Banksy'Walled off': A Human Rights Perspective to Graffiti and Street Art

This Article explores the question of graffiti and street art through the lens of international human rights law. After discussing its sui generis nature as a phenomenon oscillating between legality and illegality, the Article examines the protection afforded to graffiti and street art under key human rights treaties. It argues that the blanket criminalization of graffiti and street art prevents judicial bodies from balancing the rights and interests at stake, therefore amounting to an illegitimate restriction not only to individual artistic freedom but also to the public’s right to access cultural life. The Article further examines the established “necessity” and “proportionality” tests that are commonly used by human rights bodies to assert the legitimacy of an infringement against graffiti and street artists’ rights. It suggests three possible contextual criteria that may be useful in the balancing exercise: firstly, the aesthetic value of the works; secondly, communities’ determination to preserve the work; thirdly, political graffiti as evidence of human rights activism. The Article suggests that from these criteria, only the last two are sustainable (popular works and activist works). It concludes that within these two scenarios, States should be liable for violations of communities’, artists’, human rights activists’, and human rights defenders’ cultural rights.