression.
I.I THE SCOPE OF ARTICLE 10(1) ECHR
The first paragraph of Article 10 defines the freedoms that are protected by the article: the freedom to hold opinions, the freedom to receive information and ideas, and the freedom to impart information and ideas.
The freedom to hold opinions is seen as a prior condition for the other freedoms in Article 10.13 The restrictions from the second paragraph of Article 10 are not
applicable on this right, and the Committee of Ministers has stated that: “any restrictions to this right will be inconsistent with the nature of a democratic
society”.14 This freedom also includes the ‘negative freedom’ of not having to share your opinions with everyone.15 The other two – the freedoms to receive and impart information and ideas – are complementary to each other. They protect both the provider of information and the one receiving it, and without them there would be no free and open elections, no possibility to criticise the government, and no right to
13 Dominika Bychawska-Siniarska, Protecting the Right of Freedom of Expression under the European
Convention on Human Rights [2017] Council of Europe 13
14 Council of Europe (1997) Recommendation No. R (97) 20 of the Committee of Ministers to Member States
on ‘Hate Speech’
inform yourself through media – both old and new.16 With these freedoms comes the protection enjoyed by the press17, as well as unrestricted artistic freedom.18 It even includes freedom of commercial speech, even though this is not as protected as the other ‘categories’.19
When it comes to the content of the expressions, the article has a wide scope of what falls within its protection. In Handyside v. the United Kingdom, the Court made clear that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the development of every man.20 Consequently, it decided that Article 10 does not only protect information and ideas “that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”21 Additionally, Article 10 does not only protect expressions that are communicated trough words (written or spoken), but also pictures22, images23, actions24, and cultural heritage – as long as they are intended to express an idea or present information.25 The mode of communication does not form a factor in deciding on the protection offered by Article 10, nor whether the person invoking it is a natural or legal person.26
16 Monica Macovei, Freedom of expression: A Guide to the Interpretation of Article 10 of the European
Convention on Human Rights [2002] Council of Europe p 9, 10
17 Lingens v Austria 8 EHRR 407, para 41
18 Müller and Others v. Switzerland (1998) DR, para 70 19 Id. 13, p 14
20 Gomien D, Short Guide to the European Convention on Human Rights (Council of Europe Publishing 2005)
101, Lingens v. Austria 8 EHRR 407; Sener v. Turkey App no. 26680/95 (ECtHR, 18 July 2000); Thoma v.
Luxembourg App no. 38432/97 (ECtHR, 29 June 2001); Maronek v. Slovakia App no. 32686/96 (ECtHR, 19
April 2001); Dichand and Others v. Austria App no. 29271/95 (ECtHR, 26 May 2002)
21 Handyside v. UK App no. 5493/72 (ECtHR, 7 December 1976) 22 Müller and Others v. Switzerland (1998) DR
23 Chorherr v. Austria App no. 13308/87 (ECtHR, 25 August 1993)
24 Steel and Others v. the United Kingdom App no. 24838/94 (ECtHR, 23 September 1998) 25 Id. 13, p 17
26 Lord Lester of Herne Hill, QC and Natalia Schiffrin, Seventh Judicial Colloquium on the Domestic
Concluding from this, it is safe to say that the scope of ‘freedom of expression’ is interpreted to be very broad.27 However, this does not mean that all forms of expression enjoy the same amount of protection. Over the years, the Court has provided an extra degree of protection to speech on matters of public interest, and cases where the press is involved.28 The reasoning behind these two exceptions reflects the importance the Court attaches to the right of freedom of expression as a cornerstone of democracy and to the important role of the media to effectively realise this freedom.29
To determine how the right to freedom of expression applies to Zwarte Piet as a cultural tradition, it is necessary to define the degree of protection that the Court provides cultural traditions under Article 10.
I.II CULTURAL HERITAGE AND INTERNATIONAL HUMAN RIGHTS LAW
As stated in the introduction, Zwarte Piet is part of the Sinterklaas-celebrations and of the Dutch immaterial cultural heritage. Culture forms a complex subject in international human rights. This complexity has partially to do with the concept of culture itself, which can vary from intellectual and artistic achievements, to culture in the anthropological sense – which includes the way of life of individuals and
communities.30 Additionally, there is the universalism-cultural relativism debate on whether and up to which extent cultural practices should be protected under
27 Toby Mendel, A Guide to the Interpretation and Meaning of Article 10 of the European Convention on
Human Rights [2010] 3
28 Id. 27, p 11, 14 29 Id. 27, p 12
international human rights law.31 Nevertheless, several international human rights treaties include cultural rights: rights that guarantee that people and communities have an access to culture and can participate in the culture of their election.32 The Universal Declaration of Human Rights (UDHR) laid it down in Article 27, the International Covenant on Economic, Social and Cultural Rights (ICESCR) has Article 15. Both these articles guarantee the right to participate freely in the cultural life of the community, enjoy the benefits of scientific progress (the UDHR also includes enjoyment of arts) and its applications, and benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.33 The fact that the right to culture is protected in these instruments, does not mean that it is without its limits. Culture cannot be used as a shield to protect the denial or violation of human rights. It does not justify torture, murder, genocide or discrimination on grounds of sex, race language or religion.34 Looking at the theme of cultural heritage, the United Nations Human Rights Council (UNHRC) issued a report in 2011 on the extent to which the right of access to and enjoyment of cultural heritage forms part of international human rights law. According to this report of the independent expert in the field of cultural rights, cultural heritage can be defined as:
“...tangible heritage (e.g. sites, structures and remains of archaeological, historical, religious, cultural or aesthetic value), intangible heritage (e.g. traditions, customs
31 Universalism states that human rights are inalienable, and carry a universal character; meaning that they
should be applied equally everywhere. Cultural relativism claims that in context of different cultures, human rights can be interpreted according to that context. Id. 30
32http://www.culturalrights.net/ ‘What we mean by cultural rights’
<http://www.culturalrights.net/en/principal.php?c=1> accessed 8 July 2015
33 Universal Declaration of Human Rights, Article 27
34 […] or any of the other universal human rights and fundamental freedoms established in international law.
and practices, aesthetic and spiritual beliefs; vernacular or other languages; artistic expressions, folklore) and natural heritage (e.g. protected natural reserves; other
protected biologically diverse areas; historic parks and gardens and cultural
landscapes).”35
Within this definition, Zwarte Piet as a deeply-rooted cultural tradition36 would be defined as ‘intangible heritage’.
Culture is not static. It is an interactive process in which individuals and communities, while preserving their specificities and purposes, give expression to the culture of humanity.37 In the context of cultural heritage this means that important human rights issues related to its protection include questions on which cultural heritage deserves protection, who participate in the interpretation of the cultural heritage, and how are conflicts over cultural heritage resolved?38
Even though cultural rights in the context of cultural heritage are often used to promote cultural diversity by protecting the traditions of minorities39, the case of Zwarte Piet is different. In this case, the cultural heritage in question is supported by the dominant community in the society. Even though the support is receding, most Dutch people still want Zwarte Piet to remain the way it is traditionally portrayed.40 On this issue, the UN report states that even though cultural heritage can have an
35 Human Rights Council (2011) ‘Report of the independent expert in the field of cultural rights, Farida
Shaheed’ A/HRC/17/38 para 4
36 Committee on the Elimination of Racial Discrimination (2015) ‘Concluding observations on the combined
nineteenth to twenty-first periodic reports of the Netherlands’ CERD/C/NLD/CO/19-21 para 18
37 Committee on Economic, Social and Cultural Rights (2009) ‘Right of everyone to take part in cultural life
(art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights)’ E/C.12/GC/2 para 12
38 Id. 35, para 9 39 Id. 35, para 2
instrumental role in the protection of cultural diversity, the opposite is equally
possible: cultural symbols of dominant communities within a society can be glorified, and the education about this heritage could be distorted for political purposes or to form a public opinion. Because of this, different communities within one society may have different takes on the same cultural heritage.41 When these different takes lead to conflict, the report emphasizes the importance of finding a good balance.42 An important role in finding this balance is played by the right to freedom of
expression.
I.III CULTURAL HERITAGE AND ARTICLE 10 ECHR
Amongst others43, the right to freedom of expression44 is recognized by the special rapporteur as an important right for implementing the access and enjoyment of cultural heritage. The UN report describes it as “essential for the development and maintenance of cultural heritage, and dialogue when conflicts of interpretation about the meaning and significance of cultural heritage arise”.45
In the specific case of Zwarte Piet, the Raad van State (the Raad) – a Dutch political advisory institution – has already formulated this connection between the discussion and Article 10. When asked to formulate an advice on a law proposal that had the intention to protect the tradition of Zwarte Piet by laying down its portrayal in the law46, the Raad concluded that this law proposal would be incompatible with the right to freedom of expression as laid down in the Convention. The Raad stated that
41 Id. 35, para 11 42 Id. 35, para 12
43 The right to self-determination (§44 jo. 45), the right to education (§44 jo 46), the right to freedom of thought
and religion (§44 jo 48)
44 Id. 35, paras 44, 47 45 Id. 45
46 ‘Initiatiefvoorstel-Bosma en M. de Graaf Zwarte Piet-wet’ (2017)
festivities normally would not fall within the scope of this right, but that the controversy surrounding the subject changed this. The preference for a certain portrayal of Zwarte Piet has gotten the character of ‘an expression of a point of view’.47 Because of the discussion on the further development of the cultural tradition, it transformed from ‘just’ culture, to a matter of public interest – an area that falls under the protection of Article 10.
The Convention does not explicitly protect cultural rights. Instead, the Court uses a dynamic interpretation of the Convention to recognize several substantive rights that could qualify as cultural rights in a broad sense.48 Article 10 is one of these rights and is mostly used in the context of ‘high culture’49: forms of artistic expression,50
including visual art51 and literary expression52. Another important aspect of cultural rights that the Court has placed under the protection of Article 10, is the access to it. The Court has in some cases interpreted ‘access to culture’ as showing similarity to the right to receive and impart information.53 The role that the UN report appointed to the right to freedom of expression is also strongly related to access to cultural heritage in the sense that discussion on the further development of cultural heritage offers more certainty that a good balance will be found, and that every community will feel like they have access to their cultural heritage.54
47www.raadvanstate.nl ‘Adviezen’ <
https://www.raadvanstate.nl/adviezen/zoeken-in-adviezen/tekst-advies.html?id=12029> accessed 9 May 2018
48 Council of Europe (2017) ‘Cultural Rights in the Case Law of the European Court of Human Rights’ 4 49 ‘the traditional canons of literature, music, art, and so on.’ Julie Ringelheim ‘Cultural Rights’ in Daniel
Moeckli, Sangeeta Shah, Sandesh Sivakumaran (eds.) International Human Rights Law (Oxford University Press 2014) 288
50 Müller and Others v. Switzerland (1998) DR, para 27
51 Otto-Preminger Institute v. Austria App no. 13470/87 (ECtHR, 20 September 1994) 52 Karataş v. Turkey App no. 63315/00 (ECtHR, 5 January 2010), para 49
53 Id. 48, Ahmet Yıldırım v. Turkey App no. 3111/10 (ECtHR 18 December 2012) para 67, Akdeniz v. Turkey
App no. 25165/94 (ECtHR, 31 May 2005), Cengiz and Others v. Turkey App no. 48226/10 (ECtHR, 1 December 2015)
Even though there is no specific Court-case law regarding intangible cultural heritage, and therefore no precedence of them providing a discussion on cultural heritage the protection offered by Article 10, the international and national
interpretations of both cultural heritage in general as the Zwarte Piet discussion specifically in the context of Article 10 ECHR could provide enough foundation for the Court to take this step. As stated in the introduction: the Convention gets interpreted according to present-day standards. With the development of cultural heritage closely linked to the access to culture, which is linked to Article 10 in the Court’s own case law55, the step from defining Zwarte Piet as intangible cultural heritage to defining Zwarte Piet as a matter of public interest no longer seems that improbable to take. Chapter III will analyse the possibilities to balance out the protection provided by Article 10 on matters of public interest with the principle of non-discrimination. To do so, it is necessary to shortly set out how the Court defines the limitations to the right to freedom of expression.
I.IV LIMITATIONS TO THE RIGHT TO FREEDOM OF EXPRESSION
Article 10(2) ECHR makes clear that the exercise of the freedoms as laid down in Article 10(1) carries duties and responsibilities with it56; the right to freedom of expression is not without its limitations.
Since Zwarte Piet has been placed within the scope of Article 10, this thesis will not discuss Article 17 ECHR. In the context of the right to freedom of expression, ‘the abuse clause’ serves to remove hate speech from the protection of Article 10. However, the application of this article is very rare, and even though the Court does
55 Id. 53
have a definition for when a statement can be considered ‘hate speech’57, the case law shows a lack of clear criteria for when Article 17 is applied.58 Therefore, when looking at a potential infringement on the right by a national government, the Court will use the test laid down in Article 10(2) so see whether this infringement was allowed.
Article 10(2) contains a three-tiered test for potential restrictions placed on the freedom of expression. According to the second paragraph, freedom of expression may be limited if this limitation (a) is prescribed by law; (b) pursues one of the legitimate aims listed in Article 10(2) and; (c) is necessary in a democratic society to achieve the abovementioned aims.59 These rules must be narrowly interpreted,60 and a placed restriction must meet all three criteria. If not, it is automatically invalid.61 The requirement that the restriction must be “prescribed by law” shows the importance of the rights laid down in the first paragraph. Only a democratically elected body, such as the legislator, should have the power to limit this fundamental right.62 In addition to the requirement that the restriction must be laid down in the law63, the Court added two qualitative requirements to the used legislation. These requirements where stated in the first Sunday Times case.64 The first one requires
57 ‘All forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism, or
other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination, and hostility towards minorities, migrants, and people of immigrant origin’ - Council of Europe (1997) Recommendation No. R (97) 20 of the Committee of Ministers to Member States on ‘Hate Speech’ 107
58 Paulien de Morree, Rights and Wrongs under the ECHR – the Prohibition of abuse of rights in Article 17 of
the European Convention on Human Rights [2016] SHRRS 64
59 Id. 26, p. 161
60 K Reid, A Practitioner’s Guide to the European Convention on Human Rights (Sweet & Maxwell) 602 61 Id. 27, p. 34
62 Id. 27, p. 34 63 Id. 27, p. 35
that the law is adequately accessible, meaning that the citizen must be given an indication that is adequate in the circumstances of the legal rules applicable to a given case. The second requirement is that the relevant law must be foreseeable, meaning that it must be formulated with sufficient precision to enable the citizen to regulate his conduct: the citizen must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.65
If the first requirement of Article 10(2) is fulfilled, the restriction must subsequently “pursue one of the legitimate aims listed in Article 10(2)”. These aims consist out of: national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary.66 Even though this list of potential aims is already extensive, the Court additionally has the tendency to interpret the scope of these aims broadly.67 As a consequence, the second part of the three-part test is not often the decisive one. In the majority of the cases, a State will be able to prove that their restriction on free expression pursues a legitimate aim.68
The final requirement of Article 10(2) is that the restrictions “(…) are necessary in a democratic society to achieve the abovementioned aims”.69 The majority of the cases on the restriction of Article 10 are decided under this requirement. In the
65 Id. 64 66 Id. 56
67 e.g. Engel v. Netherlands App nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (ECtHR, 8 June 1976) para
98 – ‘public order’ is applicable in multiple situations
68 Id. 27 69 Id. 56
Pericnek case, the Court sets out the general principles that it uses to interpret the
necessity of the interference. The Court summarizes them as follows: first, the importance of the right to freedom of expression is reaffirmed. Exceptions must be construed strictly, and the need established convincingly.70 Second, ‘necessary’ in Article 10(2) implies the existence of a pressing social need. It provides the
Contracting States with a margin of appreciation in deciding on whether such a need exists, but this margin still goes hand in hand with European supervision. The final ruling on whether the restriction is allowed lies with the Court.71 The last principle describes the Court’s reviewing role: instead of taking the place of the national authorities, the Court reviews the decisions made by the national authorities under Article 10. The Court takes all circumstances of the case into consideration to determine whether the reasons provided by the national government to justify the interference are ‘relevant and sufficient’72, and if the means used were proportionate to the aim pursued.73 In doing so, the Court must make sure that the national
authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts.74 The last principle it emphasizes is that there is little scope under Article 10(2) for restrictions on political expression or on debate on questions of public interest.75
The philosophy behind the margin of appreciation that gets mentioned in the
second principle is that the majority of the Contracting States have implemented the Convention into their national legal system, which makes it directly binding. Through the margin of appreciation the Court ensures the protection of the human rights and
70 Perinçek v. Switzerland App no. 27510/08 (ECtHR, 15 October 2015) para 196(i) 71 Id. 70, para 196(ii)
72 Cumpǎnǎ and Mazǎre v. Romania App no. 33348/96 (ECtHR, 17 December 2004) para 90
73 Dominika Bychawska-Siniarska, Protecting the Right of Freedom of Expression under the European
Convention on Human Rights [2017] Council of Europe 35
74 Id. 70, para 196(iii) 75 Id. 70, para 197
fundamental freedoms as laid down in the Convention on a core level, while also taking into account the diversity of the Contracting States.76 It is one of the primary tools to respect diversity, national sovereignty and the will of domestic majorities, while still effectively enforcing the Convention.77 In the context of the right to freedom of expression, it was first found in the Handyside case, where the Court stated:
“It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place which is
characterised by a rapid and far-reaching evolution of opinions on the subject. (…) Consequently, Article 10 para. 2 leaves to the Contracting States a margin of
appreciation.”78
The margin of appreciation is a flexible concept and the main cause of the context-specific character of Article 10(2).79 This flexibility expresses itself in the variable widths that it can have, depending on the circumstances of the case. The width of the margin of appreciation in this specific case will be set out in Chapter III.
76 Aaron A. Ostrovsky, What's So Funny about Peace, Love, and Understanding - How the Margin of
Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals [2005] Hanse L. Rev. 47
77 Id. 76
78 Handyside v. The United Kingdom App no. 5493/72 (ECtHR, 7 December 1976) para 48
79 European Commission against Racism and Tolerance (2007) ‘Expert Seminar: Combating racism while
II. ZWARTE PIET AS A RACIAL STEREOTYPE
Now the scope and limitations of the right to freedom of expression have been set out – as well as Zwarte Piet’s position within that scope – it is time to approach the issue from the other side. This chapter will first discuss the principle of
non-discrimination as laid down in the Convention. Second, it will look at which aspects of Zwarte Piet are seen as discriminatory and how this would fit underneath the principle of non-discrimination. and defined through the Court’s case law, and consequently see which aspects of Zwarte Piet violate this principle.
II.I THE PRINCIPLE OF NON-DISCRIMINATION IN THE CONVENTION
The general principle of equality and non-discrimination is a fundamental element of international human rights law. It has been recognised as such in Article 7 UDHR, Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and in similar provisions in other international human rights instruments.80 In the
Convention it is formulated under Article 14 ECHR and Protocol no. 12. II.I.I THE SCOPE OF ARTICLE 14 ECHR
For a long time, Article 14 ECHR has been the only substantive non-discrimination provision in the Convention. It has a dependant character81, meaning that the Court can only examine complaints regarding discrimination when this complaint also falls within the scope of one of the substantive provisions of the Convention and the Protocols. Article 14 has no independent existence in that context.82
80 Council of Europe (2000) Explanatory Report to the Protocol No. 12 to the Convention for the Protection of
Human Rights and Fundamental Freedoms ETS 177 p 1
81 Joan Small, Structure and Substance: Developing a Practical and Effective Prohibition on Discrimination
under the European Convention on Human Rights [2003] Int'l J. Discrimination & L. 45
However, Article 14 does have an autonomous meaning83, since the Court still examines a case under Article 14 in conjunction with a substantive right, even though the right itself is not violated.84 Additionally, the Court adopted a wide interpretation of the scope of the provisions under the Convention. Through case law the Court made it clear that it is possible for a complaint to fall within the scope of a substantive right, even though the issue does not directly relate to a specific entitlement granted by the Court. Under those circumstances, it is enough if the facts of the case are broadly related to issues protected under the Convention.85 Regarding the grounds of discrimination that fall within the scope of Article 14, the article mentions several grounds specifically, and ends with ‘or other status’, which makes it appear as if – as long as the requirement of connectivity is met – it is
possible to bring every form of inequality in treatment before the Court. There have been cases where the Court has indeed confirmed this open interpretation of the discrimination grounds86, but parallel to these cases, the Court has put some limitations on the meaning of ‘or other status’.87
The Court decided that to enjoy the protection of Article 14, the difference in treatment must be based on ‘a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other’.88 This requirement of ‘personal status’ appears to not have completely overwritten the earlier – open – case law. There are several later judgments in which the precise definition of the
83 Id. 82
84 Handbook on eu non-dis law – p. 30, Belgian Linguistic Case (1968) 1 EHRR 252 at 283, para 9, Abdulaziz, Cabales and Balkan- dali v United Kingdom
85 Council of Europe (2018) ‘Handbook on European non-discrimination law’ 30 86 Engel v. Netherlands para 72, Rasmussen v. Denmark para 34
87 Janneke Gerards, The Discrimination Grounds of Article 14 of the European Convention on Human Rights
[2013] Human Rights Law Review 99
88 Kjeldsen, Busk Madsen and Pedersen v. Denmark App nos. 5095/71; 5920/72; 5926/72 (ECtHR, 7 December
ground of discrimination is not relevant, and there have been cases where the Court applied Article 14 on a difference in treatment that was not based on a personal characteristic per se.89 It appears that regarding the grounds of discrimination, ‘other status’ needs to be interpreted as meaning ‘personal characteristics’, but that
distinctions based on impersonal characteristics may also require the Court’s attention if the circumstances of the case so require.90
The final important definition is that of ‘discrimination’. The Court defines
discrimination as a difference in treatment that has no ‘objective and reasonable justification’.91 It recognizes both direct discrimination, where two persons in the same situation are treated differently, and indirect discrimination, where two persons in different situations are treated alike.92
Article 14 does not form a general or independent principle of equal treatment93, and the protection that it offers is a lot less than the protection laid down in other international human rights instruments.94 From the 1960s onwards, manners to provide further guarantees in the field of equality and non-discrimination through a protocol to the Convention have been proposed.95 Protocol no. 12 was the result. II.I.II THE SCOPE OF PROTOCOL NO. 12
89 Id. 87, p. 105
90 Id. 87, p. 107
91 Abdulaziz, Cabales and Balkandali v. The United Kingdom App nos. 9214/80; 9473/81; 9474/81 (ECtHR, 28
May 1985)
92 Thlimmenos v. Greece App no. 34369/97 (ECtHR, 6 April 2000) para 44
93 Janneke Gerards ‘The Application of Article 14 ECHR by the European Court of Human Rights’ in Jan
Niessen and Isabelle Chopin (eds), The Development of Legal Instruments to Combat Racism in a Diverse
Europe (Martinus Nijhoff Publishers 2004) 5
94 Arnardóttir OM, Equality and Non-Discrimination Under the European Convention on Human Rights
(Martinus Nijhoff Publishers 2002) 37
95 Council of Europe (2000) Explanatory Report to the Protocol No. 12 to the Convention for the Protection of
Protocol 12 (‘the Protocol’) was opened for signature in November 2000, and came into force on the first of April 2005.96 It attempts to address one of
the Convention's substantive shortcomings: the lack of a freestanding provision which prohibits discrimination.97
The grounds and the formulation of the grounds under Article 1 of the Protocol are identical to those under Article 14,98 and it has also been made clear that the
meaning of ‘discrimination’ in Article 1 is intended to be identical to that in Article 14 of the Convention.99
The added value of the Protocol lies in the expansion of the scope of the prohibition of discrimination by guaranteeing equal treatment in the enjoyment of any right (including rights under national law).100 Contrary to Article 14, Article 1 of the
Protocol contains a general non-discrimination clause and consequently provides a scope of protection which extends beyond the "enjoyment of the rights and
freedoms set forth in [the] Convention".101 With the Protocol, the equality guarantee is finally accorded the same weight as other Convention rights.102
96www.coe.int ‘Conventions’ <https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/177>
accessed 2 July 2018
97 P Urfan Khaliq, Protocol 12 to the European Convention on Human Rights: a step forward or a step too far?
[2001] 457
98 Id. 97
99 Id. 96, para 18
100 More specifically, when a person is discriminated against in the following four ways (§22):
i. in the enjoyment of any right specifically granted to an individual under national law;
ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies); iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).
101 Id. 96, para 21 102 Id. 8 p.46
Additionally, Protocol no. 12 introduces the idea that States are allowed to take affirmative action to promote full and effective equality, without being sanctioned for positive discrimination.103 The reasoning behind this is as follows: the fact that certain groups or categories of persons are disadvantaged, or inequalities in general exist, may be enough justification for adopting measures which will provide specific advantages in order to promote equality. However, the proportionality principle still needs to be respected. Even though there are several international instruments which encourage or even oblige states to adopt positive measures, Protocol no. 12 does not place such an obligation on the Contracting States. Since the Protocol is subject to the judicial control of the Court, the Court will be able to interpret and define the obligations that will flow from Article 1, and the Protocol will be directly applicable by domestic courts in almost all State Parties, such an obligation would be too intrusive and would not fit well with the whole nature of the Convention.104 The primary intention of the Protocol is still to impose a negative obligation to not discriminate against individuals.105 Therefore, the extent of the positive obligations imposed upon states will most likely not be too heavy.
II.II THE DISCRIMINATIVE ASPECTS OF ZWARTE PIET
To answer the question whether the figure of Zwarte Piet falls within the scope of the abovementioned provisions, it is necessary to define the aspects of Zwarte Piet that are regarded as discriminative.
The problematic aspect about the figure of Zwarte Piet lies in its portrayal. With its fully black-painted face, red lips, golden earrings, and afro-wig, the appearance
103 Gomien D, Short Guide to the European Convention on Human Rights (Council of Europe Publishing 2005) 104 Id. 96, para 16
forms a strong reminder of 19th century blackface106; a practice which contributed to the spread of racial stereotypes.107 Additionally, the costume that is traditionally worn by Sinterklaas’ servant108 appears to be strongly related to the traditional costumes worn by black servants in the 18th century.109
Apart from the historical references, over the recent years a more general
momentum appears to have been building up. A variety of institutions have taken the point of view that Zwarte Piet indeed reinforces negative racial stereotypes and therefore needs to be adjusted.
The Kinderombudsman (an independent institution, making sure that both public and several private institutions uphold children’s rights) concluded from her
conversations110 with a wide range of children that children with a darker skin tone do experience an increased sense of racial bias towards them during the holiday of Sinterklaas.111 In her report, the Kinderombudsman referenced The United Nations Convention on the Rights of the Child (UNCRC), stating that Zwarte Piet conflicts with article 2, 3 and 6 UNCHC.112 She concludes that the current form in which
Zwarte Piet gets portrayed contributes to bullying, exclusion, and discrimination, and should therefore be adjusted.113
Het College van de Rechten van de Mens (‘the College’), a Dutch supervisory instrument regarding human rights, created an overview on the status of the
106 Appendix 2
107http://en.wikipedia.org ‘Blackface’ <https://en.wikipedia.org/wiki/Blackface> accessed 5 July 2018 108 Appendix 1
109 Appendix 3
110 There appears to be a lack of scientific research regarding the topic of Zwarte Piet from a child’s point of
view.
111 ‘Kinderombudsman (2016) ‘Zwarte Piet vraagt om aanpassing’ para 4.2 112 Id. 111, para 6
discussion. It concludes that the figure of Zwarte Piet has discriminating aspects to it. Several typical characteristics of the figure can create or confirm a negative
stereotype of people of colour. These characteristics include the afro-hair, face paint, red lips, creole earrings, and its servant position in relation to Sinterklaas. It further emphasizes that discrimination is not always intentional, but that despite the intentions, the stereotype still exists.114
Last but not least, the Commission for the Elimination of Racial Discrimination (CERD) specifically mentions Zwarte Piet in their 2015 country report on the Netherlands.115 The Committee notes with concern ‘the negative stereotypes of people of African descent’ that are reflected by Zwarte Piet in its original form. It mentions the negative effect of such figures on the dignity and self-esteem of children and adults of African descent, and worries about ‘the discriminatory effect of such portrayals’. The report recommends the Dutch government to:
“[…] actively promote the elimination of those features of the character of Black Pete which reflect negative stereotypes and are experienced by many people of
African descent as a vestige of slavery.”116
Both on a national and international level, it is agreed upon that the most
problematic aspect of the current portrayal of Zwarte Piet is the negative stereotypes this portrayal creates or confirms regarding people of colour. How does the racial stereotype it emits fit within the principle of non-discrimination?
114www.mensenrechten.nl, ‘Zwarte Piet’ (2016) <https://www.mensenrechten.nl/toegelicht/zwarte-piet>
accessed on 28 March 2018
115 Committee on the Elimination of Racial Discrimination (2015) ‘Concluding observations on the combined
nineteenth to twenty-first periodic reports of the Netherlands’ CERD/C/NLD/CO/19-21 para 17, 18
II.III ZWARTE PIET UNDER ARTICLE 8 ICW ARTICLE 14 ECHR
In 2014, Rechtbank Amsterdam (‘Amsterdam court’) decided on a case regarding the permit required for the arrival of Sinterklaas. In the permit, there were no
requirements laid down for the portrayal of Zwarte Piet, meaning that at the original portrayal – the earlier-discussed ‘blackface-portrayal’ – would still be allowed. The Amsterdam court concluded, similar to the institutions mentioned above, that this portrayal forms a negative stereotype of people of colour. However, in this case, the negative impact of the stereotype was seen as so severe, that it would violate the right to a private life, laid down in the Convention under Article 8.117 Regarding Article 8, the Amsterdam court referenced the case of Aksu v. Turkey, in which the Court has stated the following:
“The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad term not susceptible to exhaustive definition. The notion of personal autonomy is an important principle underlying the interpretation
of the guarantees provided for by Article 8. It can therefore embrace multiple aspects of the person’s physical and social identity. […] In particular, any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on
the group’s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private
life of members of the group.”118
The Amsterdam court decided in this case that because Article 8 is intended to protect against arbitrary interference by the public authorities, and in that context,
117 ECLI:NL:RBAMS:2014:3888, 3 July 2014
may carry positive obligations for the state to guarantee this effective protection119, the permit could contain requirements which would prevent the violation of Article 8. Therefore, the provision of the permit should be tested under Article 8 of the
Convention.120
Even though this judgment was later overruled in appeal121, it does show that even on a national level it has been considered that the impact of the stereotype caused by Zwarte Piet’s portrayal can have a severe negative impact on the feelings of self-worth and self-confidence of the group in question. However, the fact that it falls within the scope of Article 8, does not automatically mean that the Court will define it as discrimination under Article 14. The requirement for placement under Article 14 appears to be that the stereotype must be untrue and/or based on prejudice. To see whether this is the case, the Court relies on the European consensus, or on
international human rights law materials.122
A case in which both rights were violated is the case of Konstatin Markin v. Russia. In this case, a Russian soldier was refused his request for his parental leave. Parental leave was solely intended for women serving in the army, since women – according to the Constitutional Court of Russia – have ‘a special social role’ with regards to motherhood.123 The Court stated that stereotype-based justifications for
discriminatory conduct would not be accepted:
119 “even in the sphere of the relations of individuals between themselves” – Id. 118, para 59 120 Id 117, para 15.4
121 ECLI:NL:RVS:2014:4117, 12 November 2014 para 6.4, 6.5
122 Alexandra Timmer, Judging Stereotypes: What the European Court of Human Rights Can Borrow from
American and Canadian Equal Protection Law [2015] AJCL 239
123https://www.womenslinkworldwide.org ‘Decisions’ <
"gender stereotypes, such as the perception of women as primary child-carers and men as primary breadwinners, cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes
based on race, origin, colour or sexual orientation.”124
The Courts conclusion regarding this distinction was partially based on the
international development of parental leave for both parents in general, and on the presence of parental leave for both servicemen and -women in the other member States specifically.125 Looking at the case of Zwarte Piet, the racial prejudice on which the stereotype is based and the lack of foundation for this stereotype are a good start to being placed under Article 14. In addition to that, there is a general lack of understanding in the international opinion when confronted with the tradition of Zwarte Piet. A well-known example which shows this, is the experiment conducted by documentary maker Sunny Bergman in which she dresses up as Zwarte Piet in Hyde Park. The – overall negative – reaction of the people can be found on YouTube under ‘Our Colonial Hangover’.126 Related to this clip is another video from an
international news site, trying to explain ‘Why blackface is still part of Dutch holidays’.127
A racial stereotype that has such a negative impact that it influences the self-esteem of a group of people (including children), does not have any factual foundation, is based on a century-old prejudice regarding race and mostly generates shock and an
124 Konstatin Markin v. Russia App no. 30078/06 (ECtHR, 22 March 2012) para 143 125 Id. 124, para 140
126www.youtube.com ‘Our Colonial Hangover’ (2014) <https://www.youtube.com/watch?v=LBLBxb29maw>
accessed 25 July 2018
127www.youtube.com ‘Why blackface is still part of Dutch holidays’ (2016)
overall disbelieve outside of the national borders, will most probably be regarded as discriminating by the Court under Article 8 in conjunction with Article 14.
II.IV LIMITATIONS TO THE PRINCIPLE OF NON-DISCRIMINATION
Similar to the right to freedom of expression, the principle of non-discrimination is not absolute. The Court has made a distinction between ‘illegal discrimination’ and ‘justified differentiation’. The difference between the two depends on the
justification.128 If the Court finds the justification of the Contracting State to be objective and reasonable, the distinction is allowed. For a distinction to be objectively and reasonably justified, the difference in treatment must pursue a legitimate aim, and there must be a reasonable relationship of proportionality between the means employed and the aim sought to realised.129
Both the requirements must be fulfilled. Since the Court is already accepting of very broad and general aims, such as the protection of the public order or public health, the first requirement will probably be met relatively easy.130 Even though, contrary to Article 8-10 ECHR, Article 14 does not give us an exhaustive list of aims that are deemed legitimate.131 Harder to fulfil is the second requirement: the test of proportionality. Here, a fair balance must be struck between the interests of the community and the rights of the individual.132 To determine whether this
requirement is fulfilled, an array of factors is considered. It is here that the Court applies the margin of appreciation. If the Court provides a wide margin under Article
128 Id. 94, p. 43
129 Belgian Linguistic Case (No. 2) 1 EHRR 252 at 283 para 10
130 Daniel Moeckli ‘Equality and Non-Discrimination’ in Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran
(eds.) International Human Rights Law (Oxford University Press 2014) p. 167
131 Janneke Gerards ‘The Application of Article 14 ECHR by the European Court of Human Rights’ in Jan
Niessen and Isabelle Chopin (eds), The Development of Legal Instruments to Combat Racism in a Diverse
Europe (Martinus Nijhoff Publishers 2004) p 30 132 Id. 129, paras 34-35
14, ‘sufficient reasons’ are enough to justify the differentiation. The more narrow the margin gets, the more ‘sound’ or ‘pertinent’ the State’s reasoning must be. The width of the margin ‘will vary according to the circumstance, the subject-matter and its background’.133 A fourth factor here is the common ground between the laws of the Contracting States. If there is no such common ground, States enjoy a wider margin of appreciation.134 However, the Court has assumed that certain grounds of distinction are generally considered to be suspicious, and therefore require an extra strict scrutiny. The grounds requiring this scrutiny are race, ethnicity, sex, and
religion.135
How the Court will apply the margin of appreciation in determining whether the differentiation made in the case of Zwarte Piet is objective and reasonable or not, will be set out in Chapter III.
133 Rasmussen v. Denmark para 40
134 European Commission (2005) ‘The Prohibition of Discrimination under European Human Rights Law’ p. 3 135 Id. 130, p. 168
III. FINDING A BALANCE
The previous two chapters have concluded two things: a. the discussion on Zwarte Piet as a cultural figure is a matter of public interest and as such, falls under the protection of Article 10, and b. the figure of Zwarte Piet reflects a racial stereotype of people of colour, which has such a negative impact on the self-confidence of this group that it is discriminatory under Article 8 in conjunction with Article 14.
Even though the right and principle that are involved are both highly-valued (and protected) they are not absolute. The previous chapters have discussed how and when the Court puts limitations on both the right to freedom of expression and the principle of non-discrimination. An important factor in both those limitations is the width of the margin of appreciation, which decides how much room the Court leaves a Contracting State to interpret a right according to their domestic standards. This chapter will apply the circumstances of the specific case – Zwarte Piet – on the factors that decide the scope. Thereby concluding how to balance out the two opposing rights.
III.I CONSIDERATIONS ON THE WITDH OF THE MARGIN OF APPRECIATION ‘The principle of the margin of appreciation’ is largely without definition, which can lead to unpredictable outcomes.136 The Court is aware of these shortcomings, and acknowledges that "the scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background.”137 Consequently, a
136 Jeffrey A. Brauch, The Margin of Appreciation and the Jurisprudence of the European Court of Human
Rights: Threat to the Rule of Law (2004) Colum. J. Eur. L. 113
complete and general overview of the application of the principle might be hard to create. However, case law makes it possible to observe a certain pattern.138
The Court makes two general considerations when deciding on the width of the margin of appreciation in a certain case. The first consideration revolves around the so-called principle of fair balance: the proportionality between the importance of the right at stake to the individual, and the importance of the aim pursued by the State in restricting that same right. Important factors in deciding upon this proportionality are the significance of the right in question, and the objectivity of the restriction in question.139 If the right in question is ‘fundamental to the functioning of the
democracy’, a narrow margin will be invoked.140 These rights include (but are not limited to) the right to fair trial141, freedom of expression142, absolute rights (Article 2 and 3)143, an intimate aspect of private life144, and racial or ethnic discrimination145. As second consideration, the Court looks for the existence of a “European
Consensus”.146 The rule here is as follows: the less similarity there can be found between the law and practice of the member states, the broader the margin of appreciation should be. The other way around this means that the more consensus
138 Onder Bakircioglu, The Application of the Margin of Appreciation Doctrine in Freedom of Expression and
Public Morality Cases [2007] German Law Journal 711
139http://www.coe.int ‘The Margin of Appreciation’
<https://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp#P158_16586> accessed 20 May 2018
140 Thomas A. O'Donnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European
Court of Human Rights [1982] Hum. Rts. Q. 474
141 Delcourt v. Belgium App no. 2689/65 (ECtHR, 17 January 1970) 142 Handyside v. The United Kingdom
143 The rights protected by Article 2 and Article 3 generate obligations for member states which cannot be
balanced either against other rights or against the pursuit of any legitimate interest - Pretty v The United
Kingdom App no. 2346/02 (ECtHR, 29 July 2002)
144 Dudgeon v. The United Kingdom App no. 7525/76 (ECtHR, 22 October 1981) 145 D.H. v the Czech Republic App no. 57325/00 (ECtHR, 13 November 2007) 146 Id. 136, p.127
there is on a particular issue, the narrower the margin of appreciation should be. This consideration has become one of the most important factors in determining the scope of the margin.147 The idea behind the consensus-standard is that if the practice of one member state differs from the practices of all the other member states – which then would be similar – it is hard to maintain that the differing practice in question is "necessary in a democratic society".148 The other way around, the Court assumes that if there is no consensus whatsoever between the member states, national authorities might be more equipped to judge the matter at hand.149
An easily foreseeable problem with the first consideration is that in most cases (including the subject of this thesis), more than one of these fundamental principles are involved. When the rights that face each other are both fundamental in a
democratic society, limitation of the one for the protection of the other becomes a sensitive issue. In practice this leads to mixed results in the outcome of the cases.150 A point of critique on the Courts second consideration – the existence of a European Consensus - is that it does not provide any clarity on the Courts approach to
defining the scope of the margin. Is there a certain number or percentage of states that must support a point of view before it can be called ‘consensus’? Are other international treaties ratified by member states relevant? The terms in which the Court communicates on this consensus remain vague.151
III.II THE MARGIN OF APPRECIATION IN THE CASE OF ZWARTE PIET
147 Id. 139 148 Id. 136, p.128 149 Id. 138, p.723 150 Id. 140, p. 484
151 Lawrence R. Helfer, Consensus, Coherence and the European Convention on Human Rights, [1993] Cornell
Zwarte Piet is defined as a matter of public interest under Article 10. The Court has established that different categories of expression are protected to a differing degree.152 Under this categorisation, the highest protection – and therefore the smallest margin – is reserved for statements that are made in the context of political discourse and public debate on questions of public interest.153 Opposite Zwarte Piet as a matter of public interest stands the differentiation based on race that is made with the current portrayal of the figure. The Court has defined differentiations based on race as ‘suspect’. This translates itself to a strict scrutiny, and as a consequence these differentiations will hardly ever to be found objectively justified.154
So, regarding the first consideration on the width of the margin, there are two equally fundamental rights facing each other. Is there no outcome here? There is one point of reference that might help estimate a potential outcome in the balance on this first consideration: Chapter I discussed the advice provided by the Raad van State (the Raad) on a law proposal regarding the portrayal of Zwarte Piet. The law proposal in which context the advice of the Raad was requested, was intended to lay down the traditional portrayal, meaning the blackface stereotypical portrayal, in the law.155 By elevating the subject of Zwarte Piet to a matter of public interest, Article 10 got involved and the law proposal turned out to be incompatible with the right to freedom of expression. The Raad stated that this infringement on the right to freedom of expression was of such magnitude, that it was completely
disproportionate to the potential legitimate aim of protecting the morals or the rights of others. Making an aspect of a public celebration legally binding to protect
152 Gomien D, Short Guide to the European Convention on Human Rights (Council of Europe Publishing 2005)
102
153 Erkaban v. Turkey App no. 59405/00 (ECtHR, 6 June 2006)
154 Janneke Gerards ‘The Application of Article 14 ECHR by the European Court of Human Rights’ in Jan
Niessen and Isabelle Chopin (eds), The Development of Legal Instruments to Combat Racism in a Diverse
Europe (Martinus Nijhoff Publishers 2004) 22 155 Id. 46
the national identity is incompatible with "the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’”.156
Even though this advice looks at the case from the other side of the spectrum – the maintaining of the current portrayal – it does balance out the infringement of the government on the right to freedom of expression to protect morals or the rights of others. It is arguable that protection against discrimination is more important than protecting a national identity, but Zwarte Piet is not directly racist: no one is being treated differently, and maybe even more important: it is not aimed at being racist. In defining hate speech in the context of freedom of expression, an important aspect is the aim of the expression.157 In Chapter I it was already set out that Zwarte Piet is not considered ‘hate speech’ as falling under Article 17, but the aim of the figure might still be a consideration the Court will take in defining how racist the current portrayal is. Seeing as the primary goal of the figure is to be Sinterklaas’ jolly sidekick, the portrayal is not aimed at spreading hate and violence. This
consideration opposite the incompatible infringement on the right to freedom of expression, will probably turn out to the advantage of the right to freedom of
expression: it is simply not up to the government to decide on matters of the public, in this case specifically regarding the content of its celebrations.
This brings us to the second consideration: the European consensus. The term is mostly used to mean ‘trend’, as in ‘a general direction in which something is
developing or changing’. Two important cases regarding European consensus are X,
Y and Z v. The United Kingdom, and Goodwin v. The United Kingdom. Both these
cases have to do with the consequences of gender reassignment, and in both the
156 Handyside v. The United Kingdom para 49
157 European Commission against Racism and Tolerance (2007) ‘Expert Seminar: Combating racism while
