Sallie Afram 11252839
LLM Public International Law
Zwarte Piet
Cultural heritage or a violation of the prohibition of discrimination?
A study on the protection of the character ‘Zwarte Piet’ in light of the framework of the European Court of Human Rights
Index
Abstract ... 3
Acknowledgement ... 4
1. Introduction ... 5
1.1 Background of ‘Zwarte Piet’ ... 5
1.2 The discussion on ‘Zwarte Piet’ ... 5
1.3 Aim of the research ... 6
2. ... The prohibition of discrimination ... 8
2.1 Article 14 ECHR ... 9
2.2 Limitations and the margin of appreciation ... 11
2.3 Zwarte Piet and discrimination... 13
2.4 Zwarte Piet and Article 14 ECHR ... 14
2.5 Conclusion ... 17
3. ... Freedom of expression and hate speech ... 18 3.1 Article 10 (1) ECHR... 19 3.2 Article 10 (2) ECHR... 22 3.3 Hate speech... 26 3.4 Conclusion ... 27 4. ... A conflict of rights ... 28
4.1 Which right prevails? ... 28
4.2 The Court’s approach ... 30
4.3 A different outlook on discrimination? ... 32
5. ... Conclusion ... 34
Abstract
This thesis discusses the debate on the character of ‘Zwarte Piet’ from the perspective of human rights law. More specifically, it looks at the character’s portrayal in light of the framework of the European Court of Human Right and The European Convention on Human Rights. There are, at least, two human rights at stake. The prohibition of discrimination on one hand, because of the fact that the current portrayal of the character is considered to depict a stereotype image of black people. And the freedom of expression on the other, taking into account people’s opinion on and the preference of the current portrayal of the character. This study outlines the complexity of two conflicting fundamental rights and aims to see which, if at all, (positive) obligations lie upon the government with regard to the adjustment of the character’s portrayal.
Acknowledgement
I would like to express my sincere gratitude to my research supervisor, Leonie Huijbers, whose consistent involvement, guidance and expertise, helped me bring this thesis into success. Although we are currently living in challenging times, due to the COVID-19 pandemic, she has been more than helpful and understanding throughout the entire writing process.
I would also like to express many thanks to my mother, Sonja Huntelerslag, for her
encouragement throughout my studies, for her unconditional love and for always teaching me to remain critical and to realise that there are two sides to every story.
1. Introduction
1.1 Background of ‘Zwarte Piet’
In the United States there is a man that goes by the name of Santa Claus, in traditional English we call him Father Christmas. In the Netherlands, there is the figure of “Sinterklaas” (Saint Nicholas in English). Similar to the excitement felt by many children around the world during the celebration of Christmas, Sinterklaas is a family holiday that Dutch children look forward to every year. Sinterklaas is portrayed as an elderly white man with a long grey beard who is dressed in red. the origin of Sinterklaas slightly differs from that of Santa Claus. Moreover, Sinterklaas originally lives in Spain. A few weeks prior to his ‘birthday’ on December 5th
Sinterklaas makes a grand entrance by ship on his white horse alongside his even more famous “helpers” called “Zwarte Piet” (Black Pete in English). After the ship arrives at the Dutch harbour and Sinterklaas and his Zwarte Pieten step foot on land, and the parade kicks off. Hundreds of parents and their enthusiastic children stand alongside the road, all trying to catch a glimpse of Sinterklaas on his horse and of his famous helpers who run around
throwing and handing out candy, including “pepernoten”1. From that day on until December
5th the Zwarte Pieten go down the chimney to give the kids gifts and sweets. These kids have
to place their shoe in front of the fireplace or, in these modern days, in front of the heater, to receive gifts from Sinterklaas and Zwarte Piet.
The family holiday is an important part of Dutch culture. Moreover, the tradition of
Sinterklaas, including Zwarte Piet, is officially part of our cultural heritage. Growing up, the tradition of Sinterklaas and Zwarte Piet has been one of grand excitement and togetherness, as it has been for decades.
1.2 The discussion on ‘Zwarte Piet’
The tradition is now part of discussion on racism and seems to divide the country. Zwarte Piet is a servant of Sinterklaas. It is not just one, but a big group of different helpers. The
reasoning behind its name, ‘Black Pete’, almost speaks for itself. The character of Zwarte Piet is traditionally portrayed by white people/actors whom faces are painted black. The story
1 Tiny round crispy cookies that contains ginger, cinnamon and sugar. The cookie is inherent to the feast of Sinterklaas and only is eaten during that time of year.
behind this is that the character goes down the chimney to deliver the presents to the children. With that, its face turns black as a result of the soot in the chimney. Furthermore, they wear an afro wig, have red lipstick on and wear golden earrings. It is this portrayal of black people is where the problem lies for many people; namely it is considered a stereotype of black people and stigmatise them. Consequently, the nation became completely divided. On one side, there are people that feel hurt, excluded and discriminated because of the
characterisation of black people by Zwarte Piet. They would like to see the character of Zwarte Piet to be changed. On the other side are the ones that highly value the tradition and who emphasise the status of cultural heritage. These people do not want there to be any adjustments made to the character of Zwarte Piet.
The debate on the character of Zwarte Piet raises various questions from the perspective of human rights. There are, at least, two human rights at stake. The prohibition of discrimination on one hand because of the fact that the current portrayal of the character is considered to depict a stereotype image of black people. And the freedom of expression on the other, taking into account people’s opinion on and the preference of the current portrayal of the character.
1.3 Aim of the research
Therefore, in light of these provisions, the question arises whether the Dutch government discriminates towards (a part of) it peoples by not changing nor giving indications about changing the portrayal of Zwarte Piet, or, if the government would in fact regulate the portrayal of Zwarte Piet or abolish the character, it would infringe in the people’s right to freedom of expression. The freedom of expression constitutes one of the indispensable foundations of a democratic society, the principle and prohibition of non-discrimination is fundamental to human rights law. With this taken into consideration this research aims to uncover whether or not a balance could be found between these rights and if this leads to the pre-eminence of one right over the other.
The best way to do so is from the perspective of the European Convention on Fundamental Rights and Freedoms (the ECHR or the Convention) and the case law of the European Court of Human Rights (ECtHR or the Court). There are two important reasons: first, the ECHR is
directly applicable to the Dutch context. Meaning that, if the provision is sufficiently clear, the State and its affiliated bodies are directly bound by the provisions of the Convention. Second, the ECtHR interprets the Convention as a living instrument.2 This means that the
rights laid down in the Convention are not static. The meaning and content of these provisions are hence subject to continuous development in response to both technological and societal developments.3 Moreover, the Court will interpret the provisions in the light of present-day
conditions.4 Furthermore, the ECtHR will look into individual rights as practical and effective
more so than solely the theoretical protection.5 The Court will take into consideration social
changes and place the issue in a legal framework.
In order to find answers to the different legal questions that arise, this thesis aims to answer the following research question: To what extent would a change of Zwarte Piet’s portrayal,
through legislation, be contrary to or in line with the prohibition of discrimination on one hand, and the right to freedom of expression on the other?
Firstly, to answer this question, this research looks into the scope and limitations of both the prohibition of discrimination as the right to freedom of expression and the topic of hate speech. In addition, this research considers if the government violates its people’s right to freedom of expression by adapting the character’s portrayal through legislation, or if this would be a lawful measure with regard to the prohibition of discrimination. Through desk research I consulted literature and articles of various legal scholars discussing the underlying issue. Additionally, relevant jurisprudence by the Court and different international documents have been consulted. The last chapter summarises the main findings of this study and
concludes this research.
2 European Public Law (Kluwer Law International 2017) 591.
3 J. H. Gerards (2019), General Principles of the Convention on Human Rights (Cambridge University Press) 51. 4 Tyer v. The United Kingdom App no. 5856/72 (ECtHR 25 April 1978), para 31.
2. The prohibition of discrimination
The protection against discrimination is considered to be a core element of guaranteeing human rights.6 Article 14 ECHR contains the prohibition of discrimination, which is not a
self-standing provision. This means that the allegation of discrimination has to fall within the ambit of one of the rights of the Convention.7 Nevertheless, in 2005 the Additional Protocol
No.12 entered into force. This expanded the scope of the right laid down in Article 14 by containing a general prohibition of discrimination that does not presuppose a connection to a right of the Convention. This was done in order to strengthen the protection against
discrimination on the ground of race, colour, language, religion, or national and ethnical origin.8
1. “The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”9
Article 1 of Protocol No. 12 contains a general prohibition of discrimination. The additional scope of protection of the article relates to different forms of discrimination such as situations where a person is discriminated against in the enjoyment of any right specifically granted to an individual under national law, in the enjoyment of a right which may be derived from an obligation of a public authority under national law, by a public authority in the practice of discretionary power or by any other act or omission by a public authority.10 Moreover,
although the Protocol in principal protects individuals against discrimination from the state, it also applies to horizontal relationships that normally can be regulated by the state but in fact
6See: Art. 7 UDHR, Art. 26 ICCPR, Council of Europe (2000) Explanatory Reportto the Protocol No. 12 to the
Convention for the Protection of Human Rights and Fundamental Freedoms 1.
7 B. Rainey, C. Ovey, E. Wicks (2017) Jacobs, White & Ovey: The European Convention on Human Rights (Oxford University Press) 632.
8 Council of Europe (2000) Explanatory Reportto the Protocol No. 12 to the Convention for the Protection of
Human Rights and Fundamental Freedoms 2.
9 Article 1 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. 10 Council of Europe, Explanatory Report to the Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS no. 177), para. 22.
occur between two private persons. One could think of access to restaurants or other services such as medical care.11
Despite the optimistic approach to strengthen the protection against discrimination, the factual relevance of the protocol has been limited in its contribution. It has only been ratified by 20 member states12. Hence, from this point on I will mainly focus on the jurisprudence of the
Court concerning article 14 ECHR.
2.1 Article 14 ECHR
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”13
As mentioned before, whenever the Court considers there to be an alleged violation under the article this is, at all times, done in conjunction with a substantive right of the Convention. Nonetheless, the scope of the article is interpreted rather extensive. The substantive right that the discrimination has to be taken in concurrence with does not have to be violated itself for the Article 14 to be applicable.14 Also, even if the issue at stake does not relate to a specific
entitlement that is granted by the Convention, the prohibition of discrimination can still fall within the ambit of a particular right.15 In order for that to be possible, the facts of the case
have to, in a broad sense, relate to issues that are protected under the Convention.16
Consequently, this seemingly low threshold entails that either the legal interest to which the non-discrimination requirement applies has to fall within the ambit of the substantive article,17
and therewith has to be linked to the exercise of a right that is guaranteed by the substantive
11 Id 61, para. 28.
12 Council of Europe Treaty Office, Chart of signatures and ratifications of Treaty 177
<https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/177/signatures?p_auth=96GeXuLA> 13 Article 14 European Convention on Human Rights.
14 Sommefeld v. Germany App no. 31871/96 (ECtHR 8 July 2003).
15 ECtHR (2019) Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol
No. 12 to the Convention 8.
16 A.H. and Others v. Russia App no. 6033/13 (ECtHR 17 January 2017), para. 380.
article,18 or does not completely fall outside the ambit of the substantive article.19 Because of
the extensive interpretation, almost every fact that is somewhat related to a right laid down in the convention can be brought in conjunction with Article 14. It can thus be argued that Article 14 overall does not differ too much from the general prohibition of discrimination as laid down in Article 1 of Protocol No. 12.
When it comes to the treatment that is protected under the article, the scope is a little less broad. Even though the wording of the article does not give certain criteria of distinction, the Court argues that Article 14 does not prohibit all differences in treatment but only the ones based on an ‘identifiable, objective or personal characteristic, or status, by which persons or groups are distinguishable from one another.’20 More than half of its cases in which the
prohibition of discrimination was violated, are regarding discrimination based on ethnicity or race, sex, sexual orientation or religion. The rest of the decisions usually concern situations in which specific social groups are alleged victims to discrimination.21
The prohibition of discrimination also applies to horizontal relations. This means that the principle may also apply in private situations concerning a private legal act – such as a private contract, a testamentary disposition or a statutory provision – that is arbitrary and inconsistent with the prohibition of discrimination as laid down in Article 14.22 The Court also applies the
article when a State does not take the necessary measures in order to prevent or to punish discrimination between private parties.23
Although the article does not provide a clear definition of what forms of discrimination are covered, we know, through the case law of the Court, that both direct and indirect
discrimination are protected. Direct discrimination entails difference in treatment of persons in similar situations which is based on an ‘identifiable characteristic or status’.24 The applicant
must then prove that they were directly affected by the discriminatory measure.25 Indirect
18 Konstantin Markin v. Russia App no. 30078/06 (ECtHR 22 March 2012), para 129. 19 Van der Mussele v. Belgium App no. 8919/80 (ECtHR 23 November 1983), para 43. 20 Clift v. UK, App. No. 7205/07 (ECtHR 13 July 2010), para. 55.
21Niels Petersen (2018) The Principle of Non-discrimination in the European Convention on Human Rights and
in EU Fundamental Rights Law 134.
22 Id 58, p. 8.
23 European Union Agency for Fundamental Rights and Council of Europe (2018) Handbook on European
Non-Discrimination Law 34.
24 Biao v. Denmark App no. 38590/10 (ECtHR 24 May 2016), para. 89.
discrimination however, according the Court, usually occurs in the form ‘of
disproportionately prejudicial effects of a general policy or measure which has a particular discriminatory effect on a particular group’.26 This means that even though the specific policy
is not aimed or directed at a particular group, it might nonetheless still discriminate that group indirectly. Moreover, indirect discrimination does not essentially require a discriminatory intent and it can arise from both a factual situation as from a neutral rule.27 The character of
Zwarte Piet could, if the conditions are met, be gathered under the notion of indirect discrimination.
2.2 Limitations and the margin of appreciation
When the discrimination derives from action by a State or their failure to ensure
non-discrimination, the justification for that differential treatment must meet a legitimate aim and there must be a reasonable relationship of proportionality between that aim and the means used for its realisation.28 In order to justify a particular discriminatory treatment, the State has
to show a ‘link’ between the legitimate aim pursued and the differential treatment.29 The
Court has, through its jurisprudence, set out different aims that can be considered to be a justification of differential treatment such as: the restoration of peace, protection of national security,30 protection of women against violence, abuse and sexual harassment 31 and the
maintenance of economic stability in times of an economic crisis.32 The standards as set out
above are, however, only applicable to a negative obligation (meaning: if the State takes discriminatory measures). These standards do not apply to a positive obligation, as would be the case with the topic of this study, where the State may have not or insufficiently taken action to tackle discrimination by failing to adapt the portrayal of Zwarte Piet.
Hence, in a situation that concerns positive action by a State, the Court finds that whenever the State fails to treat persons in different situations differently without an objective and
26 Id 74, para 103.
27 ECtHR (2019) Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol
No. 12 to the Convention 11.
28 Posti and Rahko v. Finland (2002) 37 EHHR 158, para. 83. 29 Id 58, p. 17, 18.
30 Konstantin Markin v. Russia App no. 30078/06 (ECtHR 22 March 2012), para. 137.
31 Hamtokhu and Aksenchik v. Russia Applications nos. 60367/08 and 961/11 (ECtHR 24 January 2017), para 82.
32 Mamatas and Others v. Greece Application nos. 63066/14 64297/14 and 66106/14 (ECtHR 30 January 2017), para 103.
reasonable justification, the right not to be discriminated towards will be violated.33 Thus, the
duty to protect people from discriminatory harm falls under the positive obligation of the State and imposes a duty on states to prevent discrimination by non-state actors.34 According
to the fact that discrimination often is a result of deeply embedded patterns of exclusion that can thus only be tackled through alteration in social and institutional structures. Hence, it is established in international human rights law that solely implementing anti-discrimination legislation is not sufficient. In addition, states have an obligation to guarantee, promote and secure equality by taking the required steps to further social inclusion and to remove structural patterns of disadvantage.35
When it comes to the latter, assessing whether and to what extent people in different situations may be righteously treated differently, the States enjoy a sizable margin of appreciation. When granting a wider margin of appreciation, usually in cases concerning general measures of economic or social strategy,36 the Court holds that the underlying reason
behind this is that national authorities are better aware and in the possession of direct knowledge of their society and its needs. Hence, the Court holds that states are thus better placed than the Court or other international judges, to weigh what is in the best interest of the public.37 Nevertheless, this margin does differ in its extent depending on the circumstances
and the issue of the case at hand. When the ethnic origin of a person forms the exclusive and sole ground upon which difference in treatment is based, the Court generally grants an abated margin because, according to the Court, such difference in treatment simply cannot be
objectively justified because respect for different cultures and pluralism are guiding principles in a modern democratic society.38 Moreover, different human right bodies have shown
consistency in their characterization of reasons that are not considered to justify differential treatment. These conclude, among others, stereotypes, assumptions, administrative
inconvenience and, most relevant to the subject of this thesis, the existence of a longstanding tradition. Consequently, it might be in line with the prior reasoning of the Court to grant a small margin of appreciation. Moreover, it will hold more weight to the fact that it concerns a ‘tradition’ which thus does not justify discriminatory acts. In the 4th chapter I will consider
33 Thlimmenos v. Greece App No. 34369/97 (ECtHR 6 April 2000).
34Daniel Moeckli, International Human Rights Law (Oxford University Press 2018) 161. 35 Id 80, p. 161,162.
36 Carson and Others v. The United Kingdom, App no. 42184/05 (ECtHR 16 March 2010), para. 61. 37 Carson and Others v. The United Kingdom, App no. 42184/05 (ECtHR 16 March 2010), para. 61.
38 ECtHR (2019) Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol
whether this means that a change of Zwarte Piet’s portrayal, through legislation, would in fact be in line with Article 14 ECHR.
2.3 Zwarte Piet and discrimination
The character of Zwarte Piet is portrayed by predominantly white actors whom faces are painted black, wear an afro wig, have read lipstick on and wear golden earrings. Within this portrayal is where the discriminatory aspect lies. First, the character’s portrayal is very similar to the American practice called ‘blackface’. This practice found popularity in the 19th and
early 20th century. It entailed non-black performers wearing theatrical make-up to represent
and spread racial stereotypes and caricatures of black people.39 Blackface has lost its
popularity many decades ago and is considered racist and offensive. Moreover, the clothing that is worn by the character of Zwarte Piet is similar to the costumes worn by slaves back in the 18th century.40
Besides these historical resemblances, throughout the recent years several national and international institutional bodies have indicated and affirmed the fact that the portrayal of Zwarte Piet reflects negative racial stereotypes.
The Committee on the Elimination of Racial Discrimination stated in its periodic report in 2015 that the features and the portrayal of Zwarte Piet ‘reflect negative stereotypes and are experienced by many people of African descent as a vestige of slavery’.41 The Committee
finds that this is injurious to the self-esteem and to the dignity of children and adults of African descent. They went on to express their concern about the discriminatory effect of the portrayal of Zwarte Piet according to the fact that this may convey a conception that is contrary to the International Convention on the Elimination of All Forms of Racial
Discrimination. The committee therefore recommended that The Netherlands, by for example changing the portrayal of the character, should find a reasonable balance and ensure respect of human dignity and human rights of all inhabitants of The Netherlands.
39 Image I 40 Image II
41 CERD 2015, ‘Concluding observations on the nineteenth to twenty-first periodic reports of the Netherlands’ (CERD/C/NLD/CO/19-21) 4.
Apart from the Committee, institutions on a national level have come forward as well. The Netherlands Institute for Human Rights (the Institute) issued an Opinion in which it expressed its view on the discriminatory aspects confederate to the character of Zwarte Piet.42 The
Institute affirmed, in its opinion, the comments made by the Committee. Furthermore, it considered various characteristics of Zwarte Piet that are of discriminatory nature: the evenly black painted face, the black frizzy hair, the thick red lips, the athletic nature, its submissive and obedient attitude towards a white ‘powerful’ man (i.e., Sinterklaas). The Institute finally concludes that the combination of the different features is what makes it contribute to the negative stereotype.
The Dutch Children’s Ombudsman also issued a report in which she stated that the figure of Zwarte Piet could contribute to discrimination, bullying and exclusion and is therefore contrary to The United Nations Convention on the Rights of the Child.43 The Ombudsman
argued that by changing the portrayal of Zwarte Piet and by eliminating the discriminating and stereotyping characteristics, it can be turned into a figure that actually does justice to the enjoyment of many people in the nation.44
2.4 Zwarte Piet and Article 14 ECHR
Now that we have found that the character is of discriminatory nature, the question is, whether the portrayal of Zwarte Piet would in fact be considered to be an interference of Article 14 ECHR. Therefore, it is important to determine whether a connection with a
substantive right of the Convention can be found. In the Aksu v. Turkey, the Court stated that:
‘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.’
42 The Netherlands Institute for Human Rights (2016) ‘What’s the viewpoint of the Institute in the discussion concerning Black Pete and discrimination?’ < https://mensenrechten.nl/nl/toegelicht/zwarte-piet> accessed on 29 March 2020.
43 Articles 2, 3 and 6 UNCRC.
Consequently, someone’s ethnic origin is part of their identity, and someone’s identity is part of their private life.
In July 2014, the Dutch administrative judge acknowledged this view in his judgement.45 The
judge ordered the mayor of Amsterdam to weigh in on and to take the right to private and family life into account, when issuing a permit for the Sinterklaas parade. He stated that ‘some claimants have pointed out the negative impact that the Zwarte Piet phenomenon has
had on them ever since they were little children. From childhood on they were associated with Zwarte Piet due to them being persons of colour. In view of this, the court comes to the
conclusion that the black claimants are personally affected by the phenomenon of Zwarte Piet in the entry parade.’ Even though this was a case of administrative law, that later got
overruled46 it is of importance to indicate that the figure of Zwarte Piet, even on domestic
level, is considered to be a negative racial stereotype that personally affects people of colour that can be seen as affecting their private life. Hence, it can thus be argued that the portrayal of Zwarte Piet falls within the ambit of the right to respect for private and family life, as laid down in Article 8 ECHR.
Nonetheless, the fact that the character falls within the scope of Article 8 does not mean that the Court will consider it to be ‘discrimination’ under Article 14 ECHR. Although the Court also recognizes indirect discrimination as a form of discrimination,47 the stereotype needs to
be based on prejudice or must be considered to be ‘untrue’.48 In order to determine whether
that is the case the Court usually relies on the so called “European consensus”.49 The Court
will look at the existence or the absence of a certain common ground in the practice and laws of Member States. It will take into consideration the similarity in practices, regulations and patterns across the different States. When it comes to the subject of this thesis, it concerns a so-called national tradition which other States, obviously, do not take part in. However, it is certainly relevant to look at the bigger picture of the consensus on discrimination and stereotyping.
45 ECLI:NL:RBAMS:2014:3888, The Court of Amsterdam, 3 July 2014. 46 ECLI:NL:RVS:2014:4117, Raad van State 12 November 2014.
47 Thlimmenos v. Greece App no. 34369/97 (ECtHR, 6 April 2000) para 44.
48 A. Timmer, ‘Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law’ in The American Journal of Comparative Law 2015 Volume 63, p. 239-284.
49 L. R. Helfer (1993), ‘Consensus, Coherence, and the European Convention on Human Rights’ in Cornell
First, there are different (non-governmental) institutions that try to achieve legal changes at European level to make progress towards racial equality in all Member States.50 Additionally,
the Court has, through its case law, recognized that stereotyping can form an infringement with someone’s right to private life.51 On an international level we have also seen an
increasing consensus, not only stereotyping and non-discrimination in general, but on the topic specifically. A primary example is found in the periodic report of The Committee on the Elimination of Racial Discrimination, in which the Committee stated that the features and the portrayal of Zwarte Piet reflect negative stereotypes and therefore recommended The
Netherlands to change the character’s portrayal. Apart from legal consensus, the portrayal of Zwarte Piet has been topic of different international news articles, tv-shows, and
documentaries in which the international press usually addresses the issue with grand disapproval and sometimes even outrage.52 Recently, different streaming services such as
Netflix and BBC have removed popular television series due to the fact that it broadcasted blackface characters.53
An interesting development in consensus on this topic is also found on the national plane. As pointed out earlier, several Dutch institutions have indicated that the characteristics and features of Zwarte Piet signify a negative stereotype. Throughout the years however, the Dutch prime minister consistently stated that Zwarte Piet was solely an innocent part of a cheerful children's celebration and longstanding tradition, and thus should not necessarily be changed in its portrayal. Nonetheless, not until recently (read: a day prior to writing this) the prime minister delivered a statement, not just in an interview or on a television show but in parliament; which indicates the seriousness of his words. He stated that he has changed his perception on the character and indicated that through conversations with people of colour he realised that Zwarte Piet causes actual hurt to a large group of Dutch citizens. Moreover, an increasing number of cities in the Netherlands are banning Zwarte Piet from their parades.
50 See: The European Network against Racism, Rights, Equality and Citizenship Programme of the European Union, the Open Society Foundations.
51 Aksu v. Turkey App nos. 4149/04 and 41029/04 (ECtHR 15 March 2012). 52 ‘Zwarte Piet: Black Pete is 'Dutch racism in full display’ (Al Jazeera, 2019)
< https://www.aljazeera.com/indepth/features/zwarte-piet-black-pete-dutch-racism-full-display-181127153936872.html> accessed 10 June 2020.
53‘Little Britain’ Removed by Netflix, BBC iPlayer and BritBox Amid Blackface Concerns’
< https://variety.com/2020/tv/global/little-britain-netflix-bbc-iplayer-britbox-blackface-1234629078/> accessed 10 June 2020.
The characteristics and features of Zwarte Piet signify a negative stereotype, seem to
contribute to discrimination, bullying and exclusion, and is based on centuries old prejudice. Hence, the portrayal of the character will in all probability be considered discrimination under Article 8 ECHR in conjunction with Article 14 ECHR.
2.5 Conclusion
The portrayal of Zwarte Piet forms a negative racial stereotype that personally affects people of colour, and thus forms an infringement of people’s private life and hence infringes the prohibition of discrimination. States have a duty to protect people from discriminatory harm, both by the State itself as by non-state actors. Moreover, the State has an obligation to
guarantee, promote and secure equality by taking the required steps to further social inclusion and to remove structural patterns of disadvantage. Different human right bodies have shown consistency in their characterization of reasons that are not considered to justify differential treatment. One of these reasons is the existence of a longstanding tradition. Hence, the mere fact that it concerns a national tradition with cultural worth is not sufficient to justify the discriminatory nature of the character’s portrayal. The question on whether this entails that a change of Zwarte Piet’s portrayal, through legislation, would in fact be in line with Article 14 ECHR will be discussed in chapter 4, as I weigh into the other right, and interests, at stake.
3. Freedom of expression and hate speech
When thinking about one’s right to freedom of expression, it might not automatically be apparent that a tradition or character such as Zwarte Piet falls within the scope of such a right. Nonetheless, this character does enjoy protection under the right to freedom of expression. Subject to this right are namely not solely certain thoughts and ideas. Apart from actions, images and pictures, cultural heritage also falls under the scope and meaning of ‘expression’ protected by Article 10 of the Convention.54 The protection of this right is given a very high
priority due to the fact that it is indispensable for the democratic process and development of a society as a whole,55 and for individuals as such.56 This means that not only information or
ideas that are favourably received or regarded as inoffensive are subject to this right, but the ones that are shocking, disturbing or offensive are protected as well.57 Consequently, States
have the duty not to interfere with this freedom but at times this may also require positive obligations in the form of protection from the State.58 Besides protecting individuals from
interference of the State itself, the state may at times also have obligations when it comes to situations between two individuals.59 Therefore, the State also has the duty to protect the
freedom of expression against attacks coming from individuals themselves.60
Article 10 ECHR is, like many other provisions of the Convention, divided into two sections. The first paragraph gives us the definition of what exactly falls under the protection of the right (the scope). Nevertheless, the right is not of absolute nature. The second paragraph gives the conditions in which a State may righteously interfere with the exercise of the right to freedom of expression.
54 D. Bychawska-Siniarska (2017), Protecting the Right to Freedom of Expression under the European
Convention on Human Rights (Council of Europe), 17.
55 M. Berger (2006), Religieuze grenzen aan de vrijdheid van meningsuiting. De Deense spotprenten voor de Nederlandse rechter. (NCJM), 667.
56 Id 6, p.12.
57 Handyside v. The UK App no. 5493/72 (ECtHR, 7 December 1976), para. 49; Axel Springer v. Germany App no. 39954/08 (ECtHR, 7 Februart 2012) para 13.
58 Özgür Gündem v. Turkey App no. 23144/93 (ECtHR, 16 March 2000), para. 43. 59 X and Y v. The Netherlands App no. 8978/80 (ECtHR 26 March 1985) para. 23.
60 J.F. Flauss (2009). ‘The European Court of Human Rights and the Freedom of Expression’ (Indiana Law Journal), p. 812.
3.1 Article 10 (1) ECHR
‘Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’61
The first paragraph of Article 10 procures the three different forms of freedoms. Namely, the freedom to hold opinions, the freedom to receive information and ideas, and the freedom to impart these ideas. All of these must in principle be exercised without interference by the State; except for when the requirements set out in paragraph 2 are met. Nevertheless, the freedom to hold opinions, differs from the other two considering its absolute nature. Holding a certain opinion cannot be restricted and any restriction to that right is believed to be of inconsistent nature with regards to the functioning of a democratic society.62 This freedom
also entails the notion of having your own opinions and ideas without being obliged to voice them to anyone. 63
The other freedoms, to receive information and ideas and to impart information and ideas, are interrelated to one another. Free criticism of the government, commercial speech and artistic creation, performance and distribution all fall under these freedoms.64 Moreover, following
the ECtHR’s jurisprudence, States are not allowed to intervene between the transmitter (read: the press; both printed as broadcasted) and the receiver.65
As mentioned earlier, the right to freedom of expression protects many different kinds of expressions. This protection is not just limited to the expressions itself but protects the forms
61 The Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 (1). 62 P. Van Dijk, G. Van Hoof (1990), Theory and Practice of the European Convention on Human Rights (Kluwer) p. 413.
63 Vogt v. Germany App No. 17851/91 (ECtHR 2 September 1996).
64 D. Bychawska-Siniarska (2017), Protecting the Right to Freedom of Expression under the European
Convention on Human Rights (Council of Europe), 18.
in which the expressions are embodied as well.66In addition, films,67 poetry,68 novels,69
paintings70 and satire71 are all protected under the article as well. Besides all the positive
freedoms and forms of expressions the right entails, it also includes a negative freedom. Namely, the right not to speak in cases of interrogatory situations regarding criminal proceedings.72 Consequently, individuals are protected against self-incrimination.
When it comes to the character of Zwarte Piet, it is not directly apparent that one’s opinion or preference of its portrayal would enjoy protection under the right to freedom of expression. In saying that, this may not have been the case for many years. Nonetheless, ever since the debate has become of such a societal and political nature, the way in which Zwarte Piet is chosen and preferred to be portrayed gives rise of a certain position intake or viewpoint with regards to the discussion. Therefore, the preference of the portrayal of Zwarte Piet
unmistakably falls within the scope of the right to freedom of expression as it now has become a matter of public interest. 73
With regards to Zwarte Piet being a cultural tradition and even being intangible cultural heritage, it might enjoy protection under Article 10 ECHR on that ground as well. Unlike other international human right bodies and treaties,74 the Convention does not necessarily
protect cultural rights as such. Nevertheless, with the Convention being a living instrument and the Court therefore having a dynamic and evolutive interpretation regarding articles of the Convention, the Court has through its case-law increasingly recognised certain rights under the guise of cultural rights.75 There is a big variety of cultural rights such as having access to
66 Nikula v. Finland App no. 31611/96 (ECtHR 30 November 2000).
67 Otto-Preminger-Institut v. Austria App no. 13470/87 (ECtHR 20 September 1994). 68 Karataş v. Turkey App no. 23168/9 (ECtHR 8 July 1999), para. 49, 52.
69 Alınak v. Turkey App no. 40287/98 (ECtHR 29 June 2005); Lindon, Otchakovsky-Laurens and July v. France App nos. 21279/02 and 36448/02 (ECtHR 22 October 2007), paras. 47,51; Almeida Leitão Bento Fernandes
v.Portugal App no. 25790/11 (ECtHR 12 March 2015), paras. 55-57.
70Vereinigung Bildender v.Künstlerv. Austria App no. 68354/01 (ECtHR 25 April 2007).
71 Alves Da Silva v. Portugal App no. 41665/07 (ECtHR 20 October 2009); Von Hannover v. Germany App nos. 40660/08 and 60641/08 (ECtHR 7 February 2012), para 49.
72 X v Netherlands (1971) 38 CD 9.
73 ‘Tekst rechter tijdens uitspraak Zwarte Pietenzaak’ (2018)
<
https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Noord-Holland/Nieuws/Documents/tekst-rechter-tijdens-uitspraak-zwarte-pietzaak.pdf > accessed on 21 April 2002 74 See: International Conevention on Economic, Social and Cultural Rights,
Convention Concerning the Protection of the World Cultural Heritage, Convention on the Elimination of all forms of Discrimination Against Women.
75 Council of Europe, Cultural Rights in the case-law of the European Court of Human Rights (Strasbourg, 2017).
culture,76 artistic expression,77 historical truth78 and cultural and natural heritage. These
cultural rights are all somewhat intertwined with one another. Therefore, it is at times difficult to separate one from another.
With the portrayal of Zwarte Piet one could argue that it can be considered both as having access to culture, historical truth and cultural heritage. The most evident one is the latter, since the character is considered to be intangible cultural heritage. The Court has, through different cases, recognized access to cultural heritage in the context of the right to freedom of expression.79 In the case of Catholic Archdiocese of Alba Iulia v. Romania, there was a
catholic religious community which wanted to recuperate ownership of certain assets that were confiscated by the Romanian authorities during the communist period. These assets (read: cultural heritage), such as a library containing collections of ancient books and a museum, were however never returned by the authorities to the community. The Court stated that considering the cultural and historical importance of the assets in question, the failure to return by the government could be considered incomprehensible and thus ruled a violation with regard to access to one’s cultural heritage.80
Nonetheless, it has never through its practice done so with regard to intangible heritage. However, as mentioned earlier, the Convention is seen as a living instrument and the Court therefore takes into account and interprets according to the ‘present day standard’.81
Therefore, in the hypothetical situation whereas the case of Zwarte Piet is brought to the Court, chances are that it would find that the portrayal of the character as being intangible cultural heritage can be gathered under the notion of ‘access to culture’ and is therefore protected under article 10 (1) ECHR.
76 Khurshid Mustafa and Tarzibachi v.Sweden App no. 23883/06 (ECtHR 16 March 2009), para. 44. 77 Müller and Others v. Switzerland (1991) 13 EHRR 212; Wingrove v.United Kingdom (1996) 24 EHRR1. 78 Chauvy and Others v.France App no. 64915/01 (ECtHR 29 September 2004), para. 69; Monnat v.
Switzerland App no. 73604/01 (ECtHR 21 December 2006), para. 64.
79 Council of Europe, Cultural Rights in the case-law of the European Court of Human Rights (Strasbourg, 2017) 12.
80 Catholic Archdiocese of Alba Iulia v. Romania App no. 33003/03 (ECtHR 25 September 2012). 81 Tyrer v. The UK App no. 5856/72 (ECtHR 25 April 1978).
3.2 Article 10 (2) ECHR
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”82
The second paragraph of Article 10 ECHR sets out the conditions in which a State are given a certain discretion when interfering with the exercise of the right to freedom of expression. The first thing that is noticeable looking at the second paragraph, is that it determines that the exercise of freedom of expression ‘carries with it duties and responsibilities’. This is of singular nature within the Convention; such explicit reference to the duties and
responsibilities upon individuals is absent in the other articles regarding freedoms in the Convention. With this it is emphasised that as an individual one also has responsibilities and duties to take into account when exercising its freedom of expression. The reasoning behind this seems to be that during the drafting of the Convention it was stated that this freedom was a precious heritage as well as a dangerous instrument regarding the influence the media had on individuals.83 Therefore, State parties, having this explicit reference mentioned in the
article, have a tool to oppose abuse of power by for example the modern mass media, but also incitement to hatred.84
Primarily, the second paragraph then determines whether a measure (read: certain formalities, conditions, restrictions or penalties) taken by the State forms an interference of the freedom of expression of an applicant. In the underlying case that would be a change of the portrayal of Zwarte Piet, through legislation. These interferences are described as any form of interference coming from a national authority that exercises public power such as courts, police, law enforcement bodies, decision making bodies, councils and governmental departments. To the
82 The Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 (2). 83 E. Janssen (2015), Faith in Public Debate. On Freedom of Expression, Hate Speech and Religion in
Franceand the Netherlands. (Cambridge) 81.
84 Council of Europe, European Commission of Human Rights Preparatory work on Article 10 of the European
Court it will not matter which of these authorities in fact limited the freedom of expression, the government will be the respondent party and thus held accountable by the Court.85
The possible measures taken by the State which interfere with the applicant’s freedom of expression are rather broad in its range. Among these are graver measures such as actual imprisonment or a fine through criminal conviction, but also other forms such as the
prohibition of publication, refusal of broadcast licensing, the prohibition of a specific picture in an (news) article and confiscation of the means through which information and ideas are disseminated. 86Among these different measures the Court finds censorship or prohibition of
publishing one of great danger due to the fact that it stops the transmission of ideas and
information. For example, paintings considered as ‘obscene’ by national courts and thus being confiscated, the banning of a film because of its obscene content or seizure of certain books due to the fact that they contained obscene fragments, are all cases in which the Court is very strict in its control and also usually requires detailed scrutiny and justification. Also, criminal conviction is considered a ‘dangerous’ measure by the Court. 87
If an interference can be found, the Court goes on to determine whether the measure forming an interference also constitutes an actual violation of the applicant’s freedom of expression. In assessing the interference, the Court uses a limitation clause that is similar in its formulation and structure to the ones in Articles 8, 9 and 11. It however does differ slightly, paragraph two of Article 10 mentions maintaining the authority and impartiality of the judiciary as a
legitimate aim, while the other Articles do not consider this to be a legitimate aim.88 With this
clause the Court assesses whether the prohibition is ‘prescribed by law’, pursued a ‘legitimate aim’ and if it is ‘necessary in a democratic society’. This is a cumulative test. Only if the Courts considers that all three of the requirements are fulfilled, the State’s interference will be found legitimate.
The first condition of the interference being prescribed by law entails the requirement of lawfulness which can be set out in four different requirements on its own. Primarily, the measure has to have a basis in domestic law, the norm has to be accessible to the citizens in
85 D. Bychawska-Siniarska (2017), Protecting the Right to Freedom of Expression under the European
Convention on Human Rights (Council of Europe), 34.
86 Id 37, p. 36. 87 Id 37, p. 35-36.
88 J. H. Gerards (2019), General Principles of the European Convention on Human Rights (Cambridge University Press) 25.
order for them to have an adequate indication of the legal basis that is applicable.89 Another
important requirement is the one of foreseeability. The interference, restriction or limitation must be formulated with sufficient precision so that any citizen can foresee the consequences which a given action may entail.90 Lastly, there must be no arbitrariness and there has to be
procedural due care.91
The second condition of the interference having to pursue a legitimate aim. Any measure concerning national security, territorial integrity, public safety, preventing disorder or crime, protecting health or morals, protecting the reputation or rights of other, preventing the
disclosure of information received in confidence, or maintain the authority and impartiality of the judiciary can be considered a legitimate aim.92 These aims are all listed in the paragraph,
which is an exhaustive list.93 Nonetheless, the Court often interprets these aims in the broader
sense making this condition slightly easier to prove for the State. 94
The last condition is the one that is, out of all three requirements, usually of decisive nature for the Court. With all the circumstances taken into account the Court considers whether the interference was necessary in a democratic society. It does so by weighing different factors such as the possible impact of the expression, the content of the expression, the medium used, and the nature of the restriction.95 The latter indicates the proportionality of the interference.
This is based on the principles that govern a democratic society,96 there must be some form of
a pressing social need97 that called for the interference of the freedom of expression. Besides
the proportionality condition there are two other criteria that are part of the ‘necessary in a democratic society’ test. First, the suitability of the measure to serve the legitimate purpose
89 E. Janssen (2015), Faith in Public Debate. On Freedom of Expression, Hate Speech and Religion in
Franceand the Netherlands. (School of Human Rights Research Series; No. 68). Cambridge: Intersentia.81.
90 Sunday Times v. The UK App no. 6538/74 (ECtHR 26 April 1979), para. 49.
91 J. H. Gerards (2019), General Principles of the European Convention on Human Rights. (Cambridge University Press) 198.
92 The Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 (2) 93 D. Bychawska-Siniarska (2017), Protecting the Right to Freedom of Expression under the European
Convention on Human Rights (Council of Europe), 43.
94 T. Mendel (2010), A Guide to the Interpretation and Meaning of Article 10 of the European Convention on
Human Rights. 38.
95 E. Janssen (2015), Faith in Public Debate. On Freedom of Expression, Hate Speech and Religion in
Franceand the Netherlands. (Cambridge) 83.
96 Id 45, p. 44.
and secondly the necessity of the measure; meaning that, with a less far-reaching means, it was not possible to serve the legitimate purpose ("least restrictive means test").98
In connection to the requirement of necessity, the Court developed a doctrine in which the States are given a certain degree of discretion in determining whether or not a pressing social need actually exists.99 With this, the States have a ‘margin of appreciation’ in determining
whether a restriction or interference is in fact necessary. The reason behind this is that the national authorities are in better position to determine the necessity of a particular restriction than the Court itself.100 Also, the fact that there are a variety of legal systems in Europe that
all vary in its nature and have different approaches to addressing certain (moral) issues.101
Notwithstanding, the margin of appreciation is limited in its extent. It depends on the circumstances of the situation, the particular nature of the expression and the limitation ground that is applicable in the particular case.102 Therefore, the scope of the margin is larger
in some areas and smaller when it comes to other areas. For example, with issues involving the protection of morals and religious topics the Court usually grants a wider margin103,
whereas in cases which involve public interest the margin is less comprehensive.104 Other
factors that are of great importance in determining the scope of the margin are the nature and importance of the right at stake.105 The Court first considers if the essence or ‘core’ of the
right at stake is affected. If that is the case, this can result in a narrow margin of appreciation. Besides looking at the core of the right, the Court also looks into the seriousness of the
interference.106 An expression on a matter of public interest is considered to be the core of the
right to freedom of expression. Moreover, as seen in the prior paragraph, if the government would in fact be banning different television series, paintings, toys, books or other forms of art which display Zwarte Piet, or if the government would abolish these forms of art from displaying the character, this would be considered a grave interference.
Consequently, with regards to the character of Zwarte Piet, considering the seriousness of the interference by banning the character and the fact that the ‘core’ of the right to freedom of 98 Id 43, p. 235-237.
99 Handyside v. The UK App no. 5493/72 (ECtHR, 7 December 1976), para. 48.
100 Mouvement raëlien suisse v. Switzerland App no. 16354/06 (ECtHR 13 July 2012), para. 63.
101 T. Mendel (2010), A Guide to the Interpretation and Meaning of Article 10 of the European Convention on
Human Rights. 40.
102 Id 43, p. 84.
103 Wingrove v. the United Kingdom (1996) 24 EHRR 1, para. 58.
104 Sunday Times (No.1) v. The UK App no. 6538/74 (ECtHR 26 April 1979).
105 J.H. Gerards (2019), General Principles of the Convention on Human Rights (Cambridge University Press) 188.
expression is affected, it would be in line with the prior reasoning of the Court to grant a small margin of appreciation.
3.3 Hate speech
Something that does not enjoy protection under this article, however, is hate speech.
The Court describes hate speech as every form of expression that spreads, incites, promotes or justifies hatred based on intolerance.107 This is however a rather broad conception and its
interpretation is thus oftentimes disagreed upon by the different judges. The court did indicate certain factors it takes into account when determining whether or not a certain expression can be gathered under the notion of hate speech.108 First, it looks at the political and social
background when a certain expression is made in a tense (political or social) climate, this expression will consequently be subject to a higher scrutiny.109 Second, the Court considers
whether the statements, seen in their context, could be seen as a direct or indirect call for violence, hatred or intolerance or as a justification thereof.110 Finally, the manner in which the
expression has led to direct or indirect harmful consequences will be weighed.111
The prohibition of hate speech is primarily informed by its underlying values of ‘equal human dignity and non-discrimination’.112 The Court sometimes even considers it essential in
particular democratic societies to sanction and prevent hate speech, because of the fact that ‘tolerance and respect for the equal dignity of all human beings constitute the foundations of a pluralistic society.’ 113 When it comes to racial hatred specifically, the Garaudy v. France
case is of great significance. Mister Garaudy was an author whom published a book in which he stated that Nazi war crimes were invented to justify the existence of Israel. He got
prosecuted by the French court for committing different offences such as the denial of crimes against humanity, incitement to hatred and racial discrimination. Mister Garaudy then went to Strasbourg and claimed that the French courts violated his freedom of expression. The Court however found that the content of his work was incompatible with the fundamental values of the Convention. It therefore did not enjoy the protection of Article 10 ECHR. In this case the
107 Gündüz v. Turkey App no. 35071/97 (ECtHR 4 December 2003), para. 40. 108 Perinçek v. Switzerland App no. 27510/08 (ECtHR 15 October 2015). 109 Id 60, para. 205.
110 Id 60, para 206. 111 Id 60, para 207.
Court even applied Article 17 ECHR, which prevents individuals to rely on the protection of ECHR rights when expressing opinions that are qualified as acts aimed at destroying or limiting the right of others.114
When applying these factors and the general conception of hate speech to the issue of Zwarte Piet, it can be concluded that the character cannot qualify as hate speech. First, the current portrayal of the character does not call for direct or indirect violence, hatred or intolerance or as a justification thereof. Moreover, the ‘expression’ has not led to direct or indirect harmful consequences. Lastly, the aim of the celebration is to bring joy and the specific character of Zwarte Piet specifically is meant to, literally, spoil all the children (read: handing out presents and candy). Hence, the expression is contrary to a call for hatred or even violence, and the Dutch government is under Article 10 ECHR not obliged to prohibit the current
characterisation of Zwarte Piet.
3.4 Conclusion
Someone’s preference of Zwarte Piet’s current portrayal is considered to be a position intake or viewpoint with regards to the discussion. Therefore, this preference falls within the scope of the right to freedom of expression, as it has now become a matter of public interest. Besides that, there is also a possibility for the portrayal of the character to be regarded as intangible cultural heritage. This could be gathered under the notion of ‘access to culture’ and is therefore protected under article 10 (1) ECHR.
When it comes to banning or changing the current portrayal of ‘Zwarte Piet’ in light of the right to freedom of expression, it would be in line with the prior reasoning of the Court to grant a small margin of appreciation, considering the seriousness of the interference and the fact that the ‘core’ of the right is affected. Hence, in the next chapter I will weigh into the other right and interests at stake. I will then determine whether a change of Zwarte Piet’s portrayal, through legislation, would form an incompatible infringement with the right to freedom of expression or if this infringement can be justified in light of the prohibition of discrimination.
114 Council of Europe, European Commission of Human Rights Preparatory work on Article 17 of the European
4. A conflict of rights
As discussed earlier, two fundamental rights are at stake and thus related to the figure of Zwarte Piet. Whereas freedom of expression constitutes one of the indispensable foundations of a democratic society115, the prohibition of discrimination is fundamental to human rights
law.116 We have learnt that one’s preference of Zwarte Piet’s portrayal gives rise to a position
intake with regards to the discussion. Therefore, this preference unmistakably falls within the scope of the right to freedom of expression as it has hence become a matter of public interest. Besides that, there is also a possibility for the portrayal of the character to be regarded as intangible cultural heritage. This could be gathered under the notion of ‘access to culture’ and is therefore protected under article 10 (1) ECHR.
With regard to the prohibition of discrimination, it is clear that the portrayal of Zwarte Piet is of discriminatory nature. Nonetheless, one must take into account the fact that Article 14 ECHR is not a self-standing provision. Consequently, if the Court considers there to be an alleged violation under Article 14 ECHR this is, at all times, done in conjunction with a substantive right of the Convention. Therefore, the allegation of discrimination has to fall within the ambit of one of the rights of the Convention. With that, the figure of Zwarte Piet is considered to be, even on a domestic level, a negative racial stereotype that personally affects people of colour. This makes that people’s private life can be affected by its portrayal. Hence, it can thus be argued that the portrayal of Zwarte Piet falls within the ambit of the right to respect for private and family life, as laid down in Article 8 ECHR, and therefore falls within the scope of Article 14 ECHR.
4.1 Which right prevails?
It is evident that in the situation where the case of Zwarte Piet is brought to the Court, it would be favourable to find a certain balance between the opposing rights. Practical
115 “Protecting the Right to Freedom of Expression under the European Convention on Human Rights”, Handbook p. 11 Council of Europe Publishing, Strasbourg, 2017.
concordance or finding equilibrium among the conflicting rights is often feasible.117
Nonetheless, we must take into consideration and apply the specific circumstances of the issue of Zwarte Piet to see whether or not this leads to the pre-eminence of one of these rights and if a balance can be struck.
There are several criteria that help to decide which of the conflicting rights should be given precedence.118 First, these rights have to be examined and looked at the importance of the
aspect of the right that is at issue in the specific case. One must think of the ‘core’ and the ‘essence’ of a right. Once an essential aspect of one right enters into conflict with a more peripheral aspect of the other right, it may be justified to give priority to the first. Concerning Zwarte Piet, the issue seems to be part of the core of both rights. Whereas expression on matters of public interest is considered to be the core of the right to freedom of expression, differential treatment relating to matters of personal dignity, such as discrimination based on race or ethnic origin, also forms the essence of the prohibition of discrimination. Hence, on the basis of this criteria there cannot be given priority on one of these rights per se.
A second relevant benchmark is the severity of the interference caused by the exercise of one right in the exercise of the other.119 Thus, if the exercise of one of these rights is rendered
impossible it will carry more weight than if it is merely made more difficult. This is also a difficult one, due to the fact that one could look at this from different perspectives. With the exercise of the freedom of expression and thus by not changing nor giving indications about changing the portrayal of Zwarte Piet, the people’s right to not be discriminated towards will be rendered impossible. On the other hand, with the portrayal of character being adapted, the government would infringe in the people’s right to freedom of expression.
Also, it needs to be examined if, besides the two conflicting rights, other human rights are indirectly implicated. 120Thus, if a certain human right is limited this carries more weight if
that leads to the additional restriction of another right in practice. With the underlying issue
117 E. Brems, ‘Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms’ in Human Rights
Quarterly (Johns Hopkins University Press 2005, Volume 27) 325.
118 Id, p. 302.
119J. Sullivan ‘Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution’ in New
York University Journal of International Law and Politics, (New York University 1992, Volume 24) 795-856.
we do see that there is an additional right that seems to be indirectly affected, namely the right to private and family life.
4.2 The Court’s approach
The approach mentioned above is one of more general sorts. It is therefore important to look at the specific way the European Court of Human Rights would, taking into consideration the facts of the issue at hand, go about balancing the conflicting rights. We can conclude that Zwarte Piet might fall in the scope of the two articles at stake, but these highly valued rights are not of absolute nature and may thus be subject to limitations. Therefore, we must consider whether a change of Zwarte Piet’s portrayal, through legislation, would be considered a justified interference with the right to freedom of expression.
One of the important doctrines in deciding whether or not an interference is justified and if a fundamental right may thus righteously be limited, is the so called ‘margin of appreciation’. With this, states are granted either a narrow or wide sphere of discretion in determining whether, in this specific case, differential treatment or an interference with one’s freedom of expression is to be justified. In doing so, as I mentioned earlier in this study, the Court looks at different factors. There are, however, two factors that are of great importance to the scope of the margin and consequently to balancing the rights at stake. First, the nature of the
Convention right and its importance for the individual; if the essence or the ‘core’ of the right is affected the margin will be narrow.121 This seems to be the case here, since an expression
on a matter of public interest is considered to be the core of the right to freedom of
expression. Second, and closely intertwined with the prior factor of the ‘core’ of the right, is the seriousness and nature of the interference. This factor influences the scope of the margin mostly if the enjoyment of the right is made impossible due to the interference.122 This is an
interesting yet debatable point with regard to the underlying issue. It can be argued that, with adapting the character’s portrayal, the character itself will not be banned. Consequently, the enjoyment of the right will not fully be rendered impossible. On the other hand, it is exactly in 121 J.H. Gerards (2019), General Principles of the Convention on Human Rights (Cambridge University Press) 188.
its current portrayal where people ‘enjoy’ their right to freedom of expression. Hence, if the portrayal would be changed through legislation, it is arguable that their right to freedom expression is in fact rendered impossible.
One of the factors the Court takes into consideration when two (fundamental) rights are conflicting, is the proportionality doctrine. More specifically, it will look at whether or not there is a fair balance between the competing individual interests.
In this case there is one aspect that could lead to the Court regarding a change of Zwarte Piet’s portrayal, through legislation, disproportionate with and contrary to Article 10 ECHR. As set out in Chapter I, the right to freedom of expression, being the foundation of
democracy, applies not only to expressions that are favorably received but also, and just as much, to those who shock or disturb. When it comes to racial expression the Court usually relies on two substantial criteria. It first looks at the intention and considers whether or not the applicant had the intention to spread racist ideas by a discourse of hatred.123 Secondly, it looks
at the aim and the content of the expression supplementing to the subjective nature of the intention criteria.124
The so-called ‘defenders’ of Zwarte Piet who could thus rely on the right to freedom of expression for protection, renounce the notion that they are racists and ‘clearly do not have any intention to spread racist ideas and messages’.125 Besides that, the character is cheerful
and is meant to bring joy (read: candy, dancing etc.) to the children. Therefore, both the
intention and the aim of the expression are not of racist nature, hence the substantial criteria
as mentioned above are unfulfilled.
When it comes to discriminatory stereotypes, the Court has accepted two types of justifications. First, it can be justified when the stereotyping is served to correct factual inequality, such as social benefits.126 This is clearly inapplicable to the issue at hand.
123 Karatas v. Turkey App no. 23168/94 (ECtHR 8 July 1999).
124 The European Commission Against Racism and Intolerance (ECRI) 2007, Combating racism while
respecting freedom of expression.
125 K. Lemmens, ‘The dark side of ‘Zwarte Piet’: A misunderstood tradition or racism in
disguise? A legal analysis’ in The International Journal of Human Rights (Routledge 2017, Volume 21). 126 A. Timmer, ‘Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law’ in The American Journal of Comparative Law (Volume 63, 2015, p. 239-284).
