STANDARD-SETTING AT UNESCO
STANDARD-SETTING IN UNESCO Volume I
NORMATIVE ACTION IN EDUCATION, SCIENCE AND CULTURE Es...
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STANDARD-SETTING AT UNESCO
STANDARD-SETTING IN UNESCO Volume I
NORMATIVE ACTION IN EDUCATION, SCIENCE AND CULTURE Essays in Commemoration of the Sixtieth Anniversary of UNESCO
Edited by Abdulqawi A. Yusuf
UNESCO Publishing
MARTINUS NIJHOFF PUBLISHERS Leiden / Boston
The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The authors are responsible for the choice and the presentation of the facts contained in this book and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the Organization.
Published jointly in 2007 by the United Nations Educational, Scientific and Cultural Organization, 7, place de Fontenoy, 75352 Paris 07 SP, France and Koninklijke Brill NV, P.O. Box 9000, 2300 PA Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. Typesetting by UNESCO Publications/Roberto C. Rossi
ISBN UNESCO 978-92-3-104067-2 ISBN Koninklijke Brill NV 978-90-04-16450-5
© UNESCO 2007 All rights reserved No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the co-publishers. Printed in The Netherlands This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication data: A Cataloging-in-Publication record for this book is available from the Library of Congress.
CONTENTS
Foreword K. Matsuura, Director-General of UNESCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Introduction A. A. Yusuf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PART I METHODS OF ELABORATION AND IMPLEMENTATION OF UNESCO INSTRUMENTS
Panel 1 Elaborating and Implementing UNESCO’s Standard-setting Instruments Introduction P. M. Eisemann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 UNESCO Practices and Procedures for the Elaboration of Standard-setting Instruments A. A. Yusuf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO L. Boisson de Chazournes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 UNESCO Dispute Settlement S. von Schorlemer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
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PART II FROM CONSTITUTIONAL OBJECTIVES TO LEGAL COMMITMENTS
Panel 2 Promoting a Peace Founded on Intellectual and Moral Solidarity Introduction F. Francioni . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 An Enduring Legacy For the Knowledge Economy: UNESCO and the International Copyright System R. L. Okediji . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Strengthening Moral Solidarity: Human Rights, Human Genetics, and the Ethics of Science and Technology H. Gros Espiell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 UNESCO and the Promotion of Cultural Exchange and Cultural Diversity J. Wouters and M. Vidal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Panel 3 Promoting Dignity, Equality and Mutual Respect among Human Beings Introduction J. Faundez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Advancing Education for Justice, Liberty and Peace P. S. Rao . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Fostering Tolerance and Mutual Understanding among Peoples F. Lenzerini . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 The Protection of Human Dignity in the Face of Scientific and Technological Progress S. El Zein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Contents 7
PART III CONSOLIDATING COLLABORATION AMONG NATIONS IN EDUCATION, SCIENCE AND CULTURE
Panel 4 Safeguarding the World’s Cultural and Natural Heritage Introduction G. Abi-Saab . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage F. Francioni . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development T. Kono . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Protecting Natural Heritage and its Transmission to Future Generations C. Redgwell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Panel 5 Fostering Access to Education and Knowledge Introduction P. M. Eisemann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 The Normative Implications of Education for All (EFA): The Right to Education W. Benedek . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Ensuring Equal Opportunities in Education A. Fernandez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 Access to Scientific and Technological Knowledge: UNESCO’s Past, Present and Future Roles J. Reichman, P. F. Uhlir, and H. J. Ritch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
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PART IV IMPACT OF UNESCO STANDARD-SETTING ON INTERNATIONAL LAW
Panel 6 Beyond Treaty Law: The Influence of the Legal Instruments Adopted by UNESCO on General International Law Introduction A. A. Yusuf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 The Impact of Legal Instruments Adopted by UNESCO on General International Law P. M. Dupuy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 UNESCO’s Role in the Development and Application of International Law: An Assessment N. Schrijver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 Developing New Intergovernmental Institutions through Simplified Agreements J. Donaldson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
PART V CONCLUSIONS General Conclusions G. Abi-Saab . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
LIST OF CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
LIST OF ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
NORMATIVE ACTION IN EDUCATION, SCIENCE AND CULTURE
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Foreword Koïchiro Matsuura
The Symposium on ‘UNESCO: Sixty Years of Standard-setting in Education, Science and Culture’ was held at UNESCO Headquarters from 9 to 10 March 2006 in the context of the Organization’s sixtieth anniversary celebrations. It provided a valuable opportunity for reflection and exchange on a critical aspect of UNESCO’s work. This Symposium was the first of its kind in which UNESCO’s standard-setting practices and experience were the object of a general overview. I wish to express my thanks once more to all those who participated in, and contributed to, this important meeting, in particular the eminent international lawyers whose written contributions are contained in this volume. I am delighted that the proceedings have been put together and are being published. Article I of UNESCO’s Constitution refers in general to the development of such international agreements and conventions as may be necessary to realize the purpose of the Organization. It is Article IV, Paragraph B.4 of the Constitution, which specifically mentions two categories of instruments – conventions and recommendations – and depicts their adoption as one of the actions of the General Conference of the Organization, which submits these instruments to Member States for their approval. Let me say a few words about each of these categories of international instruments, beginning with conventions. The nature of conventions and the extent of their legal significance and implications for Member States are well known and do not require much explanation, particularly in light of the Vienna Convention on the law of treaties. UNESCO’s first Convention, dating back to 1948, was the Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character. This Convention is commonly referred to as the ‘Beirut Agreement’ because of the location of that year’s session of the General Conference. Since that time, UNESCO has adopted a total of thirty-five conventions. The second category – recommendations – has played a particularly important role in UNESCO’s standard-setting activities. The first such instrument, adopted in 1956, was the Recommendation on International Principles Applicable to Archaeological Excavations. Since then, the General Conference has adopted thirty-one recommendations. As recommendations can have different meanings in diverse contexts, let me elaborate a little further about what they signify in UNESCO’s case. Through the adoption of recommendations, the General Conference submits to Member States principles, norms and precepts deemed by it to be the most appropriate basis for national legislation,
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administrative regulations, or policy measures on a specific subject matter. The aim is to promote common approaches or solutions to specific problems that are considered of equal concern to all countries and on which there is a broad consensus as to the terms of such solution or approach. Although recommendations are not binding on Member States, in the same way as conventions that have been ratified by them, it is the underlying idea of common solutions to common problems that usually leads to the incorporation of their principles and precepts into national legislation or, at least, into national policy measures in the field concerned. While conventions and recommendations are different in certain respects, in both cases there is a Constitutional obligation of reporting by Member States, with an associated follow-up procedure, which is an important aspect of standard-setting. In addition to conventions and recommendations, there is a third category of instrument, namely, declarations. This category was not explicitly mentioned in the Constitution but has become quite common, especially in recent years. The first was the Declaration of Principles of International Cultural Cooperation, which was adopted on the occasion of the Organization’s twentieth anniversary in 1966. Since then, the total number of declarations adopted by UNESCO’s General Conference has reached thirteen. All of the standard-setting instruments are variously related to the fundamental ideals underlying the Constitution of the Organization, which aim at encouraging and fostering cooperation among nations for the increase and progress of education, the spread of culture, the conservation and protection of the world’s cultural and natural heritage, the advancement of cooperation in all branches of intellectual knowledge, and the promotion of better understanding among peoples, cultures and civilizations. The standard-setting instruments so far adopted by UNESCO have undoubtedly contributed to the gradual realization of these goals. But they have also done much more than that in affecting the lives and livelihoods of ordinary people. In particular, they have concretized certain human rights, which would have otherwise remained general and abstract, namely, the rights to education, culture and information. UNESCO’s standard-setting instruments in the area of education – including the Convention against Discrimination in Education (1960) and instruments relating to Technical and Vocational Education and the Recognition of Studies, Diplomas and Degrees in Higher Education – established a network of norms and principles through which the right to education is to be realized. Some of these instruments may not be widely known, but their impact on access to education and the facilitation of educational opportunities is enormous. Perhaps the best-known area in UNESCO’s standard-setting activities is that related to culture. Starting with the 1952 Universal Copyright Convention and the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict, UNESCO has embarked on a wide-ranging normative activity seeking to protect and preserve the world’s cultural and natural heritage and cultural expressions. In analysing the conventions, recommendations and declarations adopted in the last sixty years in the field of culture, one cannot fail to note the evolution of human thought and scientific knowledge. We started with the notion of ‘cultural property’ in 1954,
Foreword 13
moved to the wider concept of ‘cultural heritage’ in 1972, and consecrated the ideas of ‘intangible cultural heritage’ and ‘cultural expressions’ in two important conventions adopted by the General Conference in 2003 and 2005, respectively. It is thanks to the research, studies and scientific debates carried out at UNESCO or under its auspices that the progress in international collaboration and common understandings, which underlie these conventions, could be realized. Thus, it is not only a matter of codifying legal norms, but also of a general maturing of ideas, which help to identify and to delineate the nature and scope of common issues confronting humanity at a given stage of its evolution. Similar remarks could be made about UNESCO’s standard-setting activities in the field of bioethics. From the beginning of the Organization’s activities in this field, UNESCO’s General Conference decided to adopt a gradual and prudent approach based on the knowledge available on this complex subject matter, which lies at the interface of many disciplines. Furthermore, it decided to take into account the diverse contexts (scientific, cultural, social and economic) in which ethical thinking unfolds in different parts of the world. This approach has led to two important legal consequences. The first is the use of the ‘declaration’ rather than the convention or recommendation for the setting of standards in the field of bioethics. Three important declarations have so far been adopted by UNESCO in this respect. The second consequence is the articulation of broad principles and norms, which could be accepted by all Member States of UNESCO in view of the universal nature of the issues involved. During the past six years, UNESCO has enjoyed one of its most intensive periods of standard-setting. Through a process of preparation, elaboration and adoption, this period has seen the General Conference give its approval to four conventions, two recommendations and five declarations. This has required immense efforts on the part of the Member States as well as of the Secretariat. As a result, I suggested last year that the Organization’s normative work be granted a pause. But let this suggestion not be misunderstood. As I have explained on many occasions, I believe that at this stage UNESCO needs to concentrate not only on the implementation of existing normative instruments but also, and this is just as important, on the ratification of those adopted in order to ensure their widest possible application. At the same time, this does not rule out the identification and consideration of new areas for future normative action. Such may indeed arise in bioethics in the coming years. The important thing is to see standard-setting as a multi-faceted process that involves the elaboration, ratification, implementation, and monitoring of normative instruments. The present stage may well prove to be timely for purposes of reflection and stocktaking so that we can better assess the direction and scope of future standard-setting activities. In this perspective, our publication comes at an opportune moment and may contribute to this wider process of review and forward thinking. The analysis of the achievements and prospects of UNESCO’s standard-setting activities set forth in this volume provides valuable insights into and ideas concerning the past and future role played by UNESCO’s standard-setting in the advancement of the goals of the Organization. It also offers to a wider public of scholars, policy-makers,
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diplomats, and students an evaluation of the impact of UNESCO’s standard-setting on international law in general. I am confident that, as such, it will contribute to a broader appreciation and better understanding of the Organization’s normative activities and their influence at both the domestic and international levels.
15
Introduction Abdulqawi A. Yusuf
. Background This book contains the essays presented at the first Symposium ever organized at UNESCO to review and take stock of the standard-setting activities of the Organization. The Symposium was held in Paris from 9 to 10 March 2006, on the occasion of the sixtieth anniversary of UNESCO. The presentations made at the Symposium have been thoroughly revised and transformed by their authors into full-fledged chapters for the purpose of publication in this book. The final outcome presented in Volume I constitutes both a comprehensive account and a profound assessment of the standard-setting work of UNESCO over the past sixty years. Volume II contains the complete texts of the standard-setting instruments adopted so far by UNESCO. Together, they form an invaluable commentary and a work of reference that should be of interest to scholars, practitioners, diplomats, policy makers and students of international organizations. As indicated in Article I of its Constitution, UNESCO was created in 1945 ‘to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.’ For the realization of this purpose, the standard-setting function of the Organization was given a very prominent role under this Article of the Constitution, which calls upon it, among other things, to ‘recommend such international agreements as may be necessary to promote the free flow of ideas by word and image’; and to maintain, increase and diffuse knowledge by ‘[…] recommending to the nations concerned the necessary international conventions,’ and by ‘initiating methods of international cooperation calculated to give the people of all countries access to the printed and published materials produced by any of them.’ Article IV, Paragraph 4, specifically refers to the preparation of standard-setting instruments as one of the Organization’s activities. Two groups of instruments are mentioned: those of conventions and recommendations.
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To these may be added the declarations adopted by the General Conference, by which it promulgates principles and norms intended to inspire the action of Member States in a specific field of activity. The emphasis given to standard-setting functions in the UNESCO Constitution may have been inspired by the activities undertaken by the International Institute of Intellectual Cooperation (IICI), a non-governmental institution established under the auspices of the League of Nations in 1926, during its twenty-one years of existence. The establishment of the IICI was spearheaded by the Commission for Intellectual Cooperation of the League.1 The same body organized the first National Commissions for Cultural Cooperation to provide liaisons between it and different countries. By 1939, there were forty-five such national cooperating bodies. The existence of these bodies was later recognized in Article VII of the UNESCO Constitution and stimulated the creation of UNESCO National Commissions in almost all Member States of the Organization. In the realm of standard-setting, the IICI was responsible for two major international conventions, which entered into force, and four draft conventions which, albeit adopted by various sub-committees of the League of Nations, never became operative. The first of the two conventions was the Convention to Facilitate the International Circulation of Films of an Educational Nature, which entered into force in January 1935. The Convention was first proposed by the International Cinema Congress, held in Paris in 1926, and adopted by an international conference convened in Geneva by the Secretariat of the League of Nations with a view to establishing a system of free exchange of educational films among State Parties. The second one was the International Convention concerning the Use of Broadcasting for Peace, adopted also in Geneva by an international conference in 1936. The Convention encouraged broadcasts meant to promote good relations between nations and sought to avoid tendentious broadcasts that could undermine international understanding. The draft international conventions proposed by the IICI were: a Draft International Convention on the Rights of Scientists, a Draft Universal Statute on Copyright, a Draft International Convention for the Protection of National Art and Historical Collections, and a Draft International Convention for the Protection of Ancient Monuments and Works of Art During Periods of Armed Conflict. In addition to these conventions, the IICI also drafted and proposed to Member States of the League of Nations a Declaration on the Revision of School Textbooks, and a number of suggested rules and statements on archeological excavations, on the organization of international art exhibitions and on international competitions in architecture, town planning, and allied arts.
1. In order to ensure the implementation of its decisions and the continuity of its work in the period between its annual sessions, the Commission was empowered by the Assembly of the League of Nations to accept gifts from Member States. Following a request for such contribution from the President of the Commission, the French Government accepted to finance the creation of the IICI, which was brought into relationship with the League in 1926. See J. Opocensky, The Beginnings of UNESCO 1942–1948, Vol. I, p. 7, UNESCO Archives, 1949–1950.
Introduction 17
The ideas developed by the International Commission and the IICI were taken up during the Second World War by the Conference of Allied Ministers of Education (CAME), which was set up in London in 1942.2 The CAME launched a number of projects and studies aimed at preparing the ground for the setting of standards in the fields of education and culture. They included possible recommendations for objective history books; the outline of a plan for the return of objets d’art, books and archives; and proposals concerning standard bilateral cultural agreements and the implementation of the convention for the international circulation of educational films. But the most important outcome of the CAME was the formulation of the Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1945.3 With the entry into force of the UNESCO Constitution in 1946, the General Conference, at its first and second sessions, held respectively in Paris and Mexico City in 1946 and 1947, decided to take up some of the issues identified by the IICI and the CAME for possible standard-setting, including the problems related to copyright, methods for the analysis of textbooks, the conditions of artists and the arts, agreements among broadcasting organizations for the production and exchange of programs, promotion of education for international understanding, publication exchanges through intergovernmental agreements, and model clauses on cultural exchanges for inclusion in multilateral conventions.4 Since that time, the UNESCO General Conference has adopted thirty-five conventions (including seven protocols thereto), thirty-one recommendations, and thirteen declarations. What has become of all these instruments? Have they contributed to the realization of the principles and objectives of UNESCO as laid down in its Constitution? What is their impact on national laws and policies of Member States? Have they become part of international law? These were some of the questions addressed at the Symposium. Professor Abi-Saab perhaps best summarizes the answer to these questions in his conclusions when he observes that: [t]hey helped transform, through an incremental and cumulative process over some three or four decades, what were initially vaguely perceived as remote and abstract propositions about the common interests and values (i.e. the public
2. One of the purposes of the CAME stated in the letter of invitation to the first meeting was to explore plans for the formation of a permanent organization for inter-allied and subsequently international cooperation in educational matters in the postwar period. This idea developed later into the creation of a United Nations Organization for Educational and Cultural Reconstruction, and finally led in 1945 to the establishment of UNESCO. See Opocensky, op. cit., pp. 19–60. 3. See, generally, Conference of Allied Ministers of Education, ‘Draft Proposals for an Educational and Cultural Organization of the United Nations’, in Conference for the Establishment of the United Nations Educational, Scientific and Cultural Organization, Preparatory Commission, UNESCO, London, June 1946. 4. See, generally, UNESCO, Acts of the General Conference, First Session, held in Paris from 20 November to 10 December 1946 and UNESCO, Resolutions Adopted by the General Conference During its Second Session, Mexico, November-December 1947.
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goods) of a hardly discernible international community, into current and palpable concepts, familiar to large sectors of international public opinion.’5 A similar assessment was made in the 1970’s by A. Dell’Oro Maini, the President of the sixteenth session of the General Conference of UNESCO, who, commenting on UNESCO standard-setting action, said that: [i]n the first place, it reflects a general maturing of ideas about a specific problem which is of equal concern to all countries, given the stage reached in the evolution of contemporary society, and on which there is a broad consensus of view both as to the terms of a possible solution and as to the usefulness of finding one.6 This transformation of concepts and maturing of ideas started rather slowly in the late 1940s, with only two instruments adopted one in 1948, the other in 1950.7 They were followed by the adoption in 1952 of the Universal Copyright Convention, together with its three protocols, and in 1954 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (‘The Hague Convention’). Most of the instruments adopted in the 1940s and 1950s reflected and completed the work started either by the IICI or by the CAME. The 1970s saw an intensification of the Organization’s standard-setting activities, with the adoption of numerous recommendations in 1976 and 1978,8 but also with some major conventions elaborated and adopted in 1970, 1971, 1972 and 1974.9 These activities slowed down in the 1980s and 1990s to quicken once again from 2001 to 2005, with the adoption of four conventions, two recommendations, and five declarations.10 Over the last sixty years, UNESCO’s standard-setting work has thus been characterized by peaks and troughs, depending on the maturity of the matters selected (education, science, culture
5. See ‘General Conclusions’ in this volume. 6. See A. Dell’Oro Maini, 1972, Normative Action of the Organization and Peace: Introduction, in In the Minds of Men: UNESCO 1946–1971, Paris, UNESCO, p. 215. 7. See Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character (10 December 1948) and Agreement on the Importation of Educational, Scientific, and Cultural Materials (‘the Florence Agreement’, 17 June 1950). 8. One convention and six recommendations were adopted in 1976; while in 1978 one convention, four recommendations and three declarations were adopted by the General Conference. 9. These included: Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (14 November 1970); the Universal Copyright Convention, as revised at Paris on 24 July 1971; the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms (29 October 1971); the Convention concerning the Protection of the World Cultural and Natural Heritage (16 November 1972); and the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (‘the Brussels Convention’, 21 May 1974). 10. See Foreword by the UNESCO Director-General, Koïchiro Matsuura, in this volume.
Introduction 19
and communication) for normative action by the Member States of the Organization. This demonstrates the extent to which the institutional and standard-setting framework offered by the Organization is contingent upon the readiness of Member States to concert and coordinate their efforts for fuller and more positive cooperation through normative instruments. The objectives announced in the UNESCO Constitution are therefore achieved when, as stated by A. Dell’Oro Maini, ‘[i]t is the Member States themselves which, besides having initiated texts at the General Conference, undertake to apply them and thus to put into practice fundamental principles on which the organization is based.’11
. Structure and Contents The chapters in Volume I explore the manner in which this transformation of ideas was achieved brought about both practically and normatively. The structure of Volume I mirrors that of the Symposium: it is divided into four parts. Part I is devoted to the methods of elaboration and implementation of UNESCO standard-setting instruments. Part II examines the extent to which the constitutional objectives of the Organization were translated into legal commitments through the standard-setting instruments. Part III analyses the manner in which the standard-setting instruments contributed to the consolidation of collaboration among nations in education, science and culture. Finally, Part IV discusses the impact of UNESCO standard-setting instruments on international law. Since each part (or sub-division) opens up with an introduction by the chair of its corresponding panel wherein the subject matter of its chapters is clearly and briefly described, there is no need to discuss the individual contributions in this general introduction. Volume II offers a tripartite collection of all UNESCO standard-setting instruments. Part I contains conventions and agreements adopted by the General Conference, by intergovernmental conferences convened by UNESCO, or jointly by UNESCO and other international organizations. Part II reproduces all the recommendations issued by the General Conference, whereas Part III lists all of the UNESCO declarations.
. Acknowledgements Many people contributed to the organization and success of the Symposium, as well as to the realization of this work. Our gratitude extends to the contributors to Volume I, who took time from their busy schedules to participate in the Symposium in one capacity or another, and to write the texts submitted herein. The organization of the Symposium and its follow-up were ensured by Dr Federico Lenzerini of the University of Siena (Italy) and Mr Guillermo Trasancos of the Office of International Standards and Legal Affairs (LA), UNESCO, who benefited from the assistance of Ms Hairiat Mohamed, principal
11. See Dell’Oro Maini, op. cit., p. 216.
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Secretary of LA, UNESCO. Special thanks go to all of them for their indefatigable efforts. Thanks are equally due to all the staff members of the Office of International Standards and Legal Affairs who contributed to the success of the Symposium. Editorial assistance was provided by Dr Lenzerini, Mr Trasancos and Ms Eniko Horvath, whose help was invaluable in reviewing all the contributions and putting together the two volumes of this work. The assistance provided by the publications service of UNESCO is also gratefully acknowledged.
PART I
METHODS OF ELABORATION AND IMPLEMENTATION OF UNESCO INSTRUMENTS
PANEL 1
Elaborating and Implementing UNESCO’s Standard-setting Instruments
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Introduction Pierre Michel Eisemann
It is an honour and a great privilege for me to have been invited to chair the first Panel of this Symposium devoted to sixty years of standard-setting by UNESCO in education, science and culture. I should, in particular, like to thank Dr. Abdulqawi Yusuf, Director of the Office of International Standards and Legal Affairs of UNESCO, whose friendship, more than any qualities I may be deemed to possess, has earned me this prerogative. Although some of the participants in this Symposium already know me as a member of the French delegation to many sessions of the General Conference or as Chairperson of its Legal Committee, I wish to make it clear that I am speaking today in a strictly personal capacity, as a professor of international law. I do not therefore claim diplomatic immunity for my occasionally iconoclastic remarks, but rather, more simply, the traditional impunity enjoyed by academics! The Symposium that has brought us together will consist of three parts. The core of our discussion (that is, Panels 2 to 5) will be devoted to a review of the substantive law produced by UNESCO. At the end of our deliberations (Panel 6), this standard-setting corpus will be set within its general ‘external’ framework, in that we shall attempt to examine the incorporation of UNESCO law into general international law. However, our Panel will concentrate mainly on the general ‘internal’ framework. In other words, speakers will focus on the way standards are set and on the techniques used by UNESCO in doing so. UNESCO can be proud of the wealth and diversity of its standard-setting action. It has adopted twenty-eight international conventions and seven protocols thereto, thirtyone recommendations and thirteen declarations. There is nothing surprising about this, as standard-setting is typically one of the activities of any intergovernmental organization. Standard-setting may, however, be both the best and worst of things. In fact, the main reason for drawing up and adopting a standard-setting instrument is to give Member States the opportunity to establish the standards of behaviour they consider necessary or useful to impose on themselves. Specialized agencies are undoubtedly appropriate for
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negotiating such instruments, as the ideas and interests of all Member States can be discussed comparatively in each institution in its field of competence. Even so, negotiators should be able to convey an unambiguous ‘standard-setting message’, expressing the genuine conviction that the standard in question deserves to be instituted. To achieve this, it seems to me that at least three conditions must be met. Some may seem basically self-evident, although it is clear from the practice of international organizations that they are, unfortunately, sometimes disregarded. Accordingly, negotiators should first always be aware that it is absolutely necessary to draft in a comprehensible manner the standards that they wish to enact. In other words, the standard-setting instrument should be drafted clearly and concisely. Of course, we are all aware of the virtues of ‘constructive ambiguity’, used to disguise an insurmountable difference of opinion in order to break the deadlock in a negotiation. The problem raised here is different in that it concerns the technical mediocrity of many instruments that are based on the text of a preliminary draft that is prepared by a ‘group of experts’ including few or no jurists, is subsequently amended during intergovernmental negotiations with little attention paid to internal coherence, and is finally adopted without being carefully revised by a drafting committee. Such practices – often the outcome of a purported emergency – can only weaken the standard-setting value of the text and subsequently lead inevitably to implementation problems. The same applies to the production of rushed, often ‘rough’ translations that are not checked by the negotiators themselves. Furthermore, while standards must be expressed in precise terms, they must also be visible, that is to say, incorporated into an instrument that is as concise as possible, rather than lost in the depths of a document whose excessive length clouds understanding and weakens their impact. The desire to be fully comprehensive (or to please as many delegations as possible) results in instruments that incorrectly mix prescription and description, and the prolixity of which discourages even the most willing reader. Secondly, to my mind, it is important for the standard-setting message to be conveyed convincingly. The adoption of a standard-setting instrument should stand for genuine commitment by Member States, even when such is deferred, as in the case of programme-related instruments. It is therefore necessary to determine clearly the legal nature of the instrument to be adopted, as international law affords a wide range of tools, from the most ordinary international convention – creating rights and obligations for State Parties – to numerous soft law instruments, which, in the words of Professor Abi-Saab, only express a ‘droit assourdi’ (mute law). Although some people, including Professor Prosper Weil, have deplored the crisis in international standard-setting marked by the introduction of a measure of legal relativity, the contribution of declarations and other soft law instruments, insofar as they constitute a stage in the development of specific standards, is undeniable. It is essential to avoid mixing genres and confusing the message: one should either endeavour to draw up a binding instrument or merely set milestones for the future. In this respect, the Rules of Procedure concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4 of the Constitution do not convey the clearest message possible in Article 13, which provides that ‘[i]f, on the final vote, a draft convention does not secure the two-thirds majority required [...], but only a simple majority, the Conference may decide that the draft be converted into a draft recommendation [...].’ If an instrument
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has been negotiated with a view to establishing a new convention, and if the adopted text ultimately fails to win the support of a large majority of Member States, it is unlikely to be superseded by a mere recommendation invested with minimal legitimacy. A recommendation, like a declaration, should not represent a failed convention, lest it lose most of its credibility and persuasive effect. Similarly, it is advisable to avoid adopting – sometimes in a rather hasty manner – conventions that are doomed never to come into effect because there have been too few ratifications. It is highly counterproductive to adopt such instruments because State resistance to becoming parties thereto can only serve to disqualify the standard-setting content the instrument sought to promote – a situation that runs counter to the desired result. Thirdly, it is necessary to avoid using standard-setting action to offset the weakness of operational activities. Given the budgetary restrictions facing all international organizations, it may be tempting to replace action with rhetoric. It is, after all, fairly inexpensive to organize the negotiation of a standard-setting instrument: the preparation of a preliminary study, a few meetings of a select group or committee of experts, perhaps a few intergovernmental meetings, and, of course, debates within the Executive Board and the General Conference will do. At that cost and provided that the process is taken to its conclusion, it may be a source of pride to produce a standard-setting instrument marking the Organization’s commitment to the issue concerned – even if the actual effectiveness of the instrument is pushed into the background. The danger, although it is not permanent, nonetheless exists that a standard-setting instrument might be adopted simply out of a desire to publicize the fact. However, the primary concern of UNESCO and its Member States should always be the effectiveness of the instrument, which means that its adoption should be regarded as the culmination of a process reconciling national positions, and not as a mere fig leaf. During this Panel discussion, it will be for Dr Abdulqawi Yusuf – who, as the head of the Office of International Standards and Legal Affairs, is particularly well placed to deal with this issue – to inform us about UNESCO’s standard-setting practice and procedures, especially those procedures intended to ensure that the Organization was in step with its Member States when it took standard-setting action. Once a standard-setting instrument has been adopted, questions arise as to its promotion, implementation and application. The institutional framework established by UNESCO and the procedures for the settlement of inter-State disputes should be examined against this backdrop. First, we will consider what is meant by the term ‘follow-up’, much used today in connection with standard-setting instruments. The aim of the operations so designated is twofold: on the one hand, the dissemination of information to raise awareness of the instrument and, on the other, monitoring of the implementation of the standards by the Parties concerned in order to ensure their effectiveness. The task of disseminating information is achieved by a wide variety of means, from the most traditional to the most modern. While it is regrettable that the valuable compendium entitled ‘UNESCO’s standard-setting instruments’ is no longer updated – even though it was disseminated only to a privileged few – it is noted that a range of brochures is being published for a wider audience, reproducing and in some cases commenting on the main standard-setting texts. Moreover, the virtually unlimited
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resources of the Internet have made it the preferred means of access to UNESCO’s standard-setting instruments today. All texts adopted under the auspices of UNESCO can easily be found on the UNESCO portal; and it may safely be said, without much risk of contradiction, that any person who wishes to read them may do so without difficulty. It goes without saying, however, that accessibility is not enough and that equal weight must be given to actively promoting standard-setting instruments among the stakeholders concerned, above all among the Member States. In that connection, the appraisal points to stark contrasts. In terms of monitoring, UNESCO appears to show a lack of imagination insofar as it relies too much on the somewhat archaic reports procedure. The Constitution is partly responsible for this situation since it obliges Member States to submit to the Organization ‘at such times and in such manner as shall be determined by the General Conference, reports on [...] the action taken upon [...] recommendations and conventions [...]’ (Article VIII). UNESCO has thus generally developed the practice of inviting Member States to submit reports following the adoption of a standard-setting instrument and periodically thereafter. The procedure, first used at the beginning of the twentieth century when States refused to accept any other method of international control, soon proved to be somewhat limited. Although some specialized agencies – such as the International Labour Organization – can rely on a genuine ‘reporting culture’, ensuring useful interaction between their Secretariat and the Member States under such a procedure, this does not appear to be the case at UNESCO. Despite the constitutional obligation, few Member States submit the requested reports to the Secretariat, and the replies of those that do are often incomplete or quite simply unusable. Moreover, the intergovernmental bodies that review the reports are very pusillanimous, doing no more than piously bewailing the lack of replies without naming or rebuking the States concerned. However, it would be unjust to blame Member States for this situation, just as it would be unfair to accuse the Secretariat. As it is, the likely cause of the dysfunction is the mutual superimposition of antagonistic logics. A great deal of energy is devoted to the reporting procedure at UNESCO; the department concerned takes great pains to produce as exhaustive a questionnaire as possible, incorporating a large number of questions (of which some are very trivial in nature and should be dealt with through constant exchanges of information with the National Commissions). It is understandable that UNESCO should view this as the ideal opportunity for collecting the maximum amount of data on the application of the instrument concerned. The fact remains that these requests for information do not sufficiently take into account the Member States’ capacities for producing replies. Although the appraisal of reports is a matter of great concern to UNESCO, producing replies is unlikely ever to be a priority for national administrations. Ministerial departments, generally understaffed, have other, more pressing concerns than satisfying UNESCO’s curiosity; and it is quite natural for its requests to be treated fairly casually, especially as the effort to answer questions demanding many, long and complex replies – in one of the UNESCO official languages! – may to some seem rather disproportionate to the value of the exercise. Worse yet, when the production of the national report involves coordination among several ministries or administrative departments, it is to be feared that the file will be lost in the administrative maze. Without even considering the possibility of political reticence, it is therefore difficult to ensure that
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States produce reports in due form, simply because of administrative overload. Everyone familiar with UNESCO knows of the low rate of response to requests for reports. Despite such poor responsiveness, the Secretariat nonetheless devotes precious time to drafting a consolidated document recording, albeit inevitably in an imperfect and unrepresentative way, the practice of Member States with regard to the standard-setting instrument in question. It is this document alone, written in UNESCO’s diplomatic and administrative vernacular style, which will then be studied by intergovernmental bodies. Is this not a huge investment of energy and means for a result of such limited scope and relevance? Although several proposals for change have been made in the last few years, UNESCO remains firmly attached to this form of monitoring, while being only too aware of its limitations. There is no reason why we could not change our outlook and adapt to the present. Surely, it cannot be essential to question Member States repeatedly about the methods they employ to implement UNESCO instruments, with a view to obtaining what amounts to (not especially useful) lists of legislative and statutory acts. It is clearly more important to concentrate on applying standards effectively; and this could be done with the support of NGOs, which play a valuable intermediary role. Instead of making general and abstract appeals to Member States in a vain attempt to draw up a broad compilation of information, should we not merely examine reported breaches? In all likelihood, time and energy would thus be saved, and both would be useful in our endeavour to ensure that a standard is effectively applied by Member States. The fact remains that monitoring, however necessary it may be, is not an end in itself. Many Member States will require technical assistance to incorporate the standards adopted by UNESCO into their domestic legislation; and UNESCO should – beyond what has already been done in this area – give priority to the provision of such support to those who request it. A support policy of this nature requires considerable human and financial means, but this should not discourage us from taking action. The philosophy of support for implementation should definitely be given precedence over monitoring when follow-up action is being undertaken. Given her familiarity with the practices of several international organizations, Professor Laurence Boisson de Chazournes, Director of the Department of Public International Law and International Organization at the University of Geneva, will no doubt take a critical look at UNESCO’s current procedures and instil a measure of imagination to give rise to new initiatives. Finally, we come to the issue of dispute settlement. Here we are faced with a genuine mystery. Any lawyer will deem useful, if not essential, the presence, in a conventional instrument, of a compromissory clause establishing a mechanism for settling disputes relating to its interpretation and application. The absence of such a provision is seen as an inherent weakness, since the Parties to the dispute would, should the need arise, be forced to adopt ‘in the heat of the moment’ an ad hoc procedure for settling the dispute, which may simply be to hold negotiations in the absence of any agreement on a method of settlement by judicial process. Some will no doubt see this as the hallmark of an excessively academic approach, which disregards the eminent role of diplomatic settlement and conversely gives pride of place to the role of the judge or arbitrator. Questions may nonetheless be raised as to why only half of the conventions adopted under the auspices
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of UNESCO contain such a dispute settlement clause or are linked to a protocol on the subject. Moreover, when provision is made for such mechanisms, opportunities for them to come into play do not seem to arise. The Conciliation and Good Offices Commission responsible for seeking the ‘settlement of any disputes which may arise between State Parties to the Convention against Discrimination in Education’, which has not heard a single case since the Protocol came into effect in 1962, is a case in point! What are we to make of such a situation? It is hard to imagine that UNESCO conventions have never given rise to the slightest dispute. How can this be explained? Is it because many instruments are not directly concerned with inter-State relations but rather with the rights of individuals? Are the procedures followed inadequate? Is preference being given to what are today known as non-compliance procedures rather than to the standard imputation of international responsibility? To answer these questions, we shall need all the wisdom of Professor Sabine von Schorlemer of the University of Dresden: she is an enlightened expert in UNESCO’s internal operations, which she has experienced both as an independent expert adviser to the Director-General and in her capacity as a Member of the German delegation during the recent negotiation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
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UNESCO Practices and Procedures for the Elaboration of Standardsetting Instruments Abdulqawi A. Yusuf
. Introduction Like the founding instruments of several, other specialized agencies in the UN system,1 and perhaps more emphatically and clearly, the Constitution of UNESCO places major emphasis on the standard-setting activities of the Organization. It enumerates among the purposes and functions of the Organization: • ‘recommend[ing] such international agreements as may be necessary to promote the free flow of ideas by word and image’;2 • ‘recommending to the nations concerned the necessary international conventions’;3 and • ‘initiating methods of international cooperation calculated to give the people of all countries access to the printed and published materials produced by any of them.’4 The Constitution, in Article IV.B.4, also assigns to the General Conference the task of proposing to Member States international conventions and recommendations for their approval. It was with the intention of implementing these constitutional prescriptions that the General Conference started debating the procedures and methods to be used for the
1. See, for example, the constitutions of the WHO (Articles 21 and 23); the FAO (Article IV, Paragraph 2); the ILO (Article 19, Paragraph 1); and the ICAO (Article 54 L). 2. Article I, Paragraph 2(a). 3. Article I, Paragraph 2 (c). 4. Ibid.
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elaboration of normative instruments from its second session in 1947. In other words, how should the General Conference fulfil its mandate of proposing conventions and recommendations to the Member States? International law could not provide a ready-made solution, for it prescribes no particular procedures for the drawing up of law-making instruments. It concerns itself mainly with the adoption of the text of such instruments, their authentication, the methods of expressing consent to be bound by them and their observance, application and interpretation. It does not, however, deal with such preliminary phases of standardsetting activities as the determination of whether or not work on such an instrument should be undertaken and who should have the right to propose it, or of the manner in which it should be elaborated or negotiated among interested States. Inspiration could, however, be sought in the practices of other intergovernmental organizations with standard-setting activities, particularly the International Labour Organization (ILO), which already has more than twenty years of experience in this domain. Consequently, to define the procedures to be followed for preparing and submitting such instruments to Member States, the Conference requested the Director-General to draw up draft regulations on the procedure of UNESCO concerning recommendations and international conventions adopted by the General Conference for submission to Member States, and to present such draft regulations to the General Conference for approval at its third session.5 The Draft Rules of Procedure drawn up by the Secretariat were adopted by the General Conference at its fifth session in 1950. Since then, they have been amended and improved upon on several occasions, but their central tenets concerning the manner in which recommendations and conventions should be proposed, elaborated, adopted, and submitted to Member States by the General Conference for their consideration and approval have remained the same. Similar, albeit not identical, procedures concerning the proposal, elaboration and adoption of declarations by the General Conference were approved by the latter at its thirty-third session, in 2005. This chapter examines the historical background of the preparation of these procedures, particularly those pertaining to international conventions and recommendations, and analyses their scope and content, as well as their distinguishing features and the experience gained in their application over the years.
. Establishing Procedures for Standard-setting Activities: – The establishment of Rules of Procedure for the standard-setting activities of the Organization was both long and arduous. As pointed out above, it started with a request by the General Conference to the Director-General in 1947 to draw up such procedures, was enriched by observations from Member States and instructions from the General
5. Res. 2 C/4, adopted on 7 November 1947.
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Conference based on the draft rules proposed by the Secretariat, and resulted in the adoption in 1950 of a set of Rules of Procedure Concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4 of the Constitution.
2.1. Observations from Member States and Instructions from the General Conference On 10 October 1948, the Director-General circulated to Member States the Draft Rules of Procedure based on the procedures adopted by the International Labour Organization (ILO) in dealing with similar standard-setting instruments.6 Following reactions and observations by eight Member States (the Netherlands, the United States of America, New Zealand, South Africa, the United Kingdom of Great Britain and Northern Ireland, Belgium, Brazil and El Salvador), the Director-General submitted a memorandum to the fourth session of the General Conference, in 1949, in which an attempt was made to address some of the issues raised by Member States. These included the definition of the recommendations covered by Article IV, Paragraph 4 of the Constitution and the need to identify some of the matters for which international standard-setting instruments may be required.7 Among the observations submitted by Member States, the following may be mentioned: • that it is important to give an exact definition of the term ‘recommendation’; • that it would be useful to obtain some indication from the General Conference on the scope of application of Article IV, Paragraph IV of the Constitution; • that the rules of procedure to be drawn up should take account of differences in the structure and objectives of UNESCO and the ILO; • that the rules of procedure should be provisional, so that necessary corrections may be made in light of experience and practice.8 In a Resolution adopted at its fourth session, the General Conference issued detailed instructions to the Secretariat setting out the basis on which the Draft Rules of Procedure were to be drawn up, while also taking into account the observations of the Member States. The Resolution, drafted by a sub-committee of legal experts appointed by the External Relations Commission of the Conference, requested that the Director-General bear in mind the following general principles in the preparation of the Draft Rules of Procedure: [w]ith regard to recommendations: • Only those recommendations to Member States whose purpose is the regulation of a particular problem on an international basis and which, in
6. See Doc. 3C/OXR/4 of 10 October 1948. 7. See Doc. 4C/OXR/14, Addendum. 8. Ibid.
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addition to formulating certain general rules, specify the measures to be adopted, should be drawn up in accordance with a special procedure; • The draft regulations do not need to cover those recommendations in which the General Conference defines its general policy within the programme; with regard to the framing of international conventions: • The General Conference shall not be required to vote on the adoption of an international convention before the session following that at which the question was first placed on the agenda; • As a general rule, to be waived only by a special decision of the Conference, a concise preliminary study of any question to be dealt with by an international convention, prepared by the Secretariat or the sponsoring government, shall be dispatched to Member States within a reasonable interval before such questions are considered by the General Conference; • The General Conference shall decide on the desirability of the object stated and its suitability for regulation by convention; • The framing of the initial draft of the convention shall be entrusted to the Secretariat, which may call on the assistance of jurists or other experts; • Member States shall be requested to submit, within a time to be fixed, any observations and comments they may wish to make on the draft to be laid before the General Conference; • A draft convention may be submitted to a commission of jurists or other experts appointed by Member States before the submission of a final version to the General Conference.9 The Draft Rules of Procedure submitted by the Secretariat to the fifth session of the General Conference in 1950 differed in several respects from those in force today, but many of the basic principles and procedures laid down by the 1950 draft have not lost their validity and relevance and continue to be applied in the examination of proposals for new standard-setting instruments, as well as in the elaboration and adoption of such instruments. Prominent among these is the principle utilized to determining the ‘state of maturity’ of a subject matter for standard-setting, the desirability of such regulation at the international level, and the type of instrument (convention or recommendation) to be used for it. Thus, in proposing the Draft Rules of Procedure to the General Conference in 1950, the Secretariat underlined the following: • [a]ny proposal for the adoption of international regulations involves a question of policy: the question whether the problem at issue is of such a nature and at such a stage of development that it can appropriately be dealt with by such regulations, or whether on the contrary, it would be preferable
9. Doc. 4 C/Resolutions, pp. 73-74.
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to employ other means for its solution. Only the General Conference can take the necessary decision on this point.10 The Secretariat was also of the view that before deciding on this policy issue the General Conference should be supplied with all the necessary background information and material on the legal and technical aspects of the problem in question. For this reason, it was proposed in the draft text submitted to the General Conference that: • any proposal for the international regulation of a problem shall be accompanied by a preliminary study, which shall be circulated in suitable time to Member States; and • before any decision is taken on the substance, the Executive Board or the General Conference may call for additional study of the question.11 The draft text also provided that it will be for the General Conference itself to decide whether the question dealt with in the proposal should be regulated by an international convention or, alternatively, a recommendation to Member States.12 Another principle laid down in the draft rules submitted to the Conference was that no decision on the merits of a proposal for standard-setting would be taken by the General Conference unless the proposal had been placed on its agenda beforehand. This rule would apply in all cases, whatever the date on which the proposal was submitted might have been. Thus, if such a proposal should emerge from the general debate in the course of a session of the General Conference, the Conference could only decide to include the proposal in the agenda of its next session. This was considered necessary to guarantee that proposals aimed at the elaboration of new standard-setting instruments would be the subject of a preliminary study and would be communicated to Member States sufficiently in advance to allow for consideration of the proposal on its merits. As regards the preparation of draft conventions and recommendations, the draft rules proposed two alternative options. A first option provided that a standing committee – the ‘legal committee’ of the General Conference – would be responsible for preparing draft conventions and recommendations for submission to the General Conference. It was suggested under a second option that draft conventions and recommendations be prepared by the Secretariat, if necessary with a special committee being convened to carry out a preliminary examination and revision of the drafts for submission to the Conference. The second option was retained in the Resolution adopted by the Conference.
2.2. The Definition of a Recommendation to Member States The observations by Member States on the first Draft Rules of Procedure proposed by the Secretariat included a request for a definition of the term ‘recommendation’,
10. See Doc. 5C/OXR/16 of 3 April 1950, p. 4. 11. Ibid., p. 5. 12. See Article 5 of the draft, ibid., pp. 9-10.
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in view of the fact that the term had hitherto been employed in widely different senses by the General Conference of UNESCO. Indeed, recommendations addressed by an international organization to its Member States could differ in both aim and scope.13 On occasion, a recommendation amounted to no more than a mere expression of hope, an invitation to contribute to the achievement of a particular goal, which did not prescribe in detail the procedure and means to be adopted. In other cases, however, the term ‘recommendation’ had acquired a very definite sense and scope, having become, with conventions, one of the two methods available to a specialized agency for standard-setting on a subject matter of particular interest to Member States. Recommendations in the latter sense involve an exhaustive study of the subject matter to be dealt with and a detailed analysis of a possible common approach to be adopted by Member States; and specify the measures to be applied for the achievement of the desired goal. A first issue was how to make a clear distinction between ‘recommendations’ as these are understood in Article IV.B.4 of the Constitution and other resolutions or decisions of the General Conference by which it recommends certain actions and policies to Member States. As was pointed out by the General Conference itself at its fourth session in 1949 with regard to the Rules of Procedure to be drawn up by the Secretariat, such ‘[r]ules do not need to cover those recommendations in which the General Conference defines its general policy within the programme’, but ‘only those recommendations to Member States whose purpose is the regulation of a particular problem on an international basis and which, in addition to formulating certain general rules, specify the measures to be adopted, should be subject to the procedure.’14 Thus, use of the word ‘recommendation’ in the context of Article IV.B.4 of the Constitution and of the Rules of Procedure is restricted to those instruments that lay down certain standards, principles and general rules aimed at the adoption of corresponding legislation, policies or administrative measures by Member States. A second issue touched on the manner in which the General Conference would make the choice between conventions and recommendations when making proposals to Member States involving the adoption of legislative, quasi-legislative or administrative measures in their territories. In other words, when should a recommendation be proposed to Member States instead of a convention? With respect to this issue, the UNESCO
13. To quote a few examples: the Council of the International Civil Aviation Organization was given the power to ‘adopt international standards and recommended practices for convenience, designate them as annexes to this Convention’ (Article 54 L); for the World Health Organization ‘the Health Assembly shall have authority to adopt regulations concerning sanitary and quarantine requirements’ and shall have ‘authority to make recommendations to Members with respect to any matter within the competence of the organization’ (Article 23); and the Conference of the International Labour Organization must, when deciding on the adoption of motions relating to subjects on the Agenda, decide whether the decision ‘should take the form: (a) of an international convention; or (b) of a recommendation to meet circumstances where the subject, or aspect of it, dealt with is not considered suitable or appropriate at that time for a convention’ (Article 19, Paragraph 1, Constitution of the International Labour Organization). 14. See 4 C/Resolution 34.1, adopted on 4 October 1949.
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General Conference appears to have relied on the experience of the International Labour Organization (ILO) and on the implementation of its Constitution. Article 19, Paragraph 1 of the Constitution of the ILO outlines what might be described as the ‘deciding factor’ in the choice between conventions and recommendations. It is indeed provided that propositions adopted by the Conference may take the form of a recommendation ‘when the subject dealt with, or any aspect of it, is not considered suitable or appropriate at that time for a convention.’ Based on the preliminary study prepared by the Secretariat, as well as on the replies received from Member States, the General Conference decides whether the subject matter to be regulated has reached a degree of maturity allowing for the adoption of an international convention; or whether it is more appropriate to adopt a recommendation, in view of the fact that the subject is not yet suitable or appropriate for a convention. The decision of the Conference also hinges on the amount of flexibility to be made available to Member States, since a recommendation allows for greater flexibility in its implementation and follow-up than a convention. The recommendations adopted in this manner do not require subsequent formal accession or ratification under the domestic laws of Member States, but are submitted to them for direct implementation on the strength of their approval by the General Conference. Indeed, the main distinguishing feature of recommendations, in contrast with conventions, is that they are not legally binding on Member States and thus do not give rise to State responsibility under international law in case of disregard for their provisions. Instead, their observance is generally based on the moral and political obligations assumed by Member States through the negotiation, elaboration and approval of such recommendations by the General Conference.15 A definition of ‘recommendation’ was included in the revised Draft Rules of Procedure proposed by the Secretariat. It reads as follows: • [r]ecommendations in which the General Conference formulates principles and norms for the international regulation of any particular question and invites Member States to take whatever legislative or other steps may be required – in conformity with the constitutional practice of each State and the nature of the question under consideration – to apply the principles and norms aforesaid within their respective territories. This definition has remained unchanged since the adoption of the Rules of Procedure by the General Conference in 1950.16
15. See H. Saba, , L’Activité quasi-législative des Institutions Spéecialisées des Nations Unies’, Recueil des Cours, Vol. 111, p. 660, who states that ‘[l]a recommendation se définit généralement en effet de manière négative par son absence de force obligatoire. La recommendation n’aurait qu’une valeur morale et politique et se distinguerait sur le plan juridique des décisions ayant un caractère astreignant’. 16. See Article 1 (b) of the Rules of Procedure.
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. The Scope and Content of the Rules of Procedure for the Elaboration of Conventions and Recommendations As pointed out above, the Rules of Procedure Concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4, of the Constitution were adopted for the first time by the General Conference at its fifth session, in 1950. Since then, the Rules of Procedure have been amended at the seventh,17 seventeenth,18 and thirty-second sessions19 of the Conference; the amendments made at the seventh and thirty-second sessions were the most important ones.20 In the analysis and application of the Rules of Procedure, three main phases normally associated with the general elaboration of standard-setting instruments may be identified: a first or preliminary phase wherein it is determined whether or not work on a standardsetting instrument should be initiated; a second phase consisting of the elaboration, negotiation and concrete formulation of the instrument, provided a positive decision was adopted in the first phase; and a third, last phase leading to adoption of the text and its authentication in accordance with established procedures.
3.1. Determining the Desirability of a Standard-setting Instrument Under the Rules of Procedure of UNESCO concerning recommendations and conventions, the preliminary phase essentially revolves around the issue of the desirability of elaborating a convention or a recommendation on a given subject matter. The General Conference is the ultimate authority to make such a determination. Thus, the Rules of Procedure provide that any proposal for the elaboration of a convention or recommendation on any particular question must be specifically included in the provisional agenda of the General Conference.21 The provisional agenda of the General Conference is established by the Executive Board on the basis of proposals received from Member States and Associate Members, items proposed by the Director-General, items of a statutory nature, and items included by the Executive Board itself or by the General Conference following decisions adopted
17. See 7 C/Resolution 43, adopted on 11 December 1952. 18. See 17 C/Resolution 13.3, adopted on 30 October 1972. 19. See 32 C/Resolution 77, adopted on 15 October 2003. 20. The main amendments introduced by 7 C/Resolution 43 concerned the deletion of original Article 10 and the amendment of Article 11, which became Article 10 and established the system of referral of preliminary reports to Member States for comments and observations, and a series of ‘cascading’ deadlines leading to the eventual submission of the draft instrument to the General Conference for adoption. At the thirty-second session of the General Conference, Section VI of the Rules was amended in order to strengthen the procedures for promoting the acceptance and implementation of conventions and recommendations. 21. See Article 2 of the Rules of Procedure.
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at its previous sessions. Thus, the initiative for placing a standard-setting proposal on the provisional agenda of the General Conference may come from any one of the above entities, provided that, as required by Article 3 of the Rules of Procedure, it is accompanied by a preliminary study of the technical and legal aspects of the problem under consideration, and that it has first been examined by the Executive Board at least ninety days before the opening of the session of the General Conference. The preliminary study is usually prepared by the Secretariat.22 Its main purpose is to present, in an objective manner, the main arguments for the appropriateness of normative action on a given subject matter, for the desirability of initiating such action at the proposed time, and for deciding whether it should be undertaken by UNESCO or by an international Conference of States convened under its auspices. The study should also make suggestions on the most appropriate method to be utilized for such standard-setting in the event that the General Conference accepts the proposed action. If, upon examining the proposal along with the preliminary study, the Executive Board decides to approve it for inclusion in the provisional agenda of the General Conference, it also has to transmit to the General Conference its own observations and comments on the proposed normative action. In such a case, the Director-General is equally required to communicate to Member States, at least seventy days before the opening of the session of the Conference, a copy of the preliminary study accompanying the proposal, together with the Executive Board’s observations and decisions on it.23 Under the terms of Article 4 of the Rules of Procedure, the Board, after examining the preliminary study, may alternatively decide to request the Secretariat, one or more experts or a Committee of Experts to carry out a thorough study of the matters dealt with in the proposal and to prepare a report on the subject for communication to the General Conference. At its ninety-ninth session, for example, the Board decided not to include a proposal for standard-setting in the provisional agenda of the General Conference and asked the Director-General to continue developing the preliminary study, taking into account the comments and views expressed during discussion, and to report on the matter at a subsequent session.24
22. The usual practice is for provision to be made for preparation of the study in the Approved Programme and Budget for the biennium during which the study is to be carried out, specifying that it is the Secretariat that will be responsible for preparing it. Even in the case of a proposal emanating from a Member State, it is usually provided in the Approved Programme and Budget that the Secretariat will prepare the preliminary study for submission to the Executive Board. In most cases, the preparation of the preliminary study is proposed by the Director-General in the Draft Programme and Budget after consultation with Member States. 23. The Executive Board usually examines preliminary studies at its spring session, in the year in which the General Conference is held. This time frame gives it and the Director-General adequate time to comply with the required time limits. 24. See Doc. 99 EX/Decision 5.4.2. Despite this Decision, the matter was included in the provisional agenda of the General Conference at the request of the Director-General, in a different form (without reference to a proposal for standard-setting). On considering a report by the DirectorGeneral summarizing the situation, the General Conference invited the Director-General to organize a meeting of experts to prepare a further preliminary study to be submitted to the
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Once a proposal for standard-setting is included in the agenda of the General Conference, it is for the Conference to decide by virtue of Article 6 of the Rules of Procedure on the following issues: first, whether the subject matter should be dealt with in an international standard-setting instrument; second, if the answer is yes, to provide guidance as to the possible scope of the instrument to be elaborated; and third, to specify whether the method adopted should be an international convention or a recommendation to Member States. Alternatively, the General Conference may, under the terms of Article 7, decide to defer its decisions on these issues to a future session, in which case it may request the Director-General to submit to it, at a specified later session, a report describing the desirability of elaborating such an instrument, the standard-setting method to be used for that purpose, and the extent to which the subject matter should be regulated. In this case, the Director-General’s report must be submitted to Member States at least one hundred days before the opening of the specified session of the Conference.
3.2. Elaborating Draft Instruments for Submission to the General Conference The preliminary elaboration of draft instruments is normally undertaken by the Secretariat of UNESCO. Indeed, Article 10 of the Rules of Procedure provides that the General Conference, having taken a final decision on the elaboration of a standard-setting instrument, shall instruct the Director-General to ‘prepare a preliminary report setting forth the position with regard to the problem to be regulated and to the possible scope of the regulating action proposed.’ The Director-General’s preliminary report is generally accompanied by the first draft of a convention or recommendation, as the case may be. This report is submitted to Member States at least fourteen months before the opening of the session of the General Conference at which it is to be considered. The comments and observations of Member States have to reach the Director-General at least ten months before the opening of the General Conference, so that the Director-General may prepare a final report taking them into account. The final report of the Director-General – normally accompanied by a well-developed preliminary draft of the instrument – is to be submitted either directly to the General Conference or, if the latter had so decided when requesting the Director-General to prepare his reports, to a Special Committee to be convened at least four months before the opening of the General Conference. The Special Committee is a plenary intergovernmental organ consisting of technical and legal experts appointed by the Member States, all of which are invited to participate. The submission of the final report of the Director-General to the Special Committee formally launches an intergovernmental process for the negotiation of the draft instrument, with a view to the preparation of a final text to be adopted by the General Conference. However, since submission to the Special Committee occurs
Executive Board at its one hundred fourth session. See 19 C/Resolution 4.132, adopted on 29 November 1976.
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only if the General Conference has so requested in its Resolution calling for the elaboration of the standard-setting instrument, there arises the question of the procedure for launching direct intergovernmental negotiations if no such request has explicitly been made. No such request from the General Conference was forthcoming with respect to three conventions and one recommendation in the last few years.25 In such cases, the Executive Board steps into the process during the period between two ordinary sessions of the General Conference, in accordance with Article V.B.6(b) of the Constitution.26 In particular, it requests the Director-General to convene an intergovernmental meeting of experts to engage in further elaboration and negotiation of the preliminary text proposed. The action of the Executive Board is justified on the ground that it has the duty under the Constitution to ‘take all necessary measures to ensure the effective and rational execution of the programme by the DirectorGeneral.’27 Should the Director-General be unable to convene an intergovernmental meeting of experts to take forward the process of elaboration – and in the absence of an express request from the General Conference – it is for the Executive Board to evaluate the necessity of such a meeting in the context of the execution of the programme approved by the General Conference, as well as to take the appropriate decisions. This may, however, be viewed as a stopgap resorted to in the absence of a decision by the General Conference to submit the preliminary draft prepared by the Secretariat to the Special Committee contemplated in the Rules of Procedure. In view of the recent proliferation of such stopgap measures in the context of the most recent conventions and recommendations, a better solution might lie in the amendment of the provisions of the Rules of Procedure so as to make mandatory the submission of the preliminary draft – together with the final report of the DirectorGeneral – to the Special Committee, notwithstanding the specific terms of the Resolution of the General Conference. This solution would render the procedures for the elaboration of conventions and recommendations more complete and selfcontained. It would also provide for a more stable and predictable role for Member States, acting collectively, to contribute to the process of elaboration from an early stage, thus doing away with the practice of ad hoc decisions by the General Conference or Executive Board to convene the Special Committee or similar intergovernmental meetings.
25. They are the Convention on the Protection of Intangible Cultural Heritage; the Convention against Doping in Sport; the Convention on the Protection and Promotion of the Diversity of Cultural Expressions; and the Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace. For the texts, see http://www.unesco.org/legal_instruments 26. The second sentence of Article V.B.6(b) reads as follows: ‘[i]n accordance with the decisions of the General Conference and having regard to circumstances arising between two ordinary sessions, the Executive Board shall take all necessary measures to ensure the effective and rational execution of the programme by the Director-General.’ 27. See Article V.B.6(b) of the UNESCO Constitution.
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. The Distinguishing Characteristics of UNESCO Standard-setting Procedures An analysis of UNESCO standard-setting procedures will reveal that they possess three distinctive characteristics. First, there are the interlocking and complementary responsibilities assigned to the three principal organs of the Organization, namely, the General Conference, the Executive Board and the Secretariat (led by the Director-General), together with the Member States acting individually and collectively. The second important characteristic of the procedures is a core set of checks and balances, embedded in the process to ensure the desirability, timeliness and maturity of the subject matter for normative action, as well as the quality of the instrument. A third distinguishing feature is the system of authentication by the signatures of the President of the General Conference and of the Director-General, which formally does away with signatures by representatives of Member States.
4.1. The Interlocking Responsibilities of the Principal Organs The Rules of Procedure assign specific and distinct, but closely interlinked responsibilities to the Director-General, the Executive Board and the General Conference with regard to initiation of proposals for standard-setting, their examination as to desirability and the elaboration and final adoption of draft instruments. At the stage of the review of a proposal for a new standard-setting instrument, it is the Secretariat’s duty to prepare the preliminary study, even if the initial proposal was made by a Member State rather than by the Director-General. However, it is for the Executive Board to examine the preliminary study and to decide whether the proposal should be included in the provisional agenda of the General Conference for final consideration and decision; and, if it does so decide, to transmit to the Conference any comments or observations the Executive Board may have made on the matter. The General Conference, having examined the above-mentioned input, decides whether the proposed subject matter should be dealt with by an international standard-setting instrument and, if so, whether the method adopted should be an international convention or, alternatively, a recommendation to Member States. At the stage of elaboration of the instrument, the Director-General prepares a preliminary draft or a detailed outline of the convention or recommendation, if necessary with the assistance of an ad hoc group of experts. This preliminary draft, together with a preliminary report on the process of elaboration of the instrument, is then sent to all Member States for their comments and observations. The same documents are also submitted to the Executive Board for purposes of information and consultation, so that it may express its views on the manner in which the process is being conducted, as well as on the way forward. Consultation with the Executive Board is not formally foreseen under the terms of Article 10 of the Rules of Procedure, but has become part of established practice in the past few years in view of the oversight function of the Board with respect to the execution of the programme approved by the General Conference, of
UNESCO Practices and Procedures for the Elaboration of Standard-Setting Instruments 43
which the elaboration of standard-setting instruments is an integral and important element. On the basis of the comments and observations of Member States, a revised draft of the instrument is prepared by the Director-General for intergovernmental negotiations either through the Special Committee referred to in Paragraph 4 of Article 10 – if the General Conference had so decided – or through an intergovernmental meeting convened for that purpose by the Director-General following consultations with the Executive Board. The final outcome of these intergovernmental negotiations is then submitted to the General Conference for consideration either by a Special Committee under the terms of Article 10(5) or by the Director-General, in case of ad hoc intergovernmental meetings.
4.2. The Checks and Balances Built into the Process The system of checks and balances embedded in the Rules of Procedure – active from the moment the proposal for a standard-setting instrument is submitted through the elaboration of the instrument, to its final adoption by the General Conference – is aimed, inter alia, at ensuring the following: first, the desirability of the instrument and the subject matter’s maturity for standard-setting; second, the provision of adequate opportunities for full participation by Member States acting individually and collectively, as well as by UNESCO’s principal organs; and third, the quality of the instrument not only with respect to its substantive contents, but also its structure and layout, particularly as regards recommendations. Articles 2 to 7 of the Rules of Procedure are devoted to the process by which the General Conference determines the desirability and timeliness of a proposal for a standard-setting instrument and to the various steps, reviews and requirements that have to be fulfilled before such a determination is made. These steps are meant to enable the Executive Board and the Member States, acting individually, to weigh, verify and assess the maturity of the subject matter for standard-setting action and to review the proposal submitted by the Director-General or by a Member State or States, as well as the preliminary study prepared by the Secretariat. Thus, the Executive Board and the Member States exercise an oversight and evaluation function over proposals for standard-setting; while the Secretariat provides the technical and legal studies that enable them to undertake such evaluation; and the General Conference takes the final and ultimate decision on the matter.28 The interlocking responsibilities of the principal organs of the Organization are complemented throughout the process by the active role of Member States acting individually or collectively. Article 5 of the Rules of Procedure affords Member States an opportunity individually to examine and comment on the preliminary study accompanying
28. Article 6 of the Rules of Procedure aptly summarizes this as follows: ‘[i]t shall be for the Conference to decide whether the question dealt with in the proposal should be regulated at the international level and, if so, to determine to what extent the question can be regulated and whether the method adopted should be an international convention or, alternatively, a recommendation to Member States.’
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the proposal for a standard-setting instrument at least seventy days before the opening of the General Conference session at which the proposal is to be discussed. Similarly, at the stage of elaboration of the instrument itself, Member States individually have to receive, under the terms of Article 10, Paragraph 2, the Director-General’s preliminary report, accompanied by a preliminary draft or outline of the instrument, at least fourteen months before the opening of the session of the General Conference. They are to provide any comments or observations ten months before that date. In addition to their membership in the Executive Board and the General Conference, Member States collectively provide input and engage in negotiation on the elaboration of the instrument at the Special Committee, if the General Conference so decides, or at the intergovernmental meetings especially convened for that purpose by the Director-General in consultation with the Executive Board. Quality assurance is another main concern of the Rules of Procedure, which provide at the very outset of the process for a preliminary study, covering the legal and technical aspects of the proposal, as well as the objective arguments for the appropriateness of setting standards for the subject matter. The preliminary study, prepared by the Secretariat, constitutes the first step in the control of quality. On that basis, the Executive Board verifies, on behalf of the General Conference, the desirability of normative action and the type of instrument (convention or recommendation) most suitable for it. The preliminary study also enables the General Conference to determine whether or not a standard-setting instrument should be prepared. Should the General Conference make a positive decision, the comments and observations of the Member States on the preliminary report and the draft outline prepared by the Director-General constitute a second step. The third and final step proceeds through negotiations in the framework of the Special Committee or the intergovernmental meetings. During these negotiations the structure, layout and content of the instruments are subject to amendments and modifications proposed by Member States, with the aim not only of taking into account their concerns but also of improving the quality of the instrument. The General Conference and the Executive Board also have important and overarching responsibilities to ensure that the standard-setting instruments of the Organization are of high quality. Indeed, the Executive Board, in its comments and observations on the Draft Programme and Budget for 1977-1978, pointed out very clearly that ‘in the field of normative action, quality rather than quantity should be stressed.’29 The General Conference subsequently endorsed this observation and adopted Resolution 19 C/6.112, remarking in the Preamble that ‘the varying needs of Member States and the extreme diversity of circumstances make it necessary to take into account a wide range of factors’ and that ‘as a result, in some cases, the texts proposed are so voluminous and complex as to be unwieldy, and that they contain an unfortunate juxtaposition of general principles and specific measures which detracts from their effectiveness.’30 This remark was addressed
29. See Executive Board’s observation No. 36 in Doc. 19C/6, entitled ‘Recommendations of the Executive Board on the Draft Programme and Budget for 1977-1978’, October 1976. 30. See third and fourth preambular Paragraphs of 19 C/Resolution 6.112, adopted on 12 November 1976.
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particularly at the recommendations elaborated during the period preceding the nineteenth session of the General Conference, which were not only numerous, but had apparently, in the view of the Executive Board and the General Conference, failed to meet the high quality expected of the standard-setting instruments of the Organization. To remedy this situation, the General Conference invited the Director-General: • to study the possibility of changing the conception and layout of draft recommendations with a view to adapting them better to their true purpose, in particular by making a clear distinction between the corpus of definitions and principles of universal scope on the one hand and, on the other, the observations and specifications as to the methods, material and personnel most suitable for ensuring their application.31 In addition to the issues of quality and layout, the General Conference saw a problem in the fact that the original conception of a recommendation was not being fully observed and complied with in accordance with the Rules of Procedure. The main purpose of a recommendation, as defined in the Rules of Procedure, is to formulate ‘principles and norms’ for the international regulation of a particular subject matter. The choice of steps ‘required to apply the principles and norms aforesaid’ is left to the Member States. Such steps may be legislative or otherwise ‘in conformity with the constitutional practice of each State and the nature of the question under consideration.’32 Divergence from this conception of a recommendation appeared to arise mainly from a tendency to include ever more detailed provisions on the steps required to apply stated principles and norms at the national level, although these steps were, according to the definition of recommendation in the Rules of Procedure, to be left to the discretion of the States concerned. Consequently, the General Conference called for a return to the original conception of a recommendation, as such is defined in the Rules of Procedure, and for restraint in the amount of detail introduced into implementation procedures, and it did so by making a clear distinction in the layout between such procedures and the corpus of definitions, norms and principles that should constitute the bulk of a recommendation.
4.3. The System of Authentication of Conventions and Recommendations Article 14 of the Rules of Procedure provides that ‘two copies of any convention or recommendation adopted by the General Conference shall be authenticated by the signatures of the President of the General Conference and of the Director-General.’ There is thus no need for a signature by the representatives of Member States when a convention or recommendation is adopted by the General Conference of UNESCO. According to Article 10 of the Vienna Convention on the Law of Treaties, [t]he text of a treaty is established as authentic and definitive:
31. Paragraph 2(b) of 19 C/Resolution 6.112. 32. See Article 1(b) of the Rules of Procedure.
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(a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. In the case of UNESCO, there is an agreed-upon procedure for States participating in the drawing up of an instrument, spelled out in Article 14 of the Rules of Procedure. Because all the Member States of UNESCO have approved these procedures, authentication of a text adopted by the General Conference is done by the signatures of the President of the General Conference and of the Director-General. Thus, UNESCO conventions are not open for signature by representatives of Member States when these have been adopted by the General Conference of the Organization in accordance with the Rules of Procedure concerning conventions and recommendations. Only those conventions adopted in a conference of plenipotentiaries convened under the auspices of the Organization, but not subject to its Rules of Procedure, may be authenticated by signature of the representatives of States, if such is provided for in the text. Examples of such conferences are the Hague conferences convened in 1954 for the adoption of the Convention on the Protection of Cultural Property in the Event of Armed Conflict, and, in 1999, for the adoption of the Second Protocol to that Convention.33 Other examples include regional conventions for the recognition of diplomas, also convened under the auspices of UNESCO.34 Of particular interest in the case of UNESCO is that the Rules of Procedure provide for authentication not only of conventions, but also of recommendations. Recommendations are of course not binding on Member States, do not create the same legal obligations as conventions, and require only a simple majority for their adoption by the General Conference, in contrast to the two-thirds majority necessary for conventions. Despite these differences, recommendations and conventions are treated in the same way under the Rules of Procedure with regard to their initiation, elaboration, adoption, and authentication. This is due mainly to their constitutional status, as compared to other instruments adopted by the General Conference but not mentioned in the Constitution. It also indicates their quality as the main standard-setting instruments of the Organization. Following the authentication of the text of the convention or recommendation, a certified copy of the instrument must be promptly transmitted by the Secretariat to
33. Article 30 of the Hague Convention provides that ‘[t]he present Convention shall bear the date of 14 May 1954, and until the date of 31 December 1954 shall remain open for signature by all States invited to the Conference which met at The Hague from 21 April 1954 to 14 May 1954.’ 34. See, for example, Convention on the Recognition of Studies, Diplomas and Degrees concerning Higher Education in the States belonging to the European Region, 21 December 1979; Article 15 reads as follows: ‘[t]his Convention shall be open for signature and ratification by the States of the Europe Region which have been invited to take part in the diplomatic conference entrusted with the adoption of this Convention as well as by the Holy See.’
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Member States for submission to their competent national authorities, in accordance with Article IV, Paragraph 4 of the Constitution. The certification of the text is carried out by the Legal Adviser of the Organization.
. Multi-stage Procedure for Declarations, Charters and Similar Instruments A new procedure similar to the one described above was adopted at the thirty-third session of the General Conference with respect to declarations, charters, and other standard-setting instruments adopted by the General Conference and not covered by the terms of Article IV, Paragraph 4 of the Constitution.35 It is a simplified procedure that reflects the softer legal nature of declarations and their secondary status in UNESCO’s standard-setting activities. Indeed, unlike conventions and recommendations, the elaboration and adoption of declarations in UNESCO do not rest on any constitutional or regulatory basis, but draw on practice within the Organization. The new procedures, essentially inspired by those governing the elaboration of conventions and recommendations, albeit also based on long-standing practice with declarations, consist of four main stages. The first stage deals with a determination by the General Conference as to the desirability of a declaration, charter or similar instrument on a specific subject matter. This determination is enabled by a report from the Director-General, or by a recommendation from the Executive Board or a subsidiary organ of the Conference itself. Subsequent to this decision, stage two of the procedure provides that the General Conference shall request the Director-General to draw up the instrument in consultation with Member States and to submit it to the Conference on a date to be determined by it. The Conference may also indicate the specific manner in which the instrument shall be elaborated, including the convening of intergovernmental meetings or expert committees by the Director-General in accordance with UNESCO regulations for the classifications of meetings.36 Stage three of the procedure provides for submission of the draft text of the declaration or charter to the General Conference for examination and discussion following its consideration by the Executive Board, whose recommendations are to be duly taken into account. The declaration or charter shall then be adopted by the General Conference, which is to make every effort to do so by consensus. Stage four is devoted to the followup and dissemination of the instrument and to the submission of periodic reports on its
35. See 33 C/Resolution 87, adopted on 11 October 2005. For the text of the Resolution and of the multi-stage procedures, see UNESCO, Basic Texts, 2006 edn, pp.117-118. 36. See Regulations for the general classification of the various categories of meetings convened by UNESCO, adopted by the General Conference at its fourteenth session and amended at its eighteenth, twenty-fifth and thirty-third sessions, in UNESCO, Basic Texts, 2006 edn, pp. 119-141.
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implementation by the Director-General, at the request of the General Conference, if no specific follow-up mechanism is provided for in the text of the declaration itself. The multi-stage procedure adopted by the thirty-third session of the General Conference basically codifies the practice hitherto followed by UNESCO in the elaboration and adoption of declarations and charters. The first Declaration adopted by the UNESCO General Conference as a standard-setting instrument was the 1966 Declaration of the Principles of International Cultural Cooperation.37 Since then, the General Conference has adopted twelve other declarations.38 In keeping with this practice, the General Conference had already decided at its twentieth session, in 20 C/Resolution 32.1, that any proposal calling for the drafting of a standard-setting instrument other than an international convention or recommendation should take the form of a draft resolution, which might specify different time limits for the different stages of preparation on a case-by-case basis. It had also decided that such a draft resolution might provide for prior consultation of Member States. Generally, the drafting of declarations rests on the work of the Secretariat, assisted by experts or complemented by intergovernmental meetings; in turn, the determination of their desirability and their adoption lie with the General Conference, upon the recommendation of the Executive Board. Thus, one finds in the elaboration and adoption of declarations the same interlocking and complementary responsibilities identified above with respect to conventions and recommendations. It should, however, be noted that in the case of declarations, no provision is made in the procedures for the comments and observations of Member States acting individually. The emphasis is rather on Member States acting collectively, either in the context of the governing bodies or in that of intergovernmental meetings.
. Conclusions Over the past fifty-six years, the Rules of Procedure concerning recommendations to Member States and international conventions have provided UNESCO with a stable and efficient legal framework for the initiation, elaboration and adoption of standardsetting instruments covered by the terms of Article IV, Paragraph 4 of the Constitution. They have proven their value by virtue of the fact that thirty-five conventions and thirtyone recommendations have been adopted under the guidance of their provisions. They have also shown their enduring quality in having been substantially amended only two times, one of which concerned only the follow-up and implementation, rather than the initiation, elaboration and adoption of conventions and recommendations. With the recent adoption of the multi-stage procedure for declarations, the only other UNESCO standard-setting instrument not covered by the Rules of Procedure has also been given a
37. See 14 C/Resolution 8.1, adopted on 4 November 1966. 38. These declarations are available on the Organization’s Web site, at the following address: http:// www.unesco.org/legal_instruments
UNESCO Practices and Procedures for the Elaboration of Standard-Setting Instruments 49
clear legal framework, based on well-established practice, that may effectively facilitate its elaboration and adoption, as the need may arise. Naturally, this does not mean that the Rules of Procedure do not require, or might not benefit from, future improvements or amendments. It has indeed been suggested in this chapter that one possible amendment to render the procedures more complete and self-contained would be to make mandatory the submission of draft conventions or recommendations to the Special Committee, together with the final report of the Director-General, notwithstanding the specific terms of the Resolution adopted by the General Conference. Such an amendment would provide for a more predictable role for Member States, acting collectively, to contribute to the elaboration of instruments, in addition to their individual comments and observations and to their participation in the deliberations of the governing bodies related to the draft instrument. It would also do away with the ad hoc arrangements often resorted to in recent years, owing to the absence of a specific request from the General Conference for the submission of the final report of the Director-General to the Special Committee. Another area that might offer ample room for improvement – one arising not from inherent deficiencies in the Rules of Procedure, but rather from recent practice in the preparation of recommendations – is the layout and drafting of such recommendations. As was clearly stated by the General Conference in 1976, there is a need to revert to the original conception of a recommendation under the Rules of Procedure in order to avoid unwieldy texts that often juxtapose principles and measures and formulate too many detailed provisions for their implementation. In this case, it is the lack of proper application of the Rules of Procedure that gives rise to the problem; and the appropriate remedy might lie in their strict observance during preparation of the draft texts of recommendations.
Normative Action 8 7 6 5 4 3 2
Years Conventions
Recommendations
Declarations
2001 2003 2005
1971 1972 1974 1976 1978 1979 1980 1981 1982 1983 1985 1989 1995 1997 1999
1952 1954 1956 1958 1960 1961 1962 1964 1966 1968 1970
0
1948 1950
1
51
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO Laurence Boisson de Chazournes
. Introduction Monitoring, supervision and coordination mechanisms play a key role in ensuring respect for the rule of law. Within international organizations, they provide the means by which these organizations supervise the establishment and implementation by States of the international standards to which they have subscribed on joining the organizations and of those that are subsequently adopted. These mechanisms are intended to promote compliance with the law, to ensure backup for such compliance and to provide a response to any violation. They are instrumental in verifying compliance with international obligations1 and in identifying needs with respect to such compliance; they can also help to stop violations of the law by calling on a State to put an end to a situation of non-compliance. They are not the only guarantees of effective compliance with the law. It is in this sense that the complementary nature of the relationship between these mechanisms and those relating to the settlement of disputes or to the provision of technical or financial assistance should be understood. Besides the aspects of legal compliance, these mechanisms make it possible to ensure that the objectives set out under the various instruments are achieved. This chapter describes the diversity and characteristics of the mechanisms for the monitoring and supervision of UNESCO instruments. Beginning with a look at the competent bodies, it goes on to cover the range of monitoring and supervision procedures. It concludes with an analysis of the coordination among international organizations and its impact on compliance with, and monitoring of, UNESCO instruments.
1. The standard-setting instruments adopted at UNESCO are diverse and varied. This chapter does not discuss the legal scope of international obligations arising from these instruments.
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. ‘Multifocal’ Monitoring and Supervision System The ‘multifocal’ character of monitoring, supervision and coordination mechanisms stems from the diversity of UNESCO’s standard-setting instruments. Each of the UNESCO conventions, recommendations and declarations may be subject to specific monitoring, supervision and coordination mechanisms. This situation is attributable particularly to the broad range of bodies responsible for the monitoring, supervision and coordination of UNESCO’s standard-setting instruments. In some cases, a body is responsible for ensuring the monitoring and supervision of different categories of standard-setting instruments, as is the case with the Executive Board’s Committee on Conventions and Recommendations. In others, certain standard-setting instruments provide for the establishment of bodies with specific competencies.
2.1. Monitoring and Supervising UNESCO’s Conventions and Recommendations Unlike declarations, the monitoring of which is not subject to any uniform procedure, the monitoring and supervision of UNESCO conventions and recommendations are governed by the Rules of Procedure concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4 of the Constitution. The system for the monitoring and supervision of UNESCO recommendations2 and conventions is based largely on Articles 17 and 18 of the aforementioned Rules of Procedure. Under these provisions, Member States are required to submit, by the dates specified by the General Conference, reports on the measures they have adopted in respect of each convention in force and each recommendation adopted. The General Conference may also invite the Secretariat to assist the Member States in monitoring and supervising the convention or recommendation concerned and in the preparation and follow-up of such reports. The General Conference entrusts the examination of reports received from Member States to the Executive Board. The Executive Board, in turn, transmits the reports to the General Conference or, if the General Conference so decides, their analytical summaries, together with its observations or comments and any comments the Director-General may make.
2. The Rules of Procedure concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4 of the Constitution state that recommendations are the instruments in which ‘the General Conference formulates principles and norms for the international regulation of any particular question and invites Member States to take whatever legislative or other steps may be required – in conformity with the constitutional practice of each state and the nature of the question under consideration – to apply the principles and norms aforesaid within their respective territories’ (Article 1(b)). The primary objective of the recommendations is therefore to influence the development of national practices and laws through the formulation of international norms and principles.
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The system for monitoring and supervising the conventions and recommendations of UNESCO may also draw on specific provisions contained in certain conventions and recommendations. Often, a special committee is established with the task of monitoring and supervising a recommendation or convention; it may also happen that this task is entrusted to an existing committee. a) A Monitoring and Supervisory Body with General Competence: the Committee on Conventions and Recommendations It was in 1965, at its seventieth session, that the Executive Board, having taken note of Resolution 16.1 adopted by the General Conference at its thirteenth session, decided ‘that the reports submitted by governments shall be analysed by […] a special committee of the Executive Board […].’3 At its seventy-first session, the Board thus decided to establish a ‘Special Committee […] to examine the reports of Member States on the implementation of the Convention and Recommendation against discrimination in education.’4 The name of this committee has changed over the years. A similar committee was established by the Board at its seventy-fifth session, called the ‘Special Committee on Discrimination in Education.’5 At its one hundred fourth session in 1978, the Board decided that the committee would thenceforth be designated as ‘the Committee on Conventions and Recommendations.’ Finally, at its one hundred twenty-second session, it became a permanent commission of the Board.6 The Committee on Conventions and Recommendations was given the following mandate7: • (a) to examine periodic reports by Member States on their implementation of the Convention and Recommendation against Discrimination in Education, (b) to examine communications addressed to UNESCO in connection with specific cases alleging a violation of human rights in education, science and culture, (c) to examine the report of the Joint ILO/UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers, (d) to examine the reports of the Joint Expert Group (CR)/ECOSOC (CESCR) on the Monitoring of the Right to Education once a year. The Committee thus has a dual mandate. It is responsible, on the one hand, for considering all questions relating to the implementation of those UNESCO standardsetting instruments entrusted to it by the Executive Board (in accordance with the provisions of Article 18(1) of the Rules of Procedure concerning recommendations to Member States and international conventions). In other words, the Committee examines
3. See Doc. 70 EX/Decision 5.2.1 of the Executive Board of UNESCO. 4. See Doc. 71 EX/Decision 3.2. 5. See Doc. 75 EX/Decision 6.II. 6. See Doc. 122 EX/Decision 3.6 and 123 EX/Decision 4. 7. See Doc. 173 EX/Decision 12.
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the reports received from Member States, particularly those relating to the right to education and to the exercise of that right, this function being commonly referred to as ‘the first aspect of the terms of reference.’ On the other hand, it is responsible for examining communications relating to cases and questions concerning the exercise of human rights in UNESCO’s fields of competence, this being the second aspect of its terms of reference. The creation of the Committee on Conventions and Recommendations has consequently resulted in a kind of homogenization of the monitoring and supervision of UNESCO’s recommendations and conventions. Indeed, until the thirty-second session of the UNESCO General Conference, the Committee on Conventions and Recommendations was responsible only for the examination of the periodic reports that were expressly entrusted to it, whereas the initial special reports that the Member States were required to submit to the first regular session of the General Conference, following the adoption of the convention or recommendation concerned, were examined by the Legal Committee of the General Conference. The General Conference, in 32 C/ Resolution 77, adopted in October 2003, decided that it would thenceforth entrust to the Executive Board, and in particular to the Committee on Conventions and Recommendations, the consideration of the reports on conventions and recommendations that it requested of Member States. This decision did away with the distinction between periodic reports and special reports. The reports adopted by the Committee on completing its consideration are submitted to the General Conference, as are the reports of Member States or their analytical summaries (if so decided by the General Conference), together with the comments of the Executive Board. Moreover, since 2003, the terms of reference of the Committee on Conventions and Recommendations have been expanded. Eight conventions now fall within its competence, whereas previously there were only two, and thirty-one recommendations instead of the previous five.8 b) Monitoring and Supervisory Bodies with Specific Competence Certain conventions have an institutional procedure of their own, in the sense that a specific body is responsible for the monitoring and supervision of their stipulated obligations. With regard to UNESCO conventions, a noteworthy example is the Convention for the Protection of the World Cultural and Natural Heritage of 1972, which established the World Heritage Committee. This Committee plays an important role in monitoring and supervision. It may, as a last resort, decide to remove a property from the World Heritage List if that property has deteriorated to the extent that it has lost the characteristics that determined its inclusion in the List. Such a decision will be taken only under specific circumstances, since the main objective of the Convention is to ensure the safeguarding of protected cultural and natural sites. However, the threat of the possible removal of a property from the World Heritage List can serve as a means of exerting
8. See Executive Board, Proposed new procedures specifically for the monitoring of the implementation of UNESCO conventions and recommendations for which no specific institutional mechanism is provided, Doc. 174 EX/22 of 3 March 2006, Part II, Paragraph 11.
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pressure on a State, since that State would no longer be able to boast of having on its territory a site recognized as being of value to humanity. Another possible consequence of such a removal is that a State may no longer be in a position to benefit from financial resources granted for the conservation of a site included in the World Heritage List.9 By means of the monitoring and supervision procedure, the World Heritage Committee seeks to pressure State Parties to comply with their obligations to conserve and protect the world’s heritage. The importance of establishing a body with specific competence and responsibility for monitoring and supervision is also highlighted by the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (hereafter ‘the Hague Convention of 1954’).10 This instrument provides only for the submission of periodic reports by the Member States as a monitoring and supervisory measure. However, this system has revealed its weaknesses over the years, as was shown by the destruction of cultural property during the conflicts that destroyed Yugoslavia in the early 1990s. Following the deliberate destruction of the Old City of Dubrovnik and the Old Bridge of Mostar, UNESCO initiated a review of the system for monitoring and supervising the protection of cultural property during armed conflict.11 The Second Protocol to the Hague Convention of 1954 (1999)12 provides for the creation of an institutional framework designed to strengthen compliance with standards established to protect cultural property in the event of armed conflict. This institutional
9. See S. Maljean-Dubois, 2003 La mise en œuvre du droit international de l’environnement, Les Notes de l’Institut du Développement Durable et des Relations Internationales, No. 4 p. 43. 10. The Convention of 1954 and its two Protocols of 1954 and 1999 were adopted by diplomatic conferences convened by UNESCO. They are not, therefore, texts adopted under the terms of Article IV, Paragraph 4 of the UNESCO Constitution. Resolution III, adopted by the Diplomatic Conference of 1954, called upon the Director-General of UNESCO to convene the first meeting of the High Contracting Parties to the Convention. See Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict, Actes de la conférence convoquée par l’UNESCO tenue à La Haye du 21 avril au 14 mai 1954, The Hague, 1961, p. 80. See also Article 27 of the Hague Convention of 1954, which reads as follows: ‘[t]he Director-General of the United Nations Educational, Scientific and Cultural Organization may, with the approval of the Executive Board, convene meetings of representatives of the High Contracting Parties. He must convene such a meeting if at least one fifth of the High Contracting Parties so request.’ 11. In 1991, UNESCO asked an independent expert, Patrick Boylan, to carry out a study of the operation of the Hague Convention of 1954. The study affirmed in its recommendations that the provisions of the Convention ‘remain fully applicable and relevant to present circumstances. The problem is essentially one of failure in the application of the Convention and Protocol […].’ See P. Boylan, 1993, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954), Paris, UNESCO, (Doc. CLT-93/WS/12), p. 5. 12. For an analysis of this instrument, see V. Mainetti, ‘New prospects for the protection of cultural property in the event of armed conflict: The entry into force of the Second Protocol to the 1954 Hague Convention’, IRRC 854, 2004, pp. 337-366.
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framework is based on the creation of an intergovernmental committee for the protection of cultural property in the event of armed conflict13 and on the establishment of a fund.14
2.2. Monitoring and Supervising the Declarations of UNESCO Declarations (also known as ‘charters’ in certain cases) are normative texts, which, like recommendations, are not binding on Member States. However, their form, content and function are different. As a rule, declarations have a simple structure consisting of a preamble and a series of principles. The wording of declarations may be more restrictive than that of recommendations. The purpose of declarations is to underline the importance that the Organization attaches to the issue addressed (by a declaration) and to the principles that should guide the actions of Member States and of the Organization. Thirteen declarations have been adopted to date. The elaboration, adoption and monitoring of declarations are not subject to any pre-existing rule of procedure. a) Approaches to the Monitoring and Supervision of UNESCO Declarations The monitoring and supervision of UNESCO declarations are characterized by a relative heterogeneity of arrangements. In the case of some declarations adopted by the General Conference of UNESCO, there is no provision at all for monitoring and supervision mechanisms. Two such examples are the Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange of 15 November 197215 and the Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid
13. This Committee is modelled on the World Heritage Committee and represents the successful conclusion of a project that has long been under discussion. In particular, in his study, Boylan affirmed the usefulness of the creation of such a committee in implementing the Convention of 1954; see Boylan, op. cit., p. 134. Article 27 of the Second Protocol to the Hague Convention of 1954 sets out the functions of the Committee. Article 27, Paragraph 1(d) provides that the Committee should ‘consider and comment on reports of the Parties, to seek clarifications as required, and prepare its own report on the implementation of this Protocol for the Meeting of the Parties.’ The Committee exercises its functions in cooperation with the Director-General of UNESCO and ‘shall be assisted by the Secretariat of UNESCO which shall prepare the Committee’s documentation and the agenda for its meetings and shall have the responsibility for the implementation of its decisions.’ See articles 27(2) and 28 of the Second Protocol. 14. This Fund is modelled on the World Heritage Fund. It is intended to provide financial assistance in support of preparatory or other measures taken in peacetime and in relation to emergency, provisional or other measures to be taken in order to protect cultural property during periods of armed conflict. See Article 29 of the Second Protocol of 1999. 15. Adopted by the General Conference of UNESCO in 17 C/Resolution 4.111.
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and Incitement to War of 28 November 1978.16 Given UNESCO’s approach to monitoring and supervision, this situation is an exception. In another approach, the system for monitoring and supervising UNESCO declarations calls for voluntary action by States. One such example is the Declaration of the Principles of International Cultural Cooperation of 4 November 1966.17 Here, the General Conference recommends the Declaration to the attention of Member States and Associate Members and invites them to publish its text in their respective languages and to ensure that it is distributed, displayed, read, and commented on. The plenary body also requests Member States to use their best efforts to implement the provisions of the Declaration. Lastly, it authorizes the Director-General to arrange for the widest possible circulation of the text of the Declaration in Member States and among Associate Members and international organizations, and to study the ways and means of giving effect to its principles. Some arrangements for monitoring and supervising UNESCO declarations are more procedural in nature. In such cases, the declaration supplies ‘rules’ and ‘procedures’ for monitoring and supervising, although the terms ‘rule’ and ‘procedure’ are not used explicitly or in their strict sense. A case in point is Annex II to UNESCO’s Universal Declaration on Cultural Diversity of 2 November 2001,18 which contains the ‘Main lines of an action plan for the implementation of the UNESCO Universal Declaration on Cultural Diversity.’ The document urges the Member States to promote the Declaration’s principles by means of its action plan, to facilitate their application, and to communicate regularly to the Director-General all relevant information on the measures taken to apply the Declaration’s principles and action plan. Furthermore, 31 C/Resolution 25 invites the Director-General of UNESCO to heed the Declaration’s principles and action plan when implementing UNESCO’s programmes, and to ensure dissemination of, and follow-up on, the Declaration and its plan of action, in particular as regards the institutions of the United Nations and other concerned intergovernmental and nongovernmental organizations. The action plan also provides that Member States consider the advisability of an international legal instrument on cultural diversity; as a result, the Member States negotiated and adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 20 October 2005. b) Characteristics of the System for the Monitoring and Supervision of UNESCO Declarations UNESCO practice reveals certain specific features with respect to the monitoring and supervision of declarations. In general, resolutions in which declarations are adopted or which relate to the monitoring and implementation of declarations urge the UNESCO Member States to take all appropriate legislative, administrative or any other measures to give effect to the principles set forth in a given declaration. Resolutions also invite the
16. Adopted by the General Conference of UNESCO in 20 C/Resolution 4/9.3/2. 17. Adopted by the General Conference of UNESCO in 14 C/Resolution 8.1. 18. Adopted by the General Conference of UNESCO in 31 C/Resolution 25.
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Director-General to take into consideration the principles set forth in the declarations and to take the measures necessary to ensure their widest possible dissemination. Certain declarations may provide for specific monitoring and supervision mechanisms. They include the drawing up of a plan of action for implementation or even action by special UNESCO committees in formulating recommendations addressed to the General Conference and providing advice concerning the monitoring of a given declaration. For example, Section G of the Universal Declaration on the Human Genome and Human Rights of 11 November 199719 provides that the International Bioethics Committee (IBC) of UNESCO, created in 1993, should contribute to the dissemination of the principles set out in the Declaration and to further examination of the issues raised by their applications and by the evolution of the technologies in question; organize appropriate consultations with Parties concerned; make recommendations addressed to the General Conference, in accordance with UNESCO’s statutory procedures; and give advice concerning the monitoring of the Declaration, in particular regarding the identification of practices that could be contrary to human dignity, such as germ-line interventions. Since 1998, the International Bioethics Committee has had rules of procedure and statutes that define its mandate, membership and procedures. The Director-General of UNESCO convenes IBC at least once a year. At its sessions, and with the help of its working groups, IBC provides opinions and recommendations on specific matters relating to monitoring and supervision, which are widely disseminated and submitted to the Director-General so that he may communicate them to the Member States, the Executive Board and the General Conference. The International Declaration on Human Genetic Data of 16 October 2003 20 is a further example of a declaration that provides for monitoring and supervision by a specific body. Section F of the Declaration contains a series of rules relating to its monitoring and supervision. Article 25 places particular emphasis on the contribution of the International Bioethics Committee (IBC) and of the Intergovernmental Bioethics Committee (IGBC) to the implementation of the Declaration and the dissemination of its principles. The two committees are responsible, on a collaborative basis, for its follow-up and for the evaluation of its implementation, inter alia on the basis of reports provided by States. They are responsible, in particular, for the formulation of any opinion or proposal likely to further the effectiveness of the Declaration. As can be seen, the monitoring and implementation of declarations vary from one declaration to another. If greater attention were given to the monitoring of declarations in general, their impact could be strengthened. With these factors in mind, the General Conference, at its thirty-third session in 2005, adopted a Resolution relating to the ‘Multi-stage procedure for the elaboration, examination, adoption and follow-up of declarations, charters and similar standard-setting instruments adopted by the General Conference and not covered by the Rules of Procedure concerning recommendations to Member States and international conventions covered by the terms of Article IV,
19. Adopted by the General Conference of UNESCO in 29 C/Resolution 16. 20. Adopted by the General Conference of UNESCO in 32 C/Resolution 22.
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Paragraph 4 of the Constitution.’21 Stage 4 of this procedure concerns the ‘Follow-up of declarations, charters or similar standard-setting instruments adopted by the General Conference’ and provides that the Director-General should ensure that the text of the declaration, charter or similar standard-setting instrument adopted by the General Conference be disseminated as widely as possible. If the text of a declaration does not provide for a follow-up mechanism, the General Conference may, if it so wishes, invite the Director-General to submit to it a report on the measures taken by the Member States to give effect to the principles set forth in the declaration or similar standard-setting instrument.
. A Multiform Monitoring and Supervision System The system used to monitor and supervise UNESCO’s standard-setting instruments is also characterized by diversity in its forms of action both inside and outside the Organization, owing to the variety of stakeholders and forums of action involved.
3.1. Multiformity of Monitoring and Supervision Arrangements a) ‘Internal’ Monitoring and Supervision i) The Reporting System ‘Internal’ monitoring and supervision at UNESCO are based mainly on the submission of reports. The periodic reporting procedure is one of the oldest forms of monitoring States’ fulfilment of their international obligations. It is also the procedure that is no doubt the least ‘prejudicial’22 to their sovereignty, since it rests on submission by the States themselves of reports on action taken to fulfil their commitments. The procedure has the advantage of reminding public authorities of deadlines and obligations to be met. As the UNESCO Secretariat has explained, ‘the role of the reports is not merely to bring about monitoring of Member States’ fulfilment of their international obligations. It is also a means of promoting respect for international standards and of informing the Organization.’23 The practice of reporting at UNESCO is based on the Constitution itself, which provides in Article VIII, as amended at the seventeenth session of the General Conference (1972), that: • [e]ach Member State shall submit to the Organization, at such times and in such manner as shall be determined by the General Conference, reports on the laws,
21. See 33 C/Resolution 87. 22. See Executive Board, Proposals by the Committee on Conventions and Recommendations on the conditions and procedures applicable to the examination of questions relating to the implementation of UNESCO’s standard-setting instruments, Doc. 164 EX/23 of 8 April 2002, Paragraph 17. 23. Ibid., Paragraph 19.
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regulations and statistics relating to its educational, scientific and cultural institutions and activities, and on the action taken upon the recommendations and conventions referred to in Article IV, Paragraph 4. It has frequently been observed that few reports are sent in, whether the Member States have been merely invited to provide them or whether they are under an obligation to do so. According to a study by the UNESCO Secretariat in 2002, the response rate to requests for reports was around 20% (with significant differences according to regional group).24 UNESCO has on several occasions expressed concern about this state of affairs. As early as its eleventh session, the General Conference invited Member States to take all necessary steps to fulfil the constitutional obligation laid down in Article VIII of the Constitution.25 The Director-General echoed the same concern in various documents submitted to the General Conference.26 Pursuant to a Resolution adopted by the General Conference in 1985,27 the Office of International Standards and Legal Affairs sent Member States a questionnaire ‘relating to any difficulties they might encounter in drawing up their reports on the implementation of standard-setting instruments and in actually applying them’, which itself elicited few replies.28 The UNESCO Secretariat has often also criticized the fact that the reporting procedure does not always take into consideration actual information-gathering conditions in the reporting State. Two main criticisms have been levelled. First, the long period of time granted to each State to draw up its report – which is justified by the scope of the information requested – can lead to questionnaires’ being forgotten or disappearing during the administrative transmission process. Second, the information requested may be scattered among several administrations or institutions (some maintaining tenuous relations with UNESCO or none at all), requiring the establishment of an interministerial fact-finding coordination body. Many Member States whose administrative structures are often inappropriate and whose staff is overworked will shrink from the difficulty, since the stakes are low.29 In this context, it would be worth strengthening the UNESCO Secretariat’s role in providing assistance to States that encounter difficulties in drawing up their periodic reports. Such technical assistance could help them to understand the standard-setting instrument whose implementation is being monitored and to set out and draw up the report.30
24. Ibid., Paragraph 14. 25. See 11 C/Resolution 38. 26. See, for example, Docs. 13 C/12 and 20 C/22. 27. 23 C/Resolution 29.1. 28. See Executive Board, Proposals by the Committee on Conventions and Recommendations on the Conditions and Procedures Applicable to the Examination of Questions relating to the Implementation of UNESCO’s Standard-setting Instruments, Doc. 164 EX/23 of 8 April 2002, Paragraph 15. 29. For these criticisms, ibid., Paragraph 21. 30. Several legal instruments on environmental protection take this option into account by providing for some States to be given technical assistance by convention secretariats in gathering the
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Provision should also be made for complementing the reporting system. In contemporary international practice, other more direct forms of monitoring (such as survey or verification procedures, quasi-judicial techniques for dealing with individual complaints or claims, procedures to deal with non-observance and even recourse to judicial proceedings) are provided for and have been put into practice without, however, superseding the conventional national reports procedure. The situation at the International Labour Organization (ILO) is a case in point. The reporting procedure could, for example, be supplemented by a procedure involving communications from persons, groups of persons or non-governmental organizations similar to the procedure instituted by 104 EX/Decision 3.3 to address violations of human rights. UNESCO would thus take action in specific cases of non-compliance, with standards to encourage the States concerned to correct the behaviour of their authorities.31 ii) The Individual Communication System In 1978, the Executive Board of UNESCO introduced a confidential procedure for the examination of communications (complaints) received by the Organization concerning alleged violations of human rights in its fields of competence, namely, education, science, culture and communication. The procedure is laid down in 104 EX/Decision 3.3 and falls within the competence of the Committee on Conventions and Recommendations. The need for a mechanism to protect human rights was felt at UNESCO as early as 1952. At that time, the Director-General had received complaints of violations of human rights, particularly educational and cultural rights, from private individuals or associations. In response to the request made by the General Conference, which had recommended in two resolutions32 that a system be established for the protection of human rights in UNESCO’s fields of competence, the procedure for the examination of communications relating to human rights in UNESCO’s fields of competence was introduced in 1978 by the Executive Board, on the recommendation of a working Party. The aim of the procedure is to seek an amicable solution to cases brought to UNESCO’s attention, on the one hand, by establishing dialogue with the governments concerned so that cases may be examined in full confidentiality and, on the other, since UNESCO may not play the role of an international court, by acting in a spirit of international cooperation, conciliation and mutual understanding. The idea is to avoid a litigious and adversarial procedure, for the aim is to improve the situation of the alleged victims and not to condemn the governments concerned, nor a fortiori to sanction them.33
requisite information. See, for instance, Article 10 of the Montreal Protocol on Substances that Deplete the Ozone Layer and Article 8.2 of the Framework Convention on Climate Change. 31. This proposal was made by the Committee on Conventions and Recommendations. See Executive Board, Proposals by the Committee on Conventions and Recommendations on the Conditions and Procedures Applicable to the Examination of Questions relating to the Implementation of UNESCO’s Standard-setting Instruments, Doc. 164 EX/23 of 8 April 2002, Paragraph 43. 32. Docs. 19 C/Resolution 6.113 and 19 C/Resolution 12.1. 33. Paragraph 7 of 104 EX/Decision 3.3.
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b) ‘External’ Monitoring and Supervision ‘External’ monitoring and supervision are based on the idea that the monitoring and supervision of a UNESCO standard-setting instrument provide an opportunity for other actors, in particular non-governmental organizations, to become involved. The monitoring and supervision of a standard-setting instrument can also be ensured by other international agencies in whose fields of competence they fall. i) The Involvement of Many Actors Other international actors (States and international organizations) and non-State actors may become involved in monitoring and supervising to ensure the effectiveness of the control system. This may be referred to as ‘inter-actor monitoring.’34 For instance, the Declaration on the Responsibilities of the Present Generations Towards Future Generations of 12 November 199735 provides, in Article 12, for a monitoring and supervision procedure that calls on many different actors. States, the United Nations system, other intergovernmental and non-governmental organizations, individuals and public and private bodies are encouraged to assume their full responsibilities in promoting, in particular through education, training and information provision, respect for the ideals laid down in the Declaration and to facilitate by all appropriate means their full recognition and effective application. The provision of information by non-governmental organizations (NGOs) can contribute to the monitoring and supervision of UNESCO’s standard-setting instruments. NGO action guarantees an indirect form of control, which may be exercised over States that might not be in compliance with their obligations by confronting them with information from third-Party sources. The Convention for the Protection of the World Cultural and Natural Heritage36 is an example of the formalization of the role of NGOs in the UNESCO context. In particular, two organizations, ICOMOS (International Council on Monuments and Sites) and IUCN (World Conservation Union) – the latter with a very specific legal status, it must be said – have advisory status with the World Heritage Committee.37 They play an
34. See L. Boisson de Chazournes, Gouvernance et régulation au 21ème siècle: Quelques propos iconoclastes, in L. Boisson de Chazournes and R. Mehdi (eds.), 2005, Une société internationale en mutation: quels acteurs pour une nouvelle gouvernance?, Brussels, p. 24. 35. Adopted by the General Conference in 29 C/Resolution 44. 36. See Articles 8.3, 13.7 and 14.2 of the Convention for the Protection of the World Cultural and Natural Heritage. 37. See Article 8.3 of the Convention for the Protection of the World Cultural and Natural Heritage. See also Rule 6 of the Rules of Procedure of the World Heritage Committee, which reads as follows: ‘[a] representative of the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), a representative of the International Council on Monuments and Sites (ICOMOS) and a representative of the World Conservation Union, formerly International Union for Conservation of Nature and Natural Resources (IUCN), to whom may be added, at the request of States Parties to the Convention meeting in General Assembly during the ordinary sessions of the General Conference of the United Nations Educational, Scientific and Cultural Organization, representatives of other intergovernmental or non-governmental organizations, with similar objectives, may attend the meetings of the Committee in an advisory capacity.’ Rules
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important role in monitoring the Convention by participating in the verification of the state of conservation of the properties included in the World Heritage List, as well as in the procedure for including properties in the List. They take part in the analysis of requests for international assistance made by States in order to implement the Convention.38 The Committee can also call on other international and non-governmental organizations with appropriate competencies and expertise to help it in the implementation of its programmes and projects.39 Likewise, under the procedure known as ‘reactive monitoring’, which is initiated each time exceptional circumstances occur or work is undertaken which may have an effect on the state of conservation of property on the World Heritage List,40 the role of NGOs has been reinforced. This is because the procedure, which is a sort of ‘alarm system’, is set off by the submission of reports on the state of conservation of particular World Heritage sites by the Secretariat of the 1972 UNESCO Convention (called the UNESCO World Heritage Centre) or by the non-governmental organizations with advisory status with the Committee. After the reports have been submitted, the State on whose territory the endangered site is located is requested to produce within a set time period specific reports and impact studies to assess the state of conservation of the property on the List.41 The function of the ‘reactive monitoring’ mechanism is to allow State Parties to the 1972 Convention to inform or notify the World Heritage Committee of their intention to undertake or authorize in an area protected under the Convention major restoration work or new construction that may affect the outstanding universal value of the property. Notice should be given as soon as possible (for instance, before drafting basic documents for specific projects) and before making any decisions that would be ‘difficult to reverse’,42 so that the Committee may assist in seeking appropriate solutions to ensure that the outstanding universal value of the property is fully preserved. Another crucial aspect of monitoring and supervision ‘external’ to UNESCO is the opportunity it gives the Organization to benefit from the cooperation of other international organizations to ensure that States abide by their obligations under UNESCO’s standard-setting instruments. A significant example is in the Bystroe Canal construction project in the Ukrainian part of the Danube Delta. The Danube Delta enjoys special protection as it is a World Heritage site and falls under UNESCO’s Programme
of Procedure of the World Heritage Committee, adopted by the Committee at its first session (Paris, 1977) and amended at its second (Washington, D.C., 1978), third (Luxor, 1979), twentieth (Merida, 1996), twenty-fourth (Cairns, 2000) and twenty-fifth (Helsinki, 2001) ordinary and sixth extraordinary (Paris, 2003) Sessions, available at: http://whc.unesco.org/pg.cfm?cid=223 38. Article 13.7 of the Convention for the Protection of the World Cultural and Natural Heritage. 39. See Article 10.2 of the Convention for the Protection of the World Cultural and Natural Heritage and articles 7 and 8 of the Rules of Procedure of the World Heritage Committee. 40. Regarding this procedure, see: Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Operational Guidelines for the Implementation of the World Heritage Convention, 2 February 2005, WHC.05/2, Paragraphs 169-176. 41. Ibid., Paragraph 169. 42. Ibid., Paragraph 172.
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on Man and the Biosphere (MAB Programme). The Delta is also covered by the Convention on Wetlands of International Importance especially as Waterfowl Habitat (the Ramsar Convention). A joint study was carried out by the Ramsar Convention Secretariat and the MAB Programme at the invitation of the Ukrainian Government in October 2003.43 In 2005, the MAB International Coordinating Council and the UNESCO World Heritage Committee called upon Ukraine to abide by its international obligations.44 The actions UNESCO started to implement have been complemented and strengthened by those of other institutional mechanisms, such as the decisions adopted by the meeting of the Parties to the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (Aarhus Convention),45 the Ramsar Convention46 and the Parliamentary Assembly of the Council of Europe.47 In addition, other international organizations, including the European Union and the International Commission for the Protection of the Danube River, have become actively involved in the system of monitoring and supervising the project by calling for compliance with relevant obligations.
43. The October 2003 report of the joint mission of the Ramsar Convention and the UNESCO MAB Programme noted that the Bystroe alternative ‘would represent the worst solution’ and that a comprehensive environmental impact assessment should be produced since ‘the reports already established and presented to the mission do not yet fulfil this need.’ The report is available on the site of the Ramsar Convention Secretariat at the following address: http://www.ramsar. org/ram/ram_rpt_53e.htm 44. Report of the International Coordinating Council of the Programme on Man and the Biosphere, eighteenth session, Paris, 2005, SC-04/CONF.204/14, p. 18. The decision of the World Heritage Committee ‘requests the authorities of Ukraine to fully respect the Convention, in particular Article 6.3 and not to take any action to threaten the values and integrity of a property located on the territory of another State Party to this Convention; further requests both States Parties of Romania and Ukraine to provide to the World Heritage Centre, by 1 February 2006, an updated report on the existing navigable canal systems and proposed projects in Danube Delta, covering the territory of both States Parties and dealing with the totality of the threats as well as on transboundary collaboration regarding the conservation of the property, for examination by the Committee at its thirtieth session (Vilnius, 2006).’ Decision adopted by the World Heritage Committee at its twenty-ninth session, Durban, 2005, 29 COM 7B.18, p. 50. 45. See the report of the second meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Decision II/5b, Almaty, 2005, Doc. ECE/MP.PP/2005/2/Add.8. The decision was adopted following the report of the Aarhus Convention Compliance Committee, 2005, Doc. ECE/MP.PP/2005/13. 46. Res. IX.15, adopted at the ninth Meeting of the Conference of the Contracting Parties to the Ramsar Convention, held in Kampala (Uganda) in 2005, available at: http://www.ramsar.org/res/ key_res_ix_15_e.pdf. The Resolution expressly cites the conclusion of the 2003 Report. 47. See Res. 1444, ‘Protection of European Deltas’, adopted by the Parliamentary Assembly of the Council of Europe in 2005, which recalls the international commitments of Ukraine under the UNESCO Convention for the Protection of the World Cultural and Natural Heritage and the MAB Programme. See also Committee on the Environment, Agriculture and Local and Regional Affairs of the Parliamentary Assembly of the Council of Europe, rapporteur: Mr Leo Platvoet, Doc. 10542 of 4 May 2005.
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ii) ‘Joint’ Monitoring and Supervision The monitoring and supervision of UNESCO’s standard-setting instruments may be carried out through the establishment of joint bodies by UNESCO and other international organizations. Such is the case of the cooperation between the International Labour Organization (ILO) and UNESCO regarding the monitoring and supervision of the 1966 Recommendation concerning the Status of Teachers.48 To that end, the Joint ILOUNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers (CEART) was created. CEART examines reports on the application of the Recommendation submitted by governments, national organizations representing teachers and their employers, the ILO and UNESCO, and relevant intergovernmental or non-governmental organizations. It then communicates its findings to the ILO and UNESCO, so that they may take appropriate action. In 2001, the mandate of the Joint ILO-UNESCO Committee of Experts on the Application of the CEART was expanded to include monitoring of the Recommendation concerning the Status of Higher-Education Teaching Personnel (1997). Pursuant to 162 EX/ Decision 3.2.2 of the Executive Board, the Committee is now called the ‘Joint ILOUNESCO Committee of Experts on the Application of the Recommendations concerning Teaching Personnel (CEART).’ CEART originally based its monitoring and supervision work on a questionnaire sent to Member States. Its working methods were revised in 1991 to include surveys on specific themes, in-depth ILO and UNESCO studies, regional meeting reports and consultations with employers and teachers’ organizations. Another aspect of CEART’s work is the examination of allegations from teachers’ organizations on non-observance of the Recommendation’s provisions in Member States. After consideration of the content of the allegation, CEART issues its findings and recommendations for the resolution of the problems or conflict. The existence, among the joint bodies, of the Joint Expert Group UNESCO (CR)/ ECOSOC (CESCR) on the Monitoring of the Right to Education, established by the Executive Board in 2001, is also worth underscoring.49 It is composed of two representatives of the Committee on Economic, Social and Cultural Rights (CESCR), which is responsible for monitoring implementation of the International Covenant on Economic, Social and Cultural Rights, and two representatives of the Committee on Conventions and Recommendations (CR). This body has the task, among others, of formulating practical suggestions for monitoring and promoting the right to education in all its dimensions. iii) Monitoring and Supervision by Other Institutions The ‘external’ monitoring and supervision of UNESCO’s standard-setting instruments brings into play various channels through which the rights and obligations contained in
48. Information about the Joint ILO-UNESCO Committee may be found at the following electronic address: http://www.ilo.org/public/english/dialogue/sector/techmeet/ceart/about.htm 49. 162 EX/Decision 5.4.
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various instruments may be applied. Two types of channel, in particular, will be analysed: the ‘penal’ and the ‘financial’ channels. The penal channel or penal ‘follow-up’ involves prosecuting the perpetrators of ‘cultural’ war crimes. In this context, the Strugar verdict handed down by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 2005, which took the unprecedented decision to punish an offender for the destruction of cultural property, is an interesting example.50 The judgement demonstrates that the destruction of, and damages caused to World Heritage sites placed under the auspices of UNESCO’s 1972 Convention, such as the Old City of Dubrovnik, are punishable under international criminal law.51 The financial channel or financial ‘follow-up’ involves international financial institutions insofar as they take into account (in particular in their operational policies or in instruments relating to the conditions for funding projects) the principles and norms contained in UNESCO’s standard-setting instruments. Loan agreements signed between such institutions and borrowing States can be a way for them to encourage or pressure a State to abide by its commitments in the fields of environmental protection or preservation of cultural property.52 Given the increased importance of the social, cultural and environmental dimension of their activities, these institutions have over the years developed instruments to guide their conduct in project funding. For instance, the operational policies developed by the World Bank, originally designed as instruments setting out ‘good practices’ for internal application at the Bank, have become crucial parameters in evaluating the quality of projects funded by the Bank. They set out important benchmarks for assessing the conduct of States benefiting from loans from the Bank.53 For instance, Operational Policy OP 4.11 (Physical Cultural Resources)54 requires that funding for projects not come at the expense of the obligations of borrower States towards
50. An ICTY Trial Chamber sentenced Pavle Strugar, a retired Lieutenant General of the Yugoslav Peoples’ Army ( JNA) to eight years’ imprisonment for war crimes committed in 1991. He was found guilty of war crimes against civilians and, by virtue of Article 3(d) of the Statute of the Tribunal, of wilful damage to a number of cultural and historic sites located in the Old City of Dubrovnik, in Croatia. See ICTY, Prosecutor v. Pavle Strugar, judgement of Trial Chamber II, 31 January 2005, in particular Paragraphs 229-230. Available at: http://www.un.org/icty/strugar/ trialc1/judgement/str-tj050131e.pdf. See on this judgement, L. Boisson de Chazournes, R. Desgagné, M.M. Mbengue, C. Romano, 2005, Protection internationale de l’environnement, Paris, pp. 643-644. 51. The Old City of Dubrovnik was damaged by the armed conflict in the 1990s and became the subject of a major restoration programme coordinated by UNESCO. Thanks to an international safeguarding campaign launched by the Organization, the Mostar Bridge was entirely rebuilt and the most significant monuments in the Old City of Dubrovnik restored. See Inauguration du pont de Mostar, UNESCO Flash Info 123-2004, 24 July 2004. 52. See A. Rigo Sureda, 2004, The Law Applicable to the Activities of International Development Banks, Recueil des Cours, Vol. 308, pp. 9-252. 53. See L. Boisson de Chazournes, The World Bank Operational Standards, in D. Shelton (ed.), 2000, Commitment and Compliance, Oxford, pp. 281-303. 54. Available at: http://www.worldbank.org
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cultural heritage protection. To that end, reference is made to the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage. The application of this operational policy accordingly contributes to the ‘external’ monitoring and supervision of the Convention.55 Of interest here is the case brought before the Inspection Panel of the World Bank in 2001 concerning the construction of the Chad-Cameroon Pipeline. The allegations of the applicants included the charge that the Bank had violated Operational Policy Note 11.03 (OPN 11.03) – a document subsequently replaced by OP 4.11 – on management of cultural property in Bank-funded projects. In its investigation report, the Inspection Panel recalled that on the basis of OPN 11.03 the Bank’s role regarding cultural property ‘is to assist in their preservation, and to seek to avoid their elimination.’ Bank staff must take into account ‘the cultural property aspects of the proposed project site.’56 Procedures such as those of the World Bank Inspection Panel make it possible for non-governmental organizations and groups of individuals to bring actions to demonstrate that their rights and interests have been directly affected by an action or omission of the funding institution in the projects it finances.57 The outcome of such a procedure can lead the organization to modify its behaviour; and this can prompt it to put pressure on a borrower State to ensure that it complies with its international obligations, in particular those arising from UNESCO’s standard-setting instruments. Furthermore, owing to the relations they maintain with borrowing countries, in particular through the conclusion of loan agreements, international funding agencies gather information on compliance with the norms of international law. This gives funding agencies the opportunity to remind the States concerned of the need to comply with their international commitments and to contribute effectively to the monitoring and supervision of international instruments.
3.2. The Multiform ‘Functions’ of Coordination Coordination can contribute to the monitoring and supervision of UNESCO’s standardsetting instruments. At this point, our examination will focus more particularly on the functions of coordination. a) Ex ante Coordination Ex ante coordination involves what might be called ‘anticipatory’ monitoring. In other words, ex ante coordination means that from the moment drafting begins on a UNESCO
55. See Ch. E. Di Leva, The World Bank’s Policy on Physical Cultural Resources, in B. T. Hoffman (ed.), 2006, Art and Cultural Heritage, Law, Policy and Practice, Cambridge, pp. 245-248. 56. See the Investigation Report of the Inspection Panel, Chad-Cameroon Petroleum and Pipeline Project (Loan No. 4558-CD); Petroleum Sector Management Capacity Building Project (Credit No. 3373-CD); and Management of the Petroleum Economy (Credit No. 3316-CD), 17 September 2002, Paragraphs 203-209, pp. 58-60. 57. See Res. No. 93-10 of the Board of Directors of the World Bank establishing the Inspection Panel, adopted on 22 September 1993. See Boisson de Chazournes, Desgagné, Mbengue, Romano, op. cit., pp. 753-757.
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standard-setting instrument, consideration should be given to its consistency and coexistence with other international instruments. Checking for consistency or coherence is particularly important in cases where the protected rights and obligations provided for in a UNESCO standard-setting instrument may come into conflict with other rights and obligations provided for in international instruments negotiated within, and adopted by other forums. Failing to carry out ex ante coordination may hinder the effective monitoring and supervision of an instrument. In this sense, monitoring and supervision are largely dependent on coordination. The idea of ‘anticipatory’ monitoring, where ex ante coordination is the aim, is clearly illustrated in the Universal Declaration on Bioethics and Human Rights of 19 October 2005. The first intergovernmental meeting of experts aimed at finalizing a draft Declaration on universal norms on bioethics had already emphasized the need for a preambular clause in the Declaration that would ensure its coherence with other relevant international instruments in the area of bioethics.58 That is the case, for example, of Article 27(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), which has a substantial impact on the conceptualization of the patentability of human genome sequences. It is also the case for a large number of the instruments relating to bioethics that have been adopted within the framework of the United Nations and its specialized agencies, the World Health Organization (WHO) and the Food and Agriculture Organization of the United Nations (FAO). The Declaration takes the idea of ex ante coordination even further since it makes reference to instruments adopted outside the United Nations system and even outside the interstate system. Instruments fashioned outside the United Nations include the World Medical Association’s Declaration of Helsinki on Ethical Principles for Medical Research Involving Human Subjects, the Convention on Human Rights and Biomedicine of the Council of Europe and the International Ethical Guidelines for Biomedical Research Involving Human Subjects of the Council for International Organizations of Medical Sciences (CIOMS) in cooperation with WHO. The range of instruments cited in the Preamble to the Universal Declaration on Bioethics and Human Rights bears witness to the concern with guaranteeing coherence and coordination among instruments in terms of monitoring and supervision.59
58. See Explanatory Memorandum on the Elaboration of the Preliminary Draft Declaration on Universal Norms on Bioethics, Doc. SHS/EST/05/CONF.203/4, Paris, 21 February 2005, Paragraph 13. 59. The Preamble reads as follows: ‘[n]oting the United Nations International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights of 16 December 1966, the United Nations International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, the United Nations Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979, the United Nations Convention on the Rights of the Child of 20 November 1989, the United Nations Convention on Biological Diversity of 5 June 1992, the Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted by the General Assembly of the United Nations in 1993, the UNESCO Recommendation on the Status of Scientific Researchers of 20 November 1974, the UNESCO Declaration on Race and Racial Prejudice of 27 November 1978, the UNESCO Declaration on the Responsibilities of the Present Generations Towards
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b) Ex post Coordination Ex post coordination also involves ensuring that UNESCO’s standard-setting instruments are consistent with other international instruments. However, in contrast to ex ante coordination, where norms set out in relevant instruments are integrated into a new standard-setting instrument at the drafting stage, ex post coordination is particularly concerned with the establishment of institutional (inter-institutional cooperation) and normative (standardization) linkages to ensure coherence in the implementation of the standard-setting instrument. Such linkages are founded on principles in statu nascendi, such as mutual supportiveness, complementarity and non-subordination, as well as on principles more deeply rooted in lex lata, such as the non-modification of rights and obligations, as laid down in other international agreements.60 An example of ex post coordination of standard-setting instruments is offered by the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 20 October 2005. The Convention is a new tool for the promotion of cultural diversity. It sets out common rules, principles and references with regard to cultural diversity at the global level. This is the first time that the international community has been able to reach such a consensus. Among other things, the Convention is instrumental in recognizing the role and legitimacy of public policy in the protection and promotion of cultural diversity, in acknowledging the importance of international cooperation for addressing situations of cultural vulnerability, especially where developing countries are concerned, and in ensuring the effective implementation of the Convention by coordinating it appropriately with the other international instruments. Moreover, the Convention lays the foundations for a new vision of culture as consubstantial with sustainable development. The Convention lays down the principle of the sovereign right of States to ‘formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation [...].’61
Future Generations of 12 November 1997, the UNESCO Universal Declaration on Cultural Diversity of 2 November 2001, the ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries of 27 June 1989, the International Treaty on Plant Genetic Resources for Food and Agriculture which was adopted by the FAO Conference on 3 November 2001 and entered into force on 29 June 2004, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) annexed to the Marrakesh Agreement establishing the World Trade Organization, which entered into force on 1 January 1995, the Doha Declaration on the TRIPS Agreement and Public Health of 14 November 2001 and other relevant international instruments adopted by the United Nations and the specialized agencies of the United Nations system, in particular the Food and Agriculture Organization of the United Nations (FAO) and the World Health Organization (WHO) [...].’ 60. See on the content and scope of these principles, L. Boisson de Chazournes and M.M. Mbengue, Trade, Environment and Biotechnology: on Coexistence and Coherence, in Genetic Engineering: Challenges posed by a New Technology to the World Trading System, Cambridge, forthcoming. 61. Article 5, Paragraph 1 of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
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This sovereign right offers State Parties the possibility of restricting international trade of cultural goods and services. Consequently, a problem of coherence or even coexistence could arise between the Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the WTO agreements, in particular the 1994 General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). A problem of coherence might also arise in the relationship between the UNESCO Convention and the World Intellectual Property Organization (WIPO), where there are ongoing discussions on the appropriation and privatization of traditional skills and knowledge. It is to avoid the risks of inconsistency that Article 20 of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions includes expressis verbis the principles of mutual supportiveness, complementarity and non-subordination with regard to other international instruments.62 The approach adopted in the Convention on the Protection and Promotion of the Diversity of Cultural Expressions differs from customary practice, especially in international instruments relating to the protection of the environment, which consists in introducing the principles of mutual supportiveness and non-subordination in the preamble and not in the text of the treaty. The incorporation of these principles into the text of the Convention gives them special legal force. Another unusual aspect is that the Convention emphasizes ex post coordination to the point of requiring State Parties to promote its objectives and principles ‘in other international forums.’63 This vision of ex post coordination and the momentum thereby created for such coordination strengthen the monitoring and supervision of the Convention. A first step in that direction would be to reinforce cooperation between UNESCO and other international organizations, especially the WTO.
62. Article 20 reads as follows: ‘Article 20 – Relationship to other treaties: mutual supportiveness, complementarity and non-subordination: 1. Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, without subordinating this Convention to any other treaty, (a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and (b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention. 2. Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.’ 63. Article 21 reads as follows: ‘Article 21 – International consultation and coordination: Parties undertake to promote the objectives and principles of this Convention in other international forums. For this purpose, Parties shall consult each other, as appropriate, bearing in mind these objectives and principles.’
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. Conclusion: What Type of Monitoring and Supervision Might Be Most Appropriate for UNESCO’s Standard-setting Instruments? Several techniques and mechanisms are used to monitor international obligations. One of the most widely used methods – and here UNESCO is no exception to the rule – is periodic reporting by States. There are, however, limits to this procedure. To strengthen the monitoring of the implementation of legal instruments, other procedures and mechanisms have been devised, which UNESCO bodies could take as a model. For example, in the field of environmental protection, specific mechanisms and procedures exist for cases of ‘noncompliance’ with convention obligations,64 thus complementing and indeed going beyond the State reporting procedure by putting response procedures in place should promotion mechanisms prove inefficient in dealing with violations of the law.65 These procedures reflect States’ desire to avoid litigation procedures similar to conventional procedures under international law to deal with violations of the law, while providing for mechanisms to promote compliance with the law and even to exert pressure on States that do not see reason. The establishment of an appropriate system to monitor and supervise the standardsetting instruments of international organizations can be highly problematic. In this context, in order to improve and strengthen the system of monitoring and supervising UNESCO’s standard-setting instruments, an answer must be found to the prior question of what function the monitoring and supervision system should perform. Should its goal be to promote compliance with specific standards (incentive function), to monitor such compliance (monitoring function) or simply to provide information to the Organization (information function)? It is important to determine which of these functions should be given priority.66 The incentive function does not stand alone, since it is an integral part of
64. See S. Maljean Dubois, 2003, La mise en oeuvre du droit international de l’environnement, Les Notes de l’Institut du Développement Durable et des Relations Internationales, No. 4, p. 29. The desire to improve the monitoring of the application of law can also be seen in other areas of international law. For example, in the field of disarmament a mechanism was established under the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction to ensure compliance with the Convention and to remedy any situation of violation; see A. Chayes and A. Handler Chayes, 1995, The New Sovereignty: Compliance with International Regulatory Agreements, Cambridge. 65. The Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer broke new ground by adopting a non-compliance procedure in 1992 (see Boisson de Chazournes, Desgagné, Mbengue, Romano, op. cit., pp. 730-733). Other standard-setting instruments, such as the Kyoto Protocol, have adopted a similar mechanism as well as a more refined one (ibid., pp. 733-745). Under the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted in 1998 under the auspices of the United Nations Economic Commission for Europe, a monitoring mechanism has been established on the same model, but with some distinctive features (ibid., pp. 746-752). 66. See Executive Board, Proposed New Procedures Specifically for the Monitoring of the Implementation of UNESCO Conventions and Recommendations for which no Specific Institutional Mechanism is Provided, Doc. 174 EX/22 of 3 March 2006, Part II, Paragraph 15.
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the other two functions. In other words, the scales will be tipped mainly between the monitoring and the information functions of the monitoring and supervision system. That being the case, whatever the option chosen, it should be noted that the efficiency of the UNESCO monitoring and supervision system is contingent on the Organization’s ability to develop and strengthen coordination and cooperation with other international actors. The rationale behind the monitoring and supervision of standard-setting instruments should be to achieve a ‘knock-on effect’ enabling UNESCO to rely on outside channels, which will lead to better account being taken of the ‘interconnection’ and interdependence of commitments undertaken by States at the international level.
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UNESCO Dispute Settlement Sabine von Schorlemer
. Introduction Since conflicts are an integral part of human interaction, dispute settlement is as old as humanity itself. Since the 1899 and 1907 Hague conventions for the peaceful settlement of disputes, a great variety of mechanisms for dispute settlement resolution (DSR) has been introduced into the framework of organizations and institutions. The founders of the United Nations were, in their own words, determined to save succeeding generations ‘from the scourge of war.’1 This pledge expresses their hope that disputes can be resolved peacefully. Accordingly, all UN Member States have an obligation to settle their disputes by peaceful means.2 Since the establishment of the United Nations in 1945, many experts have invested time and energy in finding means for the peaceful resolution of disputes. However, the field of conflict resolution gained momentum only in the last three decades of the twentieth century. We find numerous new conventions and treaties that contain dispute settlement clauses. UNESCO takes part in these standard-setting efforts. According to Article 1(1) of its Constitution, UNESCO has the obligation ‘to further universal respect for justice, for the rule of law and for human rights and fundamental freedoms […].’ Thus, the peaceful settlement of disputes is a central element of UNESCO’s mandate.
1. See Preamble of the UN Charter, Paragraph 1. 2. See Article 2(3) and Article 33 of the UN Charter.
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. Outline of the Present Chapter The general aim of this chapter is to outline the evolution of dispute settlement in the context of the different legal instruments adopted by UNESCO during its sixty years of history. Most of the exposé concentrates on the structure of existing dispute settlement mechanisms. This means that the design will be analysed, not the outcome of specific disputes and ‘cases’, since the latter depends on interaction between States and various political variables. As will be shown, surprisingly little State practice exists with regard to the use of existing dispute settlement procedures within UNESCO. This may be related partly to the structure of dispute settlement clauses, but may also be due to other reasons. Some tentative explanations and proposals for reform are to be found in the last part of this exposé.
. UNESCO Dispute Settlement Clauses: Standard-setting 3.1. Distinction of Political and Judicial Dispute Settlement A distinction is made in international law between political or diplomatic settlement, on one hand, and judicial settlement, on the other. a) Clauses of Political and Diplomatic Settlement On the basis of clauses of political dispute settlement, the Parties in contention must come to an understanding among themselves as to how to settle the dispute. This generally means that a political debate will take place, in which the media is sometimes involved. i) First Method: Negotiation Negotiations are normally the method preferred by States, as they allow for the full participation of, and control by the Parties. Negotiation itself is ‘a process of bargaining and trade-offs’,3 the outcome of which usually depends on the negotiating power of the Parties concerned. In general, negotiations are viewed as successful when they are based on the ‘interests and needs of the parties, the use of proper communication, and maintenance of a working relationship.’4 In many of UNESCO’s dispute settlement clauses, negotiations are requisite before a Party may resort to another procedure (e.g. mediation). One can take Article 25,
3. See R. S. Lee, 1991, A Case for Facilitation in the Settlement of Disputes, GYIL 34, p. 147. 4. Available at: http://webworld.unesco.org/water/wwap/pccp/cd.dispute.html (last visited on 21 September 2006).
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Paragraph 1 of the UNESCO Convention on the Protection and Promotion of Cultural Expressions, adopted in Paris on 20 October 2005, as a recent example. In most cases, negotiations are merely mentioned as a pre-condition for recourse to judicial means of dispute settlement, i.e. reference is made only to the failure of negotiations (rather than their success, as an example of pursuing a positive and constructive approach). The following citation typically expresses such a situation: ‘[a] dispute […] not settled by negotiation, shall be brought […] before the International Court of Justice.’5 ii) Second Method: Good Offices Good offices may be interpreted as ‘creative input from a third party providing such services.’6 Various kinds of action may be provided, usually upon request by one or both Parties. The nature of the ‘third party’ is generally not explained in UNESCO dispute settlement clauses. Article 25, Paragraph 2 of the UNESCO Convention on the Protection and Promotion of Cultural Expressions, for example, reads: • [i]f the Parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of […] a third party. Since the third party is not defined, it could be an individual, an organ, a State or a group of States. The functions of good offices depend on the mandate given (e.g. mediation or dispute management). An example of a far-reaching mandate is to be found in Article 17 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), where it is said that UNESCO may, at the request of at least two State Parties to the Convention that are engaged in a dispute over its implementation, ‘extend its good offices to reach a settlement between them.’ Quite often, the UNESCO Director-General assumes the task of good offices (see infra). His or her task may be to formulate an advisory opinion, as is noted – without any reference to good offices – for example, in Article VIII of the Agreement on the Importation of Educational, Scientific and Cultural Materials, with annexes A to E and Protocol annexed (Florence, 17 June 1950).
5. See Article 17, Paragraph 1, Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties, with Model Bilateral Agreement and Additional Protocol (Madrid, 13 December 1979). The same wording is to be found in Article XV of the Universal Copyright Convention, as revised in Paris on 24 July 1971, with Appendix Declaration relating to Article XVII and Resolution concerning Article XI (Paris, 24 July 1971): ‘not settled by negotiation.’ See the same wording in Article 30 of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, 26 October 1961); and in Article XV of the Universal Copyright Convention, with Appendix Declaration relating to Articles XVII and Resolution concerning Article XI (Geneva, 6 September 1952). 6. See Lee, op. cit., p. 148.
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Other actors in the field of good offices in UNESCO instruments are, for instance, the ‘Protecting Powers’ who ‘shall lend their good offices in all cases where they may deem it useful in the interest of cultural property’, according to Article 22 of the Convention on the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention (The Hague, 14 May 1954). See also the ‘Conciliation and Good Offices Commission’, established under the Convention against Discrimination in Education,7 which will be addressed later (see infra, Paragraph 4.3). iii) Third Method: Enquiry and Fact-finding Enquiry and fact-finding are technical means for establishing facts. Usually they are carried out at the request of one or both Parties concerned. Generally, the outcome may be helpful in reducing tension and preventing conflict. According to some experts, a commission of enquiry is ‘not, strictly speaking, one of the methods of dispute settlement, but only an adjunct to those methods.’8 In fact, commissions of enquiry may tend to go beyond mere fact-finding and are often vested with powers of investigation, as well. In any case, it must be stated that enquiry and fact-finding play a minor role in UNESCO standard-setting activities. An examination of existing dispute settlement provisions reveals that enquiry and fact-finding are rarely mentioned, with the exception of the Conciliation and Good Offices Commission. The Commission responsible for seeking the settlement of any disputes that may arise between State Parties to the Convention against Discrimination in Education shall, after obtaining all the information it deems necessary, ‘ascertain the facts.’9 iv) Fourth Method: Mediation and Conciliation Other political or diplomatic dispute settlement mechanisms are mediation and conciliation. Contrary to the decision rendered in arbitration or to a judicial ruling, the outcomes of conciliation and mediation are not binding. The way these instruments function is described in the Report by the DirectorGeneral on a ‘Strategy to Facilitate the Restitution of Stolen or Illicitly Exported Cultural Property’, presented to the Executive Board on 15 April 2005. He set forth: • [m]ediation implies the intervention of an outside party to bring the concerned parties to a dispute together and assist them in reaching a solution […] under
7. See Protocol Instituting a Conciliation and Good Offices Commission for Seeking the Settlement of Any Disputes, which May Arise between States Parties to the Convention against Discrimination in Education (Paris, 10 December 1962), available at: http://www.unesco.org (last visited on 16 October 2006). 8. See R. Lavalle, 1991, The Amicable Dispute Settlement Scheme brought to the Attention of States by the United Nations General Assembly in 1989: A Critical Commentary, AJPIL 42, p. 166. 9. See Article 17, Paragraph 1 of the Protocol Instituting a Conciliation and Good Offices Commission to be Responsible for Seeking the Settlement of Any Disputes which May Arise between States Parties to the Convention against Discrimination in Education.
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‘conciliation’, the concerned parties agree to submit their dispute to a constituted organ for investigation and efforts to effect a settlement.10 In either case, the Parties to a dispute must agree to participate in the mediation or conciliation process. Both mediation and conciliation allow for the participation of the Parties to a conflict, at least to a certain extent, which may be seen as an advantage. If a third Party recommends terms of reference, these are not obligatory for the States concerned. The latter may reject such a recommendation and have recourse to other mechanisms of dispute settlement. This corresponds to the spirit of articles 2(3) and 33 of the United Nations Charter, which provides for a wide range of dispute settlement mechanisms. If they agree, however, ‘the solution is […] easier for the parties to accept, if they wish so, since it comes from a third party rather than from an opponent.’11 b) Clauses of Judicial Dispute Settlement The second category of dispute settlement mechanism concerns judicial settlement. Here, the character of the dispute changes, since political debate normally does not take place or comes to an end, as Parties prepare their legal arguments to be exchanged and reviewed before an international judicial body.12 i) First Method: Arbitration Arbitration designates the referral of a dispute by the Parties to an independent body. This can be done either via a compromissory clause in a convention, by which Parties agree to submit their future disputes, or via an ad hoc agreement by means of a compromise after the dispute has begun. Negotiation of the latter may prove difficult: consensus is needed with regard to the size and composition of the tribunal, rules of procedure, registry, finance and the nature of the award. Whereas there are elements of participation by the Parties in the establishment of the arbitral tribunal and its functions (choice of arbitrators, determination of procedural rules, applicable law, registry), there is no such direct participation in decision-making. The arbitrator hears the Parties’ arguments and reaches a solution, which can be binding or non-binding in accordance with the agreement.
10. See Report by the Director-General on a Strategy to Facilitate the Restitution of Stolen or Illicitly Exported Cultural Property’, UNESCO Executive Board, Doc. 171/EX/14 Add. (Paris, 15 April 2005), Paragraph 4. 11. See Lee, op. cit., p. 148. 12. As Hans Corell, former legal adviser to the United Nations, emphasized, ‘[m]ost international disputes are likely to be political even if they are presented in legal terms.’ See H. Corell, The Feasibility of Implementing the Hague/St. Petersburg Centennial Recommendations under the UN System, in J. Dahlitz (ed.), 1999, Introduction, International Law Association/Consortium on International Dispute Resolution, Peaceful Resolution of Major International Disputes, New York/ Geneva, United Nations, pp. 45 f.
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ii) Second Method: Judicial Bodies The dispute may be referred to an existing international court or tribunal composed of independent judges, who will settle the claims with a binding decision on the basis of international law. The importance of the International Court of Justice (ICJ), as the principal judicial organ of the UN, is emphasized by various UNESCO dispute settlement clauses. From the viewpoint of the Parties concerned, a procedure before the ICJ offers the least degree of ‘control’, as they face an independent and strictly formalized procedure under the ICJ Statute. Furthermore, with one exception,13 the ICJ has not dealt with cultural matters since its inception. Accordingly, the chances of bringing a UNESCO-related dispute to The Hague seem small.
3.2. Evolution of UNESCO Standard-setting (Dispute Settlement) The following section intends to describe how the different types of dispute settlement mechanisms mentioned above have evolved over time, in the context of the history of UNESCO’s standard-setting. The findings of the research conducted comprise ten preliminary points: (1) From twenty-eight existing UNESCO conventions, thirteen dispose of some sort of dispute settlement mechanism. This means that in approximately fifty per cent of the UNESCO treaty law in question, State Parties were willing to accept a provision related to dispute settlement (‘pro-50% quota’). In the fifty per cent of cases where no dispute settlement provision exists (among them, the International Convention against Doping in Sport (Paris, 19 October 2005), the Convention for the Safeguarding of the Intangible Heritage (Paris, 17 October 2003) and the Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 16 November 1972)), it is possible to assume that UNESCO Member States wanted to give preference to diplomatic means of dispute settlement, as opposed to choosing a clear operational modus vivendi. UNESCO’s focus on ‘diplomatic cooperation’ is well reflected, for example, by the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. A comparison of the 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally
13. See International Court of Justice, Case Concerning the Temple of Preah Vihear (Merits), Judgment of 15 June 1962 (ICJ Reports, 1962, p. 6), where the Court found that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and that, in consequence, Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone models and ancient pottery that might have been removed from the Temple area by Thai authorities.
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Exported Cultural Objects14 indicates differences in the area of restitution claims. While the 1970 Convention is based on intergovernmental (i.e. political) action (see Article 7), meaning that a State Party (and an individual or legal entity, when admitted by the law of the State Party) may claim restitution primarily through diplomatic channels, the 1995 UNIDROIT Convention allows a State Party, individual or legal entity owner to file a claim for restitution of stolen cultural objects; a State Party may do the same in case of illicitly exported cultural objects.15 (2) The ‘pro-50% cases’ in UNESCO treaty law that dispose of dispute settlement mechanisms concern a broad range of topics. There seems to be no State preference for dispute settlement clauses in particular fields. The conventions, agreements and protocols containing dispute settlement regimes concern different fields within UNESCO’s mandate. Among the topics for which dispute settlement clauses can be found are, inter alia, educational, scientific and cultural materials (Florence, 17 June 1950 and Nairobi, 26 November 1976); universal copyright (Geneva, 6 September 1952 and Paris, 24 July 1971); avoidance of double taxation (Madrid, 13 September 1979); protection of cultural property (The Hague, 14 May 1954 and Paris, 14 November 1970); discrimination in education (Paris, 14 December 1960); protection of performers and producers of phonograms and broadcasting organizations (Rome, 26 October 1961); recognition of studies (Bangkok, 16 December 1983); underwater cultural heritage (Paris, 2 November 2001); and protection and promotion of cultural expressions (Paris, 20 October 2005). (3) If we view the cases chronologically, we find that there is no specific development with regard to quality or quantity (e.g. intensity) of standardsetting in the ‘pro 50%-cases’ of conventions, agreements and protocols that contain dispute settlement mechanisms. For example, instruments containing dispute settlement procedures date back to the very first period of UNESCO’s existence (e.g. the Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character (Beirut, 10 December 1948) or the Agreement on the Importation of Educational, Scientific and Cultural Materials) no less than to the most recent UNESCO
14. On the request of UNESCO, which has no specific mandate for private law, the International Institute for the Unification of Private Law (UNIDROIT) prepared the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 24 June 1994, available at: http://www. unidroit.org/english/conventions/1995culturalproperty/1995culturalproperty-e.htm (last visited on 17 October 2006), which complements the 1970 Convention. 15. For more detail, see UNESCO and UNIDROIT – Cooperation in the Fight against Illicit Traffic in Cultural Property. Conference Celebrating the 10th Anniversary of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 24 June 2005, UNESCO Headquarters, Paris, UNESCO Information Note (Doc. CLT-2005/CONF/803/2, Paris, 16 June 2005).
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activities (e.g. the successful adoption of the Convention on the Protection and Promotion of Cultural Expressions). A period of diminished standard-setting is to be seen at a certain point. We see a ‘break’ in dispute settlement standard-setting activities from 1983-2001, which may be related to the withdrawal of the United States of America in 1984 and the United Kingdom of Great Britain and Northern Ireland in 1985. Only two conventions were adopted during this period,16 neither of which contain a dispute settlement clause. (4) Another interesting finding concerns the correlation between the approval rate of UNESCO conventions and the presence of dispute settlement clauses in an instrument. Even if approval rates do not seem to be directly related to the absence of dispute settlement clauses, it cannot be excluded that the presence of judicial dispute settlement clauses hinders State ratification of, or accession to the agreement in question. The survey shows that the two UNESCO Conventions with the highest approval rate (the Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), with 183 State Parties,17 and the Convention on Wetlands of International Importance Especially as Waterflow Habitat (1971), with 154 State Parties18) do not contain any dispute settlement provision. Thus, it generally seems to be attractive for governments to adhere to conventions that do not contain dispute settlement clauses. However, it is equally interesting to note that the Conventions with high approval rates (80-120 State Parties) all contain a dispute settlement procedure. These include the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), with 110 State Parties,19 and the Convention against Discrimination in Education (1960), with 93 State Parties.20 This may be interpreted as a sign that the presence of dispute settlement clauses, as such, is not an obstacle to ratification or accession. It may be concluded that, with a few exceptions, States ratify UNESCO treaty law irrespective of whether or not the document concerned contains a dispute settlement
16. Convention on Technical and Vocational Education (Paris, 10 November 1989) and Convention on the Recognition of Qualifications Concerning Higher Education in the European Region (Lisbon, 11 April 1997). 17. See http://portal.unesco.org/la/convention.asp?KO=13055&language=E (last visited on 31 December 2006). 18. See http://portal.unesco.org/la/convention.asp?KO=15398&language=E (last visited on 2 January 2007). 19. See http://portal.unesco.org/la/convention.asp?KO=13039&language=E (last visited on 31 December 2006). 20. See http://portal.unesco.org/la/convention.asp?KO=12949&language=E (last visited on 31 December 2006).
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provision. In any case, there are no signs that dispute settlement provisions necessarily deter Member States from adherence to UNESCO treaty law. On the other hand, we find certain Conventions that are not (yet) in force. These conventions contain a reference to judicial dispute settlement. Article 17, Paragraph 1 of the Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties, with Model, Bilateral Agreement and Additional Protocol (Madrid, 13 December 1979) contains the possibility of bringing the matter before the ICJ; while the Convention on the Protection of the Underwater Cultural Heritage (Paris, 2 November 2001) makes reference to the judicial settlement clauses of the United Nations Convention on the Law of the Sea (Article 25(3)). Neither Convention is presently ratified by the required quorum. Consequently, there are possible signs that the presence of a judicial dispute settlement clause hinders States from ratifying or acceding to the agreement in question. Also of interest is the sort of instrument governments prefer when they accept dispute settlement clauses. The result – which concerns the elaboration of standard-setting instruments, not State practice (see infra, implementation) – is interesting: (5) With a view to the whole set of the thirteen existing UNESCO documents with dispute settlement provisions, it may be said that, for a long time, Members States preferred binding or so-called judicial settlement clauses to political settlement. With a ratio of eight (judicial) to five (political), they opted for binding judicial settlement. One possible explanation for this finding could be that State Parties wish to secure compliance with relevant UNESCO treaty law. Dispute settlement mechanisms of a legal nature, such as judicial dispute settlement, tend to improve compliance. Generally, legal mechanisms seem to ‘alter the cost-benefit calculus of cheating by increasing the probability of detection, resolving conflicts of interpretation, and endorsing commensurate sanctions or making the rulings directly applicable in domestic law.’21 Another explanation, of course, is that there was no such compliance ‘calculus’: governments that endorsed a certain convention containing a recourse to arbitration or the ICJ might have done so because they advocated particular material rights and obligations, irrespective of the specific dispute settlement mechanisms enshrined. (6) When addressing the rubric of ‘judicial settlement clauses’, it can be seen that, with regard to such clauses, UNESCO standard-setting shows a certain preference for the International Court of Justice (ICJ) as opposed to arbitration. Within the aforementioned category of judicial settlement clauses, the clear ‘favourite’ is the International Court of Justice; at least the ICJ is the body mentioned most often (seven times). This may be surprising, since States prefer arbitration to judicial settlement
21. See J. McCall Smith, 2000, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, International Organization 54, p. 138.
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in the field of international relations. Arbitration leaves them with the choice of arbitrators and the right to determine procedural rules, thus allowing them ‘some measures of control.’22 Consequently, it is interesting to note that no preference for arbitration is given in UNESCO treaty law. As closer examination showed, we clearly find more references to the ICJ than to arbitration procedures.23 One possible reason for this preference is that negotiation for the establishment of an ad hoc arbitration tribunal is time-consuming and costly: Parties must negotiate all issues concerning establishment and registry. International courts, by contrast, are permanent, pre-established bodies, which offer the advantage of ‘stability and consistency in jurisprudence in case of judicial settlement.’24 Furthermore, we should not forget that even in cases where preference for the ICJ has been expressed in a specific UNESCO agreement, the process leading up to the adoption of the provision has been most controversial (see the travaux préparatoires of Article 25 of the Convention on the Protection of the Underwater Cultural Heritage, where some States explicitly refused the jurisdiction of the International Court of Justice (e.g. Cuba, GuineaBissau) or ruled out the jurisdiction of the ICJ indirectly by opting for other means (e. g. Egypt, Greece, Russian Federation, Slovenia, Tunisia, Ukraine, United Republic of Tanzania)).25 (7) When arbitration was allowed by UNESCO standard-setting in the past, no particular body was specified, as a rule. Only once is mention made of the Permanent Court of Arbitration (PCA). Article 12, Paragraph 3 of the Protocol Instituting a Conciliation and Good Office Commission to be Responsible for Seeking the Settlement of Any Disputes which May Arise between States Parties to the Convention against Discrimination in Education
22. See Lee, op. cit., p. 148. 23. Sometimes arbitration procedures were agreed upon. See the Convention on the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 14 May 1954), Article 14 para. 6. Some early documents noted that the dispute may be referred to the ICJ ‘unless parties agree to another mode of settlement’ (Universal Copyright Convention, Geneva, 6 September 1952, Article XV). See also Article IX of the Agreement for facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character (Beirut 10, December 1948), which states that ‘all disputes shall be referred to the International Court of Justice unless in any specific case it is agreed by the parties to have recourse to another mode of settlement.’ See also Article 17 of the Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties (Madrid, 13 December 1979): ‘A dispute [...] shall, unless the States concerned agree on some other method of settlement, be brought before the International Court of Justice for determination by it.’ This means that arbitration was deemed to be possible at any time. 24. See Lee, op. cit., p. 151. 25. See Records of General Conference; Proceedings, 31st Session, Paris 2001, p. 20, items 1537, 1538, 1539; see also Declarations of State Parties relating to settlement of disputes in accordance with Article 287 (available at: http://www.itlos/general_information/overview/Declarations_ 287E2005.pdf (last visited on 21 September 2006)).
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(Paris, 10 December 1962) provides for the possibility ‘of referring disputes by mutual consent to the Permanent Court of Arbitration at The Hague.’ In all other cases, no reference to the PCA is made. UNESCO standard-setting in the past showed a preference for an informal ad hoc tribunal. When a mechanism called for it, the appointment of arbitrators was generally left up to diplomatic procedures. A possible explanation for this phenomenon is that ad hoc tribunals give State Parties more ‘leeway’. ‘With a standing tribunal as the PCA, the Parties have little if any influence over the composition of the court after its initial establishment. With arbitrators selected ad hoc by disputants, however, each Party may be free to name nearly half the panel.’26 However, it is interesting to note that standard-setting concerning judicial settlement of disputes has changed over time: (8) The early trend to allow for ICJ rulings or arbitration in UNESCO standard-setting seems to have been reversed. Recent conventions do not contain a clause allowing for arbitration or judicial settlement (judicial dispute settlement clauses). No document in nearly three decades contains a provision allowing for arbitration or an ICJ ruling.27 An exception to this rule is the UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001). Article 25, Paragraph 3, with reference to Part XV of the United Nations Convention on the Law of the Sea (UNCLOS), makes both arbitration and recourse to the ICJ possible (see Article 287 of UNCLOS). However, as was clear during negotiations on the Convention on the Protection and Promotion of Cultural Expressions, State Parties are nowadays rather reluctant to deal with binding dispute settlement provisions. Only in the second week of the third intergovernmental meeting of experts (May – June 2005), which was supposed to adopt the Draft Convention, had the drafters started to look at the pertinent provisions (Article 25 of the Draft). The whole issue was very controversial and could only be settled by a working group convened ad hoc by Chairman Kader Asmal. Several delegations (e.g. India) argued strongly against any arbitration clause. A compromise was found by giving up the concept of arbitration, but allowing for a mechanism of conciliation (Article 25, Paragraph 3) complemented by an opt-out clause (Article 25, Paragraph 4).28 This leads to the next finding:
26. See McCall Smith, op. cit., p. 140. 27. The Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties, with Model, Bilateral Agreement and Additional Protocol (Madrid, 13 December 1979), Article 17, Paragraph 1, contains a referral to the International Court of Justice. The following nine conventions do not contain clauses on judicial settlement. 28. A Party may have recourse to conciliation in accordance with the procedure laid down in the Annex of the Convention. However, each Party may, at the time of ratification, acceptance, approval or accession, declare that it does not recognize the conciliation procedure.
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(9) There is a general trend in international law to make increased use of mediation and conciliation an alternative to litigation.29 This trend is also reflected in UNESCO treaty law. Generally, mediation has become a very important and viable alternative to adjudication and arbitration in the international legal system. The advantages of mediation include, among others,30 its flexibility, informality, confidentiality, non-binding nature, lower cost and maintenance of the relationship of the Parties concerned. Also, there seems to be a recent ‘trend of mediation’ in UNESCO standard-setting. Apart from the fact that several clauses indicate that the Parties may choose ‘other peaceful means of settlement’, including mediation (and conciliation), two recent Conventions make explicit reference to mediation: • Convention on the Protection and Promotion of Cultural Expressions (2005), Article 25, Paragraph 2: ‘If the Parties concerned cannot reach agreement by negotiation, they may jointly […] request mediation.’ • Convention on the Protection of the Underwater Cultural Heritage (2001), Article 25, Paragraph 2: ‘If these negotiations do not settle the dispute within a reasonable time, it may be submitted to UNESCO for mediation, by agreement between the State Parties concerned.’ A recent example of conciliation is to be found in the Convention on the Protection and Promotion of Cultural Expressions. Article 25, Paragraph 3 sets forth that if good offices or mediation are not undertaken, or no settlement is reached by negotiation, good offices or mediation, ‘a Party may have recourse to conciliation in accordance with the procedure laid down in the Annex of this Convention.’ Conciliation combines the elements of mediation and enquiry: it is the process of settling a dispute by referring it to (a) conciliator(s) who undertake(s) to ascertain the underlying facts of the dispute and to put forward a suggested solution. Conciliation, being a relatively formal procedure,31 is considered by certain scholars ‘to be quasi-judicial in nature.’32 Like judicial settlement, conciliation involves independent and impartial third-person assistance to settle the
29. See Guide to Enactment and Use of the UNCITRAL Model Law on International Commercial Conciliation, 2002, in UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and Use 2002, New York, United Nations, 2004, p.11. 30. See, in greater detail, Lee, op. cit., p. 148; N. Palmer, Litigation: The Best Remedy?, in The International Bureau of the Permanent Court of Arbitration (ed.), 2004, Resolution of Cultural Property Disputes, The Permanent Court of Arbitration/Peace Palace Papers, The Hague, p. 280. 31. See Article 1 of the Annex to the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Conciliation Procedure, UNESCO Doc. 33 C/23, p. 17, 4 August 2005. 32. See Lavalle, op. cit., p. 164, with reference to J. P. Cot, 1968, La conciliation internationale, Paris, p. 191 ff.
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dispute. The advantage of conciliation is that an impartial Party is requested by the conflicting States to help them resolve the dispute by examining the facts and suggesting the terms of a settlement likely to be acceptable to all Parties. Moreover, the conciliation procedure also has the advantage of ‘flexibility’, since the recommendations made to the Parties may be accepted or rejected.33 (10) Another important issue is whether an instrument allows for unilateral seizure by only one Party or whether joint request or agreement is required to trigger mechanisms of dispute settlement. The picture regarding UNESCO dispute settlement instruments is ‘mixed’ in this regard; however, joint seizure is generally required. A dispute settlement procedure may fail if it provides for ‘joint request’ of both or all conflicting Parties. Only if there is a chance for one Party to ‘trigger’ the mechanisms independently of the will of the other Party is the procedure certain to take place. On the other hand, if solely one Party is able to challenge the other in unilateral seizure, the political sensitivities of the other Party will be offended. Thus, the question of ‘unilateral seizure’ in UNESCO dispute settlement is a delicate one. An overview of UNESCO dispute settlement provisions shows a long-standing tendency for common agreement, i.e. ‘joint seizure’.34 There are only a few exceptions to
33. However, in the case of the recent Convention on the Protection and Promotion of Cultural Expressions, the Parties are not entirely free. They ‘shall consider in good faith the proposal made by the Conciliation Commission for the resolution of the dispute’ (Article 25, Paragraph 3, sentence 2 (emphasis added)). As a result, the outcome shall be examined and taken into consideration by Member States. 34. For example, the Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character with Protocol of Signature and Model Form of Certificate Provided for in Article IV of the above-mentioned Agreement (Beirut, 10 December 1948) provided that ‘the dispute shall, if the States concerned so desire, be submitted [...] to an arbitral tribunal’ (Article IX, Paragraph 2 (emphasis added)); see also Agreement on the Importation of Educational, Scientific and Cultural Materials, with Annexes A to E and Protocol annexed, (Florence 17 June 1950), Article VII: ‘the contracting States undertake to have recourse to negotiation or conciliation’ (emphasis added); ibid., Article VIII: ‘the interested Parties may, by common agreement, refer it to the Director-General’ (emphasis added); Universal Copyright Convention with Appendix Declaration relating to Articles XVII and Resolution concerning Article XI (Geneva, 6 September 1952), Article XV: ‘the States concerned’ (emphasis added); Convention Against Discrimination in Education (Paris, 14 December 1960), Article 8: any dispute ‘shall at the request of the parties to the dispute be referred […] to the International Court of Justice’ (emphasis added); see Protocol Instituting a Conciliation and Good Offices Commission to be Responsible for Seeking the Settlement of any Dispute which may Arise between States Parties to the Convention Against Discrimination in Education (Paris, 10 December 1962), Article 12, Paragraph 3: ‘the right of State Parties to have recourse […] to other procedures for settling disputes including that of referring disputes by mutual consent to the Permanent Court of Arbitration at the Hague’ (emphasis added); see Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), Article 17: ‘at the request of at least two States Parties to this Convention which are engaged in a dispute
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the rule that both Parties have to have recourse to a dispute settlement mechanism. In other words, the picture is mixed. ‘Unilateral seizure’ is provided for in: • the Convention on the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, Article 14, Paragraph 6; • the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, 26 October 1961), Article 30; • the Protocol Instituting a Conciliation and Good Offices Commission to be Responsible for Seeking the Settlement of Any Dispute Which May Arise Between States Parties to the Convention Against Discrimination in Education (Paris 10 December 1962). Article 12, Paragraph 2 reads: ‘either State shall have the right to refer the matter to the Commission’ (emphasis added); however, common action is required after that point; • the Convention on the Protection and Promotion of Cultural Expressions, Article 25, Paragraph 3. ‘Unilateral seizure’, as provided, gives a conflicting Party a certain autonomy to instigate action. At the same time, it prevents the failure of dispute settlement, which, as practice shows, all too often results from inaction by one Party.
3.3. Proposals for Reform (Standard-setting) a) Enhancement of Negotiation and Consultation According to experts, there are several crucial principles for designing an effective dispute resolution system,35 among them ‘loop-backs to negotiations’ and ‘consultation’. It seems that neither of these elements was taken into much consideration when UNESCO dispute settlement provisions were drafted. • First of all, there are no loop-backs to negotiations in UNESCO treaty law. Usually, negotiations are envisaged only at the initial stage of the conflict, not later. It is not necessary to resume negotiations when other dispute settlement measures fail. This may be seen as an inherent weakness of UNESCO standard-setting in the past.
over its implementation, UNESCO may extend its good offices to reach a settlement between them’ (emphasis added); Convention on the Protection of the Underwater Cultural Heritage (Paris, 2 November 2001), Article 25, Paragraph 2: ‘the dispute […] may be submitted to UNESCO for mediation, by agreement between the State Parties concerned ’ (emphasis added). 35. See W. L. Ury, J. M. Brett, S. B. Goldberg, October 1988, In Practice: Designing an Effective Dispute Resolution System, Negotiation Journal, pp. 413-431. See also, by the same authors, Getting Disputes Resolved, San Francisco, 1988.
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• Secondly, consultation certainly does not play a significant role in UNESCO dispute settlement. (As a matter of fact, it is mentioned only once in UNESCO treaty law).36 However, it should not be overlooked that the activities of the Director-General are important in this context, as he has the right to initiate consultations.37 Still, it should be noted that, in an effort to avoid judicial settlement of disputes and promote alternative dispute resolution, UNESCO has made a considerable effort to improve the system of negotiation by elaborating the so-called UNESCO Principles on the Settlement of Disputes Concerning Cultural Objects Displaced in Relation to the Second World War.38 These principles aim to facilitate bilateral and multilateral negotiations without modifying treaties in force on the same subject matter. By developing a tool aimed at facilitating the resolution of issues in a non-legally binding manner, akin to soft law or a recommendation, UNESCO has highlighted the relevance of negotiation in dispute settlement resolution. Furthermore, the Principles may contribute to peaceful cooperation between States. Another element of reflections on reform concerns the question of whether there is a need for new standard-setting in the field of UNESCO dispute settlement. b) Establishment of Judicial Bodies in the Field of Cultural Property Law Some experts see a need for new UNESCO standard-setting in the field of cultural property law. Given the high number of cultural property disputes, in particular related to expanding worldwide trade in objects of archaeological and ethnological interest, it is surprising to note that no effective international dispute resolution mechanism has been developed thus far. The 1970 UNESCO Convention on the Means of Prohibiting and
36. See Article 20 of the Regional Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in Asia and the Pacific (Bangkok, 16 December 1983). 37. The Director-General intervenes personally in many cases, including urgent cases concerning human rights.The basis for this ‘right of intercession’ may be seen in the General Conference’s 19/C/Resolution 12.1 (see last preambular Paragraph), but also in the Executive Board’s Decision (Executive Board, 104 EX/Decision 3.3., Paragraph 8) itself, which recognizes the important role of the Director-General in ‘initiating consultation, in conditions of mutual respect, confidence and confidentiality, to help reach solutions to particular problems concerning human rights’ (emphasis added). 38. The Principles were approved by the thirteenth session of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (Paris, 7-10 February 2005). The Committee decided to submit the Draft Principles to the thirty-third session of the General Conference for consideration, final revision and adoption: see UNESCO Doc. 171/EX/14 Add., Annex IV; CLT-2002/CONF/602/3 Rev. (Paris 24 February 2003), revised in Paris, 15 February 2005; Expert Meeting on the Settlement of disputes concerning cultural objects displaced in relation to the Second World War (Paris 3-6 December 2002), Secretariat’s Final Report, Doc. CLT-2002/CONF/602/3; Resolution for the Elaboration of a Declaration of Principles, adopted by the General Conference in 2005, 33C/ Resolution 45.
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Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property provides a framework for international technical cooperation among nations.39 However, there ‘is no instrument which focuses exclusively on dispute resolution.’40 Disputes in the field of illegal transfer of cultural objects are dealt with largely in ad hoc fashion. The consequences of this ‘legal void’ were examined by experts at an International Law Seminar, ‘The Resolution of Cultural Property Disputes’, held at the Peace Palace in The Hague, on 23 May 2003. It was shown that: • States have the discretion to allow for restitution of stolen goods; • acts of restitution often take place in the realm of private law; and • complicated conflict of law issues arise because of the wide variety of legal norms and the cross-border nature of most cultural property claims (different limitation periods; different evidentiary standards; competing claims of good faith acquisition of property). Various experts have put forward reform proposals to improve the present, dissatisfactory situation. Experts dealing with the problem of disparate results for art claims in various jurisdictions have proposed the resolution of cultural property disputes (especially those relating to Holocaust-looted art) by arbitral panels, provided by the Permanent Court of Arbitration.41 Meanwhile, an international consensus on more uniform, international resolution of such claims seems to have developed.42 Other experts recommended the creation of an international mechanism, with rules tailored to solve special problems in international adjudication of cultural property claims, including the burden of proof and selection of appropriate rules of evidence.43
39. For details of international technical cooperation, see General Assembly, UN Doc. A/50/498, Return or Restitution of Cultural Property to the Countries of Origin, Note by the SecretaryGeneral, 3 October 1995, p. 2, Paragraphs 6 ff. 40. See T.T. van den Hout, 2004, Introduction, in The International Bureau of the Permanent Court of Arbitration (ed.), Resolution of Cultural Property Disputes, The Permanent Court of Arbitration/Peace Palace Papers, The Hague, p. xv. 41. See O. C. Pell, 2004, Using Arbitral Tribunals to Resolve Disputes Relating to HolocaustLooted Art, in The International Bureau of the Permanent Court of Arbitration (ed.), op. cit., pp. 307-337. 42. See the so-called Washington Conference Principles, Principles on Nazi-Confiscated Art, Washington Conference on Holocaust-Era Assets, 30 November to 3 December 1998, reproduced as Annex IX in The International Bureau of the Permanent Court of Arbitration (ed.), op. cit., pp. 431-432; see also Council of Europe Resolution 1205, Looted Cultural Property, Parliamentary Assembly of the Council of Europe, 4 November 1999; European Parliament Resolution 408, 17 December 2003 (A5-0408/2003), Freedom of movement and Ownership of Goods. 43. See H. Das, 2004, Claims for Looted Cultural Assets: Is there a Need for Specialized Rules of Evidence, in The International Bureau of the Permanent Court of Arbitration (ed.), op. cit., pp. 193-249.
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More controversial is the proposal of creating a ‘separate procedure for the resolution of disputes’ in the field of theft and illicit trade.44 John Merryman, founder of the International Cultural Property Society, emphasized at the Third Annual Conference of the Venice Court of National and International Arbitration, Venice, Italy (29-30 September 2000), that ‘[m]any problems of international trade might be more easily solved by arbitration tribunals than by state courts because arbitrators are extra-national and can avoid cultural nationalism and because they are likely to have more expertise than judges of State courts.’45 However, even if we assume that art trade disputes can be handled more competently by arbitral tribunals than by State courts, it will be difficult to reach an ad hoc special agreement for arbitration. As Kurt Siehr emphasized, ‘[i]n normal cases of theft, illegal export, and fraud, the Parties, not being bound by contractual relations with an arbitration clause, will hardly submit to an arbitration tribunal.’46 Hans Corell, former legal advisor to the United Nations, has doubted the need for new institutions.47 c) Introduction of Mediation and Conciliation as New Elements A related issue concerns the introduction of mediation and conciliation as new elements of dispute settlement in the field of cultural property law. As the experts of the Third Annual Conference of the Venice Court of National and International Arbitration, Venice, Italy (29-30 September 2000), stated in their final remarks, ‘[t]he practice of mediation and conciliation offered by certain institutions may help to develop art trade arbitration in the future.’48 In particular, ‘conciliation’ is seen as a method of dispute settlement ‘that has proved its usefulness in practice’, as the United Nations General Assembly emphasized in 1995 in the United Nations Model Rules for the Conciliation of Disputes between States.49 Following this ‘pro-mediation and conciliation-line’, a new mandate has been developed for the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation. The idea was to reform the restitution committee by making new proposals on mediation and conciliation. The previous mandate of the Committee, as defined in Article 4 of its Statutes,50 provided, among others, for ‘seeking ways and means of facilitating bilateral
44. See van den Hout, op. cit., p. xviii. 45. See J. H. Merryman, quoted after K. Siehr, 2001, Conference Reports, Resolution of Disputes in International Art Trade, Third Annual Conference of the Venice Court of National and International Arbitration, Venice, Italy (29 and 30 September, 2000), IJCP 10, 2001, p. 123. 46. See Siehr, op. cit., p. 125 (with reference to the Schiele case). 47. See Corell, op. cit., p. 47. 48. See Siehr, op. cit. 49. See United Nations, General Assembly, United Nations Model Rules for the Conciliation of Disputes between States, UN Doc. A/RES/50/50 of 11 December 1995, preambular part, Paragraph 1. 50. See Statutes of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, UNESCO Doc. 171 EX/14 Add. Annex II.
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negotiations’ (Article 4, Paragraph 1) and for promoting ‘multilateral and bilateral cooperation with a view to the restitution and return of cultural property to its countries of origin.’51 However, mediation and conciliation were not included among its functions. The Intergovernmental Committee underlined, in Recommendation No. 3, adopted at its thirteenth session (7-10 February 2005), that such procedures would have several advantages: • to strengthen the Committee: ‘these tools can expand the role of the Committee;’52 • to provide flexibility for Member States: ‘these tools can [...] provide UNESCO Member States with more options from which to choose;’53 • to contribute to peaceful cooperation of States in a climate of mutual understanding: mediation and conciliation ‘should be conducted with confidentiality, transparency, and according to the general principles of fairness, impartiality, and good faith cooperation.’54 Adding the function of mediation or conciliation to the mandate of the Committee required an amendment to the Committee’s statutes by the General Conference. The Intergovernmental Committee wished, at its thirteenth session (from 7 to 10 February 2005), first to consult models of existing United Nations rules concerning conciliation and mediation. At the one hundred seventy-first session of the Executive Board, the Director-General presented his report.55 Finally, the proposal for amending the Statutes of the Intergovernmental Committee, adopted at the thirty-third General Conference of UNESCO in October 2005,56 contained a new wording of Article 4: • [t]he Committee shall be responsible for: 1. [old] seeking ways and means of facilitating bilateral negotiations for the restitution or return of cultural property to its countries of origin when they are undertaken according to the conditions defined in Article 9. 2. [new] In this connection, the Committee may also submit proposals with a view to mediation or conciliation to the Member States concerned, being
51. Article 4, Paragraph 2, UNESCO Doc. 171 EX/14 Add. 52. Recommendation No. 3, thirteenth session (Paris, 7-10 February 2005), UNESCO Doc. 171/ EX/14 Add. Annex I, Paragraph 1, A. 53. Ibid., Paragraph 1.A. 54. Ibid., Paragraph 1.F. 55. See Report by the Director-General on a Strategy to Facilitate the Restitution of Stolen or Illicitly Exported Cultural Property, UNESCO Executive Board, 171/EX/14 Add. (Paris, 15 April 2005). 56. See UNESCO thirty-third General Conference Resolution 44, Doc. 33 C/Resolution 44 of 21 October 2005. For more information on the elaboration of this article, see UNESCO, Strategy to Facilitate the Restitution of Stolen or Illicitly Exported Cultural Property, UNESCO Doc. 33/C/46 of 25 August 2005, p. 4
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understood that mediation implies the intervention of an outside party to bring the concerned parties to a dispute together and assist them in reaching a solution, while under conciliation, the concerned parties agree to submit their dispute to a constituted organ for investigation and efforts to effect a settlement. For the exercise of the mediation and conciliation functions, the Committee may establish appropriate rules of procedure. The outcome of the mediation and conciliation process is not binding on the Member States concerned, so that if it does not lead to the settlement of a problem, it shall remain before the Committee57 like any other unresolved questions which has [sic] been submitted to it. As a result, it may be said that the envisaged reform in standard-setting was successfully undertaken.
. UNESCO Dispute Settlement Clauses: Implementation 4.1. Overview: State Practice Participants in a consultation on ‘Peaceful resolution of major international disputes furthering the objectives of the first international Peace Conference, 1899’, organised by the International Law Association and the Consortium on International Dispute Resolution in 1999 – a hundred years after the First Hague Peace Conference – stressed that, with some exceptions, ‘adjudication or arbitration are increasingly used for avoiding international conflicts.’58 The ‘exception’ – not resorting to third party settlement – holds particularly true for UNESCO. Here, almost no State practice is to be found with regard to dispute settlement resolution (DSR):
57. See, in this regard, the Draft Resolution submitted by Greece at the thirty-third General Conference, 33 C/COM.IV/DR.2 (COM, IV) of 11 October 2005, Strategy to Facilitate the Restitution of Stolen or Illicitly Exported Cultural Property’, Paragraph 7: ‘[t]he outcome of the mediation process shall not be binding for the Member States involved, whereupon if an issue is not resolved thereby it shall remain pending before the Committee as every non-resolved issue placed before it.’ The Greek proposal was supported by Afghanistan, Albania, Algeria, Argentina, Barbados, Benin, China, Cyprus, Egypt; Ethiopia, India, Kuwait, Pakistan, Poland, Senegal, Serbia and Montenegro, Switzerland, Zambia and Zimbabwe. See UNESCO Doc. 33 C/84, Prov. p. 17. 58. See Dahlitz, op. cit., p. 8.
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• Of thirteen UNESCO agreements, conventions and protocols with dispute settlement provisions, three have not yet entered into force.59 Thus, for almost one quarter of existing agreements, we do not have any State practice to assess. • To the extent that dispute settlement procedures exist, we find a striking degree of underutilization. For example, despite numerous references to the ICJ in UNESCO treaty law, no single case is known to exist in which conflicting Parties had recourse to The Hague. • Another example of the high underutilization of existing dispute settlement procedures concerns the Commission on Conciliation and Good Offices responsible for seeking the settlement of any dispute which might arise between State Parties to the Convention (against discrimination in education). The mandate of the Commission consists in ascertaining facts and making available its good offices and conciliating functions, with a view to encouraging amicable solutions to disputes between State Parties. The Commission can only deal with disputes upon referral and may deal with matters only after it has ascertained that all available domestic remedies have been invoked and exhausted. In addition to its reports concerning individual cases, the Commission is required, under Article 19 of the Protocol, to submit a report on its activities at each regular session of the General Conference. The Commission is supposed to be composed of eleven members elected by the General Conference from a list of persons nominated by the State Parties to the Protocol. However, as of the elections of the thirty-third General Conference, there were only eight experts serving as members of the Commission.60
59. Convention on the Protection and Promotion of Cultural Expressions (Paris, 20 October 2005); Convention on the Protection of the Underwater Cultural Heritage (Paris, 2 November 2001); Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties, with Model Bilateral Agreement and Additional Protocol (Madrid, 13 December 1979). 60. The Executive Board had dealt with the Protocol Instituting a Conciliation and Good Offices Commission at its hundred sixty-seventh session on 1 July 2003. See Executive Board, UNESCO Doc. 167 EX/17 (Paris, 1 July 2003). It drew attention to the fact that the Director-General, in letter DG/18/2003/004 dated 25 March 2003, had invited State Parties to appoint their representatives for a meeting of the State Parties to the Protocol, to review the Commission’s procedures with the aim of making them effective and to submit their proposals for improving the effectiveness of the Commission. See Executive Board, UNESCO Doc. 167 EX/17 (Paris, 1 July 2003), Paragraph 15. However, two years later, the Executive Board had to take note ‘of the fact that no persons have yet been nominated by the States Parties to the […] Protocol for the purpose of the election of five members of the Commission’ (Executive Board, UNESCO Doc. 172 EX/24 (Paris, 18 July 2005), Paragraph 14). Finally two persons were nominated: Munter Al-Masri ( Jordan) and Iman El-Kafass (Egypt). See Alphabetical List of Persons Nominated by the States Parties to the Protocol, UNESCO Doc. 33 C/NOM/7 of 5 October 2005, Annex II. Members from 2005-2007 are: Léa Akissi (Ivory Coast); Pierre Michel Eisemann (France); Iman El Kaffas (Egypt); Klaus Hüfner (Germany); Francesco Margiotto-Broglio (Italy); Munther W. Masri ( Jordan); Florence Mutonyi D’ Ujanda (Uganda); Yvette Rabetaifka-Ranjeva (Madagascar).
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A major problem is that not one case has been entrusted to the Conciliation and Good Offices Committee in its forty-four years of existence (!). The problem was rightly identified by the Director-General in his 1997 Study Concerning the Problems and Possible Solutions regarding the Conciliation and Good Offices Commission, where he set forth: ‘the Commission has never met to consider any dispute as no recourse has ever been made to it in this regard.’61 Until today, the Commission has never been called upon to use its good offices or exercise its conciliatory functions.62 So far, the Commission has only met twice. The Director-General convened the first meeting of the Commission on 6 November 1970 (held at the Headquarters of UNESCO from 1 to 9 February 1971); the second meeting was convened by the Chairperson on 10 April 1974. Accordingly, there are strong signs that UNESCO’s dispute settlement procedures are not implemented. Dispute settlement resolution seems to play a minor role in the Organization’s daily life.
4. 2. Possible Reasons for Underutilization of DSR Interesting questions with regard to underutilization of UNESCO dispute settlement mechanisms include the degree to which the underutilization of international dispute settlement mechanisms results from shortcomings in the substantive law; and, if a connection can be established, the extent to which these deficiencies can be corrected. In order to answer these questions, it is necessary to search for possible explanations as to why UNESCO Member States do not resort more frequently to existing UNESCO dispute settlement procedures. 1. Lack of political will on the part of governments is seen as the main reason for the deficiencies. States are known for their reluctance to resort to dispute settlement procedures.63 As Hans Corell pointed out, many government representatives hold the unanimous view that if there is political will to solve a dispute, there is no lack of methods.64 2. Another question is whether the process of resolving the dispute will be undertaken in light of delays and cost. A dispute settlement procedure can last several months, even years, and may come with high costs,65 in particular in connection with arbitral and judicial settlement of cases. This may also be a
61. See UNESCO Doc. 29 C/52 of 2 September 1997, Study concerning Problems and Possible Solutions Regarding the Conciliation and Good Offices Commission to be Responsible for seeking the Settlement of any Disputes which may arise between States Parties to the Convention against Discrimination in Education, Paragraph 9. 62. See http://portal.unesco.org/unesco (last visited on 16 December 2005). 63. See Lee, op. cit., p. 140. 64. See H. Corell, quoted in Dahlitz, op. cit., p. 33. 65. On the other hand, under-utilization or non-use of existing dispute settlement mechanisms may also create costs. As the Director-General emphasized in his Study on the Conciliation and Good Offices Commission (1997), what is causing problems is not the fact that the Commission has
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factor in influencing a State’s decision to avoid dispute settlement proceedings. In particular, developing countries with limited State funds are unlikely to undertake such procedures. 3. Even if Parties have agreed on a certain method of dispute settlement (e.g. negotiation, enquiry, fact-finding or arbitration), they need to further agree on organizational questions (e.g. place and frequency of meetings, membership and size of delegations, mandate, work methods, duration, termination, financial expenses, outcome, language, records, agenda, etc.). Detailed arrangements are needed. Each of these issues may raise tensions between the Parties involved and cause delays, or even block the procedure. 4. Lack of expertise may also be a reason for underutilization of DSR. States engaged in arbitration or judicial settlement will need specialized expertise to assist them in preparing for and conducting the proceedings. Since not all countries have such experts, foreign experts are often needed. 5. Another reason may be government fear of possible negative publicity. In particular, States may be reluctant to submit a case with an uncertain outcome – one typical in judicial proceedings. Moreover, any outcome is irreversible, since UNESCO treaty law contains no remedy or review mechanism. 6. Even more important is the nature of the conflict. Disputes in the field of UNESCO’s competence often touch on culture and identity, i.e. matters that are intangible and hard to define. Dispute settlement can easily fail,and may even be avoided, because Parties are afraid of cultural differences. 7. The underutilization of dispute settlement procedures may also stem from structural weaknesses in available dispute settlement instruments. One such inherent ‘weakness’ is related to the fact that means of dispute settlement in international law are normally based on voluntary submission. Generally, Parties have a right to select (or not to select) the means for settlement. They enjoy freedom of action (or non-action) in the field of peaceful settlement of disputes. Thus, if States prefer not to resort to dispute settlement, as is often the case, there is no subsidiary mechanism within UNESCO to provide for a solution. The Director-General may offer his ‘good offices’. However, the Director-General will, realistically, initiate action only if doing so will not offend any Member States, taking into account all points of view. Thus, given the primary responsibility of Member States for dispute settlement, UNESCO has no authority to replace the agreed-upon dispute settlement with any subsidiary responsibility.
never met to consider any dispute, but the costs entailed in providing services to the Commission by the General Conference, the Executive Board and the Secretariat.
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Taken together, these elements may contribute to explaining why governments rarely resort to UNESCO dispute settlement procedures.
4.3. Proposals for Reform As our brief overview has shown, a number of deficiencies exist that do not depend solely on the (political) will of the Parties, but originate in the institutional mechanisms created by them. Consequently, proposals for reform should concentrate on correcting some of these deficiencies. a) Assistance and Facilitation As was outlined above, States, especially developing countries, might be afraid of the costs resulting from utilization of dispute settlement procedures. To provide financial assistance to States in their settlement of disputes through the ICJ, the UN SecretaryGeneral established a Trust Fund in 1989.66 However, ‘the Fund does not cover cases brought to the Court pursuant to a compromissory clause contained in a bilateral or multilateral treaty. In those cases the jurisdiction of the Court may […] be contested.’67 To the extent UNESCO treaty law contains clauses with referral to the ICJ, no funding is provided. Still, the issue of assistance and facilitation, i.e. the development of necessary skills and resources, could be addressed in a more coherent way. Consent to make use of dispute settlement mechanisms might be more easily granted if the interests of the Parties were addressed by a facilitator. Training programmes might create the necessary momentum and a better climate for peaceful dispute settlement, as well. A climate of peaceful solution seeking ought to be developed as part of UNESCO’s culture of peace. b) Institutional Reform A specific institutional aspect of reform concerns the Revitalization of the Conciliation and Good Offices Commission. Among the measures advanced by the Director-General were: • a proposal to end or suspend the functions of the Commission;68 • a proposal not to submit the report envisaged in Article 19 of the Protocol until specific activities take place;69 and • a proposal that the members of the Commission shall be considered reelected for subsequent terms of office and that subsequent elections will be
66. See Terms of Reference, Guidelines, and Rules of the Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice (November 1989), reprinted in I.L.M.28, 1589 (1989). 67. See Lee, op. cit., p. 170. 68. See text of proposal I., UNESCO Doc. 29 C/52, Part III, p. 7. 69. Proposal II (see text of proposal I., UNESCO Doc. 29 C/52, Part III, p. 8, Paragraph 1).
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organized merely to fill vacancies in the cases mentioned in Article 6 of the Protocol.70 However, the reform proposals met with some scepticism. The Legal Committee expressed the view that it was not the task of the General Conference to invite the Commission to act, contrary to the provisions of the Protocol, and concluded that it would be wise ‘to suggest to the Contracting States that means of revitalizing and developing that procedure should be sought.’71 The Executive Board, in turn, stated that ‘it would seem judicious not to give effect to the proposals put forward by the Director-General in document 29 C/52 transmitted under document 152 EX/54.’72 In order to revitalize the Commission, the General Conference, at its thirty-first session, decided to convene the State Parties to the Protocol during the thirtysecond session of the General Conference, to review the Commission’s procedure. During this meeting at UNESCO Headquarters, on 7 and 8 October 2003, the representatives of State Parties decided to re-interpret specific articles of the Protocol to enable the Commission to fulfil its functions.73 In particular, four provisions of the Protocol were identified for reinterpretation: •
•
• •
Article 3, Paragraph 2: this provision should be applied flexibly to permit State Parties to submit nominations up to the day on which the General Conference elects the members of the Commission; Article 7: this article should be applied so that members of the Commission who have not been replaced at the end of their term will continue to be regarded as members until the next election, i.e. if there has been no election to a seat, the outgoing member of the Commission shall remain in office until the following election (except in the event of death, resignation or incapacity as provided in Article 6); Article 11: the election of the Chairperson or Vice-Chairperson of the Commission may be conducted by correspondence; and Article 19: finally, in the absence of any activity on its part, the Commission would not be required to submit a report to the General Conference.
70. Proposal II (see text of proposal I., UNESCO Doc. 29 C/52, Part III, p. 8, Paragraphs 2 and 3). 71. Legal Committee, Draft Fifth Report, Study Concerning Problems and Possible Solutions Regarding the Conciliation and Good Offices Commission, UNESCO Doc. 29 C/75 (29 C/ LEG/5) of 31 October 1997, Paragraph 6. 72. See UNESCO Doc. 29/C/52 of 2 September 1997, Annex. 73. See Record of the Meeting of States Parties at the 1962 Meeting of the States Parties to the Protocol, Paris 7 and 8 October 2003, available at: http://portal.unesco.org/unesco (last visited on 16 December 2005).
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In order to develop the new procedure, the Commission met on 13 and 14 October 2005, during the thirty-third General Conference, at the request of its Chairperson Margiotta-Broglio.74 After examination, the proposed amendments to the Rules of Procedure of the Commission were adopted.75 Whether this will prove to be a successful effort to revitalize the Commission remains to be seen. First of all, some of the proposals may contribute to the timely constitution of the Commission. However, the possibility of a future existence for the Commission as a ‘sleeping beauty’ – no session, no activity, and no report – seems to be anticipated (see supra, proposal concerning Article 19). Second, the fact that the election of a chairperson or vice-chairperson may take place in the complete absence of experts risks promoting ‘anonymity’ instead of trust and mutual understanding.
. Reflections on the Achievements and Impact of UNESCO Dispute Settlement 5.1. General Remark The fact that existing dispute settlement mechanisms are not used or not used frequently does not mean that they do not have any effect at all. On the contrary, the mere existence of a Commission (as in the case of the Conciliation and Good Offices Commission Responsible for Seeking the Settlement of Any Dispute that May Arise between States Parties to the Convention against Discrimination in Education) may have a deterrent effect. State Parties may fulfil the requirements of the Convention with more attention if they are aware that, in the case of conflict, an efficient dispute settlement procedure exists. The Legal Committee, when examining the 1997 Study concerning Problems and Possible Solutions regarding the Conciliation and Good Offices Commission of the Director-General thus opposed the proposal to terminate the functions of the Commission, ‘especially since its existence had an undoubted deterrent effect.’76 Consequently, UNESCO achievements in the field of dispute settlement may be viewed positively despite the fact that its instruments are rarely implemented.
74. However, it seems that not all experts were able to gather in person in Paris – a fact regretted, for example, by the German member Professor Klaus Hüfner (see Interview with Klaus Hüfner, 9 January 2006). 75. See Report of the Meeting of the Commission, 13 and 14 October 2005. 76. Legal Committee, Draft Fifth Report, UNESCO Doc. 29 C/75 (29 C/LEG/5) of 31 October 1997, Paragraph 5.
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5.2. Promotion of Peaceful Cooperation The peaceful resolution of major international disputes is essential not only to avoid conflict between governments, but also to maintain general trust, understanding and well-being in world society. All endeavours for peaceful resolution of international disputes offer an opportunity for the maintenance of peace, harmony and prosperity. In this respect, UNESCO’s dispute settlement procedures contribute not only to the development of international law, but also to the culture of peace and international cooperation. The capacity of international organizations to deal with disputes depends not only on the existence and use of dispute settlement mechanisms. Equally important is the enhanced capacity of international organizations to tolerate disputes.77 For example, with regard to Turkey’s request for the return of the Sphinx of Bogazköy, located in the Berlin Museum, a prolonged process of negotiation, in combination with good offices, has not yet resulted in any particular outcome. The Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation expressed its ‘hope that the pending request of Turkey with regard to the sphinx will be solved through bilateral negotiations.’78 The Committee also took note of the fact that bilateral negotiations took place on that issue on 19 November 2002 in Berlin, ‘without reaching a solution.’79 Therefore, the Committee invited ‘both Parties to continue comprehensive bilateral negotiations with a view to bring this issue to a mutually acceptable solution.’80 Moreover, the Committee invited the Director-General ‘to continue his good offices towards the resolution of this issue and to report to the Committee.’ The Secretariat offered to convene a meeting between the two States, if they so wished. However, no meeting has taken place thus far.81 The example illustrates the fact that it is part of the Organization’s role to encourage Parties to continue their efforts to find an amicable solution. In that respect, UNESCO contributes to the peaceful international cooperation of States.
77. See D. M. Bolb and S. S. Silbey, October 1990, Enhancing the Capacity of Organizations to Deal with Disputes, 6 Negotiating Journal 6, pp. 297-305. 78. Recommendation. No. 2, preambular part, Paragraph 7, UNESCO, Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, twelfth session (Paris, 25-28 March 2003), UNESCO Doc. 32 C/REP/15, Annex III. The same wording is to be found in UNESCO, Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, thirteenth session (Paris, 7-10 February 2005), Annex II, Recommendation No. 2. 79. Ibid., preambular part, Paragraph 8. 80. Recommendation No. 2, Paragraph 1. 81. See Report on the 2004-2005 Activities and the thirteenth session of the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation, UNESCO Doc. 33/C/REP/15 of 23 August 2005, p. 2, Paragraph 8.
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5.3. Use of DSR-related Instruments In evaluating UNESCO’s achievements in the field of dispute settlement, we should not focus on existing dispute settlement clauses only. There are a number of ‘related instruments’, i.e. instruments with no direct bearing on formal DSR, that nonetheless contain some relevant features and are therefore important in this context. One such ‘DSR-related instrument’ is the UNESCO Procedures for the Protection of Human Rights. a) Committee on Conventions and Recommendations (CR) The adoption of the Convention against Discrimination in Education made it necessary to appoint a committee to examine the reports of State Parties. Since 1994, the CR consists of 30 members, appointed by Member States, who do not serve as experts in their personal capacity.82 The communications presented to the CR concern those violations of human rights allegedly committed by States that are within UNESCO’s field of competence. Since it does not stem from a conventional instrument,83 the legal basis for the procedure of the Committee on Conventions and Recommendations is the internal law of UNESCO.84 States are legally bound to collaborate with the CR even if they don’t feel inclined to do so, in particular when the case may be controversial. Member States tend to emphasize that the Committee is not an international judiciary body. For example, Ukraine, as a Member State of the Executive Board and of the Committee on Conventions and Recommendations, held that it is ‘important to maintain the non-judicial character of the Committee.’85 A special meeting at the hundred fortyfifth session of the Committee, which considered questions relating to its method of work, also emphasized that the wording of the Executive Board’s Decision (104 EX/ Decision 3.3) and of the Committee’s decisions take ‘account of the essential fact that the CR is not a court and cannot become one.’86
82. The CR is currently (2005-2007) composed of: Afghanistan, Algeria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Benin, Brazil, Cameroon, China, Czech Republic, Ecuador, Egypt, Ethiopia, France, Guatemala, Hungary, India, Italy, Lebanon, Lithuania, Luxembourg, Mexico, Morocco, Portugal, Serbia and Montenegro, South Africa, Sri Lanka, Togo, United States of America. 83. See UNESCO Doc. 104/EX/Decision 3.3 of 26 April 1978. 84. See K. J. Partsch and K. Hüfner, UNESCO Procedures for the Protection of Human Rights, in J. Symonides (ed.), 2003, Human Rights: International Protection, Monitoring, Enforcement, UNESCO, Paris, p. 118. 85. See Executive Board, Matters Relating to the Methods of Work of the Committee on Conventions and Recommendations, UNESCO Doc. 155 EX/21, Add. (Paris, 9 October 1998), letter of Ukraine for UNESCO, Paragraph 1. 86. See Executive Board, Questions Relating to the Methods of Work of the Committee on Conventions and Recommendations, UNESCO Doc. 147/EX/19 (Paris, 16 August 1995), Paragraph 40 (with reference to Paragraph 14 (k) of 104 EX/Decision 3.3).
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Despite this clear opinion, the CR procedure concerning communications received by the Organization regarding cases and questions of violations of human rights is to some extent related to the peaceful settlement of disputes. • First of all, in the admissibility phase, the Committee ‘plays a quasi-judicial role because of the very nature of making the admissibility determination despite an explicit admonition in the UNESCO constitution against judging the conduct of nations.’87 Despite clear indications set out in the UNESCO Constitution88 and related interpretations of the Executive Board,89 whereby UNESCO is not supposed to assume a judiciary function and should give preference to a cooperative and friendly procedure, the CR might, if deemed necessary, rule against Member States. As Weissbrodt and Farley put it, the procedure adopted by the Executive Board embodies ‘notions of a quasiadjudicative process.’90 However, both authors admit that ‘[t]he Committee’s flexible mandate to seek friendly solutions has intruded on the admissibility phase’, i.e. the CR has mingled the admissibility phase and the later ‘friendly solution stage.’91 • Secondly, when considering cases, the Committee is able to use other sources of information, including the Executive Board’s competence to appoint factfinding missions. As was mentioned above, these instruments belong to the category of political settlement of disputes. • Thirdly, after each session, the CR sends the Executive Board a report on the results achieved, with summaries of the facts, the declarations of the Parties and the discussions in the Committee.92 The Executive Board examines the CR’s report in private session and decides on the recommendations of the Committee. Depending on the decision of the Executive Board, instruments of dispute settlement may come into play. It may, for instance, be demanded ‘that the Director-General follow [...] the suggestions made or entrust a member of the Board with a mission of investigation or negotiation with a government.’93 Here, the link to dispute settlement again becomes very clear.
87. See D. Weissbrod and R. Farley, 1994, The UNESCO Human Rights Procedure: An Evaluation, HRQ 16, p. 395. 88. See Article 1(3) of UNESCO’s Constitution, which states that UNESCO is prohibited from ‘intervening in matters, which are essentially within domestic jurisdiction of member States.’ 89. See also Paragraph 7 of 104 EX Decision 3.3, which states that UNESCO, ‘basing its efforts on moral considerations and its specific competence, should act in a spirit of international cooperation, conciliation and mutual understanding.’ UNESCO Decision 104 EX Decision 3.3 also recalled that UNESCO ‘should not play the role of an international judicial body.’ 90. See Weissbrodt and Farley, op. cit., p. 396. 91. Ibid., p. 398. 92. The Committee’s decisions and recommendations are only verbally transmitted; see Partsch and Hüfner, op. cit., p. 125. 93. Ibid., p. 125.
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• Moreover, both the Director-General of UNESCO and the Chairperson of the Committee on Conventions and Recommendations play an important role in mediation. They may also use their good offices by taking diplomatic steps to reach a settlement of the cases submitted to the Committee. Actually, these important contributions to the peaceful settlement of cases were emphasized by the Committee in April 2005, when the work methods of the Committee were examined under the chair Davidson Hepburn (Bahamas).94 Another example of a DSR-related instrument is the UNESCO Committee for Promoting the Return of Cultural Property. b) The UNESCO Committee for Promoting the Return of Cultural Property The UNESCO Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation was created by the UNESCO General Conference in 1978 95 as the competent body of the 1970 Convention concerning the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Despite the fact that this Committee has no jurisdictional power to rule in disputes between Parties, its functions are partly related to dispute settlement. According to Article 4 of the Statutes, the Committee is responsible, inter alia, for: • ‘seeking ways and means of facilitating bilateral negotiations for [...] restitution or return’ (Article 4, Paragraph 1); • ‘promoting multilateral and bilateral cooperation with a view to the restitution or return of cultural property to its countries of origin’ (Article 4, Paragraph 2); • ‘promoting exchanges of cultural property in accordance with the Recommendation on the International Exchange of Cultural Property’ (1976) (Article 4, Paragraph 7). As a consultative organ, the Committee can offer its good offices to facilitate bilateral negotiations for the restitution or return of cultural properties to their countries of origin. For example, the Committee offered its services in 2003 to seek a solution to the differences of opinion between Greece and the United Kingdom over the Parthenon Marbles kept at the British Museum.96 Moreover, as the scope of application for offers and requests concerning the restitution or return of cultural property is not limited to restitution requests specific to certain periods, the Committee can generally be approached with a wide range of requests, including to assist Member States in seeking resolution of disagreements relating to restitution outside of pre-established conventional frameworks.
94. See Report of the Committee on Conventions and Recommendations, Doc. 171 EX/61 (Paris, 26 April 2005), Item 27, Paragraph 23, p. 4. 95. See UNESCO Doc. 20 C/Resolutions and Corr. 4/7. 6/5, 24 October - 28 November 1978. 96. See UNESCOPRESS, Media Advisory No. 2004-24 of 24 March 2003.
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The cases pending today certainly show a close relationship between the Committee’s activities and the avoidance of disputes: • In September 1984, Greece filed a request with the UNESCO Intergovernmental Committee seeking the restitution of the Parthenon Marbles of Athens. During several sessions, in particular 1989, 1991, 1994 and 1996, the Committee adopted recommendations calling for amicable settlement of the dispute between Greece and the United Kingdom. In 1999, the Committee invited the Director-General of UNESCO to take new initiatives to encourage bilateral negotiations between Greece and the United Kingdom. • In January 1986, Turkey filed a request with the Intergovernmental Committee concerning the return of a Hittite Sphinx, currently kept at the Staatliches Museum in Berlin. The Committee encouraged bilateral negotiations and invited the Director-General to offer his support to resolve the issue. In other words, the Committee’s work is clearly related to conflict prevention. Time and energy may be saved through CR action in dealing with disputes before they develop into full-fledged interstate conflicts. Since disputes are generally difficult to deal with at the international level once they have been fully articulated, this sort of preventive work is very important.
5.4. Concluding Remarks There is growing recognition of the necessity of creating, by peaceful means, an international environment with impartial justice among participating States. Nowadays, we find a system of voluntary adjudication, which offers practical ways to deal with disputes. However, as has been shown, UNESCO Member States are not very enthusiastic about resorting to peaceful settlement of disputes. Their reasons for such lack of enthusiasm vary and, as has been shown, range from political to methodological, practical and technical or purely theoretical in nature. This chapter has highlighted the considerable flexibility of the Organization in amending existing provisions. With the help of the UNESCO Office of Legal Affairs, reform of conventions on education, science and culture has been undertaken; a very good example of such reform is the work accomplished during the thirty-third General Conference in 2005, as mentioned above. Obviously, general legal problems can be solved, provided that the required political will exists.
. Perspectives What are the future perspectives of dispute settlement in UNESCO? What possible suggestions could be made concerning dispute settlement regimes that should be adopted by UNESCO in its future conventions to ensure the efficiency of dispute resolution? Even when a convention does not contain dispute settlement or conciliation mechanisms, there is not necessarily a legal vacuum to be filled under all circumstances.
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With regard to the Convention concerning the Protection of the Cultural and Natural Heritage (1972), which does not contain any dispute settlement mechanism, it was rightly emphasized that ‘this does not necessarily imply that a lacuna exists as general international law may apply in the absence of specific provisions.’97 If, however, there is a wish to enhance the feasibility of future dispute resolution by introducing new dispute settlement clauses, each document ought to be examined thoroughly. There are various types of material obligations in conventions and different types of disputes that take place between different kinds of Parties (large/small; developing/developed; democratic or not; and so on.) As a result, different mechanisms and varied approaches will be appropriate, depending on the case. Since there is no one-size-fits-all solution, it is difficult to make suggestions concerning possible dispute settlement regimes that should be adopted by UNESCO in future conventions. Given the general tendency described here, which of late seems to promote ‘soft’ diplomatic instruments (such as mediation and conciliation) instead of judicial settlement procedures, it may be assumed that regulation of dispute settlement in future UNESCO conventions will continue along the same track. New elements that might be used more intensively in the future, at least in the view of this author, include references back to negotiations (‘back loops’); facilitation of dispute settlement; and training programmes to create the necessary momentum and climate for dispute resolution. In the view of this author, UNESCO standard-setting should also provide more often for confidential consultations, upon the request of one Member State, while setting clear time limits (e.g. a deadline by which to reply to a request after the date of receipt) with a view to obtaining a mutually satisfactory solution.98 The integration of various elements of dispute settlement and specialized dispute settlement arrangements into a coherent system of world justice is a further challenge waiting to be solved. But this might be the topic of the next – perhaps sixty-five year – UNESCO ‘jubilee’ Conference …
97. UNESCO, Convention Concerning the Protection of the World Cultural and Natural Heritage, Doc. 6 EXT.COM, WHC-03/6 EXT.COM/INF.4 D (Paris, 2 February 2003), Paragraph 17. 98. See Article 4, WTO Dispute Settlement Understanding, 15 April 1994.
PART II
FROM CONSTITUTIONAL OBJECTIVES TO LEGAL COMMITMENTS
PANEL 2
Promoting a Peace Founded on Intellectual and Moral Solidarity
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Introduction Francesco Francioni
Solidarity is one of the most fundamental human values. It connects us to the vicissitudes of other human beings; it permits spontaneous participation in the collective effort needed to shoulder misfortune and danger for which self-help is simply inadequate; it underlies the sense of common purpose needed to build and preserve a cohesive society. In a word, it captures the essence of our shared humanity. It is no wonder then that this concept figures so prominently in the title of this Panel, i.e. ‘Promoting a Peace Founded on Intellectual and Moral Solidarity.’ The three topics to be addressed in this Panel – knowledge, the ethics of science and cultural diversity – represent three different aspects of the role solidarity can play in the context of international law. But, most important, they also represent three distinct but interconnected facets of the action developed by UNESCO in its mission to promote science, culture and education as the basic pillars of a stable peace among nations. It is hardly necessary to recall here the celebrated fifth preambular sentence of the UNESCO Constitution, which proclaims that: a peace based exclusively upon the political and economic arrangements of governments would not be a peace which could secure the unanimous, lasting and sincere support of the peoples of the world, and that peace must therefore be founded, if it is not to fail, upon the intellectual and moral solidarity of mankind. In opposition to this fundamental thought, which was to be the basis of UNESCO’s mission sixty years ago, our epoch seems to be dominated by another thought (or nonthought), that is, competition and rivalry among individuals, peoples and nations as the key to greater efficiency, economic growth and progress. Of course competition is an essential dimension of human freedom. It is a vital force in the development of talent, new scientific discoveries and new technology. But in the end an idea of progress that is divorced from improvement of the moral, intellectual and cultural conditions of humanity and from the quality of the natural environment that sustains our life would be a very imperfect idea indeed.
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And thus we are back to solidarity. Of the three strands of solidarity explored in this Panel, the first one concerns the moral implications of new developments in genetic science and technology. Today, this field has become the battleground for conflicting opinions as to whether there should be a maximum of freedom for scientific research and technological experimentation or whether strict regulation is necessary to safeguard fundamental ethical and religious beliefs and respect for life. The role of UNESCO in promoting a morally grounded concept of human solidarity in this field has been remarkable. It has mobilized not only the representatives of different States and cultures at the governmental level, but also scientists, members of national bioethic committees and representatives of civil society, with a view to setting universally acceptable standards that may reconcile freedom of scientific research, progress in the life sciences, and fundamental principles of human dignity. The path followed by UNESCO in the pursuit of this task is carefully mapped out by Ambassador Gros Espiell in his chapter on human rights, human genetics and the ethics of science and technology. His in-depth analysis of solidarity in connection with this topic provides a comprehensive picture of the implications of the principle as it concerns correct governance of genetic science and technology. He carefully traces the developments of the standard-setting activity of UNESCO in this field, from the early 1974 Recommendation on the Condition of Researchers and Scientists to recent declarations, notably the 1997 Universal Declaration on the Human Genome and Human Rights, the 2003 Declaration on Human Genetic Data and the 2005 Universal Declaration on Bioethics and Human Rights.1 In the view of the author, these instruments are interconnected not only in their content and purpose, but also in their normative force, because they are all an expression of the fundamental commitment of the UN Charter and the 1948 Universal Declaration of respect and protection of human rights.2 The second strand developed in the Panel concerns intellectual solidarity. The excellent contribution by Professor Okediji touches upon the sensitive topic of copyright, an important legal device in the protection of the moral and material interests resulting from scientific, literary and artistic production, as recognized by Article 15 of the UN Covenant on Economic, Social and Cultural Rights.3 Solidarity in this field consists in finding a proper balance between the private and public interests promoted by intellectual property rights and the general interest of humanity in having access to a pool of open knowledge for the purpose of education and scientific and cultural exchange. Professor Okediji provides a careful analysis of UNESCO’s contribution, through its standard-setting action, to the progressive development of this important area of the law and to the consideration of the special needs of developing countries. The third contribution in this Panel, by Professor Wouters and Mr Vidal, addresses the timely topic of the promotion of cultural exchange and cultural diversity in a world increasingly obsessed with the search for identity and cultural specificity as an antidote to
1. All UNESCO standard-setting instruments are available at: http://www.unesco.org 2. See Universal Declaration of Human Rights, U.N. G.A. Res. 217A (III), Doc. A/ 810 (1948). 3. 993UNTS 3.
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the levelling effects of globalization, yet haunted by the spectre of the clash of civilizations. The role of UNESCO in this field has been decisive, providing the proverbial ‘cutting edge’ in the development of more inclusive forms of protection of cultural heritage. One need only recall the recent 2003 Convention on the Safeguarding of Intangible Cultural Heritage, which expands the sphere of international protection from traditional corporeal cultural objects to the immaterial manifestations of human creativity, such as oral heritage, theatre, music, folk-life and traditional skills and knowledge. In 2005, a holistic approach to this subject led to the adoption of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which, as its name suggests, aims at safeguarding and promoting not a specific form of cultural expression but the value of diversity and representativity of cultural expressions around the world. It is interesting that the Convention goes so far as to recognize in its Preamble that cultural diversity is the common heritage of humanity. One might detect an oxymoron here, since diversity is hardly compatible with the idea of commonality. But, beyond this conceptual difficulty, what is clear is that UNESCO has proclaimed the preservation and promotion of the diversity of cultural expressions as a goal of general interest to humanity. The authors capture this feature of the Convention and recognize that UNESCO’s work ‘has freed the protection and promotion of cultural diversity, like the preservation of cultural heritage, from the realm of State sovereignty and raised it to the international sphere.’4 Nevertheless, they realistically concede that, as a legal tool, the new Convention may be too weak to counterbalance the powerful market forces unleashed by the global trade arrangements of the World Trade Organization. Thus, the work is not finished: more standard-setting initiatives may be required and political action necessary to enhance the value of intellectual and moral solidarity in a competitive world. So, happy sixtieth birthday! And long life to UNESCO!
4. See Panel 5.
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An Enduring Legacy For the Knowledge Economy: UNESCO and the International Copyright System Ruth L. Okediji*
. Introduction A decade after the conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement),1 most academic commentary and policy analyses of the international copyright system still regard this landmark Treaty as the primary source of global copyright norms. This is the case not only because TRIPS represented such a radical alteration of the historical pattern of international copyright lawmaking,2 but also because the mandatory nature of its substantive obligations, combined with the collateral
* The author wishes to express her gratitude to the organizers of the Symposium ‘UNESCO: Sixty Years of Standard-setting in Education, Science and Culture’, 9-10 March 2006, for having invited her to participate in such an important celebration. Mary Rumsey and Tomas Felcman provided excellent research assistance in the preparation of the present chapter. 1. See Marrakesh Agreement Establishing the World Trade Organization, Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, I.L.M. 33, 81 (1994) (hereinafter: TRIPS Agreement). 2. There is an extensive literature on the impact of the TRIPS Agreement on the doctrine, practice, politics and economics of international copyright law. Examples of leading works include J. H. Reichman, 1996-97, From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement, NYU J. Int’l L. & Pol 29, p. 11; R. L. Gana, 1996, Prospects for Developing Countries under the TRIPS Agreement, Vand. J. of Transnation’l L. 29, p. 735; J. H. Reichman, Universal Minimum Standards of Intellectual Property Protection Under the TRIPS Component of the WTO Agreement, in C. M. Correa and A. A. Yusuf (eds.), 1998, Intellectual Property and International Trade: The TRIPS Agreement, London/Cambridge, p. 21; J. C. Ginsburg, 2000, International Copyright: From a ‘Bundle’ of National Copyright Laws to a Supranational Code?, J. Copyr. Soc’y 47, p. 265.
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pressure of economic sanctions, compels assumptions that prioritize the normative role of the treaty’s copyright provisions.3 Specifically, the ascendancy of TRIPS over other multilateral sources of global copyright law can be justified first by its extensive membership4 and, second, by the promise of enforcement by a body vested with authority to interpret, apply and enforce the negotiated standards via the World Trade Organization’s dispute settlement process.5 The antecedents to the TRIPS Agreement could not have persuasively claimed both of these features. As Article 30 of the Vienna Convention6 prescribes, the most recent treaty on a subject prevails over all other pre-existing agreements on the same subject matter between Member States, unless the treaty otherwise provides. This principle alone would have caused TRIPS to supersede previous copyright agreements to the extent they represented the same Members. But this was not, in fact, the case: the TRIPS Agreement gives expression to an induced unity of States that previously belonged to different copyright regimes and, in some cases, different iterations of the same regime. TRIPS did not develop in a vacuum; and its primacy in contemporary copyright relations may well be justified by its instrumental role in establishing coherent coordination of copyright principles that must encompass the vast majority of the global community. In this chapter, I identify and analyze the ongoing effect of the work done by UNESCO in creating a legal framework conducive to knowledge-creation and dissemination. I describe how this role helped to establish a foundation for a more textured and inclusive theoretical framework for the protection of literary and artistic works in the community of States. I highlight the important normative influence UNESCO’s activities have brought to bear upon the current international environment, and the significance of its collateral work in shaping the contours of the emerging discourse on access to knowledge.
3. For discussions of the role of the DSU on TRIPS obligations and/or interpretations of substantive copyright norms, see, e.g., R. Cooper Dreyfuss and A. F. Lowenfeld, 1997, Two Achievements of the Uruguay Round: Putting TRIPS and Dispute Settlement Together, Va. J. of Int’l. L. 37, p. 275; N. Netanel, 1997, The Next Round: The Impact of the WIPO Copyright Treaty on TRIPS Dispute Settlement, Va. J. Int’l L. 37, p. 441; R. Okediji, 2001, TRIPS Dispute Settlement and the Sources of International Copyright Law, J. of the Copyr. Soc’y 49, p. 585. For an analysis of the DSU process with specific regard to TRIPS disputes, see R. L. Okediji, Rules of Power in an Age of Law: Process Opportunism and TRIPS Dispute Settlement, in E. Kwan Choi and J. C. Hartigan (eds.), 2005, Handbook of International Trade, Vol. II, pp. 42 ff. 4. The ‘single package’ principle of the Uruguay Round induced an unprecedented number of signatories to the Berne Convention. As of December 2006, 163 countries are Members of the Berne Convention. Of this number, 60 countries or 37% joined the Berne Convention in or after 1994: see http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15 (last visited on 16 October 2006). 5. See Agreement Establishing the World Trade Organization, Annex 2: Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, I.L.M.33, 1226 (1994) (hereinafter: DSU). 6. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.
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. Norms, Standards and Copyright Regulation under UNESCO Since 1952, international copyright relations have been governed by two copyright treaties that established the legal framework for the cross-border treatment of literary and artistic works. These are the 1886 Berne Convention for the Protection of Literary and Artistic Works (Berne Convention),7 administered by the World Intellectual Property Organization (WIPO), and the Universal Copyright Convention (UCC),8 administered by UNESCO. The Berne Convention had its roots in the cooperative efforts of a small group of nations at relatively similar levels of economic development, with shared histories, and with mutually identifiable gains to be obtained from extending reciprocal benefits to literary and artistic works of foreign authors.9 In the context of the Berne negotiations, challenges to the harmonization of copyright rules derived mainly from politico-cultural considerations reflecting sovereign priorities, rather than deep-seated distrust and/or different perspectives on the general principle of granting exclusive rights for creative expression. Put differently, the ‘cultural’ challenges articulated during the Berne Convention negotiations addressed endogenous variations of the form of protection but were by no means a testament to a feeling that the proposed set of rules had no significance or relation to the socio-economic and cultural life of the nations involved. The UCC, which emerged almost seven decades later, had the much larger task in the context of a more complex socio-political international environment of building consensus on how best to promote cooperation in the field of copyright. UNESCO’s task was to devise a global standard for the protection of literary and artistic works suitable for countries at varying levels of economic development, with different cultural, legal and political systems, spread across a much larger geographical space than the Berne Convention had ever reached.10 The goal was the creation of a framework for encouraging the creation, protection and dissemination of copyrighted works that could embrace a broad spectrum of peoples, and mediate between distinct doctrinal approaches that were outgrowths of two different legal systems, namely the French droit d’auteur and the British Statute of Anne rooted in the common law. Both systems had a profound influence on the perspectives of former colonies, which were important new actors in the global environment in which UNESCO’s charge had to be carried out.
7. Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as last revised 24 July 1971, 828 UNTS 221. 8. Universal Copyright Convention, Geneva, 6 September 1952, 216 UNTS 132, revised in Paris, 24 July 1971, 25 U.S.T. 1341. 9. See S. Ricketson, , The Berne Convention for the Protection of Literary and Artistic works: 1886-1986, London, chapters 1, 2 and 3 (describing the origins of the Berne Convention). 10. By 1948, the Berne Convention (Brussels Act) had only 39 Member States (see supra, note 4). Although the Convention had spread beyond Europe, its basic premise was the droit d’auteur system, which meant a high level of protection for authors. Its Member countries still shared more or less similar levels of economic development.
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By focusing on the interstices of the Berne Convention and the various pan-American copyright conventions also in place,11 it might have appeared that UNESCO’s work would lack any connection to earlier multilateral agreements. But the implicit premise for crafting a new and different global copyright protection remained the principle that the protection of creative endeavour is a justifiable means to facilitate the creation and distribution of knowledge. In other words, UNESCO itself adhered to the chief organizing principle behind copyright, namely, that in the absence of proprietary rights there might be insufficient generation of knowledge and knowledge-based goods. Put differently, the idea that property rights constitute a necessary and/or appropriate incentive to encourage creative endeavour and facilitate its widest dissemination was woven into the fabric of the UCC. Unlike its counterparts, however, the UCC was negotiated in an explicit normative context that reflected UNESCO’s institutional conception of an international copyright regime that would represent more than just a set of legal rules for the market-based regulation of knowledge. The centripetal force of the UCC came from a general United Nations principle that robust exchange of ideas, exposure to various cultures, and opportunities to embrace values from other regions were a fundamental component of facilitating a more stable and just cooperation among nations.12
2.1. Culture, Copyright and Cooperation The fact that copyright matters in UNESCO are addressed under the broad auspices of the culture programme13 highlights two critical, but often overlooked facets of UNESCO’s efforts. First is the fact that the development, organization and management of copyright among nations reflect primarily and foremost cultural considerations. The UCC has its place in history as the first international agreement that explicitly and deliberately seeks to bridge divides among the different economic, cultural and political priorities of States as these are embodied in their domestic copyright laws. The content of the first iteration of the UCC in 1952 manifested this multicultural design in some ingenuous ways. For example, the UCC eschewed rigid doctrinal categorizations or definitions of the topics addressed, and instead favored the use of standards to guide the decisions of Member States. Looking back over half a century later, this strategic decision, like several others by
11. The pan-American copyright conventions were important precursors to the UCC. The first multinational agreement aimed at establishing a pan-American copyright system was the Montevideo Convention, which developed almost contemporaneously with the Berne Convention in 1889. The Montevideo Convention was open to all countries and was ratified by many American States and European countries. This was followed by the Mexico City Convention in 1902, the Rio de Janeiro Convention in 1906, the Buenos Aires Convention in 1910, the Havana Convention in 1928 and the Washington Convention in 1948. The requirement of no formalities in the Washington Convention led to U.S. refusal to ratify. The UCC thus came to serve what I call a ‘coordinating’ function to govern copyright relations between Latin America and the U.S., and between these two and the Berne Convention. 12. See A. Bogsch, , The Law of Copyright under the Universal Convention, 3rd edn., New York. 13. Culture is one of the five principal fields on which UNESCO’s work is focused. The others are education, the natural sciences, the social and human sciences, and communication.
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UNESCO, foreshadowed the current controversy about the limitations of copyright law in addressing the forms of creative expression in non-Western societies. Briefly, the rigidity with which TRIPS regulates the substantive content of the domestic laws of Member States may aid harmonization of copyright rules in a technical sense, but, as commentators have observed, it will ultimately limit the diversity of expression, for it constrains the resources easily available and accessible to authors. Consequently, instead of recognizing inherent value of the exercise of sovereign discretion to apply copyright norms in domestically meaningful ways, harnessing such discretion to one purportedly immutable rule – whatever that rule may be – sterilizes the robust possibilities that exist for human creativity. There is nothing ineluctable or inherently ‘right’ (or ‘scientific’) about the doctrines of copyright law embodied in today’s leading treaties. Legal definitions of copyrightable subject matter, determinations of the rights to be protected, of the scope and duration of such protection are all imbued with cultural values of one kind or another.14 Indeed, the most pivotal of the fault lines in the design of international copyright regimes by developed countries has been the cultural divide over moral rights for authors. This was one of the issues, for example, that kept the United States outside of the Berne Convention for over a century. The issue of mandatory protection of moral rights arose again during negotiations for the TRIPS Agreement and remains a source of tension between the United States of America and Europe.15 It is not simply a technical, legal difference, but one that reflects differences in the social and cultural identity of States. To the extent UNESCO is concerned with the study and dissemination of cultures, and in particular cultural development and preservation of cultural identity, important work remains to be done to ensure that copyright laws do not hinder, discriminate against or otherwise prejudice forms of cultural expression that originate in the histories of nation-states not originally involved in the creation of the modern copyright system. For example, the international controversy over traditional knowledge may have been less divisive had the UCC’s general formulation of works protected been adopted as the universal standard. That formulation stated: ‘[e]ach Contracting Party undertakes to provide for the adequate and effective protection of the rights of authors and other copyright proprietors in literary, scientific and artistic works including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture.’ As conceived by its drafters, Article I of the UCC was intentionally broad to avoid the scope of protection from being interpreted in a limited fashion. A second point about culture and copyright with regard to UNESCO’s role in standard-setting is the importance of culture in absorbing knowledge and information. As I argue below, the freedom and ability to translate copyrighted works are integral to the dissemination of knowledge and information about and from other cultures. But
14. See, generally, R. L. Gana, 1995, Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property, Denver J. Of Int’l L. & Pol’y 24, p. . 15. In a recent case, the United States Supreme Court made clear that moral rights have a very limited role in U.S. jurisprudence, notwithstanding adherence to the Berne Convention. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).
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the manner of translating and disseminating works within distinct cultural milieux is a critical task facing global society today. The right of translation in copyright law tends to be conceived mainly as the technique of converting one language into another. However, it is important for copyright purposes and beyond to understand translation as an activity necessitating, at times, the creation of alternative forms of a work – such as communicating a literary work in music or as drama – in order to facilitate absorption, and thereby enhance the utility of that knowledge in a different cultural context. The legal ability to engage in such ‘translation’, however, is dependent on two, not one, copyright rights:16 the right to translate and the right to make a derivative work. While all current international copyright treaties have provisions dealing with limitations on the author’s exclusive right to translate, it is widely accepted that these limitations have not been a successful means to encourage the availability of works in different languages. Translation ought to encompass more than just language. Current limitations imposed on users through the agency of copyright do not accommodate such a liberal conception, however. A third point is critical in linking UNESCO’s concern with culture and its work in the areas of education and literacy. Despite massive efforts by UNESCO and other international organizations, literacy rates, innovation rates and levels of basic education remain unacceptably low in the vast majority of the world. In particular, as is well known, the disproportionate burden of underdevelopment of human capacity tends to fall on women and children. Proprietary rights in knowledge and knowledge-based products raise the costs of access to knowledge for many in the poorer parts of the world. Yet it must not be overlooked that cultural mores may also exacerbate the problem of access to knowledge. Cultural development, education and knowledge dissemination are all integrally linked to and affected by the regulation of copyright in the global economy. It is an important contribution that UNESCO’s work integrates these various components and forces an examination of how human capacity can be enhanced in a socially relevant, holistic manner even within the constraints of a harmonized copyright order.17
. Building From History: UNESCO’s Standards and Multiple Regimes The UCC did not ignore those countries whose experiences had produced the historic Berne Convention. Instead, the design of the UCC included mechanisms to permit the two copyright regimes to coexist, which they did successfully for over forty years. In the wake of the TRIPS Agreement, which incorporated the Berne Convention as its substantive copyright regime, many scholars have concluded that the UCC is no longer
16. In some jurisdictions, the right to translate is part of the right to make a derivative work. In other jurisdictions, these are two distinct rights. 17. See Appendices B and C below for a list of UNESCO’s copyright instruments and its key instruments on culture.
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of any legal importance. Some may go further to suggest that its normative legacy has been lost in the pervasive commodification of knowledge, through the emphasis on economic value and private (rather than public) interest that now permeates the Berne Convention as modified by TRIPS.18 Of course, by the time of its revision in 1971, the UCC also showed more concern for the economic rights of authors. This was explicitly stated in Article IVbis, which defined the rights in Article I to include ‘the basic rights ensuring the author’s economic interests, including the exclusive right to authorize reproduction by any means, public performance and broadcasting.’ The dual pressures of commodification and privatization in the regulation of access to knowledge-based goods have been reinforced through the protection of technological measures by the WIPO Copyright Treaty (WCT)19 and the WIPO Performers and Phonograms Treaty (WPPT),20 both of which entered into force after the TRIPS Agreement. Yet the recent and increasingly extensive critiques of the broad impact of proprietary rights on information products, both literary and scientific, strongly suggest that UNESCO’s approach to the regulation of knowledge, including the standards it established in the UCC, again proved to be the more enduring path.
3.1. The UCC’s Reversionary Force From Europe to the Americas and the United States, a strong grass-roots social movement has emerged to challenge the use of technological measures to restrict access to information, data and knowledge. A substantial part of the concerns expressed by scholars, policy-makers and others about the impact of technology has revolved around the systemic costs of legalizing the private control of knowledge and information. In this regard, UNESCO’s legacy is visible in at least four major aspects of the current arguments to reconstruct the international copyright system: a) the preservation of the public domain; b) the consideration given to the needs, priorities and interests of developing countries; c) the possibility of a non-uniform global copyright system; and d) the importance of integrating copyright in a broader social context. a) The UCC’s Legacy and the Public Domain The existence of the Berne Convention was a significant challenge to the development of a new multilateral copyright treaty. In devising a means to support the Berne Convention, while nonetheless advancing the objectives of the UCC, a coordinated effort ensued between UNESCO and WIPO to secure the integrity of the Berne Convention. The outcome of this collaboration was the Berne Safeguard Clause, a provision which precluded Members of the Berne Convention from ratifying the UCC and claiming its
18. See Netanel, supra, note 3. 19. WIPO Copyright Treaty, 20 December 1996, I.L.M. 36, 65 (1997). 20. WIPO Performances and Phonograms Treaty, 20 December 1996, I.L.M. 36, 76 (1997).
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level of protection in Berne Convention countries.21 Berne Convention Members had to remain within the Berne Convention system or risk losing all copyright protection afforded under both multilateral treaties. The second major challenge faced by UNESCO in moving forward with the UCC had to do with the level of protection afforded by the treaty, specifically with respect to duration of protection. The question of copyright protection is particularly important in the preservation of a robust public domain. The public domain22 has been described as ‘the opposite of property’,23 amounting to a range of material containing knowledge, data and information that is legally unprotected, and thus free and available for all to use.24 While the public domain includes elements such as facts and other non-copyrightable items, works whose copyright has expired constitute a significant portion of the public domain. Thus, the duration of copyright strongly correlates with the accessibility of knowledge and information. The UCC initially imposed a minimum protection of twenty-five years, with the possibility of even shorter terms, depending on the date of first publication for certain categories of works. For example, photographs could be protected for no less than ten years. Interestingly, the UCC made exceptions to accommodate the peculiarities of its Members’ treatment of duration. Although this was the case only with respect to one country, the United States of America, it nonetheless demonstrated that even within international instruments there could be flexibility in dealing with unique or distinct aspects of the domestic needs of Member States. Today, the international minimum duration is a function of the life of the author plus fifty years. In practice, however, this minimum in many major countries is equal to the life of the author plus seventy years. Most economists and legal scholars have argued that such extensive terms of protection for literary and artistic works have a negative effect on future generations of artists, an anti-competitive effect on downstream innovators, and cannot be justified by any normative principle underlying copyright law. Ironically, one of the objections posed to including traditional knowledge in the mainstream subjects of intellectual property was the claim that such knowledge has no term limit under the indigenous cultures in which it is generated. It has not escaped the scrutiny of several scholars that higher terms of protection of copyrighted works in the developed world bring copyright and traditional knowledge protection closer in terms of legal regulation. Other aspects of the first iteration of the UCC were important to the notion of public domain as we know it today. As mentioned earlier, rather than listing works that must be protected by copyright, Article I of the UCC adopted a general formula, which arguably gave Members some flexibility in infusing with substantive content categories of works that might have particular cultural significance in a given territory. In a similar vein, the
21. See UCC, supra note 9, Article XVII and Appendix Declaration. Of course, this was also necessary to avoid the operative force of the Vienna Convention rules regarding priority of treaties. 22. It is notable that the UCC was the first and only multilateral agreement even to use the words ‘public domain.’ See ibid., Article VII. 23. See J. Boyle, 2003, Foreword: The Opposite of Property?, Law & Contemp. Probs 66, pp. 1 ff. 24. See generally J. Litman, 1990, The Public Domain, Emory L. J. 39, p. 965.
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UCC mediated the issue of formalities by setting a baseline that was acceptable to all States. This baseline consisted of a minimal notice requirement for all copies of published works, denominated by the symbol ©, followed by the name of the copyright proprietor and year of first publication.25 As in the case of duration, the UCC once again left it to the States to regulate differently the formalities required for the protection of the works of their nationals or works first published in their territories. Unlike duration, the role of formalities in promoting access to knowledge is less direct, but nonetheless also significant. Formalities such as notice facilitate the use of copyrighted works by providing users with information about the author, and enable users to determine whether copyright is claimed for a particular work and whether it has expired. A ‘no formalities’ regime has the tendency of raising transaction costs for use of the works because the public has no easy means to communicate with the author and is more dependent on private information as to whether the work is still protected by copyright. In a regime without formalities, the difficulty in determining the status of a work and/or of obtaining permission leads to a presumption against the public domain, in that it is safer (in the absence of information) to assume that the work is still protected and to refrain from using it in a way that might incur liability. b) Addressing the Needs, Priorities and Interests of Developing Countries The original UCC dealt expressly with only one right accorded to authors: the exclusive right of translation. Authors had the exclusive right to translate or authorize translation of their works, but the UCC subjected this right to a compulsory license, which could be imposed on a Member State after a seven-year period from first publication unless a translation by the author had been published within that time frame. In effect, this gave only a seven-year term of exclusive protection for the translation right. Two things stand out regarding the isolated treatment of translation rights. First is the accuracy with which UNESCO identified this right as being the most important one for facilitating access to knowledge and exposure to different cultures. Translation into another language serves not only an important educational function, but also helps preservation. By facilitating translation, the UCC made significant contributions to the ability of small ethnic groups and countries, as well as of minorities, to preserve their history and culture, and to communicate that culture to the outside world. UCC’s focus on the translation right also exhibited a fundamental difference: it was an instrument structured not around the economies of market-based institutions engaged in the production of knowledge and information (largely represented by the reproduction right), but rather around one that interfered with the market for production in an area where there was most likely to be market failure. Notwithstanding the controversy about compulsory licensing as a mechanism for access to knowledge-based goods, economies of scale, high transaction costs, and other barriers to entry likely mean that certain peoples and countries will be deprived of substantive access because the economic gain of
25. These notice requirements still exist in United States copyright law with respect to United States works. While notice is no longer a condition of protection, the United States copyright scheme offers incentives for compliance with its formalities.
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Normative Action in Education, Science and Culture
publishing for such a small group does not normally justify the costs.26 Thus, the UCC, in limiting the term of protection for the translation right, set the stage for the adoption by the Berne Convention, almost twenty years later, of a compulsory license regime meant to benefit developing countries. In short, the UCC altered the conception of international copyright by signaling that the rights and economic interests of authors were subject to regulation for a greater public and human good. Despite the limited practical success of compulsory licensing under the UCC27 and the Berne Convention, the fact remains that the very idea of compulsory licensing has gained some legitimacy within the international copyright system, and offers an important potential mechanism for making material available to a greater number of people. c) The Possibility of a Non-Uniform Global Regime The successful coexistence of the UCC and the Berne Convention illustrates that different accommodations of the needs of countries form a feasible alternative to a universal regime. Indeed, the specific goal of the UCC was not to create a uniform law, but to work with diverse national systems, divergent interests and competing priorities to develop a workable international agreement. Despite critical assessments that the UCC was unsuccessful and relatively marginal in the world of global copyright relations, history suggests that but for the UCC’s role in coordinating significant geopolitical divisions in the post-colonial era, the possibility of an agreement on TRIPS would have been much further removed; and the on-going negotiation for supra-harmonization of intellectual property rights might not have the traction witnessed in this era. The UCC brought the world together in a way that was unparalleled in copyright relations. Today, only two members of the UCC, Cambodia and Laos People’s Democratic Republic, have not yet joined the Berne Convention. It was only after the conclusion of the TRIPS Agreement in 1994 that fifty-eight of the one hundred thirty Members of the WTO joined the Berne Convention. All of these countries were Members of the UCC. Thus, for much of the twentieth century, the UCC was a significant, stable force in international copyright law. While the legal significance of the UCC has diminished in light of the TRIPS Agreement, the standards set by the UCC and, more broadly, UNESCO’s cultural programme continue to influence copyright relations in unanticipated ways. In addition to the fact that several innovations with roots in the UCC remain part of the WTO system today, including the exclusion of moral rights and the possibility of compulsory licenses, the dual existence of the UCC and the Berne Convention shows that countries can benefit from having two distinctly different regimes governing the same subject matter. Consider, for example, that least-developed countries were recently
26. See R. Okediji, Sustainable Access to Copyrighted Digital Information Works in Developing Countries, in J. Reichman and K. Maskus (eds.), 2005, International Public Goods & Transfer of Technology Under a Globalized Intellectual Property Regime, Cambridge, pp. 142 ff. 27. Some observers to the 1952 UCC noted that the conditions for using the compulsory license were so high that it was unlikely ever to be used. See, e.g., H. Finkelstein, Right of Translation: Article V of the Universal Copyright Convention, in T. R. Kupferman and M. Foner (eds.), 1955, Universal Copyright Convention Analyzed, New York, p. 57.
An Enduring Legacy For the Knowledge Economy 123
given an extension before implementing the TRIPS Agreement.28 The relevant international copyright law governing these countries could be the UCC to the extent they did not join the Berne Convention, as some in fact did not. In other words, WTO extension did not result in a regime without copyright protection because an alternative regime exists to fill in possible gaps. The very fact that it was recognized that countries must reach a certain stage of economic development before strong intellectual property rights can meaningfully contribute to their economy reinforces the prescience of UNESCO’s vision in 1952, in creating a Convention with levels of protection conducive to the development of countries at different stages of economic growth. d) The Importance of Integrating Copyright into a Broader Institutional Context By the second (and last) revision of the UCC in 1971, the integration of developing countries into the international copyright system had become a major global issue. Both the Berne Convention and the revised UCC sought to deal with the assimilation of developing countries into the international system as sovereign States, by considering exceptions to the general rules of exclusive protection for copyrighted works. The Berne Appendix, consisting of compulsory licenses dealing with translation rights and educational issues, was adopted under the Berne Convention. The revised UCC retained the compulsory license system, adding modifications aimed at developing countries.29 But the most important issue, that of the sharing of knowledge and its dissemination, arose with the limited exceptions afforded for educational purposes. Unlike the Berne Convention, the UCC did not have explicit exceptions to copyright for educational purposes, although the compulsory license scheme was certainly directed, at least in part, at educational concerns. Instead, UNESCO adopted ‘soft law’ instruments, i.e. non-binding instruments that encourage States to create an environment conducive to meeting educational needs around the world.30 Importantly, these instruments oblige accepting States to focus on the structural environment necessary to make access to knowledge a practically meaningful experience for citizens. UNESCO has thus focused in this realm on non-binding instruments that encourage Members to participate in creating an international standard. As a matter of institutional innovation, UNESCO was, again, ahead of its time in this regard. Many of UNESCO’s soft law instruments were developed in the late 1940s, at a time when treaty law was considered the only legitimate and certainly most important source of international law. In recent years, however, ‘soft instruments’, such as declarations and recommendations, have been utilized by a wide array of international organizations. These instruments are recognized as an important source of international law and have often been more successful in securing State compliance than the ‘hard law’ embodied in treaties. This has been the case, for example, in the area of environmental law.
28. See WTO, 2005 Press Releases, Poorest Countries Given More Time to Apply Intellectual Property Rrules’, 29 November 2005, available at: http://www.wto.org/English/news_e/pres05_ e/pr424_e.htm (last visited on 29 June 2006). 29. See Article Vbis, Vter, Vquater. 30. See Appendices B and C.
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Normative Action in Education, Science and Culture
UNESCO’s Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character31 facilitates the free flow of educational, scientific and cultural audio-visual materials between nations by providing favorable import treatment through the elimination or reduction of import duties, licenses, taxes or restrictions. Participating governments, thirty-seven in total, facilitate this favorable import treatment through the issuance or authentication of a certificate that the audio-visual material for which favorable treatment is sought conforms to criteria set forth in the Agreement. This Agreement is exceptional and in many regards unprecedented because it is a trade issue (involving tariffs) that, but for this Agreement, could hinder access to knowledge in far greater ways than the most restrictive copyright code. Under Articles 1 and 7 of the Convention concerning the International Exchange of Publications,32 the forty-seven contracting States ‘undertake to encourage and facilitate the [duty-free] exchange of publications between both governmental bodies and nongovernmental institutions of an educational, scientific and technical, or cultural nature, which are non-profit-making in character.’ Similarly, under the Convention concerning the Exchange of Official Publications and Government Documents between States,33 the fifty-one contracting States, in Articles 1 and 9, expressed ‘their willingness to exchange [dutyfree] their official publications and government documents, on a reciprocal basis, in accordance with the provisions of the Convention.’ These provisions have symbolic and normative importance for facilitating access to knowledge in ways that are likely more meaningful than those provided by the copyright regime. It is important to note, for example, that governments are responsible for producing and generating a significant amount of data and information. The Convention would help to stimulate governments to engage in data flows that benefit poorer countries, especially with regard to public health information, weather and scientific knowledge. Ironically, however, exchanges under this Convention, limited as they are, flow almost entirely between developed countries. Finland, Germany, Great Britain and Japan appear to be the most active participants in the Convention. This situation should be remedied: developing countries should take more active steps to participate in these beneficial agreements, while developed countries should be encouraged to participate. One possible improvement could be for UNESCO to consider a protocol establishing the nature of publications due for exchange and to provide further clarification of the Convention, thereby eliminating
31. UNESCO, Agreement For Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character with Protocol of Signature and model form of certificate provided for in Article IV of the above-mentioned Agreement (Beirut, 10 December 1948), available at: http://portal.unesco.org (last visited on 16 December 2006). 32. UNESCO Convention concerning the International Exchange of Publications (Paris, 3 December 1958), available at: http://portal.unesco.org (last visited on 16 December 2006). 33. UNESCO Convention concerning the Exchange of Official Publications and Government Documents between States (Paris, 5 December 1958), available at: http://portal.unesco.org (last visited on 31 December 2006).
An Enduring Legacy For the Knowledge Economy 125
the bilateral agreements currently necessary to set in motion the exchanges between individual Contracting States. Despite the shortcomings in implementation, however, the normative impact of these instruments should not be understated. They communicate a value of openness and sharing to counterbalance the more dominant copyright regime.
. Concluding Remarks Since its founding in 1945, UNESCO has confronted the monumental task of establishing legal, institutional and policy standards that might form an axis around which basic human capacity could be improved through enhanced access to knowledge. Recent movements to open up knowledge markets to all regions of the world, in part by reconstructing the international intellectual property system, have their foundation in UNESCO’s global leadership in the field of education, science and culture. Access to knowledge, or ‘A2K’ as this movement is now popularly known, encapsulates the breadth of UNESCO’s work in addressing the structural production of knowledge through copyright law, as well as the creation, dissemination, assimilation and preservation of informal forms of knowledge through its attention to culture and cultural artifacts. The contemporary A2K movement, in extending its critique and proposals beyond the legal standards governing the commodification of knowledge, to the economic, technological and institutional contexts that impinge on knowledge markets, is evidence that UNESCO, at its very founding, propitiously identified what was, is and will remain the indispensable element of social and economic development, namely, the regulation of knowledge. UNESCO’s success in bringing the UCC into existence set a standard that remains exceptionally valuable today. This standard shows that legal norms are most successful and stable when they reflect the interests of a broad range of people; that it is possible for different legal regimes to coexist; and that legal standards can and should be integrated in formal and informal ways to secure a coherent environment in which human institutions can flourish and be productive. The legacy of the UCC also teaches us that it is possible, with sufficient commitment, to create an international copyright system that is calibrated to the different economic needs of countries, while still respecting a strong level of protection for those countries that are ready for (or otherwise interested in) such high protection. In other words, a single harmonized global regime is not inevitable. In fact, some economists have noted that a harmonized regime is even adverse to the economic interests of poorer countries. Dual systems can successfully coexist and even provide meaningful choice to countries with different needs. Further, having more than one multilateral regime over the same subject matter could offer important benefits, such as providing an incentive to each regime to be responsive to the needs of its constituents, thereby fostering accountability, transparency and flexibility. Finally, multiple regimes offer the prospect of easier and more effective knowledge and information flow within, without and between regions, as authors, creators and users have an array of avenues and channels to bargain for meaningful terms of access to knowledge. In short, multiple regimes could create a market
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in which knowledge-creators seek avenues of dissemination, rather than support the current situation, where a global monopoly structure forces users of knowledge to seek access on standardized terms that leave little room to accommodate the unique needs of respective Member States. As an agency charged with viewing knowledge as affecting culture, education, literacy, copyright and communication, UNESCO stands in a unique institutional space in which to continue to study the key issue of our time – the knowledge economy – by heeding the human needs that knowledge ultimately is intended to serve.
An Enduring Legacy For the Knowledge Economy 127
Appendix A: International Copyright Relations: A Membership Map
Country
TRIPS Member
UCC-19522 Member
UCC-19713 Member
WCT Member
WPPT Member
Albania
Y
N
N
Y
Y
Algeria
N1
Y
Y
N
N
Andorra
N1
Y
N
N
N
Angola
Y
N
N
N
N
Antigua and Barbuda
Y
N
N
N
N
Argentina
Y
Y
N
Y
Y
Armenia
Y
N
N
Y
Y
Australia
Y
Y
Y
N
N
Austria
Y
Y
Y
Y
Y
Azerbaijan
N1
Y
N
Y
Y
Bahamas
N1
Y
Y
N
N
Bahrain
Y
N
N
Y
Y
Bangladesh
Y
Y
Y
N
N
Barbados Belarus
Y
Y
Y
N
N
N1
Y
N
Y
Y
Belgium
Y
Y
N
Y
Y
Belize
Y
Y
N
N
N
Benin
Y
N
N
Y
Y
Bhutan
N1
N
N
N
N
Bolivia
Y
Y
Y
Y
Y
N1
Y
Y
N
N
Bosnia and Herzegovina Botswana
Y
N
N
Y
Y
Brazil
Y
Y
Y
N
N
Brunei Darussalam
Y
N
N
N
N
Bulgaria
Y
Y
Y
Y
Y
Burkina Faso
Y
N
N
Y
Y
Burundi
Y
N
N
N
N
Cambodia
Y
Y
N
N
N N
Cameroon
Y
Y
Y
N
Canada
Y
Y
N
Y
Y
N1
N
N
N
N
Y
N
N
N
N
Cape Verde Central African Republic
128
Normative Action in Education, Science and Culture
Country
Chad
TRIPS Member
UCC-19522 Member
UCC-19713 Member
WCT Member
WPPT Member
Y
N
N
N
N
Chile
Y
Y
N
Y
Y
China
Y
Y
Y
N
N
Colombia
Y
Y
Y
Y
Y
Comoros
N
N
N
N
N
Congo
Y
N
N
N
N
Costa Rica
Y
Y
Y
Y
Y
Côte d’Ivoire
Y
N
N
N
N
Croatia
Y
Y
Y
Y
Y
Cuba
Y
Y
N
N
N
Cyprus
Y
Y
Y
Y
Y
Czech Republic
Y
Y
Y
Y
Y
Democratic People’s Republic of Korea
N
N
N
N
N
Democratic Republic of the Congo
Y
N
N
N
N
Denmark
Y
Y
Y
Y
Y
Djibouti
Y
N
N
N
N
Dominica
Y
N
N
N
N
Dominican Republic
Y
Y
Y
Y
Y
Ecuador
Y
Y
Y
Y
Y
Egypt
Y
N
N
N
N
El Salvador
Y
Y
Y
Y
Y
Equatorial Guinea
N1
N
N
N
N
Estonia
Y
N
N
Y
Y
Fiji
Y
Y
N
N
N
Finland
Y
Y
Y
Y
Y
France
Y
Y
Y
Y
Y
Gabon
Y
N
N
Y
Y N
Gambia
Y
N
N
N
Georgia
Y
N
N
Y
Y
Germany
Y
Y
Y
Y
Y
Ghana
Y
Y
N
Y
Y
Greece
Y
Y
N
Y
Y
Grenada
Y
N
N
N
N
Guatemala
Y
Y
N
Y
Y
Guinea
Y
Y
Y
Y
Y
An Enduring Legacy For the Knowledge Economy 129
TRIPS Member
UCC-19522 Member
UCC-19713 Member
WCT Member
WPPT Member
Y
N
N
N
N
Guyana
Y
N
N
N
N
Haiti
Y
Y
N
N
N
Country
Guinea-Bissau
Holy See
N1
Y
Y
N
N
Honduras
Y
N
N
Y
Y
Hong Kong (China)
Y
N
N
N
N
Hungary
Y
Y
Y
Y
Y
Iceland
Y
Y
N
N
N
India
Y
Y
Y
N
N
Indonesia
Y
N
N
Y
Y
Ireland
Y
Y
N
Y
Y
Israel
Y
Y
N
Y
Y
Italy
Y
Y
Y
Y
Y
Jamaica
Y
N
N
Y
Y
Japan
Y
Y
Y
Y
Y
Jordan
Y
N
N
Y
Y
N1
Y
N
Y
Y
Kazakhstan Kenya
Y
Y
Y
Y
Y
Kuwait
Y
N
N
N
N
Kyrgyzstan
Y
N
N
Y
Y
Latvia
Y
N
N
Y
Y
Laos
N1
Y
N
N
N
Lebanon
N1
Y
N
N
N
Lesotho
Y
N
N
N
N
Liberia
N
Y
N
N
N
Libyan Arab Jamahiriya
N1
N
N
N
N
Liechtenstein
Y
Y
Y
N
N
Lithuania
Y
N
N
Y
Y
Luxembourg
Y
Y
N
Y
Y
Macao (China)
Y
N
N
N
N
Madagascar
Y
N
N
N
N
Malawi
Y
Y
N
N
N
Malaysia
Y
N
N
N
N N
Maldives
Y
N
N
N
Mali
Y
N
N
Y
Y
Malta
Y
Y
N
N
N
Mauritania
Y
N
N
N
N
130
Normative Action in Education, Science and Culture
Country
TRIPS Member
UCC-19522 Member
UCC-19713 Member
WCT Member
WPPT Member
Mauritius
Y
Y
N
N
N
Mexico
Y
Y
Y
Y
Y
Micronesia (Federated States of )
N
N
N
N
N Y
Moldova
Y
Y
N
Y
Monaco
N
Y
Y
Y
Y
Mongolia
Y
N
N
Y
Y
Morocco
Y
Y
Y
N
N
Mozambique
Y
N
N
N
N N
Myanmar
Y
N
N
N
Namibia
Y
N
N
Y
Y
Nepal
Y
N
N
N
N
Netherlands
Y
Y
Y
Y
Y
New Zealand
Y
Y
N
N
N
Nicaragua
Y
Y
N
Y
Y
Niger
Y
Y
Y
N
N
Nigeria
Y
Y
N
Y
Y
Norway
Y
Y
Y
N
N
Oman
Y
N
N
Y
Y
Pakistan
Y
Y
N
N
N
Panama
Y
Y
Y
Y
Y
Papua New Guinea
Y
N
N
N
N
Paraguay
Y
Y
N
Y
Y
Peru
Y
Y
Y
Y
Y
Philippines
Y
Y
N
Y
Y
Poland
Y
Y
Y
Y
Y
Portugal
Y
Y
Y
Y
Y
Qatar
Y
N
N
Y
Y
Republic of Korea
Y
Y
Y
Y
N
Romania
Y
N
N
Y
Y
N1
Y
Y
N
N
Russian Federation Rwanda
Y
Y
Y
N
N
Saint Kitts and Nevis
Y
N
N
N
N
Saint Lucia
Y
N
N
Y
Y
Saint Vincent and the Grenadines
Y
Y
Y
N
N
An Enduring Legacy For the Knowledge Economy 131
TRIPS Member
UCC-19522 Member
UCC-19713 Member
WCT Member
WPPT Member
Y
Y
Y
N
N
Sierra Leone
Y
N
N
N
N
Senegal
Y
Y
Y
Y
Y
N1
N
N
Y
Y
Country
Saudi Arabia
Serbia and Montenegro Singapore
Y
N
N
Y
Y
Slovakia
Y
Y
Y
Y
Y
Slovenia
Y
Y
Y
Y
Y N
Solomon Islands
Y
N
N
N
South Africa
Y
N
N
Y
Y
Spain
Y
Y
Y
Y
Y
Sri Lanka Sudan
Y
Y
Y
N
N
N1
N
N
N
N
Suriname
Y
N
N
N
N
Swaziland
Y
N
N
N
N
Sweden
Y
Y
Y
Y
Y
Switzerland
Y
Y
Y
Y
Y
Syrian Arab Republic
N
N
N
N
N
Y
N
N
N
N
N1
Y
N
N
N
Taiwan (China) Tajikistan Tanzania
Y
N
N
N
N
Thailand
Y
N
N
N
N
The Former Yugosl. Rep. of Macedonia
Y
Y
Y
Y
Y
Togo
Y
N
N
Y
Y
Tonga
N1
N
N
N
N
Y
Y
Y
N
N
Trinidad and Tobago Tunisia
Y
Y
Y
N
N
Turkey
Y
N
N
N
N
Uganda
Y
N
N
N
N
Ukraine
N1
Y
N
Y
Y
United Arab Emirates
Y
N
N
Y
Y
United Kingdom of Great Britain and Northern Ireland
Y
Y
Y
Y
Y
United States of America
Y
Y
Y
Y
Y
Uruguay
Y
Y
Y
Y
Y
132
Normative Action in Education, Science and Culture
Country
Uzbekistan
1. 2. 3.
TRIPS Member
UCC-19522 Member
UCC-19713 Member
WCT Member
WPPT Member
N1
N
N
N
N
Venezuela
Y
Y
Y
Y
Y
Viet Nam
N1
N
N
N
N
Zambia
Y
Y
N
N
N
Zimbabwe
Y
N
N
N
N
WTO Observer Government. With the exception of the Holy See, observers must start accession negotiations within 5 years of becoming observers. Universal Copyright Convention, as revised at Geneva on 6 September 1952. Universal Copyright Convention, as revised at Paris on 24 July 1971.
An Enduring Legacy For the Knowledge Economy 133
Appendix B Summary Chart of UNESCO’s Legal Instruments on Copyright Agreement
Brief Description
Florence Agreement on the Importation of Educational, Scientific and Cultural Materials (1950)
The Agreement on the Importation of Educational, Scientific and Cultural Materials, adopted by the General Conference of UNESCO at its fifth session, in Florence, on 17 June 1950 (Florence Agreement), is designed to remove customs tariffs and other obstacles that impede exchanges of several categories of copyrighted materials.
Universal Copyright Convention (1952, 1971)
The UCC was developed by UNESCO as an alternative to the Berne Convention for States that disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection.
Protocol to the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials (1976)
The Protocol broadens the scope of the Florence Agreement by extending the benefits it offers to additional objects and by granting further benefits to a number of materials.
The Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties (1976)
This special multilateral tax treaty has largely been forgotten on the copyright front, possibly because the intended effect of the Convention has been achieved or covered by other bilateral tax treaty arrangements.
Recommendation Concerning the Status of the Artist (1980)
The Recommendation provides an extensive definition of the status of the artist, based largely on the agreements on copyright and on performers’ rights. It establishes a number of principles to guide government action in this area.
Recommendation on the Safeguarding of Traditional Culture and Folklore (1989)
The Recommendation was the first multilateral instrument to cover exclusively ‘traditional culture and folklore’ and defined practices that nations could put in place to preserve their intangible cultural heritage.
Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)
The objective of the Convention is to protect and promote the diversity of cultural expression and to encourage dialogue among cultures with a view to ensuring wider and more balanced cultural exchanges in the world, so as to foster intercultural respect and a culture of peace.
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Appendix C: Important UNESCO Legal Instruments for Culture 1950
Agreement on the Importation of Educational, Scientific and Cultural Materials (Florence Agreement).
1952
Universal Copyright Convention (revised in 1971).
1954
Convention for the Protection of Cultural Property in the Event of Armed Conflict.
1970
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
1972
Convention Concerning the Protection of the World Cultural and Natural Heritage.
1976
Protocol to the Florence Agreement on the Importation of Educational, Scientific and Cultural Materials.
1980
Recommendation Concerning the Status of the Artist.
2001
Convention on the Protection of the Underwater Cultural Heritage.
2001
Universal Declaration on Cultural Diversity.
2003
Convention for the Safeguarding of Intangible Cultural Heritage.
2005
Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
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Strengthening Moral Solidarity: Human Rights, Human Genetics and the Ethics of Science and Technology Héctor Gros Espiell A nation is therefore the expression of great solidarity, constituted by a feeling for the sacrifices that have been made and for those that one is prepared to make again. Ernest Renan Any analysis of the subject matter of this chapter – the strengthening of moral solidarity in the field of human rights, human genetics and the ethics of science and technology – must begin with the conceptualization of ‘moral solidarity’ and its embodiment as law and as subjective rights proclaimed, guaranteed and protected by the law. In order to understand what moral solidarity is, one must have an idea of what ‘solidarity’ means when it is qualified by the term ‘moral.’ Solidarity is an ethically significant component that is necessarily part of, and enhances human life in society. As used here, the term has correctly been defined as ‘the relationship subsisting among people who are aware of a community of interest which makes each person feel morally obliged not to harm others and to give them assistance.’1 This concept of solidarity is relatively new, though not unconnected with the ancient legal concept of solidarity deriving from Roman law. The modern concept of solidarity emerged and developed during the second half of the nineteenth century; it was initially linked to public law and was informed by democratic republican ideals as a kind of projection of the idea of Fraternity.2
1. Le Petit Robert, Paris, 1992, p. 1829. A surprisingly old-fashioned definition is to be found in the Dictionary of the Spanish Royal Academy (21st edn, Madrid, 1992), which offers only two meanings: ‘circumstantial adhesion to another’s cause, undertaking or opinion; legal entitlement or obligation in solidum.’ 2. See Y. Chevalier, 1992, La Solidarité: un sentiment républicain, Paris; M. Borgetto, 1993, La Notion de fraternité en droit public français. Le passé, le présent et l’avenir de la solidarité, Paris.
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It has only recently been generally included in the jurisprudence of international law. An authoritative work published in 1960, for instance, did not include the word ‘solidarity’ at all,3 while in more recent legal dictionaries the word is widely used.4 Today, however, the concept has become quite inseparable from the idea of what perforce constitutes international law and from the aspirations of the international community. Solidarity is the opposite of selfishness; it implies a value, a human sentiment that unites people in a common and, in principle, disinterested effort for justice. It obliges them to think of others, of everyone who is part of humankind, without the selfish inclination to consider only their own interest and advantage, disregarding and excluding the general interest. Solidarity necessarily implies acknowledgement and acceptance of the equality of all human beings before the law and of the dignity inherent in their humanity. Solidarity is thus incompatible with racism, xenophobia and any form of discrimination based on race, religion, ideology, gender or other grounds. Solidarity can be material or it can be intellectual and moral, though of course these two forms are closely connected with each other and mutually explanatory. Material solidarity can be financial or economic, in the form of money or food and in many other forms. Moral solidarity, which involves ethical reflection, may cover intellectual solidarity in a broad sense or it may be strictly moral in a narrower sense. Moral solidarity may nonetheless not be dissociated or distanced from intellectual solidarity, and vice versa. Qualifying solidarity as moral amounts to viewing the concept of solidarity as a moral element; in other words, emphasis is laid on the very core and essence of solidarity by underlining moral values and the setting of rules and standards that arise from morality. These rules and standards are not the same as legal ones, but they are rules and standards nonetheless. The qualification ‘moral’ casts a clearer light on the notion of solidarity, places it wholly within a scheme of ethical values and connects it with the setting of moral rules and standards. Solidarity, a necessary part of the conceptual characterization of all law, has always been emphasized by legal theory and doctrine and, in recent years, has been used to assist in typifying contemporary international law, which many jurists5 consider should be viewed as the international law of solidarity. There is much truth to that characterization, even though it can be neither absolute nor reductionist; for, despite the many contradictions that currently exist between this idea or ideal and reality, it cannot be denied that an extremely strong element of solidarity, which
3. See J. Basdevant, 1960, Dictionnaire de la Terminologie du Droit International, Paris. 4. D. Allad and S. Rials, 2003, Dictionnaire de la Culture Juridique, Paris, pp. 1427-1430. The dictionary published by J. Salomon also contains a long entry on the concept of solidarity in international law (Dictionnaire de Droit International Public, Bruxelles, 2001, pp. 1039-1040). 5. For examples of the wide variety of doctrinal views on the subject, see A. J. Rodríguez Carrión, 1999, El Derecho Internacional en el Umbral de un Nuevo Siglo, Madrid; J. A. Carrillo Salcedo, 1991, El Derecho Internacional en Perspectiva Histórica, Madrid; J. M. Pureza, 2003, El Patrimonio Común de la Humanidad ¿Hacia un Derecho Internacional de la Solidaridad?, Madrid.
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never existed before in international law (at the end of the Second World War, for instance6) or certainly not in such an effective form, is today emerging in international law. The idea of solidarity as a value7 has been included in international law to meet an uncontested necessity; and justice so demands. To quote Professor José A. Pastor Ridruejo, ‘[i]nternational law must be linked to the world of values in order to provide ethical means of assessment[;] otherwise, that undeniable function of the jurist, which is to set out points of view about justice, will not be performed.’8 Even if it has been said that globalization has overturned one particular conception of values, or rather of some values, solidarity has by contrast now become a universal value, more necessary and more important than ever before in its application to our modern world.9 Furthermore, the concept of solidarity has been used to characterize those new human rights that have been called ‘third generation rights’ by some and ‘rights of solidarity’ by others, following Karel Vasak. I myself have chosen to follow this terminology,10 though I always stress that all human rights presuppose and necessarily entail solidarity, which can nonetheless feature more vividly and visibly among new rights, which are both individual and collective – examples being the right to development, the right to enjoy the environment and the right to peace. Solidarity gives rise to a duty, and consequently moral solidarity does the same. The duty of solidarity, or the obligation to display solidarity, has been highlighted and reaffirmed on many occasions, but I should like to emphasize the words of His Holiness Pope Paul VI’s encyclical Populorum Progressio, dated 26 March 1967. This encyclical refers to solidarity at many points. In Paragraph 3, it maintains that: [t]oday it is most important for people to understand and appreciate that the social question ties all men together, in every part of the world. John XXIII
6. See H. Gros Espiell, 1995, El Derecho a Vivir, in Derechos Humanos y Vida Internacional, UNAM, Mexico, p. 155, including a bibliography on this subject. 7. J. Ortega y Gasset, 1923, ¿Qué son los valores?, RdO 1, No. IV; H. Gros Espiell, 2005, La Enseñanza y los Valores y el Derecho como Valor, in Circunstancias, Montevideo, pp. 144-146. 8. Preface to the first edition, Lecciones de Derecho Internacional Público, 2nd edn, Madrid, 1983, p. 10. 9. See K. Matsuura, Preface to 21st Century Talks and Dialogues, in J. Bindé (ed.), 2005, The Future of Values, Oxford/New York, pp. 9-11; see also the contributions by G. Vattimo, A. Appadurai and J. Baudrillard in the chapter Values: Dimming, Clash or Hybridization?. 10. See Gros Espiell, op. cit. note 6, pp. 155-160; K. Vasak, 1997, Revisiter la troisième génération des droits de l’homme avant leur codification, in Héctor Gros Espiell Amicorum Liber, Brussels,, Vol. II, p. 1649; A. Pizzorusso, 2005, ‘Les générations de droits’, in Liber Amicorum JeanClaude Escarras, Brussels, p. 927; J. Carpizo, 1985, Los Nuevos Derechos Humanos, Mexico City; M. Bedjaoui, in International Law: Achievements and Prospects UNESCO, Paris, 1991, Vol. 2, characterized these rights as ‘rights of solidarity’; H. Gros Espiell, Introduction, The Rights of Solidarity, in the section of this work dedicated to these rights, pp. 1237-1247 (Vol. 2); C. Tomuschat, Solidarity Rights, Encyclopedia of Public International Law, Vol. IV, 2000, pp. 460-467; P. Alston, 1982, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law, NILR 29, p. 322.
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stated this clearly, and Vatican II confirmed it in its Pastoral Constitution on The Church in the World of Today. The seriousness and urgency of these teachings must be recognized without delay. The hungry nations of the world cry out to the peoples blessed with abundance. And the Church, cut to the quick by this cry, asks each and every man to hear his brother’s plea and answer it lovingly. Paragraph 17 reads: ‘[t]he reality of human solidarity brings us not only benefits but also obligations.’ Part II of the encyclical is entitled ‘The Common Development of Mankind’, and the concept is explained in Paragraph 43: [d]evelopment of the individual necessarily entails a joint effort for the development of the human race as a whole. At Bombay, we said: ‘Man must meet man, nation must meet nation, as brothers and sisters, as children of God. In this mutual understanding and friendship, in this sacred communion, we must also begin to work together to build the common future of the human race.’ We also urge men to explore concrete and practicable ways of organizing and coordinating their efforts, so that available resources might be shared with others; in this way genuine bonds between nations might be forged. The meaning and content of ‘Brotherhood of Man’ are given in Paragraph 44: [t]his duty concerns first and foremost the wealthier nations. Their obligations stem from the human and supernatural brotherhood of man, and present a threefold obligation: (1) mutual solidarity – the aid that the richer nations must give to developing nations; (2) social justice – the rectification of trade relations between strong and weak nations; (3) universal charity – the effort to build a more humane world community, where all can give and receive, and where the progress of some is not bought at the expense of others. The matter is urgent, for on it depends the future of world civilization. Lastly, Paragraph 48 states: [t]he duty of promoting human solidarity also falls upon the shoulders of nations: ‘It is a very important duty of the advanced nations to help the developing nations [...]’ This conciliar teaching must be implemented. While it is proper that a nation be the first to enjoy the God-given fruits of its own labour, no nation may dare to hoard its riches for its own use alone. Each and every nation must produce more and better goods and products, so that all its citizens may live truly human lives and so that it may contribute to the common development of the human race. Considering the mounting indigence of less developed countries, it is only fitting that a prosperous nation set aside some of the goods it has produced in order to alleviate their needs; and that it train educators, engineers, technicians and scholars who will contribute their knowledge and their skill to these less fortunate countries.
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If solidarity is a duty owed by each individual to all others and also by States and peoples within the international community, then this duty gives rise to a corresponding right: the right to demand behaviour and action that exemplify universal solidarity. Though it has to be recognized that no detailed provision has yet been made in international law for this duty and its corresponding rights, no jurist can avoid proclaiming the principle and upholding the just and necessary aim of substantiating solidarity in the real situations of international life. Having said this much by way of introduction, one must say that the idea of solidarity, moral and intellectual solidarity, in particular, is not a matter of jurisprudential doctrine alone. On the contrary, the idea features explicitly in many international instruments; and it has emerged from current international law. The League of Nations Geneva Protocol for the Pacific Settlement of International Disputes (1924) recognized ‘the solidarity of the members of the international community.’ An attempt will be made later to list the main instruments that invoke the concept of solidarity, but one must say at this stage that it is mentioned specifically in the Preamble to the Constitution of UNESCO, which provides in Paragraph 5 that: a peace based exclusively upon the political and economic arrangements of governments would not be a peace which could secure the unanimous, lasting and sincere support of the peoples of the world, and that the peace must therefore be founded, if it is not to fail, upon the intellectual and moral solidarity of mankind. The idea of moral and intellectual solidarity is inevitably connected with the concept of cooperation, another of the characteristic features of contemporary international law.11 The Charter of the United Nations itself refers (Chapter I, Article 3) to international cooperation as one of the Organization’s purposes: [t]o achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. Furthermore, the final Paragraph of the Preamble to the UNESCO Constitution provides: In consequence whereof, they do hereby create the United Nations Educational, Scientific and Cultural Organization for the purpose of advancing, through the educational and scientific and cultural relations of the peoples of the world, the objectives of international peace and of the common welfare of mankind for which the United Nations Organization was established and which its Charter proclaims.
11. See M. Virally, 1983, Panorama du droit international contemporain, Recueil des Cours 183, p. 251.
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Solidarity also features in the Declaration on the Responsibilities of the Present Generations Towards Future Generations, adopted by the General Conference of UNESCO on 12 November 1997. Paragraph 10 of the Preamble to that Declaration refers to ‘the ideals of justice and liberty and peace’ founded on ‘the intellectual and moral solidarity of mankind.’ Paragraph 6 introduces a fruitful innovation, aimed at granting preservation of human life on Earth, by distinguishing between ‘intragenerational solidarity’ and ‘intergenerational solidarity’: these two forms of solidarity, one firmly embedded in the current generation and the other concerning the relationship between present and future generations, are equally essential. Furthermore, in regard to intergenerational solidarity, the Declaration specifies that it must be encouraged ‘for the perpetuation of humankind.’ Moreover, Article 16 of the Universal Declaration on Bioethics and Human Rights, adopted by the General Conference of UNESCO on 19 October 2005, declares that ‘[t]he impact of life sciences on future generations, including on their genetic constitution, should be given due regard.’ Solidarity, and consequently moral solidarity, is a principle that must apply as much between any two human beings as between countries, peoples, nations and all human communities, whatever their legal nature or form. The intellectual and moral solidarity of humanity implies solidarity among all the persons or entities of which humanity is composed. Article 13 of the Universal Declaration on Bioethics and Human Rights states that ‘solidarity among human beings […] must be encouraged’ and associates with it the concept of international cooperation, which is also to be encouraged. Even earlier, the Universal Declaration on the Human Genome and Human Rights, adopted by the General Conference of UNESCO on 11 November 1997, stipulated in Article 17 that in a particular case: States should respect and promote the practice of solidarity towards individuals, families and population groups who are particularly vulnerable to or affected by disease or disability of a genetic character. Solidarity among States is particularly necessary in relations between rich or developed countries and developing ones, with which international cooperation is very important and indeed indispensable, as recognized by Article 19 of the Universal Declaration on the Human Genome and Human Rights and by Article 15 of the Universal Declaration on Bioethics and Human Rights. Referring to moral solidarity, Paragraph 5 of the Preamble to the UNESCO Constitution states that ‘[…] peace must therefore be founded […] upon the intellectual and moral solidarity of mankind.’ This Paragraph calls for clarification on two important points. First, the double qualification of solidarity as intellectual and moral affirms the necessary link between the aintellectual and moral factors. True intellectual solidarity is inconceivable without a moral complement; and a moral conception of solidarity that would exclude the intellectual aspect would be inadequate.
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Secondly, peace, namely, genuine peace that must emerge and subsist ‘in the minds of men’ (Paragraph 1 of the Preamble) and rests on ‘justice’ (Paragraph 4) must be ‘founded upon the intellectual and moral solidarity of mankind.’ Peace, justice, cooperation and solidarity thus form an integral and indissoluble whole. This conclusion is implicit in the very essence of contemporary international law, which, from the United Nations Charter onwards, highlights the concepts of justice, cooperation and solidarity, forging an unbreakable link between them and respect for human rights as the basic foundation for peace. Indeed, justice and equity are addressed expressly in the Universal Declaration on Bioethics and Human Rights, which stipulates in Article 10 that ‘[t]he fundamental equality of all human beings in dignity and rights is to be respected so that they are treated justly and equitably.’ This combined affirmation of the principles of justice, equity and equality – which are not only interconnected but also mutually inclusive – is also clear in the final Paragraph of the International Declaration on Human Genetic Data, adopted by the General Conference of UNESCO on 16 October 2003. Solidarity also has a part to play in the issue of cultural diversity. The UNESCO Universal Declaration on Cultural Diversity, adopted on 2 November 2001, refers to solidarity in its Preamble12 and devotes the whole of its final chapter (Articles 10, 11 and 12) to the issue of ‘cultural diversity and international solidarity.’ Furthermore, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted by a large majority at the General Conference of UNESCO on 20 October 2005, addresses the question of solidarity in what is now a conventional manner. Article 1(i) states that one of the objectives of the Convention is: to strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions. Article 4 (principle of international solidarity and cooperation) provides that: [i]nternational cooperation and solidarity should be aimed at enabling countries, especially developing countries, to create and strengthen their means of cultural expression, including their cultural industries, whether nascent or established, at the local, national and international levels. As noted above, solidarity and cooperation form an inseparable pair. Cooperation is inconceivable without solidarity; and solidarity without cooperation would never have
12. The Paragraphs in question read: ‘Aspiring to greater solidarity on the basis of recognition of cultural diversity, of awareness of the unity of humankind, and of the development of intercultural exchanges; Considering that the process of globalization, facilitated by the rapid development of new information and communication technologies, though representing a challenge for cultural diversity, creates the conditions for renewed dialogue among cultures and civilizations.’
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practical application or effect. This point stands out clearly in all the instruments mentioned above and now constitutes an axiom of contemporary international law. Solidarity is, moreover, one of the definitional components of the modern concept of ‘international community.’ It is precisely this component – solidarity – that, along with others, is driving forward the transition from ‘international society’, a mere collection of States, to the more complex concept of ‘community’, of ‘multiple integration’ encompassing not only States but also individuals and other subjects of international law, all interacting in the name of solidarity and with a view to cooperation and justice.13 The incorporation of ‘solidarity’ into the concept of ‘international community’ may be merely wishful thinking, more virtual than real, in view of the sad state of international society today. The concept of ‘international community’ as definable by its component ‘solidarity’ nevertheless derives from current public international law, and even if it constitutes a somewhat utopian ‘legal fiction’, it might still be considered a praiseworthy key idea with the capacity to bring new life and further progress to our ideal of a better world.14 Moral solidarity is closely and directly connected with three moral, scientific and legal contexts: human rights, human genetics and the ethics of science and technology. As far as human rights are concerned, it must be borne in mind that since they are based on the inherent dignity of the human being – that universal element which necessarily belongs to every individual – they have a moral character inseparable from their very existence. Based on domestic and international law, the international guarantee and protection of these rights rest on the moral and intellectual solidarity of humanity. It should be borne in mind that the principles of dignity, equality, freedom and solidarity are specifically mentioned in the Preamble to the UNESCO Constitution and are part of the substratum of the Organization’s many standard-setting documents in the field of human rights, particularly in relation to education, science, culture and communication. Moral solidarity is necessarily linked to genetics as well. This is so, firstly, because of the intimate and unseverable link between bioethics and genetics, which together form a whole in which human rights cannot be dissociated from any aspect of genetics and bioethics;15 but secondly, and more concretely, because it is on the human genome that
13. See H. Gros Espiell, 1984, ‘Vitoria y América’, REDI 36, pp. 29 ff.; H. Gros Espiell, En el IV Centenario de Hugo Grocio: El Nacimiento del Derecho de Gentes y la Idea de Comunidad Internacional, in Estudios en Honor de Antonio Trujol y Serra, Madrid, 1985. 14. See P. M. Dupuy, 2004, Droit international public, 7th edn, Paris; R. J. Dupuy, 1986, La Communauté internationale entre le mythe et l’histoire, UNESCO, Paris. 15. H. Gros Espiell, Bioética y Derechos Humanos, in Etica, Bioética y Derechos, Bogotá, 2005; H. Gros Espiell, Las Declaraciones de la UNESCO, en materia de Bioética, Genética y Derechos Humanos y su incidencia en el desarrollo del Derecho Internacional, in Estudios Jurídicos Internacionales Penales sobre Genética y Biomedicina, Festschrift for Professor Ferrando Mantovani, Madrid, 2005.
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‘the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity’,16 must ultimately rest. Moral solidarity is also connected with the ethics of science and technology. The need to apply ethics to the field of science and technology is a moral imperative. If ethics entails thinking about moral phenomena and sets its own rules and standards – distinct, albeit not absolutely separate from legal ones17 – then issues of science and technology today cannot be viewed independently of solidarity, an ethical value. UNESCO has always pointed to the links between ethics, genetics and bioethics. It has done so in many instruments – some of which will be mentioned later – but above all in the Universal Declaration on the Human Genome and Human Rights (especially Articles 12, 13, 14, 15 and 16) and in the Universal Declaration on Bioethics and Human Rights, which recognizes, in Article 2, the importance of freedom of scientific research and the benefits derived from scientific and technological developments, while stressing the need for such research and developments to occur within the framework of ethical principles set out in this Declaration and to respect human dignity, human rights and fundamental freedoms. One of UNESCO’s Declarations on genetics and bioethics, which also addresses scientific and technological development and education for understanding, cooperation, peace and human rights in relation to moral solidarity, will now be examined as an example. ‘Recommendations’ are expressly provided for in the UNESCO Constitution as one kind of legal instrument, in addition to ‘conventions’, that the General Conference may adopt as an expression of its ‘functions’ (Article IV, B.4). The General Conference adopted a regulation concerning international recommendations and conventions at its fifth session, and subsequently amended it at its seventh, seventeenth, twenty-fifth and thirty-second sessions. ‘Declarations’, on the other hand, are not expressly provided for in the Organization’s Constitution; but, as at the United Nations under its Charter, they have featured constantly in UNESCO’s work at least since 1966,18 this being the outcome of a policy that has never been challenged. Now much has been written about the value and legal force of some of these declarations.19 The issue will not be addressed at present; rather, the point will simply
16. Article 1 of the Universal Declaration on the Human Genome and Human Rights. 17. H. Gros Espiell, 1996, Etica y Derechos, Normatividad jurídica y normatividad moral, Analogías y Diferencias, Address to the International Science Symposium on Ethics and Society, UNESCO, Paris, 16 September 1996, RUDP 22, pp. 322-329. 18. General Conference, thirty-third session, Paris, 2005, Doc. 33C/20, 4 August 2005, Legal Framework for the Elaboration, Examination, Adoption and Follow-up of Declarations, Charters and Similar Standard-setting Instruments Adopted by the General Conference and Not Covered by the Rules of Procedure concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4, of the Constitution. 19. Gros Espiell, op. cit., note 15, containing the author’s own opinion and a bibliographical summary on the question.
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be made that whatever one’s opinion of their force and character in law may be, they are sources of international law, although they stand apart from the binding sources. Furthermore, in addition to their having moral and political force and constituting a basis for State action, declarations, as sources of international law, constitute a major contribution to UNESCO’s standard-setting action. Some of the recommendations will now be reviewed in light of their references to solidarity on human rights, bioethics, genetics and the ethics of science and technology. Though it does not use the word ‘solidarity’, the whole Recommendation on the Status of Scientific Researchers, adopted by the General Conference on 20 November 1974, is grounded on the need to rely on cooperation – a concept inseparable from that of solidarity – if science and technology, as well as the persons who study, use and apply them, are to be guided by a ‘spirit of intellectual freedom’ (Article 14) and by respect for ‘the United Nations ideals and objectives’ (Article 4), so that their work furthers ‘the common welfare of mankind’ through international cooperation (Article 16). Conversely, the Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms, adopted by the General Conference of UNESCO on 19 November 1974, makes repeated use of the concept of solidarity. Article III, Paragraph 4, declares: [i]n order to enable every person to contribute actively to the fulfilment of the aims referred to in Paragraph 3, and promote international solidarity and cooperation, which are necessary in solving the world problems affecting the individuals’ and communities’ lives and exercise of fundamental rights and freedoms, the following objectives should be regarded as major guiding principles of educational policy. Moreover, under subParagraph (f) of that Article, ‘understanding of the necessity for international solidarity and cooperation’ is included among the ‘major guiding principles of educational policy.’ As to UNESCO declarations, one must mention four that presuppose an explicit or implicit application of the principle of solidarity. First, the Universal Declaration on the Human Genome and Human Rights, endorsed by the United Nations General Assembly in December 1998, provides in Article 17 that: States should respect and promote the practice of solidarity towards individuals, families and population groups who are particularly vulnerable to or affected by disease or disability of a genetic character. They should foster, inter alia, research on the identification, prevention and treatment of genetically based and genetically influenced diseases, in particular rare as well as endemic diseases which affect large numbers of the world’s population. The International Declaration on Human Genetic Data (2003) mentions solidarity in one of its preambular Paragraphs:
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[r]eaffirming the principles established in the Universal Declaration on the Human Genome and Human Rights and the principles of equality, justice, solidarity and responsibility as well as respect for human dignity, human rights and fundamental freedoms, particularly freedom of thought and expression, including freedom of research, and privacy and security of the person, which must underlie the collection, processing, use and storage of human genetic data. It also refers to cooperation – a concept necessarily connected to solidarity and, in this instance, indeed resulting from it – in Article 23(b), which states that: [i]n the framework of international cooperation, States should endeavour to enter into bilateral and multilateral agreements enabling developing countries to build up their capacity to participate in generating and sharing scientific knowledge concerning human genetic data and the related know-how. A few years later, the Universal Declaration on Bioethics and Human Rights provided in Article 13, in the Section entitled ‘Principles’, that ‘[s]olidarity among human beings and international cooperation towards that end are to be encouraged.’ Furthermore, the Declaration on the Responsibilities of the Present Generations Towards Future Generations refers to ‘inter-generational solidarity’ and the ‘intellectual and moral solidarity of mankind’ in Paragraphs 6 and 10 of its Preamble, which invoke and proclaim the principle of solidarity. The references contained in the aforementioned declarations have already been mentioned supra with emphasis on some of their solidarity-related aspects. These international instruments must, particularly on the issue of solidarity, be regarded as progress on the principles promulgated by the Charter of the United Nations and the Constitution of UNESCO concerning human rights, bioethics, genetics and ethics in science and technology. They must be interpreted and applied uniformly, systematically and harmoniously, in full compliance with the Charter of the United Nations, the UNESCO Constitution and the Universal Declaration of Human Rights. The instruments listed above and analysed in terms of the principles of solidarity and cooperation must not only be applied by States, but must also play a fundamental role in the design, content and execution of all of UNESCO’s activities and programmes. In all of these cases, moral solidarity is an ever-present underlying element in the UNESCO international instruments mentioned and considered above. These instruments cannot be rightly understood without the ‘solidarity’ element, which brings them into the moral sphere and within the current conception of what the international community should be. It is therefore essential to promote efforts to strengthen the idea of ‘moral solidarity’ and its systematic application when interpreting and implementing UNESCO’s international instruments on human rights, genetics, bioethics and the ethics of science and technology. It is this expression of determination that I sum up in my tribute to this volume and to UNESCO’s standard-setting action in the fields of education, science and culture in the last sixty years.
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UNESCO and the Promotion of Cultural Exchange and Cultural Diversity Jan Wouters and Maarten Vidal π π π μ π μ, μ : 1 μ π 1 μ . Herodotus
. UNESCO’s Focus Within this Policy Domain UNESCO’s normative action in the promotion of cultural diversity and exchange flows directly from a preoccupation with avoiding both global cultural uniformization (pensée unique) and monolithic world views within individual cultures. Whereas the former would frustrate the dignity of man, for which the drafters of UNESCO’s Constitution considered a wide diffusion of culture to be both ‘indispensable’ and a ‘sacred duty which all nations must fulfil’,2 the latter would make it a hopeless endeavour to obtain empathy for other people’s cultural backgrounds, necessary to ‘construct the defences of peace in the minds of men.’3 Pursuant to Article 1, Paragraph 2, of UNESCO’s Constitution, the Organization will ‘[collaborate] in the work of advancing the mutual knowledge and understanding of peoples, through all means of mass communication and to that end recommend such international agreements as may be necessary to promote the free flow of ideas by word and image’ in order to realize its purpose of contributing to peace and security. The Organization thus fulfils, to a large extent, the mandate given to the United Nations in
1. The Histories, Book III, 38: ‘For if it were proposed to all nations to choose which seemed best of all customs, each, after examination, would place its own first; so well is each convinced that its own are by far the best.’ Translation by Alfred Denis Godley, 1921. 2. Fourth Recital, Preamble of the Constitution of the United Nations Educational, Scientific and Cultural Organization, adopted in London on 16 November 1945 (hereafter UNESCO’s Constitution). 3. First Recital, Preamble of UNESCO’s Constitution.
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1945 to promote international cultural cooperation.4 It is also evident that standardsetting in the field of promoting cultural exchanges and diversity falls within the scope of UNESCO’s competences. Nevertheless, as is the case with virtually every subject matter, action taken by other international organizations as part of their own mandates may also have an impact on the promotion of cultural exchanges and diversity. As we will discuss later in this contribution, contemporary concerns with the diversity of cultural expressions turn in large part on the dangers posed by other international obligations for the possibility of delineating national policies that take into account the specificity of the cultural sector. Indeed, most governments adhere to the idea that cultural goods and services are unique. Accordingly, policies aimed at avoiding uniformity and encouraging a wide cultural offering ought to be developed, so that expressions of national cultures, which translate common experiences in a creative manner and thus contribute to social cohesion, and a diversity of foreign cultural expressions, reflecting the rich variety of masterpieces created under widely divergent circumstances, can both thrive. States should intervene at least marginally to correct the incapacity of mere market mechanisms to achieve the cultural policy goals described above, which are, furthermore, democratically legitimized.5 However, as long as the term ‘culture’ remains vague, it is hardly possible to identify the extent of such governmental action. We will therefore turn first to UNESCO’s definition of culture. The term ‘culture’ usually has a variety of meanings. At the 1982 MONDIACULT World Conference in Mexico City, UNESCO adopted the following definition: ‘[in] its widest sense, culture may now be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs.’6 This definition has in substance been repeated in the 2001 UNESCO Universal Declaration on Cultural Diversity.7 It has been rightly noted, however, that the definition refers to two distinct realities: a sociological or anthropological one centred on life styles and traditions (i.e. a systemcentred notion of culture); and one centred on cultural creation (i.e. a process-centred notion of culture), of which art and literature are but one manifestation.8 Similarly divergent views can be discerned on the role of the individual in culture and on the significance of individual cultural rights. From a process-centred perspective the
4. Articles 1, Paragraph 3;13, Paragraph 1(b); and 55(b), Charter of the United Nations. 5. See C. Germann, 2005, Culture in Times of Cholera: a Vision for a New Legal Framework Promoting Cultural Diversity, ERA-Forum, p. 110. 6. UNESCO, Mexico City Declaration on Cultural Policies, World Conference on Cultural Policies Mexico City, 26 July - 6 August 1982, sixth Recital. 7. Fifth Recital, Preamble of UNESCO Universal Declaration on Cultural Diversity, adopted by the General Conference of UNESCO, during its thirty-first session, at Paris on 2 November 2001. All UNESCO standard-setting instruments are available at: http://www.unesco.org 8. See I. Bernier, A UNESCO International Convention on Cultural Diversity, in C.B. Graber, M. Girsberger and M. Nenova (eds.), 2004, Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual Services, Zurich, p. 67.
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individual is a producer of culture, whereas a system-centred approach considers him or her to be a product of culture that reproduces the system through his or her own activities. The latter perspective gives priority to ensuring access to one’s own culture and its further development; while the former focuses on innovation and change, and is thus more oriented towards the individual.9 Given this dual nature, UNESCO’s approach to culture has not been univocal either. UNESCO’s mission in the field of promoting cultural exchanges and diversity was more clearly set out in the Preamble to the basic programme, adopted at Florence in 1950: a world culture comes from intermingling. UNESCO’s first task is to foster international relations by arranging for thinkers, writers, artists and their ideas to move freely across national frontiers. UNESCO forms a meeting ground for the cultures of the world. It stimulates nations to develop their literature, art and science and see them as parts of a world heritage. It helps Member States to protect works of art from neglect or violence and from the ravages of time, and it assists in bringing artists and writers before the world. It uses every means to ensure that all people, regardless of social condition, shall have access to the best works of every land and every age.10 UNESCO’s activities in this field accordingly have an instrumental character. The Organization is at the same time a mediator and catalyser for cultural exchange and a counsel and guard for the respect of fundamental cultural liberties. Hence, it has to encourage Member States to respect both access to existing (foreign or domestic) cultural expressions and the independence of original artistic creation, both being indispensable for safeguarding a diverse cultural landscape.11 UNESCO has not engaged in wide-scale operational cultural cooperation; it has preferred to strive for a favourable ‘global cultural order’ instead.12 The operationalization of this cooperation – scholarships for artists and writers travelling abroad, exhibitions or subsidies for translations – has been left to regional agreements like the Council of Europe’s European Cultural Convention13 and to a host of bilateral cultural agreements.14 UNESCO’s dual focus, on exchange of cultural creations and the protection of cultural creators, is mirrored in an instrument central to the UN system, the International
9. See A. Eide, Cultural Rights as Individual Human Rights, in A. Eide, C. Krause and A. Rosas (eds.), 2001, Economic, Social and Cultural Rights. A Textbook, 2nd rev. edn, Dordrecht, p. 291. 10. UNESCO, Records of the General Conference of the United Nations Educational, Scientific and Cultural Organization, fifth session, Florence, 1950, p. 20. 11. See M. Ph. Wyss, 1992, Kultur als eine Dimension der Völkerrechtsordnung. Vom Kulturgüterschutz zur internationalen kulturellen Kooperation, Zurich, p. 40 f. 12. See L. Dollot, Les relations culturelles internationales, Paris, 1968, p. 109. 13. European Cultural Convention (CETS No. 18), held in Paris on 19 December 1954. 14. See L. Galenskaya, 1986, International Cooperation in Cultural Affairs, Recueil des Cours 198, pp. 279-283.
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Covenant on Economic, Social and Cultural Rights (ICESCR).15 The advantages of international cultural exchange have received explicit recognition in Article 15(4) ICESCR, pursuant to which the State Parties ‘recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.’ At the same time, the State Parties undertake ‘to respect the freedom indispensable for scientific research and creative activity’ in Article 15(3) ICESCR. The Committee on Economic, Social and Cultural Rights considers the latter provision ‘capable of immediate application by judicial and other organs in many national legal systems.’16 UNESCO is among the specialized agencies that furnish technical assistance and to which the United Nations Economic and Social Council (ECOSOC) Council may turn to address matters arising out of the ICESCR reports. As for ECOSOC, it ‘may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation’ of the ICESCR.17 The Committee has, moreover, recognized that UNESCO involvement in its activities is greater than that of other specialized agencies.18 Through its action in the field of protection of the (moral and pecuniary) rights of authors and artists, UNESCO also contributes to the implementation of Article 15(1)(c) ICESCR, pursuant to which State Parties recognized the right of everyone ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’ (see also infra, Section 3). This being said, it was only in 2005 that the Organization adopted a comprehensive Convention on the Protection and Promotion of the Diversity of Cultural Expressions.19 This Convention, along with the Convention concerning the Protection of the World Cultural and Natural Heritage20 and the Convention for the Safeguarding of the Intangible Cultural Heritage,21 is bound to become another pillar of UNESCO’s normative framework for preserving and stimulating creativity. Still, it is obvious that through the years UNESCO has developed numerous other standards aimed at stimulating international cultural
15. International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations, Res. 2200A (XXI), at New York on 16 December 1966 (entry into force on 3 January 1976). 16. CESCR, General Comment No. 3. The Nature of States Parties Obligations (Article 2, Paragraph1), adopted on 14 December 1990, Paragraph 5. 17. Article 22 ICESCR. 18. CESCR, General Comment No. 2. International Technical Assistance Measures (Article 22), adopted on 2 February 1990, Paragraph 2. 19. Convention on the Protection And Promotion of the Diversity of Cultural Expressions, adopted by the General Conference of UNESCO, during its thirty-third session, at Paris on 20 October 2005 (entry into force on 18 March 2007). 20. Convention concerning the Protection of the World Cultural and Natural Heritage, adopted by the General Conference of UNESCO, during its seventeenth session, at Paris on 16 November 1973 (entry into force on 17 December 1975). See the chapter by F. Francioni, in this volume. 21. Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by the General Conference of UNESCO, during its thirty-second session, at Paris on 17 October 2003 (entry into force on 20 April 2006). See the Chapter by T. Kono, in this volume.
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exchanges, either in forms other than traditional conventions (e.g. declarations or recommendations), or focused on only some of the questions or issues instrumental to the promotion of cultural diversity. In this chapter, we shall turn first to UNESCO’s standard-setting in matters of intergovernmental cultural exchange (Section 2). Next, we will examine several international instruments for the protection of artists as the most important individuals for creation, innovation and transmission of culture (Section 3). The normative efforts to improve the livelihood and independence of artists were not motivated purely by a concern with individual human rights, but also by another, collective goal, since they were at the same time intended to promote the diversity of expressions within a certain culture. We will then turn to UNESCO’s more recent, broader focus on cultural diversity in general, which resulted in the 2001 Universal Declaration on Cultural Diversity and in the 2005 Convention mentioned above (Section 4). Finally, we will conclude with a general evaluation of UNESCO’s normative action in support of cultural exchange and cultural diversity (Section 5).22
. Intergovernmental cultural exchange: the Declaration of Principles of International Cultural Cooperation In the 1966 Declaration of Principles of International Cultural Cooperation,23 UNESCO Member States recalled the role of international cultural cooperation24 in the construction of peace and respect for human dignity. In the words of the Declaration, it is both ‘a right and a duty for all peoples and all nations, which should share with one another their
22. Some other UNESCO instruments designed to promote cultural exchange and diversity will not be touched upon in this contribution. These include the Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange, adopted by the General Conference of UNESCO at its seventeenth session (Paris on 15 November 1972), which contributed to the crystallization of customary international law governing the peaceful use of outer space even though its insistence on prior interstate agreements for direct satellite broadcasting is not followed by State practice; the two conventions concerning the international exchange of publications on the one hand and the exchange of official publications and government documents between States on the other, adopted by the General Conference of UNESCO at its tenth session (Paris on 3 December 1958); the Agreement on the Importation of Educational, Scientific and Cultural Materials, adopted at Florence on 17 June 1950; and the Agreement For Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character, adopted at Beirut on 10 December 1948. 23. Declaration of Principles of International Cultural Cooperation, adopted by the General Conference of UNESCO, during its fourteenth session, at Paris on 4 November 1966. 24. First and second Recital, Preamble of the Declaration of Principles of International Cultural Cooperation.
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knowledge and skills.’25 The formulation of cultural cooperation in terms of rights and duties was an element of the ‘new’ international law of cooperation that had developed since the Second World War.26 Still, even though it aspires to be a guideline for cultural associations and institutions, the Declaration implicitly starts from a traditional view of cultural exchange, in which governmental services such as ministries for culture play a pivotal role in the promotion of interaction between cultures. The Declaration, an instrument adopted on the occasion of UNESCO’s twentieth anniversary, was the first to bear the designation ‘declaration’: in ‘United Nations practice, […] a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated.’27 Beyond doubt, this holds true for Article I of the Declaration, which proclaims that ‘each culture has a dignity and a value which must be respected and preserved’, that ‘every people has the right and the duty to develop its culture’, and that ‘in their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind.’ Although the underlying principle of equality of cultures can be seen as a corollary of the general principle of equality of States, as contained in Principle VI of the Friendly Relations Declaration,28 the correspondence is not complete. The principle of the equality of cultures refers not only to the cultures of all States, but also to the cultures of all nations, peoples, national and ethnic groups, including minorities – i.e. cultures within States – and to all vanished civilizations.29 The vision of diversity in equality is also found in Article VI of the Declaration, which proclaims that ‘international cooperation, while promoting the enrichment of all cultures through its beneficent action, shall respect the distinctive character of each.’ Hence, the concept of a world culture that arises from the intermingling of artists with diverse backgrounds, as formulated in UNESCO’s basic programme (supra, Section 1), is also present in the Declaration. The Declaration’s stress on values ‘conducive to the creation of a climate of friendship and peace’30 can be divided into the furthering of mutual understanding between nations; the prohibition of the circulation of hostile ideas; and the obligation to disseminate authentic and reliable information. Once again, this principle corresponds to a wider obligation under international law, i.e. the general prohibition of the threat or use of force in international relations.31 The principle also reiterates the underlying idea of prohibiting
25. Article V of the Declaration of Principles of International Cultural Cooperation. 26. See E. McWhinney, The Concept of Cooperation, in M. Bedjaoui (ed.), 1991, International Law: Achievements and Prospects, UNESCO, Paris, pp. 425 ff. 27. Report of the Commission on Human Rights, 1962, UN Doc. E/3616/Rev. 1, Paragraph 105. 28. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, attached to Res. 2625 (XXV), adopted by the General Assembly of the United Nations on 24 October 1970. 29. See Galenskaya, op. cit., p. 276. 30. Article VII, Paragraph 2, of the Declaration of Principles of International Cultural Cooperation. 31. Article 2, Paragraph 4, Charter of the United Nations.
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incitement to genocide32 and to war,33 solidly established in the early days of the United Nations and further elaborated within UNESCO in 1978, when the General Conference adopted a Declaration that appealed to mass media to counter racism, apartheid and incitement to war.34 The third core principle is belief in the mutually beneficial character of international cultural cooperation:35 each partner should give and receive,36 but also aspire to raise ‘the level of the spiritual and material life of man in all parts of the world.’37 This is not only a right but also a duty for all peoples and all nations, which should share with one another their knowledge and skills.38 In this manner, a developmental dimension is added to the declaration. Hence, the three main concerns of contemporary international law – equality, peace and security, and development – are mirrored in the Declaration, which positions them in the context of culture. Though its concepts are closely linked to central concepts of public international law, the Declaration of Principles of International Cultural Cooperation unfortunately never attracted widespread attention in legal scholarship. Even in the context of UNESCO, only a limited number of legal instruments,39 most of them adopted in the decade immediately following adoption of the Declaration, make reference to it. Significantly, neither the two core Conventions on material and intangible heritage, of 1972 and 2003, nor recent instruments on cultural diversity mention the Declaration. The same holds true for several culture-related conventions adopted within the framework of the Council
32. Article III(c), Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations at New York on 9 December 1948. 33. Res. 110 (II), adopted by the General Assembly of the United Nations on 3 November 1947. 34. Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, adopted by the General Conference of UNESCO, during its twentieth session, at Paris on 28 November 1978. 35. Article VIII of the Declaration of Principles of International Cultural Cooperation. 36. See Galenskaya, op. cit., p. 277. 37. Article IV, Paragraph 5, of the Declaration of Principles of International Cultural Cooperation. 38. Article V of the Declaration of Principles of International Cultural Cooperation. 39. Reference to the Declaration is made in the 1968 Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works; the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; the 1972 Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange; the 1976 Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It; the 1978 Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War; and the 1980 Recommendation concerning the Status of the Artist.
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of Europe.40 Still, the 1975 Cultural Charter for Africa41 states that it is ‘guided’ by the Declaration and considers it vital to engage in cultural cooperation ‘between Africa and the rest of the world through specialized institutions like UNESCO’ (Article 30). Taken as a whole, however, the Declaration failed to attain the objective set out in its final recital, i.e. to ensure that ‘governments, authorities, organizations [including UNESCO itself], associations and institutions responsible for cultural activities may constantly be guided by these principles.’ The Declaration has not assumed its natural role as an overarching and ageless conceptual framework for cultural action by the Organization, linking different subfields, and presently seems to lie in the lethargic state typical of instruments adopted in a spirit of benign international consensus, and which later leave but a minor impression on the corpus of international law. Furthermore, it is regrettable that UNESCO never received a mandate to assist States in engaging in operational international cultural cooperation. The Declaration of Principles of International Cultural Cooperation could have been the starting point for regularly refurbished ‘UNESCO model cultural agreements’ for different types of cultural cooperation, in which UNESCO could have acted as a clearing house for best practices, exchange of experiences and identification of remaining administrative and legal impediments, in the manner of the OECD, UNCITRAL and UNCTAD, which have been able to shape the law governing international economic cooperation by means of their model conventions and laws. Though some initiatives were undertaken in this field (e.g. on the exchange of cultural property42), many interesting opportunities have never been explored.
. The Protection of Artists to Safeguard Artistic Diversity Both Article 27(2) of the Universal Declaration on Human Rights and Article 15(1)(c) ICESCR proclaim an author’s right to protection of the moral and material interests resulting from any scientific, literary or artistic production. The safeguarding of a decent income for the creative segment of our societies is of paramount importance for the continuous innovation necessary to maintain internal diversity. Though not explicitly mentioned in the ICESCR, the same logic holds true for other links in the creative chain,
40. The Convention is not explicitly endorsed in any of the following instruments: the 1969 European Convention on the Protection of the Archaeological Heritage or its 1989 revision; the 1985 European Convention on Offences relating to Cultural Property; the 1985 Convention for the Protection of the Architectural Heritage of Europe; the 1992 European Convention on Cinematographic Co-Production; or the 2005 Council of Europe Framework Convention on the Value of Cultural Heritage for Society. 41. Cultural Charter for Africa, adopted by the Heads of State and Government of the Organization of African Unity during their Thirteenth Ordinary session, at Port Louis, on 5 July 1975 (entry into force on 19 September 1990). 42. Recommendation concerning the International Exchange of Cultural Property, adopted by the General Conference of UNESCO, during its nineteenth session, at Nairobi on 26 November 1976.
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from author to cultural consumer, and especially for performers. Therefore, UNESCO has considered the protection of creative and performing artists a part of its mandate. Yet UNESCO action in this area has never taken place in a vacuum, since the Organization has pursued its normative function in collaboration with other relevant institutions of the United Nations family, particularly the International Labour Organization (ILO) and the International Bureau of the Berne Union (now within the World Intellectual Property Organization or WIPO). Although the protection of artists is clearly a matter of cultural policy within UNESCO’s mandate, the ILO and WIPO can also legitimately claim responsibility for the subject. The ILO aims to ensure that ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’43 – which applies fully to artists as well. The Berne Union, in turn, builds on more than a hundred years of experience in the field of protection of the rights of authors in their literary and artistic works.44 As will become clear below, reality does not follow the diffuse machinery of global organizations; and more often than not several organizations can assert that they are the most apt institution to address a certain issue. In the case of the protection of performers, however, the institutions concerned have thought it wise to engage in a joint approach, resulting in the Rome Convention, i.e. the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations45 to which eighty-five States are nowadays Parties. It has been pointed out that the Rome Convention has served as the basis for many domestic laws,46 a practice helped by the adoption of a ‘Model law concerning the protection of performers, producers of phonograms and broadcasting organizations’ within the Convention’s Intergovernmental Committee.47 UNESCO had already played an important role in bringing more coherence to international copyright agreements at an earlier point in time, by pursuing the cause of unification and universality. The Organization had convened an Intergovernmental Copyright Conference at Geneva in 1952. The Conference aspired to draw all countries into the international system of copyright protection. Instead, the latter was split into the system of the Berne Convention and that of the inter-American conventions. The Conference led to the adoption of the Universal Copyright Convention,48 but unfortunately not to substantial uniformization of interstate treaty relationships in the field of copyright.
43. Principle II (a), Declaration concerning the Aims and Purposes of the International Labour Organization, adopted at Philadelphia on 10 May 1944. 44. Convention for the Protection of Literary and Artistic Works, adopted at Berne on 9 September 1886. 45. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted at Rome on 26 October 1961 (entry into force on 18 May 1964). 46. See D. Lipszyc, 1999, Copyright and Neighbouring Rights, Paris, UNESCO, 1999, p. 822. 47. See C. Massouyé, 1981, Guide to the Rome Convention and to the Phonograms Convention, WIPO, Geneva, p. 12. 48. Universal Copyright Convention, adopted at Geneva on 6 September 1952 (entry into force on 16 September 1952).
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Since the establishment of the World Intellectual Property Organization in 196749 copyright protection has moved away from UNESCO to that organization, better equipped to administer the twenty-four conventions governing intellectual property in a coherent manner. UNESCO has also been careful to stay clear of copyright issues while preparing its recent Convention on the Protection and Promotion of the Diversity of Cultural Expressions (infra, Section 4), which does not purport to change the existing rules governing literary and artistic property protection.50 Nevertheless, copyright protection helps ‘to turn creativity in developing countries into sustainable cultural industries’51 and is thus within the scope of the Global Alliance for Cultural Diversity set up under the auspices of UNESCO. Nowadays, the Organization concentrates, inter alia, on building awareness of copyright and related rights, inter alia through its review Copyright Bulletin. A wider approach to standard-setting for creative individuals than the aforementioned focus on copyright and related rights was upheld in the UNESCO Recommendation concerning the Status of the Artist,52 which applies to creative artists and writers, as well as to performing artists, i.e. to all artists within the meaning of the 1952 Universal Copyright Convention, the 1886 Berne Convention and the 1961 Rome Convention.53 The Recommendation contains a number of guiding principles from which it becomes clear that concern for the status of the artist is driven by the fact that ‘art reflects, preserves and enriches the cultural identity and spiritual heritage of the various societies.’ Accordingly, it is the State’s duty to ensure that the entire population has access to art both as a universal form of expression and communication and as a reflection of its particular cultural identity, the preservation and promotion of which is, as recalled in the eleventh Recital of the Recommendation’s Preamble, of an ‘importance, universally acknowledged both nationally and internationally.’ Therefore, Member States have ‘a duty to protect, defend and assist artists and their freedom of creation’ and ‘should endeavour by all appropriate means to secure increased participation by artists in decisions concerning the quality of life’, including participation in the formulation of national cultural and employment policies. As indicated by its denomination, the Recommendation is not a binding document, however. Still, its statement of principles, with general reflections on the importance of preserving cultural identities, is testimony to the fact that international concern for diversity did not drop away entirely in the period between the 1966 Universal
49. Convention Establishing the World Intellectual Property Organization, adopted at Stockholm on 14 July 1967 (entry into force on 26 April 1970). 50. See T. Desurmont, 2006, Considerations on the Relationship between the Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the Protection of Authors’ Rights, RIDA 298, pp. 2-18. 51. Subprogramme IV.2.3, Sustaining Cultural Industries and Crafts, Resolution adopted by the General Conference of UNESCO, on the report of Commission IV at the twentieth Plenary Meeting, on 20 October 2005. 52. Recommendation concerning the Status of the Artist, adopted by the General Conference of UNESCO, during its twenty-first session, at Belgrade on 27 October 2000. 53. See Lipszyc, op. cit., p. 893.
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Declaration of Principles of International Cultural Cooperation and the 2003 Universal Declaration on Cultural Diversity. Such concern was nonetheless not yet mature enough to create real obligations in the field. In fact, most of the content of the Recommendation does not have the character of public international law and is aimed at the transformation of national legal systems instead. It is unclear, though, to what extent the Recommendation has contributed to policy change within UNESCO Member States, since the Recommendation is full of references to existing, binding UN and ILO instruments likewise aimed at altering governmental policies.54 On the international plane, the Recommendation did stimulate research and focused follow-up activities within UNESCO, which eventually led to a World Congress on the Status of the Artist in 1997, where artists, writers and performers from all regions reaffirmed that the Recommendation ‘remains the principal text relating to the Status of the Artist’ and regretted ‘that it has been implemented by only a limited number of States.’55 The creation, at that time, of a World Observatory on the Social Status of the Artist within the Division of Arts and Cultural Enterprise of UNESCO was meant to be an instrument of information, aimed at influencing national policies, which, ‘by monitoring the social status of those who constitute the lifeblood of culture, […] hope[d] to make a practical contribution to the safeguarding of cultural diversity and to the promotion of dialogue among cultures, guarantees of sustainable development and of globalization with a human face.’56 The mere protection and nourishment of artistic freedom and livelihood is not in itself sufficient to sustain cultural diversity. For one, it makes an abstraction of the potential necessity for additional government initiatives. In a globalizing world, government action cannot be seen in isolation from the international context. Since little attention was being paid to cultural goals on the international plane, States became more and more aware of the vulnerability of their cultural policies. We shall turn to the efforts made to tackle this alleged vulnerability in the next section. Also, classic intellectual property regimes are not the most suitable method for,57 and may even be harmful to, innovation in certain cultural expressions, particularly the traditional knowledge of indigenous peoples, since these regimes have a tendency to break up the
54. Nevertheless, there are a number of instances where the link between the recommendation and a national act is apparent from the title and wording of the act; e.g. the Canadian Status of the Artist Act 1992. 55. Final Declaration of the World Congress on the Implementation of the Recommendation concerning the Status of the Artist, adopted at Paris on 20 June 1997, Doc. CLT/CONF/206/9, Paragraph 48. 56. Statement of purpose of the World Observatory on the Social Status of the Artist. 57. UNESCO has also been involved in the co-development, with WIPO, of the Tunis Model Law, allegedly better adapted to Africa, since it pays attention to issues like the protection of folklore and intangible heritage; see P. Kuruk, 1999, Protecting Folklore Under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States, AULR 48, p. 813.
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holistic character of traditional knowledge and may lead to ‘corporate expropriation.’58 For such knowledge, protection as a public good is more likely to promote and nurture innovation. Again, the recent cultural diversity approach is more suitable for a holistic global cultural policy.
. Cultural Diversity in the New Millennium: A New Approach After the Recommendation concerning the Status of the Artist, normative activity on the matter of cultural diversity was put on the backburner, in conformity with a wider tendency in UNESCO toward less international standard-setting between 1980 and 2000.59 The trigger for renewed prescriptive action lay outside the framework of UNESCO itself. It would be a distortion of facts to ignore the role played in this respect by a particular external factor, namely, the logic of the World Trade Organization, whose Members are (soon) expected to engage in a progressive liberalization of the trade in services, including audiovisual services. This obligation seriously affects the leeway of States to formulate their cultural policies. The OECD’s stillborn multilateral agreement on investment was perceived as similarly threatening.60 Though not the only reason behind the eventual 2005 Convention, the struggle to safeguard the power of States to encourage their national audiovisual sector – the cultural sector with the highest economic value – against the unqualified applicability of the rules of free trade (like national treatment and market access), was an important impetus for its elaboration. Naturally, the audiovisual sector is not the only one threatened by the global reach of cultural products from dominant actors. The same may be said of books or education – likewise subject to WTO rules – the importance of which transcends purely commercial strategy.61 Nevertheless, discussion has focused predominantly on movies and music until now. Indeed, having failed to overcome resistance by the United States, the world’s most important player in audiovisual services, or to obtain the inclusion of a ‘cultural exception’
58. See R. J. Coombe, 2005, Protecting Cultural Industries to Promote Cultural Diversity: Dilemmas for International Policymaking Posed by the Recognition of Traditional Knowledge’, in K. E. Maskus and J.H. Reichman (eds.), 2005, International public goods and transfer of technology: under a globalized intellectual property regime, Cambridge, pp. 599-614. 59. The General Conference adopted four normative instruments in the 1950s; eleven in the 1960s; no less than thirty in the 1970s; eight in the 1980s; eleven in the 1990s; and eleven after the year 2000 (until 2006). 60. About the threat posed by the MAI to government policies aimed at development and sectoral policies in specific areas, like cultural industries, considered of high or strategic importance, see N.L. Wallace-Bruce, 2001,The multilateral agreement on investment: an indecent proposal and not learning the lessons of history, CILJSA 34, pp. 210-241, and JWI 2, pp. 53-85. 61. See C. Germann, 2004, Diversité culturelle à l’OMC et l’UNESCO à l’exemple du cinéma, RIDE 18, p. 326.
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in WTO law62 (and thus to insert sensibility for culture into international trade negotiations and the settlement of trade disputes) during talks leading to the Marrakesh agreements in the early nineties, the EU (among other actors, such as Canada) abandoned its defensive approach and opted for a more active stance, arguably reflecting developments within the EU.63 The objective of furthering cultural diversity was at the forefront of this more militant line. In turn, UNESCO was the natural environment for hatching an international instrument to support this objective.64 Let us examine for a moment the interaction between global trade law and domestic audiovisual policies aimed at preserving national identities and/or strengthening local cultural industries. An inventory of such State measures has been provided by Footer and Graber; it includes subsidies for producing, marketing and distributing cultural goods; interstate coproduction agreements for movies; domestic content requirements for radio and television; market access restrictions in the form of screen quotas; regulatory restrictions for radio and television broadcasting; fiscal measures, e.g. taxes levied on boxoffice revenues; measures restricting foreign investment or ownership in the audiovisual sector; quantitative restrictions on importing foreign movies.65 In real terms, these policies are predominantly discriminatory, especially in Europe, owing to the implicit national preference (e.g. the MEDIA programme of the European Union or the Eurimages fund of the Council of Europe).66 For the time being, most of these practices are still de facto covered by the exemption (as opposed to exception) of audiovisual industries from mostfavoured nation (MFN) treatment adhered to by the majority of States, according to Article XIX GATS. However, this period should (in theory) come to an end, since the recommended grace period of ten years ran out in 2005. Furthermore, the ‘list approach’ or ‘commitment method’ employed for the liberalization of trade in services ensures that WTO Members are only obliged to apply the principles of market access and national treatment to the services (and their modes of supply) expressly included in their list of specific commitments.67 Nevertheless, Members exert pressure on one another to extend
62. See A. Herold, 2006, EU External Policy in the Audiovisual Field: From ‘Cultural Exception’ to ‘Cultural Diversity’, ERA-Forum, pp. 93-108. 63. Article 151 EC Treaty; see B. de Witte, Trade in Culture: International Legal Regimes and EU Constitutional Values, in G. de Burca and J. Scott (eds.), 2001, The EU and the WTO. Legal and Constitutional Issues, Oxford, p. 238. 64. It should be noted that the United States of America, which had been absent from UNESCO since 1984, rejoined the 0rganization in 2003, when negotiations on a binding legal instrument concerning cultural diversity started. Other factors, like improvements in UNESCO’s management, a shift in focus toward concrete action especially in the field of education and the desire of the United States to forge bonds with other civilizations after the attacks of 11 September 2001 also contributed to its re-accession. 65. See M. Footer and C. B. Graber, 2000, Trade liberalisation and cultural policy, JIEL 3, p. 122. 66. See S. Regourd, 2005, Le commerce et la culture au sein du GATS, et au-delà, ERA-Forum, p. 89. 67. Articles XVI, XVII and XX GATS.
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their commitments in various fields, including the audiovisual sector,68 which might prove difficult to resist. De lege lata, only a limited number of WTO disputes have had a bearing on cultural products until now; and, though they do not indicate a clear trend, there has been no unambiguous option for differential treatment of cultural products on the basis of a special quality ‘not fully on the radar of the WTO.’69 The WTO’s Appellate Body has acknowledged that the WTO agreements should not be read ‘in clinical isolation from public international law.’70 Accordingly, it has been argued71 that putting the protection and promotion of cultural diversity at the centre of international preoccupations could induce the Appellate Body to use reasoning similar to the one upheld in the Asbestos case,72 in which it differentiated asbestos-containing products from other fibre-containing products because of health effects. Public health was considered to be a valid policy goal. The furthering of cultural diversity could likewise be a valid policy goal. Furthermore, the WTO has had regard for environmental treaties concluded outside the WTO framework that had not even been ratified by all disputing Parties. It did so by using an ‘evolutionary’ interpretation ‘in the light of contemporary concerns of the community of nations.’73 Hence, promoters of an international legal instrument on cultural diversity see it both as justification for upholding existing MFN exemptions and resisting new commitments in the field of trade in cultural services and as a legal framework of constitutional status, to be taken into account by the WTO dispute settlement mechanism when assessing national policies in the field of cultural goods. Nevertheless, even if the aforementioned reasoning constituted a prominent basis for the two international instruments on cultural diversity adopted within UNESCO since the beginning of the new millennium, the outcome fit well with the earlier normative work of the Organization, as described above, as well as with other UNESCO policy initiatives74 founded on the conviction that cultural issues should play a more prominent role in the pursuit of sustainable development.75 The
68. The pro-liberalization Friends of Audiovisual Services Group includes Argentina, Brazil, Chinese Taipei, Egypt, Hong Kong China, India, Japan, Mexico, New Zealand, the United Kingdom and the United States. 69. M. Hahn cites the cases Turkey – taxation of foreign film revenues, Canada – periodicals, and Canada – film distribution. See M. Hahn, 2006, A clash of cultures? The UNESCO Diversity Convention and international trade law, JIEL 9, pp. 527-530. 70. United States – Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, Doc. WT/DS2/AB/R (20 May 1996), Paragraph 17. 71. See Hahn, op. cit., p. 551. 72. European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Appellate Body, Doc. WT/DS135/AB/R (12 March 2001), Paragraph 61. 73. United States – Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, Doc. WT/DS58/AB/R (12 October 1998), Paragraph 48. 74. See K. Stenou (ed.), 2004, UNESCO and the issue of cultural diversity. Review and strategy, 19462004, UNESCO, Paris. 75. See S. Rigourd, 2005, Le projet de Convention UNESCO sur la diversité culturelle: vers une victoire à la Pyrrhus …, Légipresse, p. 116.
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World Commission on Culture and Development, set up by the General Assembly of the United Nations within UNESCO76 and composed of eminent independent experts drawn from all regions, published a key report in 1995 with the title Our Creative Diversity, in which it suggested for the first time that cultural diversity was a global public good, of the utmost importance, under pressure from globalization.77 This report gave rise to action by the UNESCO Secretariat in the form of two World Culture reports, in 1998 and 2000, and in the organization of a Conference, in Stockholm, on Cultural Policies for Development. It became evident that a standard-setting instrument was felt to be desirable from this angle, too. In 2001, the convergence of these two separate drives for an international legal instrument produced the Universal Declaration on Cultural Diversity (‘Universal Declaration’),78 accompanied by a concrete action plan. In the process, the international community – in the words of Director-General Matsuura – produced ‘a comprehensive standard-setting instrument, elevating cultural diversity to the rank of ‘common heritage of humanity’ – as necessary for the human race as biodiversity in the natural realm – and ma[de] its protection an ethical imperative, inseparable from respect for human dignity.’79 The Universal Declaration has been both welcomed and echoed in similar declarations by the Council of Europe,80 the Organization of the Francophonie,81 the Organization of Iberoamerican States for Education, Science and Culture (OEI)82 and the Summit of the Americas.83 Furthermore, the concept of cultural diversity has been endorsed on several occasions by governmental and parliamentary representatives within the African Union and the League of Arab States. Such wide support testifies to the legitimacy of having added the epitheton ornans ‘universal’ to the title of the instrument – for only the second time within the framework of UNESCO.84
76. See Doc. A/RES/46/158 on the World Commission on Culture and Development, adopted by the General Assembly of the United Nations, at New York on 19 December 1991. 77. World Commission on Culture and Development, 1996, Our Creative Diversity, Paris, UNESCO. 78. UNESCO, Universal Declaration on Cultural Diversity, adopted by the General Conference of UNESCO, during its thirty-first session, at Paris on 2 November 2001. 79. UNESCO, Press release No. 2001-120, General Conference Adopts Universal Declaration on Cultural Diversity, Paris, 2 November 2001. 80. Declaration on Cultural Diversity, adopted by the Committee of Ministers of the Council of Europe at the seven-hundred thirty-third Meeting of the Ministers’ Deputies, at Strasbourg on 7 December 2000. 81. Declaration of the Ninth Summit of the Francophonie, adopted at Beirut on 19 and 20 October 2002. 82. Declaration on Culture, adopted by the Sixth Iberoamerican Conference on Culture, at Santo Domingo on 3 and 4 October 2002. 83. Chapter 17, Plan of action of the Third Summit of the Americas, attached to the Declaration of Québec City, adopted on 22 April 2001. 84. The first one had been the 1997 Universal Declaration on the Human Genome and Human Rights. In 2005, a Universal Declaration on Bioethics and Human Rights followed suit.
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UNESCO once again reaffirms its traditionally dualistic concept of culture – both anthropological and centred on cultural creation (supra, Section 1) – in this Declaration.85 This is also evidenced by the division of the Declaration into four sections, dealing respectively with ‘Identity, Diversity and Pluralism’ (Articles 1-3), ‘Cultural Diversity and Human Rights’ (Articles 4-6), ‘Cultural Diversity and Creativity’ (Articles 7-9) and ‘Cultural Diversity and International Solidarity’ (Articles 10-12); a division that simultaneously reflects the two processes that led to its adoption. The first two sections view culture from an anthropological point of view, whereas the third section focuses on the link with creativity. The final section clarifies the role of developed and developing States, the private sector, civil society and UNESCO in preserving and promoting cultural diversity. In the first place, the Universal Declaration proclaims that cultural diversity is the common heritage of humanity (Article 1). It thereby affirms, once and for all, the paramount importance of cultural diversity for present and future generations. The Declaration also links the concept of cultural diversity to the concepts of material and intangible cultural heritage as developed in UNESCO’s 1972 and 2003 conventions (supra, Section 1). The Declaration’s wide scope of application is underscored by its attention to cultural pluralism within modern societies (Article 2), its positive attitude vis-à-vis inclusive policies and its emphasis on the fact that cultural pluralism is ‘indissociable from a democratic framework.’ In this way, the Universal Declaration contributes to strengthening the importance of democracy in modern international law.86 The Declaration also displays a rights-based approach to cultural diversity: while the defense of human rights is a guarantee for cultural diversity, the latter cannot be invoked to infringe on the former or to limit their scope. Moreover, cultural rights enable an environment conducive to cultural diversity. In other words, ‘the flourishing of creative diversity requires the full implementation of cultural rights as defined in Article 27 of the Universal Declaration of Human Rights and in Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights.’87 Consequently, the Universal Declaration is firmly embedded in the universally accepted human rights framework set up by the United Nations system; and fears that UNESCO’s work in this field could be used by certain States to violate human rights, in particular the freedom of expression and information, seem rather groundless. In the section dedicated to cultural diversity and creativity, the proclamation of cultural goods and services as ‘commodities of a unique kind’ (Article 8) is clearly designed to oppose the proponents of the pure logic of trade. As ‘vectors of identity, values and meaning’, cultural goods and services ‘must not be treated as mere commodities or consumer goods.’ Furthermore, it is ‘for each State, with due regard to its international obligations, to define its cultural policy and to implement it through the means it considers fit, whether by operational support or appropriate regulations’ (Article 9).
85. Fourth Recital, Preamble of the Universal Declaration on Cultural Diversity. 86. See J. Wouters, B. De Meester and C. Ryngaert, 2004, Democracy and International Law, NYIL 34, pp. 137-198. 87. Article 5, Universal Declaration on Cultural Diversity.
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Although reference is made to respect for international obligations (including obligations under GATT and GATS), this provision defies the aforementioned trade-based objections to State measures to strengthen cultural industries (supra, in this section). However, as is often the case, the adoption of a soft law instrument like the Universal Declaration was but a precursor to the establishment of a binding legal regime, even more so because UNESCO Member States regarded it as an inadequate response to threats against cultural diversity in the era of globalization.88 The Universal Declaration had itself already exhorted UNESCO to ‘pursue its activities in standard-setting, awareness raising and capacity-building in the areas related to the present Declaration within its fields of competence’ (Article 12(c)). Furthermore, the Member States committed themselves in Section 1 of the appended Action Plan to ‘deepening the international debate on questions relating to cultural diversity, particularly in respect of its links with development and its impact on policy-making, at both national and international level; taking forward notably consideration of the advisability of an international legal instrument on cultural diversity’ (italics by the authors). The preparation of an international Convention on cultural diversity was put on the agenda of the hundred sixty-sixth session of the Executive Council of UNESCO, held in Paris on 12 March 2003, accompanied by a preliminary study carried out by the UNESCO Secretariat.89 The decision for a Convention of this kind was endorsed by the General Conference in October 200390 and led to intense negotiations between the major stakeholders. Finally, during UNESCO’s thirty-third General Conference, on 20 October 2005, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted. Its major objectives are the recognition of the ‘distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning’91 and of the ‘sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory.’92 At the moment of writing this chapter, twenty States had deposited their instrument of ratification, accession, acceptation or approval with the Director-General of UNESCO – still below the thirty needed for entry into force. It is hoped that the pace of ratification will increase, in order to give clear evidence of the importance attached by the international community to cultural diversity.93 The Convention presents itself as a logical continuation of earlier milestone resolutions within
88. See Herold, op. cit., p. 102. 89. See Preliminary Study on the Technical and Legal Aspects Relating to the Desirability of a Standardsetting Instrument on Cultural Diversity, UNESCO Doc. 166 EX/28 of 12 March 2003. 90. Resolution on the desirability of drawing up an international standard-setting instrument on cultural diversity, adopted by the General Conference of UNESCO, during its thirty-second session, at Paris on 17 October 2003. 91. Article 1(g) Convention on the Protection and Promotion of the Diversity of Cultural Expressions. 92. Article 1(h) Convention on the Protection and Promotion of the Diversity of Cultural Expressions. 93. The threshold of thirty ratifications was reached on 18 December 2006, soon after the submission of this manuscript for publication, leading to the entry into force of the Convention on 18 March 2007.
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the context of the United Nations: cultural diversity is of the utmost importance ‘for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized instruments’ (fifth Recital); a need to incorporate culture in development policies is emphasized, ‘taking into account also the United Nations Millennium Declaration (2000) with its special emphasis on poverty eradication’ (sixth Recital); and reference is made ‘to the provisions of the international instruments adopted by UNESCO relating to cultural diversity and the exercise of cultural rights, and in particular the Universal Declaration on Cultural Diversity of 2001’ (twenty-first Recital). Although a large part of the Convention is dedicated to definitions and to the interaction between different cardinal concepts, its exact scope is not unambiguous. Indeed, given the ‘variety of forms that cultural diversity can take and the difficulty of setting standards for them’, the Preliminary Study on the Convention had urged for considerable caution when defining the ‘normative realm’ of the instrument.94 Article 3 stipulates that the Convention ‘shall apply to the policies and measures adopted by the Parties related to the protection and promotion of the diversity of cultural expressions.’ The term ‘cultural expression’ goes beyond the traditional concept of ‘cultural goods and services’ and assumes, in the words of independent experts involved in the drafting, ‘a relationship between the subject-creators and the addressees, which is an essential element of the Convention.’95 In Article 4(3) of the Convention, the term is defined as ‘those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.’ The terms ‘cultural activities, goods and services’ are defined in the next Paragraph as a function of the concept of ‘cultural expression’. Nevertheless, the precise content of the underlying concept of ‘cultural identity’ is not clearly defined.96 Pointing out the risk that an overly wide interpretation of the concept of cultural expression might lead to a situation in which Japanese cars or French foie gras are to be included within the scope of application of the Convention, Hahn pleads for a contextual reading in light of its object and purpose, in accordance with Article 31(1) of the 1969 Vienna Convention on the Law of Treaties. Such a reading would result in a narrow interpretation of the term ‘cultural expression’,97 seemingly limited to those goods and services that are traditionally considered vectors of culture: performing arts, books, music, movies, etc…. Since the organs set up by the Convention, in particular its Intergovernmental Committee (Article 23), have not yet come into existence, it is too early to make a definitive assessment. Nevertheless, another international body – the Human Rights Committee – has already pronounced itself on the concept of ‘cultural
94. See Preliminary Study, op. cit., Paragraph 18. 95. Report of the Second Meeting of Experts (category VI) on the Preliminary Draft of the Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, Doc. CLT/ CPD/2004/602/6 of 14 May 2004, p. 6. 96. See M. Cornu, 2006, La Convention pour la protection et la promotion de la diversité des expressions culturelles. Nouvel instrument au service du droit international de la culture, JDI 133, p. 932. 97. See Hahn, op. cit., p. 539.
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expression’ in its general comment on the rights of minorities, and opted for a broad scope. It noted ‘that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.’98 If the Convention’s Intergovernmental Committee is to subscribe to a similarly broad concept, the scope of application of the Convention will evidently be affected. This would not come without risks. Given that the possible wide scope of ‘cultural expression’, especially in case of an anthropological approach to culture, could be an excuse for questionable forms of cultural relativism, the drafters have thought it wise to give the principle of human rights and fundamental freedoms a prominent place in the Convention, as its first guiding principle (Article 2(1)).99 The Convention lists a number of rights and obligations for its Parties. It has, however, been submitted that the Convention is lacking in real normative content.100 Indeed, compared to earlier drafts, the language of the Convention has changed from ‘obligations’ (e.g. to protect and promote cultural diversity) to more vaguely formulated ‘measures’ that ‘Parties shall endeavour’ to take. The main affirmation of the Convention is hidden behind the somewhat obscure title ‘General rule regarding rights and obligations’ (Article 5) and amounts to reaffirmation by the Parties of ‘their sovereign right to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this Convention.’ At first sight, it might seem strange that the main purpose of a Convention is the reaffirmation of an existing sovereign right – but against the background of threats posed by globalization and limitations set by rules extraneous to the Convention on measures aimed at implementing that sovereign right, the act of reaffirmation becomes understandable. For the same reason, much attention has been paid in recent legal literature to the interrelation of the Convention and other international agreements. This is not surprising, considering the genesis of the Convention and the role played in it by the expanding law of the World Trade Organization (supra, in this section). Section V of the Convention settles the matter of the ‘relationship with other instruments.’ Several options were considered in the drafting process, but the version eventually approved subscribes to a vision of ‘mutual supportiveness, complementarity and non-subordination.’ This means that the Convention cannot be interpreted as modifying the rights and obligations of Parties under other treaties, but that the Parties must nonetheless take the relevant provisions of the Convention into account when interpreting and applying other treaties or when entering into other international obligations. This rule can be read as exhorting the Parties to be cautious in future trade negotiations concerning cultural industries, although it should be borne in mind that WTO Members have a good faith obligation to
98. Human Rights Committee, General Comment No. 23. The rights of minorities (Art. 27), Doc. CCPR/C/21/Rev.1/Add.5 of 8 April 1994. 99. See Regourd, op. cit., p. 118. 100. Ibid.
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pursue liberalization.101 Therefore, the Convention not so much offers legal shelter against international trade law as provides the advocates of differentiated treatment for the cultural sector with a political argument, the strength of which will depend on the eventual number of ratifications. Apart from steering trade negotiations, it was hoped that the Convention would succeed in introducing a ‘cultural exception’ from the outside into existing WTO law, which would have to be taken into account by the Organization’s dispute settlement mechanism. Yet, the recent WTO panel report in the case on European restrictions on biotechnological products does not bode well for the potential of the Convention. In this case, a convention with a similar bearing, the Convention on Biological Diversity102, was invoked by the European Communities. The Panel held that, since this Convention has not been ratified by the United States, it is thus not applicable to it. It continued: ‘We have said that if a rule of international law is not applicable to one of the Parties to this dispute, it is not applicable in the relations between all WTO Members. Therefore, in view of the fact that the United States is not a party to the Convention on Biological Diversity, we do not agree with the European Communities that we are required to take into account the Convention on Biological Diversity in interpreting the multilateral WTO agreements at issue in this dispute.’103 Furthermore, the Panel adopted a cautious approach about the customary status of the precautionary principle implicit in the Convention on Biological Diversity, and, referring to the ruling of the Appellate Body in the 1998 Hormones case104, refrained from ‘resolving this complex issue’.105 It has for this reason been suggested that an explicit link to the Convention be introduced in the law of the WTO by means of a procedural interface, possibly in the form of a Ministerial Decision adopted by the WTO Members.106 It remains to be seen whether this suggestion is realistic and whether it can really contribute to the strengthening of the importance of cultural diversity within the WTO. In any case, the stress laid by most scholars on the centrality of the WTO dispute settlement mechanism is warranted, since the rather symbolic character of the Convention is also underscored by its dispute settlement mechanism, said to be ‘reminiscent of the
101. Article XIX GATS. 102. Convention on Biological Diversity, adopted at Rio de Janeiro on 5 June 1992 (entry into force on 29 December 1993). 190 States are parties to this convention, the sole exceptions being the United States (which has, however, signed the convention), Somalia and the newly independent State of Montenegro. 103. Panel Report: European Communities — Measures Affecting the Approval and Marketing of Biotech Products, Doc. WT/DS291/R (29 September 2006), pp. 335-336. 104. Appellate Body Report: European Communities – Measures Concerning Meat and Meat Products (Hormones), Doc. WT/DS26/AB/R (16 January 1998), p. 44. 105. Panel Report: European Communities — Measures Affecting the Approval and Marketing of Biotech Products, Doc. WT/DS291/R (29 September 2006), p. 340. 106. C.B. Graber, 2006, The new UNESCO Convention on Cultural Diversity a Counterbalance to the WTO?, Journal of International Economic Law, p. 571.
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very early days of modern international law.’107 This is another characteristic that makes the WTO regime stronger than that of the Convention. Indeed, there is no room under the Convention for imposing binding solutions on the Parties to a dispute. Apart from negotiation and good offices or mediation by a third Party, a Party can have recourse to a Conciliation Commission, but only if the other Party has not filed a declaration that it does not recognize the Commission; and even then the proposal made by the Conciliation Commission for the resolution of the dispute need only be considered in good faith by the Parties. The contrast between ‘hard’ international trade law and the soft law of cultural diversity is thus mirrored in the elaborate and stringent dispute settlement of the WTO and the primitive and hortatory procedure set up by the Convention. Apart from the Parties’ central sovereign right contained in Article 5 of the Convention (supra, in this section) and further elaborated on in Articles 6 to 8, a number of good faith engagements, both national and international, complete the Convention. These include strengthening public awareness of the importance of cultural diversity, mutual exchange of information and forging a partnership with civil society and between the public and private sectors. The reference to the Millennium Development Goals in the Preamble (supra, in this section) is given effect in several development-related provisions calling for the integration of cultural diversity into sustainable development strategies (Article 13) and into bilateral and multilateral (governmental and nongovernmental) cooperation with developing countries (Articles 14 and 15), in order to foster the emergence of a dynamic local cultural sector. Furthermore, preferential treatment for artists and other cultural professionals and practitioners, as well as cultural goods and services from developing countries (Article 16), and the creation of an International Fund for Cultural Diversity (Article 18), to be based on voluntary contributions, should contribute to bridging the gap between developed and developing countries.
. General Evaluation of UNESCO’s Normative Work in the Field of the Promotion and Preservation of Cultural Diversity Though the drafters of UNESCO’s Constitution saw fit to include a domestic jurisdiction clause, according to which the Organization should restrict its actions ‘with a view to preserving the independence, integrity and fruitful diversity of the cultures and educational systems of the States Members’,108 the experience of the past sixty years has taught us that it is not UNESCO intervention that threatens this diversity. In fact, at this time of
107. See Hahn, op. cit., p. 533. 108. Article I, Paragraph 3 of UNESCO’s Constitution.
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sweeping globalization, the Organization constitutes the most appropriate forum for concerted international action aimed at preserving cultural diversity. The main achievement of UNESCO in the area examined by this contribution has certainly been the transformation of cultural diversity from a mere concept of soft law into a matter for binding legal agreement. Earlier initiatives, like the 1966 Declaration on Principles of International Cultural Cooperation and the 2001 Universal Declaration on Cultural Diversity either sank (more or less) into oblivion or were seen as inadequate for the important goal they had set themselves. The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions once and for all filled the ‘lacuna for cultural objectives in public international law.’109 It is submitted that the mere existence of the Convention will illustrate the necessity of increased regulation to preserve local identity in currently dormant or struggling cultural markets.110 However, this does not immediately mean that an ‘obligation to promote cultural diversity’ has become part of customary international law. To a large extent, we will have to wait until the new Convention truly enters into international reality – and its intergovernmental committee has drafted operational guidelines for the implementation and application of its provisions – to give a comprehensive assessment of its merits.111 UNESCO’s work has freed the protection and promotion of cultural diversity, like the preservation of cultural heritage, from the realm of State sovereignty and has raised it to the international sphere, where it has made ‘humanity as such the title holder of the general interest’ in its preservation.112 The transformation of the content of the Convention into a global constitutional principle requiring the protection and promotion of cultural diversity can to some extent contain the potentially negative consequences of an irreversible impact by WTO regimes on the audiovisual sector, among others.113 Yet this effect will not be achieved by purely legal means – this would require a modification of WTO law – but also in a political manner, whereby Parties to the 2005 Convention can use it as an argument to influence negotiations on further trade liberalization. But, ‘one has not to be an iconoclast to imagine what will have the upper hand: the hard law of the WTO or the very soft provisions of the UNESCO Convention.’114 The promotion and protection of cultural diversity is thus probably a domain in which UNESCO’s standardsetting activities have not yet come to an end, and where continuing vigilance is advisable.
109. See Graber, op. cit., pp. 558-560. 110. See E. Brooks, 2006, Cultural Imperialism vs. Cultural Protectionism: Hollywood’s Response to UNESCO Efforts to Promote Cultural Diversity’, JIBL 5, p. 135. 111. See, similarly, Cornu, op. cit., p. 932. 112. See F. Francioni, 2004, Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’, MJIL 25, p. 1228. 113. See Herold, op. cit., p. 107. 114. See Regourd, op. cit., p. 120.
PANEL 3
Promoting Dignity, Equality and Mutual Respect among Human Beings
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Introduction Julio Faundez
The three excellent chapters in this Panel explain how UNESCO standard-setting activities contribute to promoting tolerance and understanding, to achieving education for justice, liberty and peace, and to ensuring that scientific progress enhances human dignity. The conventions and declarations to which these chapters refer contain many principles and rules that could well be regarded as self-evident. Indeed, it is difficult to imagine that any sensible person would today advocate discrimination in education, preach cultural intolerance or promote the advancement of science without due regard for human dignity. Yet, the fact that discrimination, intolerance and other forms of injustice persist is a reminder of UNESCO’s continuing relevance. It is also a reminder of the bearing that the international political system has on the work of inter-governmental organizations. That the process of globalization is drastically changing the international milieu is undisputed. But it is still far too early to fully assess its impact on the day-to-day activities of international organizations. It must be noted, however, that while sixty years ago there was a consensus on global governance, this is not the case today. When UNESCO was established, the international consensus was embodied in the Charter of the United Nations. It possessed three main components: prohibition of the use of force by States, a commitment to the peaceful settlement of disputes and a pledge by the international community to work towards peaceful social and economic change. This consensus led to the establishment of a structure of international governance consisting of a set of international and regional organizations, which, though far from perfect, operated broadly within its parameters. It was in this context that UNESCO was established and that its objectives in the areas of education, science and culture were set. Despite the prevailing consensus, conditions for the achievement of UNESCO’s goals were not ideal. The Cold War, the persistence of colonialism and the reluctance of the most influential States unequivocally to endorse the struggle for human rights and democracy were major obstacles. Yet these obstacles did not stand in the way of UNESCO’s standard-setting activities. Through patient and persistent work, it elaborated a series of international instruments that have made a unique contribution to the protection and enhancement of international human rights, as well as to the development of international law.
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In many respects the present international system, dominated as it is by the process of globalization, offers enormous opportunities to further UNESCO’s work. Indeed, the end of the cold war, the renewed interest in human rights, the growing international concern with the process of democratization and the revolution in information technology are all factors that directly and indirectly support the organization’s main areas of concern. Yet, there are two important obstacles: one is the lack of a clear consensus on governance at the international level and the other is the loss of capacity of nation States to implement and enforce social and economic rights. Today, as we know, virtually all States have embraced market-based policies under the aegis of the Washington Consensus. This Consensus is only concerned with domestic economic policies, however. It is not a consensus on international governance. Thus, although we are at present witnessing an unprecedented worldwide convergence in economic policy, there is considerable confusion at the political level. This confusion is illustrated by the fact that while today the capacity of the United Nations to maintain peace and to enforce the prohibition on the use of force has greatly diminished, the legitimacy of the international organizations with a major role in steering the world economy – mainly, the IMF, World Bank and the WTO – is increasingly called into question. This state of affairs could be described either as a crisis of international governance or, more mildly, as a period of transition between the post-war order of the late 1940s and the new global order, which is still in the making. Within this new context, it is not surprising that the standard-setting task of UNESCO has become more difficult. There is also a second obstacle. It stems from the changing nature of the political regimes of most States in the world today. Following the prescriptions of the Washington Consensus, States are no longer directly involved in economic activities. Instead, they are expected merely to regulate the economy, while allowing market forces to resolve most social and economic problems. Alongside this non-interventionist approach, States are also required to open up their economies, especially in the areas of finance, trade and investment. As a consequence, they have become extremely vulnerable to external events over which they have no control. There is no doubt that in many respects these developments are positive; and some States have taken advantage of this liberal economic environment to improve their economic performance and to implement more effective social policies. Yet, it is undeniable that, as a result of the new economic policies, many developing countries are finding that their capacity to implement social policy objectives has greatly diminished. If this analysis is correct, it suggests that, as well as continuing its excellent work in setting international standards, UNESCO should also intensify its technical assistance programmes to ensure that its Members are in a position effectively to implement and enforce the standards embodied in its conventions and declarations. One of the paradoxes of the world today is that some of the most powerful international organizations are also those that rank lowest in public esteem. UNESCO, however, is a special case. In a worldwide survey of public opinion, UNESCO would undoubtedly rank among the most popular international organizations, both in the developed and in the developing world. This is a formidable asset. UNESCO should make use of it. In particular, it should use this support to ensure that other international organizations, especially those concerned with trade and finance, do not undermine its noble goals and objectives.
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Advancing Education for Justice, Liberty and Peace Pemmaraju Sreenivasa Rao*
. Introduction: Education as a Means to Attaining a Better World Great movements or ideologies are at the base of mankind’s progress or possible lack thereof. The industrial revolution, which brought mankind to a new level of well being, was founded on education that resulted in the development of science and technology. Great philosophers, social and scientific thinkers contributed to the emancipation of humanity from the Dark Ages, which were characterized by religious dogmas, ignorance about natural phenomena and superstition. In more recent times, mankind witnessed two world wars, which put large sections of the world through untold misery and deprivation. Studies conducted by progressive thinkers revealed ‘instructions given to children in schools and the attitudes developed there as one of the causes’ for the First World War.1 After the War, during the time of the League of Nations, efforts continued to focus on the need to eliminate objectionable doctrines, which contributed or could contribute to hatred and moral distrust among peoples. Poland made a proposal at the Disarmament Conference in 1932 that States should, by treaty, undertake the adoption of legislation to affect reforms in teaching and to prohibit all activities by teachers intended to arouse hatred towards foreigners or to disturb good international relations. While the prosecution produced evidence at the Nuremberg Trials regarding the policies of the Nazi government in regard to education of youth with a view to preparation for aggression, the Tribunal did not convict anyone
* The author wishes to thank Federico Lenzerini, of UNESCO, for his guidance and helpful comments on the preparation of this chapter. 1. B. S. Murty, 1968, Propaganda and World Public Order, New Haven/London, p. 244. See also W. Schiffer, 1954, The Legal Community of Mankind, New York, Chapter 12.
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on this count. However, at the Tokyo trials, on presentation of similar evidence against the Education Minister of Japan at the pertinent time, defendant Koichikodo was convicted of crimes against peace. After the United Nations was established in 1945, early debates in the Third Committee of the UN General Assembly were marked by discussion of the need to contain war propaganda and dissemination of false and distorted statements, slanderous to foreign States and harmful to good relations. Several resolutions of the UN General Assembly (in particular, Resolution 290(iv) of 1 December 1949 on ‘Essentials of Peace’) urged nations ‘to remove the barriers which deny to peoples the free exchange of information and ideas essential to international understanding and peace.’2 It is said that man is born free, but society and social mores shackle him. Man is also predominately a social animal. Accordingly, a perennial objective of all education is to liberate him, and give him back the liberty he yearns for. But, at the same time, it is also aimed at training him to be responsible to fellow-beings and their legitimate demands to be free from domination or oppression. This is a task in which pursuit of liberty is intimately connected with the imperatives of achieving justice and equity in human relations. UNESCO was established to counter the abuse to which education was put historically and especially before the Second World War, and to promote the right to education – an education that would rid the minds of men of hatred and aggression, and build early in the minds of children the defenses necessary to maintain peace. But, as noted, ‘[n]ot any peace at any price: peace founded on respect for the dignity and basic rights of all, and on the intellectual and moral solidarity of mankind’3 was aimed for. In other words, UNESCO’s charter and mandate are premised on the well-accepted relationship between education, on the one hand, and liberty, justice and peace, on the other.
. The Objectives of Education: Liberty, Justice and Peace These basic policy postulates are universally shared, and provide the essential underpinning for the emergence of the right to education. The right to education was recognized very early as one of the most important human rights. According to the U.N. Committee on Economic, Social and Cultural Rights, the special importance of education is conferred by the fact that: [it] is both a human right in itself and an indispensable means of realizing other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.
2. For mention of the various facts noted in the text, see Murty, supra note 1, pp. 141-142 and 245. 3. See C. N. Power, UNESCO’s Response to the Challenge for Establishing Unity in Diversity, in J. Campbell (ed.), 2001, Creating our Common Future: Education for Unity in Diversity, Paris, UNESCO, 15, p. 15.
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Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth.4 The UNESCO Constitution identifies four fundamental principles that must be fulfilled in order to promote concrete realization of the right to education: the principles of non-discrimination in education, of equality of opportunity and treatment, of universal access to education, and of solidarity. The right to education is also enshrined in Article 26 of the Universal Declaration of Human Rights,5 and in most other instruments on human rights, notably in Article 18 of the International Covenant on Civil and Political Rights6 and in Article 13 of the International Covenant on Economic, Social and Cultural Rights.7 It is recognized as a basic right for all men and women, and most importantly for children.8 The broad objectives of education are stated in Article 26 of the Universal Declaration of Human Rights and reiterated in most other international human rights instruments, most notably in the landmark Convention Against Discrimination in Education, concluded under the auspices of the UNESCO in 1960.9 Article 5(a) of the Convention affirms that the content of education is to be directed: to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; it shall promote understanding,
4. See Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 13, The Right to Education (Art. 13 of the Covenant), U.N. Doc. E/ C.12/1999/10 of 8 December 1999, Paragraph 1. The full text of the document is also available at: http://portal.unesco.org/education/en/file_download.php/71d965358b3bb1627077 df3eb6335b4eScope+and+impl..pdf (last visited on 5 October 2006). 5. U.N. G.A. Res. 217A (III), 1948, U.N. Doc. A/ 810 (1948). 6. 999 UNTS 171. 7. 993 UNTS 3. See also Article 14, requiring State Parties to give progressive realization to the principle of compulsory education free of charge for all, at least with regard to primary education. 8. See Article 28 of the 1989 Convention on the Rights of the Child (U.N. G.A. Res. 44/25 of 20 November 1989), according to which: ‘1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.’ 9. See http://www.unesco.org (last visited on 5 October 2006).
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tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace (emphasis added). The right to education, like all other human rights, is premised on the fundamental equality of all human beings and the respect and dignity due to them by other fellow human beings and institutions. To use the words of the U.N. Committee on Economic, Social and Cultural Rights, ‘education shall be directed to the human personality’s “sense of dignity’” and shall ‘enable all persons to participate effectively in a free society.’10 Without developing a free mind, a human being cannot fully enjoy the fruits of liberty. Without seeking justice for fellow beings one cannot secure justice for oneself. It is a universal and ancient truth that Dharmo Rakshati Rakshataha, which means dharma, when protected, protects us. Without liberty and justice for all, there can be no peace in the world. But peace can be achieved only if man recognizes the unity of mankind, which, in turn, is dependent upon appreciation and acceptance of the wide diversity in human existence and spirit. Education, and primary education in particular, must therefore orient the child toward equality and tolerance of all religions, ways of life and cultures, even as it enables him or her to appreciate and practice his or her own.11 It is thus rightly emphasized that as wars begin in the minds of men, defenses for peace must be constructed in their minds also.12 As an extension of this point, we may note that Gandhi perceived the importance of primary education when he noted that ‘if we are to reach real peace in this world, if we are to carry on real war against war, we shall have to begin with the children.’13
. International Education: A World Order based on Human Dignity The UNESCO Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms of 197414 pays particular attention to the need for international education. The term ‘international education’ is explicitly used in the 1974 Recommendation to indicate, with a single expression, the different connotations of the terms ‘international understanding’,
10. See General Comment No. 13, The Right to Education (Art. 13 of the Covenant), op. cit. in note 4, Paragraph 4. 11. See Tracing Possible Courses, in E. Portella, 2002, Thinking at Crossroads: In Search of New Languages, Paris, UNESCO, p. 16: ‘[w]ars are devised to exclude by force what our identities have to gain from difference. Peace arises not from a unification of likeness but form an acceptance that the other is a constituent element of the same and vice-versa. It requires the giving and taking of difference as a gift.’ 12. See UNESCO Constitution, Preamble, first Recital. 13. M. King, , Mahatma Gandhi and M. Luther King Jr.: The Power of Non-violent Action, Paris, UNESCO, Paris, p. 363. 14. See http://www.unesco.org (last visited on 5 October 2006).
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‘cooperation’ and ‘peace’, considered as an ‘indivisible whole based on the principle of friendly relations between peoples and States having different social and political systems and on the respect for human rights and fundamental freedoms.’15 The guiding principles of ‘international education’ are proclaimed in Chapter III of the 1974 Recommendation. In particular, Paragraph 3 states that ‘[e]ducation should be infused with the aims and purposes set forth in the Charter of the United Nations, the Constitution of UNESCO and the Universal Declaration of Human Rights, particularly Article 26, Paragraph 2.’ Paragraph 4 of the same Declaration refers to the objectives or major guiding principles of educational policy, including understanding and respect for all peoples (as well as their cultures, civilizations, values and ways of life); awareness of the increasing global interdependence of peoples and nations; the ability to communicate with others; awareness not only of the rights, but also of the duties incumbent upon individuals, social groups and nations towards each other; and understanding of the necessity for international solidarity and cooperation.16 In a similar way, Paragraph 2 of the 1976 UNESCO Recommendation on the Development of Adult Education17 proclaims that adult education should contribute to a number of goals, including: (a) promoting work for peace, international understanding and cooperation; (b) developing a critical understanding of major contemporary problems and social changes and the ability to play an active part in the progress of society with a view to achieving social justice; […] (d) creating an understanding of and respect for the diversity of customs and cultures, on both the national and the international planes; (e) promoting increased awareness of, and giving effect to various forms of communication and solidarity at the family, local, national, regional and international levels […]. Enlightenment is high on the hierarchy of values man hopes to cherish; and education is the proper tool for achieving this goal.18 In this sense, enlightenment is knowledge about oneself and the world. While literacy is important and basic to all education, education is not just bookish knowledge. It involves gaining practical insight into the living conditions and aspirations of fellow human beings in an evershrinking world. Globalization must be understood less in terms of the economic
15. See Paragraph 1(b). 16. Other significant statements are enshrined in Paragraphs 5, 6, 7, 17, 18, 22, 33, 43 of the 1974 Recommendation. 17. See http://www.unesco.org (last visited on 5 October 2006). 18. Professors Lasswell, McDougal and Chen identified eight values man attempts to maximize in interacting through institutions. These are power, enlightenment, wealth, well being, skills, affection, respect and rectitude. See M. S. McDougal, H. D. Lasswell and Lung-chu Chen, 1980, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity, New Haven/London. In the spiritual sense, enlightenment is what Lord Buddha attained and preached; that is, a realization of the relationship between form and that which is formless.
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realities that entwine us and more in terms of the basic values that hold us together. Those values are called ‘liberty’, ‘justice’ and ‘peace’. Education should thus serve a necessary function in securing peace, understanding and cooperation at the international level.
. Internal Education: The Concept of Earth Citizenship At the domestic level, education serves as the very backbone for realization of the fruits of liberty and, crucially, as the very basis for an effective practice of democracy. Without education, the effectiveness of the concept of participatory democracy and the ability of human beings to make necessary choices can never be fully realized. It may be argued that colonialism survived two hundred years or more only because the colonized were kept mostly illiterate, without a proper education to promote the value of human dignity and the equality of all races. As part of the broader goals of internal education, emphasis should be placed on the value of liberty of thought, expression, belief, faith and worship, as well as on social, economic and political justice and peace, not only as between national communities, but also between States. Colonialism, the industrialization of the West at the expense of the colonized, theories of the superiority of races, self-arrogated notions of civilization, the general characterization of foreign lands as objects of conquest and of certain foreigners as worthy of subordination or even decimation, religious intolerance and notions of defending and propagating one’s own religion through force and wars have contributed so much to human misery. Their ill effects plague and divide us as nations and peoples even today. In this modern age, when the destiny and consciousness of humankind are intertwined through unprecedented growth in science and technology, and when the threats we face from nuclear weapons, environmental degradation, terrorism and the clash of civilizations rooted in religious animosities are shared, it is important to introduce children early in their education to their status as citizens of Earth. Morin, in an eloquent essay, remarked: [t]he anthropological double imperative imposes: save human unity and save human diversity. Develop our identities which are both concentric and plural; our ethnic, homeland, community of civilization identity, and our citizens of the earth identity. He added, [o]n the level of planetary humanity we are engaged in the essential task of life which is to resist death. Today, the fundamental global objective of all education aspiring not only to progress but to the survival of humanity is to civilize and unify the earth and transform the human species into genuine humanity. Awareness of our humanity in this planetary era should
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lead us to new unity and reciprocal commiseration from each to each, from all to all. The education of the future should teach an ethics of planetary understanding.19 This should be done by introducing and explaining concepts like the United Nations, human rights, environment, the fundamental prohibition of use of force in international relations and the duty of States to resolve their disputes through peaceful means. It is also important to highlight the integrated nature of economies, trade and the transnational movement of services and goods.
. Education for a Sustainable Future: Ecological Sustainability and Social Justice In other words, education in terms of durability must be promoted. Though the primary aim of education is to impart knowledge, it is not an automatic byproduct. Knowledge must be consciously cultivated. The new concept of ‘education for a sustainable future’, which UNESCO has been called upon to advocate, must guide States in setting their national educational goals and priorities.20 A sustainable future is said to comprise at least eight elements, categorized into two groups – those related to the human responsibility to care for nature (ecological sustainability) and those related to our responsibility to care for each other (social justice). Briefly stated, these are: interdependence, biodiversity, living lightly, treating all creatures decently (i.e. interspecies equity), basic human needs, intergenerational equity, human rights and democracy. John Fien, who elaborated on these concepts, noted that: [f]our of these images are: (1) a fair, equal and just future, (2) a safe and peaceful future and (3) ecologically sustainable future and (4) a democratic future.21 Thus, the concept of ‘sustainable future’ goes beyond ‘sustainable development.’ It is a goal that promotes a world and a universal order that respects human dignity. It is an idea that goes beyond the negative concept of management of differences among human beings, different cultural, economic and religious groups, and nations. It is an idea that not only emphasizes harmonious interaction to promote mutual respect among us human beings for what we are, but also implores us to rejoice in the diversity that makes each community and fellow-being so special and worthy of care and attention. In one word, the concept of sustainable future requires us to grasp the significance of the motto ‘Unity in Diversity’, which tells us that the unity of mankind
19. For an insightful analysis of what binds humanity today and what hurdles confronts it, see E. Morin, 1999, Seven Complex Lessons in Education for the Future, Paris, UNESCO, p. 39. 20. Ibid., Preface by the Director-General of UNESCO. 21. J. Fien, ‘Educating for a sustainable future’, in Campbell, op. cit. in note 3, pp. 132 f.
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is sustained only by recognizing the value of diversity as found in individual human beings, groups of people, and nations across the world.
. The Right to Education: Non-discrimination in Education, an Essential Component The right in point obliges States to provide free and compulsory primary education to all and, within the means available and progressively, to make secondary education, including technical and vocational training, available to all. Higher education must also be available to all on the basis of capacity. A most important associated right is the right of parents to choose for their children the type of education that best corresponds to their convictions, religion and moral beliefs, provided that the special educational institutions conform to minimum educational standards set or approved by the State. Through several conventions, States have also undertaken to eliminate all forms of discrimination and to ensure that the right of education is promoted and implemented without any discrimination on the basis of race, religion, sex, residence, age, culture or political opinion. It is also important that such education be made available to all children, without any distinction on account of economic, social, cultural, linguistic, gender, administrative, geographic or other barriers. These values are well stated in Article 1 of the Convention against Discrimination in Education of 1960, which prohibits any distinction, exclusion, limitation or preference based on language or other grounds with the purpose or effect of nullifying or impairing equality of treatment in education. This provision is aimed at eliminating discrimination that may take place, in particular, when: a) persons or groups are deprived of access to education of any type or at any level; b) education for certain persons or groups is inferior in standard, while others have access to high-standard education; c) separate educational systems or institutions for persons or groups are maintained, which do not meet the conditions established by Article 2 of the Convention; d) certain conditions are inflicted upon persons or groups that are incompatible with human dignity. The principle of non-discrimination in education is also proclaimed by Paragraph 3 of Article 2 of the 1989 UNESCO Convention on Technical and Vocational Education, according to which State Parties are bound to guarantee that no individual who has attained the educational level for admission into technical and vocational education shall be discriminated against on grounds of race, colour, sex, language, religion, national or social origin, political or other opinions, economic status, birth, or on any other grounds. The Contracting States shall work towards the right to equal access to technical and vocational education and towards equality of opportunity to study throughout the educational process. The measures to be taken in order to eliminate and prevent discrimination in education are proclaimed by Article 3 of the 1960 Convention, according to which State Parties must: a) abrogate any legislative and administrative provision, as well as discontinue any administrative practice, which involve discrimination in education; b) ensure that there is no discrimination in the admission of pupils to educational
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institutions; c) not allow any difference of treatment among nationals in matters related to education; d) not allow any preferences to pupils belonging to particular groups with respect to others; and, e) grant foreign nationals resident within their territory the same degree of access to education as is given to nationals. The principle of nondiscrimination is thus pursued even with regard to foreign nationals. The rights of minorities within a State to pursue education of their own choice is inherently recognized in Article 3, but is elaborated in Article 5(c) of the 1960 Convention, stating that: [i]t is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language. The exercise of such right, however, must not prevent the members of these minorities from understanding the culture and language of the community as a whole and from participating in its activities. This latter provision inspired the content of Article 4 (4) of the 1992 U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,22 according to which States should take measures ‘in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory.’ According to the same Declaration, persons belonging to minorities must also be allowed to participate fully in the economic progress and development of their country. Provisions similar to those included in the 1960 Convention are also contemplated by Article 26 of the ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries,23 adopted on 27 June 1989, whose Preamble makes clear that its norms ‘have been framed with the cooperation of,’ inter alia, UNESCO.
. Universal Recognition of the Right to Education: Some Salient Features Thanks to consistent UNESCO effort, in particular through standard-setting,24 as well as to action by the UN and other international bodies in general, the right to education is
22. U.N. G.A. Res. 47/135 (1993). 23. The full text of the Convention is available at: http://www.ilo.org/ilolex/english/convdisp1.htm (last visited on 5 October 2006). 24. Consequently, the basic principles developed by UNESCO with respect to education have today been accepted by the virtual totality of States, even if the rate of ratification of the 1960 and 1989 UNESCO conventions (93 and 15, respectively, at 5 October 2006) is quite low. This is particularly true if one thinks that all the States of the world but two (Somalia and the United States) have ratified the Convention on the Rights of the Child and that only three Parties to this Convention (Kiribati, Samoa, Singapore, plus Malaysia, which later withdrew its reservation)
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today universally recognized. The level of access to education has significantly improved worldwide in recent decades. Educational opportunities have increased in most countries; and the rate of literacy has appreciably improved in developing countries as well. In the decade ranging from 1990 to 2001, participation in education in these latter countries evolved significantly: the medium average school-life expectancy increased from less than 6 to more than 7 years in Africa, from less to more than 10 years in Asia, and from 10 to more than 11 and half years in Latin America.25 The work of UNESCO has thus produced certain basic principles in the field of education, which are generally accepted and implemented at the international level. A fortiori, this development has led to actual improvement of effective and nondiscriminatory educational opportunities for individuals. The duty of the State to provide free and compulsory primary and secondary education to children up to the age of 14 years is generally accepted. The duty of the State to provide early childhood care for children, particularly for children with working mothers or parents from the agegroup 3 to 6 is catching up even in developing countries. It is now also recognized that in order to realize effectively the basic objective of the right to education, States must provide neighborhood schools and educational materials, and arrange nutritional meals for the children attending school. Where neighborhood schools cannot be arranged, it is necessary that free transportation to schools be organized. The basic duties and obligations26 of States in the field of education may be summarized by using the
have made reservations with respect to article 28 (most of them only with regard to Paragraph 1(a), binding States to make primary education compulsory). See http://www.unhchr.ch/html/ menu3/b/treaty15_asp.htm (last visited on 5 October 2006). 25. See UNESCO Institute for Statistics, ‘How has Participation in Education Evolved in the Last Decade?’, available athttp://www.uis.unesco.org/ev.php?ID=6019_201&ID2=DO_TOPIC (last visited on 5 October 2006). In India, education is the responsibility of both the federal States and the central government. The current allocation of financial resources for education is put around Rs. 43, 825 crores or nearly US $1.5 billion. This constitutes 3.9% of GDP. Enrolment at school for the 6-14 year age group is around 82.5%. The literacy rate in 2001 was 64.8%. The literacy rate is higher in Kerala, at around 90-92%; the lowest rate is found in Bihar, at 47.53%. The rate of growth for literacy is higher in rural areas than in urban ones. The male-female literacy ratio has decreased over the years and now stands at 21.6%. On the realization of the right to education in India, see C. Raj Kumar, 2004, International Human Rights Perspectives on the Fundamental Right to Education. Integration of Human Rights and Human Development in the Indian Constitution, Tulane JICL 12, pp. 237 ff. 26. The fact that realization of the right to education imposes specific obligations on States is expressed by the Committee on Economic, Social and Cultural Rights in the following terms: ‘[t]he right to education, like all human rights, imposes three types or levels of obligations on States Parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect requires States Parties to avoid measures that hinder or prevent the enjoyment of the right to education. The obligation to protect requires States Parties to take measures that prevent third Parties from interfering with the enjoyment of the right to education. The obligation to fulfil (facilitate) requires States to take positive measures that enable and assist individuals and communities to enjoy the right to education. Finally, States Parties have an obligation to fulfil (provide) the right to education. As a general rule, States Parties are obliged to fulfil (provide) a specific right in the
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taxonomy supplied by the U.N. Committee on Economic, Social and Cultural Rights, according to which education systems must exhibit the following features at all levels: a) effective availability of educational institutions and programmes; b) the actual accessibility of such institutions and programmes, conceived as the contextual realization of the principles of non-discrimination, physical accessibility and economic accessibility; c) acceptability for students and parents of the form and substance of the education provided; d) adaptability, i.e. the capacity to be flexible and to ‘adapt to the needs of changing societies and communities and respond to the needs of students within their diverse social and cultural settings.’27 Article 1(2) of the UNESCO Convention against Discrimination in Education enlarges the concept of the right to education, as traditionally conceived, to incorporate not only access to education, but also the standard and quality of education and the conditions under which it is administered.28 The right to education thus implies a duty to provide quality education to children. This duty signifies primarily the establishment of a sufficient number of schools and employment of a sufficient number of qualified teachers, maintenance of a proper student to teacher ratio, monitoring of standards of teaching, and preparation of proper syllabi and targets to be achieved at each level of education. States are also required to ensure that the standards of education ‘are equivalent in all public educational institutions of the same level’, in order to avoid de facto discrimination in education.29 This may take place when higher educational standards are maintained at certain, but not all institutions of the same level. This is a particularly important point, since the practice of many societies demonstrates that, where ‘series a’ and ‘series b’ schools exist (though all public in principle), a sort of ‘automatic segregation’ often occurs. The best schools are generally reserved for rich people, while poor people may generally be admitted to educational institutions less well-placed in funding or materials. In those States where different races live, this kind of segregation often takes place along colour lines (as was the case until recently in many countries). The basic aim of primary education is to enable children to be self-sufficient as regards reading, writing and arithmetic skills. By the time the child completes primary and secondary education, he or she must also have a basic orientation about his or her national
Covenant when an individual or group is unable, for reasons beyond their control, to realize the right themselves by the means at their disposal. However, the extent of this obligation is always subject to the text of the Covenant.’ See General Comment No. 13, The Right to Education (Art. 13 of the Covenant), supra, note 4, Paragraphs 46 f. See also Paragraphs 49 ff. 27. See General Comment No. 13, ‘The right to education (Art. 13 of the Covenant)’, supra note 4, Paragraph 6. 28. In deference to the needs and wishes of different language groups, the Convention makes it clear in Article 2(b) that it would not constitute discrimination to establish or maintain, for ‘linguistic reasons’, separate educational systems or institutions offering an education in keeping with the wishes of the pupil’s parents or legal guardians, if participation in such systems or attendance at such institutions is optional and if the education provided conforms to such standards as may be laid down or approved by the competent authorities, in particular for education of the same level. 29. See Article 4(b).
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background, history and social responsibilities, and should be able to recognize the value of a multi-religious or multi-cultural community. Special attention and care should be paid to specially disadvantaged children or those belonging to minorities or economically deprived families. Extra attention is necessary not only to help them to have full access to the educational facilities provided by the State, but also to ensure that these children are treated with dignity and respect by the school and by other students. The curriculum should help such children to understand the causes or conditions responsible for their disadvantaged status, and to overcome them.
. The Right to Education: Some Problems for Fuller and Expeditious Realization The problem with realization of the right to education through various international standards is that their goals are often set at a very general and abstract level. The means available to monitor the effectiveness of the standards set are rudimentary. Mechanisms of cooperation or mutual engagement at the inter-State level to promote the right to education are equally ineffective. States do not normally complain, but only sympathize and extend token help to boost low literacy rates or weak standards in developing countries. This is in sharp contrast to the protests, complaints and even sanctions States are prepared to put into place in the case of other human rights violations. Certainly, we do not need a confrontational approach to promoting the right to education. What we need is the creation of more opportunities for experts and administrators of education from different parts of the world to interact more systematically with necessary financial and intellectual resources, to develop sustained momentum and to achieve sharply set time-bound targets. At the national level, while the goals of overall development through education are generally shared, their focused and structured implementation is lacking. More than that, resource constraints appear to have fundamental effects on the realization of the right to education. The salaries and training of teachers at all levels, in particular at the level of primary education, are not good or competitive enough to attract gifted and committed individuals to this calling, or to retain them. The conditions of schools and their infrastructure – particularly the laboratory, library, physical fitness and other recreational facilities that ought to project a wholesome picture of educational institutions – often fall far short of what is necessary. Violations concerning the right to education are regrettably either ignored or treated as routine; or, they are taken for granted. Hence, it is necessary for concerned authorities and enlightened citizens to attempt to have the right to education in its composite and comprehensive sense affirmed and enforced at the national level, if necessary through judicial means to curb and deter violations. It is also a problem that parents in developing countries who are themselves illiterate and poor do not see the value of (particularly primary and secondary) education for their
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children, especially their daughters.30 This is the case because they do not see any immediate economic returns from investing in the process of education. The process is necessarily long, so that it takes years before a child becomes employable. The poor economy of a country may also not provide for good employment opportunities, even for those with good education. Accordingly, most poor parents remove their children from schools without letting them go through the full cycle of primary education, and instead divert them to child labor. Some of the children also end up in bonded labor or as domestic servants, or, worse yet, as street children or pavement dwellers. Therefore, it is important that some additional incentives be conceived to help the children of poor families seek and complete at least primary and secondary education. Vocational training and timely employment opportunities must be assured; scholarships and stipends must be earmarked on the basis of financial need, as well as merit.
. Conclusion: Miles to Go before the Mission is Accomplished UNESCO can take justifiable satisfaction in what it has achieved by establishing muchneeded international standards in facilitation of the right to education, and through consistent efforts to have these standards accepted around the world.31 However, there is more to the mission – and much to be accomplished. Lack of education and illiteracy remain huge problems in global terms, particularly in certain areas of the world. UNESCO, more aware of this situation than any other international institution, is presently implementing the Programme ‘Education for All by 2015’, with the purpose of, inter alia, making it possible that ‘every person – child, youth and adult – shall be able to benefit from educational opportunities designed to meet their basic learning needs.’32 This goal is to be achieved, inter alia, by ensuring an increase by five to ten percent per year in
30. D. S. Kothari, 1975, Priorities for Education in Developing Countries’, in Education on the move, Paris, UNESCO, pp. 171-175, part. 171. 31. The UNESCO Executive Board noted with satisfaction in 1999 that ‘[a]ll Member States without exception state that, in their societies, education is the constitutional right of all children and adults irrespective of gender, ethnic, social, cultural, religious or linguistic affiliation or any other difference and therefore their educational systems provide equal educational opportunities for all persons regardless of their differences.’ See UNESCO Executive Board, ‘Examination of the reports and responses received in the sixth consultation of Member States on the implementation of the convention and recommendation against discrimination in education’, Doc. 156 EX/21 of 17 March 1999, Paragraph 9. In addition, it also noted that ‘[i]n almost all Member States the content of educational programmes and teaching materials have been revised with a view to ensuring that they are devoid of explicit and implicit elements of discrimination’ (ibid., Paragraph 20). 32. See UNESCO, World Declaration on Education for All, available at: http://www.unesco.org/ education/efa/ed_for_all/background/jomtien_declaration.shtml (last visited on 20 February 2006).
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the rate of school enrolment in developing countries by 2015.33 In order to make this possible, it is essential that States ratify the relevant UNESCO conventions and adhere to the various standards the Organization has adopted since its establishment in 1945, as well as ensure their effective implementation at the domestic level.
33. See Education for All – The Achievable Goal, available at: http://www.unesco.org/education/efa/ ed_for_all/background/background_kit_achieve_goal.shtml (last visited on 5 October 2006).
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Fostering Tolerance and Mutual Understanding among Peoples Federico Lenzerini
. Prejudice and Intolerance: Our Bad Inheritance The distinctive personality of each human being is to be ascribed to various factors that interact and combine to shape the idiosyncratic identity of all persons. Many people believe that our attitudes, our inclinations toward good or evil and our convictions concerning what is right and what is wrong derive mainly from our genetic heritage. In other words, whether one is ‘good’ or ‘bad’ – supposing that a person may be considered ‘good’ or ‘bad’ tout court and that it is possible to define exactly what is ‘good’ or ‘bad’, owing to the intrinsically relative nature of these concepts in time and space – or acts in the ‘right’ or ‘wrong’ way, would be written in the DNA. These kinds of convictions often represent a gateway to the affirmation of prejudices, stereotypes and discriminatory ideas. In 1969, a preliminary study commissioned by UNESCO with a view to the elaboration of a declaration on race and racial prejudice revealed how ‘beliefs with regard to racial superiority relate mainly to intelligence and behaviour, and […] [attribute] the cultural backwardness of certain peoples to genetic inferiority.’1 Today, in light of the scientific knowledge available, this sort of belief clearly appears incorrect and quite paradoxical. In fact, the mapping of human DNA has revealed a 99.9% genetic similarity between all human beings,2 thereby showing the very limited role of our genetic heritage in determining differences. It is rather the social and cultural environment in which we live, our life experiences, and the impulses and messages
1. See J. Hiernaux, ‘Biological Aspects of the Racial Question’, in UNESCO, 1969, Four Statements on the Race Question, Paris, 9, p. 15, available at: http://unescodoc.unesco.org/images/0012/ 001229/122962eo.pdf (last visited on 22 February 2006). 2. See Conclusions, High Commissioner’s Expert Group on Human Rights and Biotechnology, Geneva, 24-25 January 2002, available at: http://www.unhchr.ch/biotech/conclusions.htm (last visited on 22 February 2006), Paragraph 26.
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received from those who take care of, or simply influence, our education (in the broadest sense of the term) that play the most important role in such respect. Even our ‘intellectual freedom’, i.e. our capacity to go beyond stereotypes and common beliefs, and to construct our own ideas of the things surrounding us, depends on whether we have, during the course of our life, an actual opportunity to reflect on the fact that all ideas are intrinsically disputable and may thus be challenged simply by looking at the things of the world from a different point of view than the one we have been taught to observe. Every newborn child may be compared to a blank book, in which the story of his or her life is to be written. Any person who has the opportunity of exercising some influence in the life of the child will write something in this book: entire chapters, phrases or simply words, depending on the extent and degree of the role played in the life of the child. The content of the book will represent the sum of the ideas, convictions and beliefs on which the person concerned will base his or her life. All these elements are strongly influenced by anthropological, historical and social roots, as they have evolved or been shaped by previous generations – a sort of ‘cultural DNA’ that influences the personality of the individual much more than his or her own biochemical DNA. In principle, the person concerned can challenge the contents of his or her own book only if the book itself contains the ‘instructions’ for doing so, to the same extent that, mutatis mutandis, our immune system is able to render a virus harmless only if it contains instructions for defending the body against such a threat. However, this correspondence is not exact: there is a basic difference between the biochemical and ‘cultural DNA.’ The former maintains its natural structure from cradle to grave, while each individual’s book of life (including his or her own ‘cultural DNA’) continues to be written at each moment of his or her existence. There is nothing inherently immutable in its content. As a consequence, even if the necessary ‘instructions’ for enabling the individual to reason with his or her own head are not written during his or her childhood, they can be added at any moment of his or her life. Of course, this is subject to the condition that the person concerned have the actual opportunity to live the experiences necessary for obtaining this capacity, and that such experiences be strong enough to modify the pages of the book where certain prejudices and stereotypes are written, accompanied by the instruction to consider them indisputable truths. Prejudice and intolerance often represent ways of thinking inherited by individuals from their parents or community, and are generally learned as unchallengeable truths that, as such, must inform the entire life of the person concerned. Too many people in the world do not have the chance to gain the capacity to distinguish between right and wrong by reasoning of their own. This is the main reason why, owing to blind hatred, prejudice and intolerance, dialogue among peoples is often upset by incomprehension, violence, ethnic conflicts and war. In order to change this situation and to avoid the transmission of allegedly indisputable truths to future generations, it is indispensable that the principles of tolerance and mutual understanding be promoted as the moving force of intercultural relationships. At a time when scientists are learning how to modify biochemical DNA (with all the positive and negative implications of such a scientific revolution), it would be extremely opportune for humanity also to learn how to remove the dark side of its ‘cultural DNA’, where intolerance and prejudices grow their bad roots.
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. Fostering Tolerance and Mutual Understanding among Peoples: UNESCO Action The very first statement of the Preamble to the UNESCO Constitution affirms that ‘since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed.’ It continues by stating that: ignorance of each other’s ways and lives has been a common cause, throughout the history of mankind, of that suspicion and mistrust between the peoples of the world through which their differences have all too often broken into war. The goal of ‘advancing the mutual knowledge and understanding of peoples’3 – i.e., as affirmed by Paragraph 1 of the first Article of its Constitution, ‘to contribute to peace and security by promoting collaboration among the nations’ – is thus a central element of UNESCO’s very raison d’être. During the first sixty years of its existence, consistently with the principles affirmed in its Constitution, UNESCO has produced a significant number of standard-setting instruments with the principal or incidental purpose of fostering tolerance and mutual understanding among peoples, as an indispensable prerequisite to a stable peace founded on the ‘unanimous, lasting and sincere support of the peoples of the world’, as well as ‘if it is not to fail, upon the intellectual and moral solidarity of mankind.’4 All such instruments are inspired by the awareness that, as declared by Article 2, Paragraph 3 of the 1995 Declaration of Principles on Tolerance (DPT):5
3. See UNESCO Constitution, 1945, Article I, Paragraph 2(a). 4. Ibid., Preamble, fifth Recital. 5. The DPT was adopted by the UNESCO General Conference on 16 November 1995, during the United Nations Year for Tolerance, proclaimed by the U.N. General Assembly in 1993. In the Resolution designating 1995 (the fiftieth anniversary of the United Nations) as the U.N. Year of Tolerance, the General Assembly expressly requested UNESCO ‘to prepare, in accordance with its General Conference resolution 5.6, a declaration on tolerance’; see Doc. A/RES/48/126 of 20 December 1993. The theme of tolerance is central to the United Nations. The fifth Recital of the U.N. Charter states that, in order to promote the main purposes of the Organization, the Peoples of the United Nations are determined ‘to practice tolerance and live together in peace with one another as good neighbours.’ Many legal instruments adopted within the framework of the U.N. General Assembly, both binding and non-binding, insist on the need for promoting tolerance. For example, Article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination (G.A. Res. 2106 (XX) of 21 December 1965) affirms that ‘States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups.’ Among the declarations approved by the General Assembly, the following are particularly relevant to the subject of tolerance: the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (Res. 36/55 of 25 November 1981); the Vienna Declaration and Programme of Action (World Conference on Human Rights, Vienna, 14-25 June 1993, Doc. A/CONF./157/23 of 12 July 1993; see, particularly Part II, Section B
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[it] is essential for international harmony that individuals, communities and nations accept and respect the multicultural character of the human family. Without tolerance there can be no peace, and without peace there can be no development or democracy.6
2.1 Building Tolerance and Mutual Understanding: Recognition of the Equality of All Human Beings In order to fulfil the purpose described above, pertinent UNESCO standard-setting action has carefully addressed the most important matters that may contribute to the growth of seeds of tolerance and mutual understanding in the minds of people. In the first place, any seed needs to be planted in good soil, where it will find the conditions necessary to its maturation. Consistently, the first precondition for creating the proper environment to promote the affirmation of the ideals of tolerance and mutual understanding ‘in the minds of men’ consists in removing all the prejudices and stereotypes that may prevent such ideals from flourishing. Among such prejudices and stereotypes, the main role in the maintenance of intolerance is probably played by the idea that certain races are superior to others. This idea has often represented the major reason (or pretext) for wars and ethnical conflicts, leading to some of the most tragic events of human history, like mass exterminations and genocides. In light of this, specific standard-setting instruments have been adopted by UNESCO with the exact purpose of discrediting any idea of racial superiority and discrimination and of insisting on the principle of equality of all races and human communities – all being entitled to recognition of the same degree of dignity as is inherent in the human nature of any individual. As solemnly proclaimed by the 1978 Declaration on Race and Racial Prejudice (DRRP): [a]ll human beings belong to a single species and are descended from a common stock. They are born equal in dignity and rights and all form an integral part of humanity.7
2.2 Understanding Diversity with a View to Comprehending the Equality of Peoples and Developing a Right Approach to Tolerance and Mutual Acceptance It clearly emerges from relevant UNESCO instruments that true comprehension of the principle of equality of all human beings cannot be constructed without promoting full
(Paragraphs 19 ff.)); and the Declaration and Programme of Action on a Culture of Peace (Doc. A/RES/53/243 of 6 October 1999). 6. See also infra note 9. All UNESCO standard-setting instruments are available in full text on the UNESCO Web site, at: http://www.unesco.org (last visited on 26 January 2007). 7. See Article 1, Paragraph 1.
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understanding of the diversity of various human communities. In the course of the centuries diversity has too often been perceived as proof of the existence of a different degree of human dignity. In other words, certain communities were considered closer than others to the model of ‘the perfect human person.’ History has plenty of examples of this mental process, often concretely translated into war, brutality and genocide. After the discovery of the Americas, for instance, people arriving from Europe to the new lands considered Native Americans ‘savages’ because they behaved in ways that were deemed immoral by puritan Western societies. This determination convinced European settlers of the righteousness of exterminating native peoples and of freely taking their lands as terrae nullius, on account of the fact that their forms of government could not be accommodated within the European model of State-centred systems. This course of action was blessed by the conviction of acting in the name of God, as the Roman Pontiff Alexander VI issued, as far back as 4 May 1493, the Papal Bull Inter Cetera, in which he expressed the desire that ‘barbarous nations’ (including those yet to be discovered) be ‘subjugated’ and brought to Christianity.8 A positive understanding of diversity is thus central to true equality in dignity among human beings.9 If conceived in negative terms, diversity may simply offer ‘justification’ for the perception of superiority of certain human communities over others. In order to demonstrate that such ‘justification’ is unfounded, Article 1, Paragraph 2 DRRP states that: [a]ll individuals and groups have the right to be different, to consider themselves as different and to be regarded as such. However, the diversity of life styles and the right to be different may not, in any circumstances, serve as a pretext for racial prejudice; they may not justify either in law or in fact any discriminatory practice whatsoever, nor provide a ground for the policy of apartheid, which is the extreme form of racism. The DRRP also proclaims the principle that different levels of achievement in progress and well-being (as they are commonly perceived) among the various peoples of the world can in no way be considered an indicator of any racial superiority, or ‘serve as a pretext for any rank-ordered classification of nations or peoples’, on account of the fact that differences in these achievements ‘are entirely attributable to geographical, historical, political, economic, social and cultural factors.’10 On the contrary:
8. See V. Taliman, 1994, Revoke the Inter Cetera Bull, Turtle Quarterly, Fall-Winter, pp. 7 f., also available at: http://ili.nativeweb.org/ricb.html (last visited on 22 February 2006). 9. In this sense see, inter alia, UNESCO Doc. 27 C/25 of 24 September 1993, Annex I (‘Draft Declaration on Tolerance’), according to which, ‘[i]t is essential to understand that, while all [human beings] are equal in dignity, all are different in terms of their talents, convictions and beliefs, and these differences are a factor of enrichment for every individual and for civilization as a whole, provided that all citizens are assured of opportunities for political, cultural, economic and social dialogue and participation at all levels of public life.’ 10. See Article 1, Paragraph 5.
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[a]ll peoples of the world possess equal faculties for attaining the highest level in intellectual, technical, social, economic, cultural and political development.11 The foundation of this assertion is also based on science (albeit in negative terms) since, as stated by Article 2, Paragraph 1 DRRP: [a]ny theory which involves the claim that racial or ethnic groups are inherently superior or inferior, thus implying that some would be entitled to dominate or eliminate others, presumed to be inferior, or which bases value judgments on racial differentiation, has no scientific foundation and is contrary to the moral and ethical principles of humanity. Even the genetic differences of the peoples of the world may in no way be assumed to serve as a basis for theorizing diverse degrees of ‘goodness’ among them, on account of the fact that the human genome is, by its nature, subject to evolution and mutation. As a matter of fact, ‘[i]t contains potentialities that are expressed differently according to each individual’s natural and social environment, including the individual’s state of health, living conditions, nutrition and education.’12 Since the distinctive identity of each community is reflected primarily in its own culture,13 appreciation and respect for the value of the diversity of cultures is an essential step in attaining a positive understanding of the diversity of peoples as a factor of mutual enrichment, rather than a pretext for discrimination. This principle is well expressed by Article 5, Paragraph 1 DRRP, according to which: [c]ulture, as a product of all human beings and a common heritage of mankind, […] offer[s] men and women increasingly effective means of adaptation, enabling them not only to affirm that they are born equal in dignity and rights, but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international context […].14
11. See Article 1, Paragraph 4. 12. See Article 3 of the 1997 UNESCO Universal Declaration on the Human Genome and Human Rights. 13. According to the sixth Recital of the Preamble of the 1982 Mexico City Declaration on Cultural Policies (available at: http://www.unesco.org/culture/laws/mexico/html_eng/page1.shtml (last visited on 22 February 2006)), culture, in its widest sense, is ‘the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs.’ 14. See, in this sense, the Preamble of the 2001 UNESCO Universal Declaration on Cultural Diversity, which aspires to ‘greater solidarity on the basis of recognition of cultural diversity, of awareness of the unity of humankind, and of the development of intercultural exchanges’ (Recital 8) and affirms that ‘respect for the diversity of cultures, tolerance, dialogue and cooperation, in a climate of mutual trust and understanding are among the best guarantees of international peace
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In light of this, UNESCO has constantly given special attention to the issue of cultural diversity since the very first years of its existence, even though the first standardsetting instrument to use this term in its title was adopted only in 2001.15 Still, the fact that ‘[e]ach culture has a dignity and value that must be respected and preserved’ was already stressed by Article I, Paragraph 1 of the 1966 Declaration of Principles of International Cultural Cooperation (DPICC),16 which adds, in Paragraph 3, that, ‘[i]n their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind.’ Culture, in its infinite diversity, is thus essential to developing ‘peaceful relations and friendship among the peoples and bring[ing] about a better understanding of each other’s way of life.’17 Proper comprehension of diversity is thus the key factor to fostering tolerance and mutual understanding among peoples. In this respect, UNESCO has concentrated its efforts toward the development of an approach to translating such principles, particularly that of tolerance, into concrete action in the real world. According to the Oxford English Dictionary,18 ‘tolerance’ means ‘the disposition to be patient with or indulgent to the opinions or practices of others; freedom from bigotry or undue severity in judging the conduct of others.’ As this definition makes clear, the meaning of the term in question is inherently open to possible misunderstandings. The very nature of being ‘patient’ or ‘indulgent’ may imply, in the event these terms are understood in an inaccurate way, a perception of superiority. In practical terms, we may be led to think that our principles and ideas are better than those of others, but, since we are open-minded and tolerant, determine not to subjugate them on account of their wrong ideas and instead arrogate the right to teach them our own right and ‘superior’ ideas with the intent of making them replace their own. Thus, the main danger is that tolerance, conceived of as ‘empathy for the others’, ‘condescension’ or ‘indulgence’, is seen in a subjective perspective and eventually leads to imposing on other people principles and life models we consider right under our own perspective. This has happened many times in recent history: one could cite the efforts at ‘assimilating’ indigenous communities
and security’ (Recital 7). See also the fourth sentence of the Preamble of the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, according to which ‘cultural diversity, flourishing within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures, is indispensable for peace and security at the local, national and international levels.’ 15. In 2001 the Universal Declaration on Cultural Diversity (supra note 14) was adopted. 16. See, in this sense, also the 1982 Mexico City Declaration on Cultural Policies, supra note 13, according to which ‘[t]he equality and dignity of all cultures must be recognized, as must the right of each people and cultural community to affirm and preserve its cultural identity and have it respected by others’ (Paragraph 9). 17. See Article IV, Paragraph 2. See also Article IX. 18. See the online version, available at: http://dictionary.oed.com/entrance.dtl (last visited on 22 February 2006).
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to the ways and practices of the ‘prevailing’ society19 or the actions of certain States for exporting their model of democracy to other countries. Even the definition of tolerance as ‘the recognition and appreciation of others, the ability to live together with and to listen to others’20 (considered ‘the sound foundation of any civil society and of peace’), which was provided by the U.N. General Assembly when proclaiming 1995 the U.N. Year for Tolerance, does not appear to supply the necessary elements for preventing the idea tout court from being conceived as the basis for a condescending perspective. In its standard-setting instruments, UNESCO has tried to clarify this key point. In particular, the DPT, in Article 1, defines the meaning of tolerance, as well as its importance for fostering peace and mutual understanding among peoples: 1.1 Tolerance is respect, acceptance and appreciation of the rich diversity of our world’s cultures, our forms of expression and ways of being human. It is fostered by knowledge, openness, communication, and freedom of thought, conscience and belief. Tolerance is harmony in difference. It is not only a moral duty, it is also a political and legal requirement. Tolerance, the virtue that makes peace possible, contributes to the replacement of the culture of war by a culture of peace. 1.2 Tolerance is not concession, condescension or indulgence. Tolerance is, above all, an active attitude prompted by recognition of the universal human rights and fundamental freedoms of others. In no circumstance can it be used to justify infringements of these fundamental values. Tolerance is to be exercised by individuals, groups and States. 1.3 Tolerance is the responsibility that upholds human rights, pluralism (including cultural pluralism), democracy and the rule of law. It involves the rejection of dogmatism and absolutism and affirms the standards set out in international human rights instruments.
19. In this sense it is sufficient to remember that the 1957 International Labour Organization (ILO) Convention No. 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (available at: http://www.ilo.org/ilolex/english/ convdisp1.htm (last visited on 22 February 2006)) was specifically aimed at the ‘ progressive integration into the life of their respective countries’ of those ‘indigenous and other tribal and semi-tribal populations which are not yet integrated into the national community and whose social, economic or cultural situation hinders them from benefiting fully from the rights and advantages enjoyed by other elements of the population’ (see Article 1 and the sixth Recital of the Preamble). This Convention was finally revised only in 1989, with the adoption of Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ibid.), ‘framed with the cooperation of ’, inter alia, UNESCO (see Preamble, eigth Recital) and aimed at adopting ‘new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards’ and ‘[r]ecognising the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live’ (see Preamble, fourth and fifth Recitals). 20. See A/RES/48/126, supra note 5, Preamble, fifth Recital.
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1.4 Consistent with respect for human rights, the practice of tolerance does not mean toleration of social injustice or the abandonment or weakening of one’s convictions. It means that one is free to adhere to one’s own convictions and accepts that others adhere to theirs. It means accepting the fact that human beings, naturally diverse in their appearance, situation, speech, behaviour and values, have the right to live in peace and to be as they are. It also means that one’s views are not to be imposed on others. As the text demonstrates, the provision in point insists on two main aspects: 1) acceptance and appreciation of diversity;21 and 2) recognition that the ideas and convictions of others are entitled to the same degree of respect and dignity as our own. Tolerance thus means, first of all, understanding differences: the reasons of others are to be seen in their own perspective and will easily appear ‘right’ to the same extent as our own ideas do according to our own point of view. Genuine acceptance of this way of reasoning would greatly help to foster peace and mutual understanding among peoples. Accordingly, as emphasized by Paragraph 1(b) of the 1974 Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms (REIUCP): [t]he terms ‘international understanding’, ‘cooperation’ and ‘peace’ are to be considered as an indivisible whole based on the principle of friendly relations between peoples and States having different social and political systems and on the respect for human rights and fundamental freedoms.
2.3 Education for Diversity, Tolerance and Mutual Understanding As the experience of history teaches us, one of the main reasons for intolerance is ignorance. As stated by Article 4, Paragraph 1 DPT, ‘[e]ducation is the most effective means of preventing intolerance.’22 This principle is reiterated and developed by Article 5, para. 1 DRRP, according to which ‘education in its broadest sense’, together with culture,
21. See also, in this sense, UNESCO Doc. 147 EX/15 of 1 September 1995, Paragraph 33 (according to which ‘[t]olerance is neither indifference nor concession nor condescension; it is openness, respect, solidarity and acceptance of our diversity as human beings’); New Delhi Declaration, adopted at the International Ministerial Conference on the Dialogue among Civilizations – Quest for New Perspectives, New Delhi, India, 9-10 July 2003, available at: (last visited on 22 February 2006), Article 1 (stating that tolerance, as ‘a fundamental value common to all civilizations’, includes ‘respect for others, regardless of diversity of belief, culture and language neither fearing nor repressing differences within and between societies but cherishing them as precious asset of humanity’). 22. The importance of education for tolerance is also stressed by Article 29(d) of the U.N. Convention on the Rights of the Child (G.A. Res. 44/25 of 20 November 1989), according to which the education of a child is to be directed to ‘[t]he preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.’
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offers ‘men and women increasingly effective means of adaptation, enabling them not only to affirm that they are born equal in dignity and rights, but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international context.’ For this reason, UNESCO action, aimed at fostering tolerance and mutual understanding through its standard-setting instruments, has been particularly concentrated in the field of education. In this respect, it is appropriate to refer first to the relevant provisions of the Convention against Discrimination in Education (CADE), adopted by the General Conference on 14 December 1960 together with the Recommendation against Discrimination in Education (RADE), which is virtually identical to the Convention, except for a few terminological differences due to the different legal nature of the two instruments.23 In particular, Article 5, Paragraph 1(a) CADE (corresponding to Article V(a) RADE), reproducing Article 26, Paragraph 2 of the Universal Declaration of Human Rights, proclaims the principle that: [e]ducation shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; it shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. This principle, also reiterated by Paragraph 3 of the REIUCP (which represents the most specific UNESCO standard-setting instrument on this issue), is reinforced by Article X DPICC, which states that cultural-cooperation ‘shall be specially concerned with the moral and intellectual education of young people in a spirit of friendship, international understanding and peace.’ UNESCO’s approach thus insists on the need to create a positive mental view of tolerance and mutual understanding through education. In order to transform this commitment into concrete action, the first step in education for tolerance ‘is to teach people what their shared rights and freedoms are, so
23. In adopting these two instruments contextually, the General Conference was certainly motivated by perception of a need to take immediate action against the practice of discrimination in education, which at the relevant time was common in many countries. As a matter of fact, while a convention is in principle more efficient than a recommendation on account of the binding character of its provisions, the effects of the convention extend only to State Parties and only starting from the moment of their ratification or accession, provided the convention has entered into force. On the contrary, the adoption of a recommendation implies a moral duty of respect for all UNESCO Members, which, though legally non-binding, comes into existence at the moment the recommendation is adopted by the General Conference. As a matter of legal coherency, the very fact that a State is a Member of UNESCO implies that it has the duty of acting consistently with the fundamental goals pursued by the Organization, as established by its Constitution and developed by its standard-setting instruments, including recommendations and declarations. See, on this point, H. Gros Espiell, 2005, Significance of the Convention against Discrimination in Education (1960), Paris, UNESCO, p. 4. The author points out that, ‘[w]hile identical to the Convention in content, the Recommendation enables States that are not in [a] position to ratify the Convention to contribute to the fight against discrimination in education.’
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that they may be respected, and to promote the will to protect those of others.’24 To this end, specific educational policies and programmes, as well as ‘rational tolerance teaching methods’ must be developed to ‘address the cultural, social, economic, political and religious sources of intolerance – major roots of violence and exclusion’ – and to develop ‘understanding, solidarity and tolerance among individuals as well as among ethnic, social, cultural, religious and linguistic groups and nations.’25 The same principle is expressed by Paragraph 4(b) REIUCP, which also insists (inter alia) on the need to foster ‘[a]wareness of the increasing global interdependence between peoples and nations’ as a major guiding principle of educational policies.26 The central role played by a correct understanding of diversity is self-evident even in this context. Education for diversity means not only that the significance of differences must be proclaimed in principle, but also (and especially) that it should be perceived in practice by people. To this end, the provision of Article 5, Paragraph 1(b) CADE (corresponding to Article V(b) RADE) is of particular importance. By stating that it is essential for education to be provided to children in conformity with their own religious and moral convictions,27 the Convention recognizes the equal dignity of all different ideas and
24. See Article 4, Paragraph 1 DPT. 25. See Article 4, Paragraph 2 DPT. 26. See Paragraph 4(c). See also, in particular, Paragraphs 6 (‘[e]ducation should stress the inadmissibility of recourse to war for purposes of expansion, aggression and domination, or to the use of force and violence for purposes of repression, and should bring every person to understand and assume his or her responsibilities for the maintenance of peace. It should contribute to international understanding and strengthening of world peace and to the activities in the struggle against colonialism and neo-colonialism in all their forms and manifestations, and against all forms and varieties of racialism, fascism, and apartheid as well as other ideologies which breed national and racial hatred and which are contrary to the purposes of this recommendation’), 7 (‘[e]ach Member State should formulate and apply national policies aimed at increasing the efficacy of education in all its forms and strengthening its contribution to international understanding and cooperation, to the maintenance and development of a just peace, to the establishment of social justice, to respect for and application of human rights and fundamental freedoms, and to the eradication of the prejudices, misconceptions, inequalities and all forms of injustice which hinder the achievement of these aims’) and 17 (‘[m]ember States should promote, at various stages and in various types of education, study of different cultures, their reciprocal influences, their perspectives and ways of life, in order to encourage mutual appreciation of the differences between them. Such study should, among other things, give due importance to the teaching of foreign languages, civilizations and cultural heritage as a means of promoting international and inter-cultural understanding […]’). See also Y. Daudet and K. Singh, 2001, The Right to Education: An Analysis of UNESCO’s Standard-setting Instruments, Paris, UNESCO, p. 33 (the authors point out that ‘[p]romoting the right to respect for differences and appreciating diversity must […] be central to any education project’). 27. The full text of the provision in point states that ‘[i]t is essential to respect the liberty of parents and, where applicable, of legal guardians, firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as may be laid down or approved by the competent authorities and, secondly, to ensure in a manner consistent with the procedures followed in the State for the application of its legislation, the religious and moral education of the children in conformity with their
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ways of thinking. Through effective application of this principle, those benefiting from the actual chance to receive an open-minded education – making them capable of pursuing their own beliefs and aspirations, especially if these differ from those pursued by other members of the society – may naturally perceive such differential treatment as the norm, and thus develop a tolerant approach to diversity. However, as emphasized in Section 1, the most important condition to be realized in order to foster a positive approach to diversity is that each individual be put in the effective condition of developing his or her own ability to reason with his or her own mind. This ‘imperative’ necessity is fully perceived by Article 4, Paragraph 3 DPT, which asserts that in order to ‘counter [...] influences that lead to fear and exclusion of others’, education for tolerance should help young people to develop capacities for independent judgement, critical thinking and ethical reasoning. It is indubitable that mass media play a key role in acting as a complement to education (conceived in broad terms), especially education for tolerance. This is particularly true in contemporary society, where globalization has resulted in global diffusion that allows any sort of message to be transmitted to every part of the world at the velocity of thought. Conscious of this reality, UNESCO dedicated a specific standard-setting instrument to the regulation of mass media back in 1978, namely the Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War. This Declaration emphasizes the role of mass media in education for tolerance, stating, at Article I, that: [t]he strengthening of peace and international understanding, the promotion of human rights and the countering of racialism, apartheid and incitement to war demand a free flow and a wider and better balanced dissemination of information. To this end, the mass media have a leading contribution to make. This contribution will be the more effective to the extent that the information reflects the different aspects of the subject dealt with. Once again, particular accent is placed on the need to ensure equal opportunities for all, as well as comprehension of diversity. This is confirmed by certain articles of the Declaration, which recommend that mass media give ‘expression to oppressed peoples who struggle against colonialism, neo-colonialism, foreign occupation and all forms of racial discrimination and oppression and who are unable to make their voices heard within their own territories.’28 It is also suggested that mass media contribute ‘[to] eliminate ignorance and misunderstanding between peoples’: to make nationals of a country sensitive to the needs and desires of others, to ensure the respect of the rights and dignity of all nations, all peoples and all
own convictions; and no person or group of persons should be compelled to receive religious instruction inconsistent with his or their convictions.’ 28. See Article II, Paragraph 3.
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individuals without distinction of race, sex, language, religion or nationality and to draw attention to the great evils which afflict humanity, such as poverty, malnutrition and diseases, thereby promoting the formulation by States of the policies best able to promote the reduction of international tension and the peaceful and equitable settlement of international disputes.29 In sum, it appears that UNESCO, through its pertinent standard-setting instruments, wishes to communicate to us the value of diversity as a positive feature enriching the human family and as the first precondition to adequately comprehending the equality of all human beings in dignity and capacity. The fact that the peoples of the world have evolved in different ways precisely shows that they all possess the capacity to decide how to manage their existence according to their own needs and expectations. In the same manner, the circumstance that they have reached different levels of development (leaving aside the fact that the term ‘development’ may have more than one meaning) is in no way the result of differences in intelligence or capacity. On the contrary, it is simply the result of the different vicissitudes that have characterized the evolution of various human communities, and particularly of frequent episodes of war, occupation and colonialism, that have retarded economic and social development of some of them. In all its relevant instruments, UNESCO tries to persuade us that it is only through comprehension of the intrinsic equality of all peoples, reflected in their apparent diversity, that the foundations of a world centred on peace, tolerance and mutual understanding can be built.
. UNESCO Action in the Field of Tolerance and Mutual Understanding: Adopted Strategies and Effectiveness Since the adoption of relevant standard-setting instruments in the field of tolerance and mutual understanding, UNESCO organs have constantly taken on and/or sponsored initiatives to implement the objectives pursued by these instruments, including establishment of ad hoc institutions at various levels (especially the so-called regional networks for tolerance), support for regional and/or national activities, cooperation with Member States, organization of international or regional meetings, seminars and workshops, adoption and implementation of plans of action, and preparation of international campaigns and publications.30 In turn, UNESCO Member States have regularly reported on the execution of several measures favouring the dissemination and
29. See Article III, Paragraph 2. 30. See, inter alia, UNESCO Docs. 22 C/16 of 22 September 1983; 126 EX/16 of 13 April 1987; 24 C/92 of 10 September 1987; 27 C/25 (Annex II); 27 C/90 of 24 September 1993; 28 C/26 of 6 September 1995; 29 C/INF.4 of 29 August 1997; 29 C/56 of 17 October 1997; 155 EX/49 of 11 August 1998.
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implementation of the principles in relevant conventions, declarations and recommendations. These activities have included publicity campaigns addressed to families and educational institutions, training of teachers, revision and improvement of school textbooks, and approval of specific political, administrative or legal measures.31 For example, in answering a questionnaire sent by the Director-General to Member States in 1987, fifty-five of the sixty-two governments that replied by 1989 declared that their national legislation reflected the aims and guiding principles of the REIUCP.32 More recently a number of UNESCO Members reported that education for human rights, democracy, international understanding and tolerance in their territory ‘begins at an early age and continues up to the higher educational level.’33 Last but not least, intense cooperation between competent national and regional institutions has been reported.34 As already seen, UNESCO has promoted tolerance and mutual understanding particularly through education. This kind of action has addressed all aspects of education (including religious education) as supplied to people by Member States, including, e.g. scholastic programmes at all levels, textbooks, training of teachers, preparation of curricula, university exchanges, as well as regulation of mass media. Various international programmes of education for tolerance have been set up and implemented.35 However, education is not the only tool used by UNESCO to spread the ideals of tolerance and mutual understanding. Another powerful weapon currently utilized to this end lies in the valorization of culture. As stressed by Article 5, Paragraph 1 DRRP,36 the endorsement of culture may represent a formidable means to fostering understanding and respect for the cultural identity of others through the consciousness that all human beings ‘are born equal in dignity and rights.’ In this respect, particular emphasis is placed on ‘communication’, conceived by Paragraph 2(c) of the 1976 Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It as: relations between groups or individuals desirous of freely exchanging or pooling information, ideas and knowledge with a view to promoting dialogue, concerted action, understanding and a sense of community while respecting their originality and their differences, in order to strengthen mutual understanding and peace.37
31. See, e.g., docs. 25 C/30 of 10 August 1989; 26 C/32 of 7 October 1991; 162 EX/20 of 7 August 2001. 32. See Doc. 25 C/30, at 22. 33. See Doc. 162 EX/20, at 5. 34. Ibid., at 9. 35. See, e.g., Doc. 147 EX/15, supra note 21, Paragraphs 11 ff. 36. See supra the text corresponding to note 14. 37. In the same manner, Paragraph 18(d) of the Recommendation affirms that UNESCO Member States or competent authorities should ‘develop and diversify cultural exchanges with a view to promoting an even deeper appreciation of the values of each culture and, in particular, draw attention to the cultures of the developing countries as a mark of esteem for their cultural identity.’
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At the operative level, UNESCO efforts to promote culture as a tool for tolerance and mutual understanding are particularly concentrated on reconstructing a culture of peace in the aftermath of armed conflicts (particularly those of an internal character). UNESCO has of late participated in the implementation of such programmes in a number of areas, including Angkor (Cambodia), the Caucasus, the Korean Peninsula, Palestine and Bosnia and Herzegovina. The purpose of these programmes consists in bringing together formerly belligerent factions around a common interest, generally the reconstruction of local cultural heritage. This activity may greatly help to restart dialogue and rebuild a common identity among the communities concerned through the rekindling of a link between the different cultural groups, and their history, within a population. Even when the cultural assets of the communities concerned are clearly distinct and well identifiable as pertaining to different cultural groups, and even when this cultural difference was the main reason triggering the armed conflict, the restoration of relevant cultural heritage may help rediscovery of certain common historical and cultural roots. These roots may play a decisive role in establishing a trait d’union among the groups concerned, in spite of apparently striking differences, and in reconstructing a harmonic relationship founded on peace and mutual understanding. In Bosnia and Herzegovina, for example, reconstruction of the old bridge of Mostar (Stari Most), launched by UNESCO in 1999, has played such a role. The Stari Most had been intentionally destroyed in November 1993, since it was considered a link between the Muslim and Croat communities of the town, as well as a symbol of the Ottoman period (lasting from the fifteenth to the nineteenth century), i.e. of occupation by a foreign culture. On 25 June 1999, the day the reconstruction of the bridge was officially launched in the presence of the UNESCO Director-General, the mayors of the Eastern and Western parts of Mostar met and shook hands again, for the first time in several years.38 In organizing programmes of this kind, UNESCO pays particular attention to granting full involvement to all local communities (through both public and private partners), so that they may fully perceive how the heritage concerned that they share with their former enemies reflects their common roots. It is undeniable that UNESCO, through relevant standard-setting and the implementation of pertinent legal instruments, has provided a significant contribution to fostering the ideas of tolerance and mutual understanding as criteria that should inspire relations among peoples. Its activities have lead to nearly universal acceptance of both principles at the international level. Today, virtually all heads of State and governmental representatives, either unilaterally or in unison at international conferences,39 never fail to reiterate their commitment to promoting the principles in point at all levels. In most countries the media constantly distribute advertisements inviting tolerance and respect for others and their viewpoints. The need for tolerance and mutual understanding is
38. See L. Levi-Strauss, The action of UNESCO in Bosnia and Herzegovina to restore respect and mutual understanding among local communities through the preservation of cultural heritage, in F. Maniscalco (ed.), 2002, La Tutela del Patrimonio Culturale in caso di conflitto, vol. 2, Napoli, pp. 143 ff. 39. In this respect, see the various declarations on a culture of peace listed in Appendix II of Doc. 155 EX/49 (pp. 49 f.).
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invoked at all public levels and is treated as a central element of education at all stages, from primary school to university. Nonetheless, too many people are still impervious to such ideas. Inter-ethnic conflict has increased in the last two decades; and international terrorism, based mainly on interreligious and intercultural hatred, has been spreading, becoming a global plague. Terrorists are trained to fight those who do not belong to the ‘right’ religious belief, while the slaughter of innocent lives is justified as ‘holy revenge’ for past injustice. The flags of foreign States are burned in squares. Wars of ‘liberation’ are made with the purpose of allowing other peoples to share the invaders’ ‘illuminated’ and ‘superior’ concepts of democracy and justice. Xenophobic ideas always find fertile ground in modern societies; and persons who deny that the Holocaust (or similarly dreadful events) ever occurred are making their voices heard. Groups of people in too many parts of the world openly manifest and act on their hatred of different communities. Even a lot of people who publicly proclaim the ideals of tolerance and mutual understanding cultivate intolerance and prejudice within the ‘walls’ of their minds.
. Tolerance and Mutual Understanding as a Prerequisite for the Realization of Peace and Human Dignity: Present Problems and Future Perspectives The spread of violence and intercultural conflict, a characteristic of the contemporary world, demonstrates that the most difficult step in removing intolerance and prejudice from the real world, i.e. the construction of a culture of tolerance and mutual understanding in the minds of people, is yet to be taken. What the world really needs today, when human relations have become globalized and the occasions for inter-ethnic, interreligious and interracial contact have greatly proliferated, is for tolerance and mutual understanding to permeate the mind of common people. As noted by Article 3 DPT: 3.1 In the modern world, tolerance is more essential than ever before. It is an age marked by the globalization of the economy and by rapidly increasing mobility, communication, integration and interdependence, large-scale migrations and displacement of populations, urbanization and changing social patterns. Since every part of the world is characterized by diversity, escalating intolerance and strife potentially menaces every region. It is not confined to any country, but is a global threat. 3.2 Tolerance is necessary between individuals and at the family and community levels. Tolerance promotion and the shaping of attitudes of openness, mutual listening and solidarity should take place in schools and universities and through non-formal education, at home and in the workplace. The communication media are in a position to play a constructive role in
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facilitating free and open dialogue and discussion, disseminating the values of tolerance, and highlighting the dangers of indifference towards the rise in intolerant groups and ideologies. UNESCO has started in recent years to address the issue in point, by taking into particular account the need for constructing a positive approach to tolerance and mutual understanding in the minds of people. The main obstacle to fulfilling such a difficult task resides in the human tendency to connect bad events in the world to an alleged physiological inclination to evil on the part of the persons materially involved in them. The 1998 UNESCO Preliminary Consolidated Report to the United Nations on a Culture of Peace40 noted that: [t]here has never been a war without an ‘enemy’, and to abolish war, we must transcend and supersede enemy images with understanding, tolerance and solidarity among all peoples and cultures. Only by celebrating the tapestry of our diversity, the common threads of human aspiration and social solidarity that bind us together, and by ensuring justice and security for everyone who makes up the warp and woof of the cloth, can we truly affirm that we are weaving a culture of peace. Therefore, a renewed commitment is needed to the actions proposed by the Declaration of Principles on Tolerance (Paris, 1995) and other actions which promote ‘intellectual and moral solidarity’ which, as declared by the UNESCO Constitution, is the only secure basis for peace.41 In other words, as Mahatma Gandhi used to say, people must learn to ‘hate the sin and not the sinner.’42 What is to be fought is not the person who acts, because the elimination of this person will not guarantee that the sin will not be perpetrated by other people, and then by other people again. Rather, we should fight against the sin as such, with a view to eliminating its roots in the world and the reasons leading people to commit it. In order to transform this thought into a moving force in people’s minds, specific programmes must be implemented. These programmes should include legal measures, but also other concrete initiatives, including special events, broadcasts and publications that may help in the mobilization of public opinion. In this context, as noted by UNESCO itself, it would be particularly useful to spread knowledge concerning all elements of creativity and the cultural manifestations of the various communities in the world. Such manifestations, being perceived as ‘positive expressions’ by people belonging to different groups on account of their artistic or aesthetic value, may instil a favourable attitude to properly understanding the value of different cultures. A relevant role in this
40. See Doc. 155 EX/49, passim. 41. See part IV, Consolidated Report on a Culture of Peace, Paragraph 101 (emphasis in the original text). 42. See Quotes from Mohandas K. Gandhi, available at: http://www.sfheart.com/Gandhi.html (last visited on 22 February 2006).
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respect could be played by, e.g. traditional practices and arts,43 and all tangible and intangible heritage produced by the peoples of the world. Also, the promotion of tolerance for, and solidarity with immigrants, particularly refugees and displaced persons, is of particular importance44 on account of the diffuse hostility manifested by many of the inhabitants of host countries. The sharing of technology and science, especially the results of scientific research, could also foster international tolerance. The resistance exhibited until very recently by certain industrialized countries to abrogation of existing intellectual property rights standards, in order to make generic anti-pandemic treatments accessible to people living in poor countries – as well as the refusal to repeal other restrictions on sharing scientific knowledge on the basis of economic interest above all – is certainly antithetical to, and destructive of the principles of tolerance and mutual understanding, not to mention unethical. How can a person who perceives that his or her life and that of his or her children are less valuable than the financial interests of pharmaceutical firms be tolerant with those who decree death for mere economic profit? On the contrary, if this person could have access to the medicine necessary to treat his or her disease, he or she could perceive that chance as a ‘lesson’ of altruism and tolerance from those who have intellectual rights in the remedies; and consequently open his or her mind to tolerance and mutual understanding for others. Last but not least, fairer distribution of resources in international society is needed than exists at present. Otherwise, how can a person living in a developing country, in absolute indigence, be tolerant of those who live in opulence and who are unwilling to share with others even those resources that enormously exceed their own life needs? It is thus essential that the international community concentrate its efforts on creating a fairer world, in which the gap between the richest and poorest communities is effectively reduced. Although poverty in global terms is at present slowly decreasing (with the important exception of Sub-Saharan Africa),45 the difference in income between the richest and poorest countries is constantly and enormously increasing. In 1820, the ratio was around 3 to 1; by 1950, it had increased to 35 to 1. In 1973, it stood at 44 to 1; in 1992, at 72 to 1; and has since reached the ratio of 103 to 1.46 It is exactly this growing
43. See Doc. 155 EX/49, Paragraph 103. 44. Ibid., Paragraph 106. 45. See the comprehensive study by S. Chen and M. Ravallion (Development Research Group, World Bank), 2004, How Have the World’s Poorest Fared Since the Early 1980s?, available at: http://www.worldbank.org/research/povmonitor/MartinPapers/How_have_the_poorest_fared_ since_the_early_1980s.pdf (last visited on 28 February 2006). 46. See M. Dickinson, 2000, Increasing Gap between Rich and Poor, Financial Times, online version, 20 September, available at: http://specials.ft.com/worldeconomy2000/FT31MFCQBDC.html (last visited on 28 February 2006); 2000, Open Letter to the United Nations from the Cry of the Excluded, 10 October, available at: http://tecnica.movimientos.org/grito/show_text. php3?key=226 (last visited on 28 February 2006); UNDP, Human Development Report 2005, available at: http://hdr.undp.org/reports/global/2005/pdf/HDR05_complete.pdf (last visited on 28 February 2006), p. 38.
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disparity (even more evident at the level of individuals),47 rather than poverty as such, that is perceived as unfair. It thus fosters intolerance and, a fortiori, war and ethnic conflicts. There cannot be tolerance, peace and understanding for others without social justice. Only after this global situation has been adequately addressed will the ideals of tolerance and mutual understanding take hold in the minds of people. Only then will it be effectively possible to turn into reality one of the main goals pursued by UNESCO: to transform tolerance into ‘the new name of peace.’48
47. According to the UNDP, Human Development Report 2005, supra note 46, the world’s richest 500 individuals have a combined income greater than that of the poorest 416 million (see p. 4 of the Report). 48. See Doc. 27 C/25, Annex I (Draft Declaration on Tolerance), final sentence.
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The Protection of Human Dignity in the Face of Scientific and Technological Progress
Souheil El Zein
. Introduction The title of my contribution hints at a possible tension, not to say paradoxical relation, between scientific and technological progress, on the one hand, and the safeguarding of human dignity, on the other. I have brought them face-to-face so as to understand better where they meet, certainly, but also where they might diverge. Yet, the history of the body of international law elaborated by the United Nations Educational, Scientific and Cultural Organization (UNESCO) over the last sixty years shows that such a divergence is regarded either as a temporary state, prior to reconciliation, or as a shift away from a fundamental compatibility. Reference may be made in this context to the Preamble to UNESCO’s Constitution, which identified the initial shift as the placing of science and technical progress at the service of war and discrimination between peoples. This shift led to the denial of human dignity or the ‘denied democratic ideal.’1 Article I of UNESCO’s Constitution accordingly proposes that the Organization be the place of ‘collaboration among [...] nations’, to be promoted ‘through education, science and culture in order to further universal respect’ for what the Charter of the
1. The Preamble to UNESCO’s Constitution is very clear about the intention of the State Parties, which declare therein ‘[t]hat the great and terrible war which has now ended was a war made possible by the denial of the democratic principles of the dignity, equality and mutual respect of men, and by the propagation, in their place, through ignorance and prejudice, of the doctrine of the inequality of men and races.’
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United Nations affirms for all the peoples of the world.2 When we seek to determine what the Charter proclaims on behalf of these peoples, we discover their ‘faith in the dignity and worth of the human person, in the equal rights of men and women’ in order to ‘promote social progress and better standards of life in larger freedom.’3 It should be noted in this regard that the concept of social progress found in the Charter of the United Nations is broader than that of technical and technological progress, whose evolution is directly related to the emergence of the right to sustainable development, as was subsequently established. The interdependence between the UNESCO’s functions, which encompass science, culture, education and communication, and the functions of the United Nations has been the key point for their mutual development inasmuch as the founders of UNESCO created it as a specialized agency with functional horizontal structures that complemented the vertical structure of the Charter of the United Nations. It is this dynamic and functional connection between the Charter of the United Nations and UNESCO’s Constitution – their common reference to human dignity and social progress – that is at the source of reconciliation of the principle of human dignity with scientific and technological progress. Having established the crucial significance of these two instruments to my subject, it is important to show, in the first place, how UNESCO’s other legal texts lay down principles for the reconciliation of human dignity and scientific progress, and, in the second, how UNESCO’s standard-setting action has taken into account a change in the concept of dignity with respect to technological progress.
. Human Dignity Reconciled with Scientific and Technological Progress in UNESCO’s Legal Texts and Human Rights Instruments This reconciliation has not been easy from a normative or operational standpoint during UNESCO’s sixty-year history. Depending on the period, the concepts of dignity and of social and technological progress have led UNESCO’s Member States to put more
2. It is from this standpoint that the Preamble to UNESCO’s Constitution pursues the aims of the Charter of the United Nations, by defining human dignity as the basis and essential reason for the Organization’s actions, which are defined in this way: ‘[t]hat the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern.’ 3. The Charter of the United Nations and UNESCO’s Constitution do not define the term ‘human dignity.’ This is also true of human rights conventions and humanitarian law in general, although the term ‘dignity’ is directly or indirectly taken into consideration in the definition of concepts like crimes against humanity, torture and degrading and inhuman treatment.
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emphasis on one or the other of these dimensions, all the while seeking to maintain the interplay between the two. UNESCO’s first legal instruments after 1948 were designed to reduce the gap between two factors: on the one hand, the technological reality of countries’ unequal development and, on the other, the law, characterized by cooperation conventions to be reconciled with the noble ideals of dignity, equality and justice, and the duties set out in the Universal Declaration of Human Rights. While the concept of dignity is regarded as the cornerstone of human rights, freedom of scientific research and freedom of expression, which are also fundamental freedoms, have been used in all those instruments to guarantee both scientific progress and the exercise of each individual’s right ‘to share in scientific advancement and its benefits’ (Article 27 of the Universal Declaration of Human Rights). From a legal perspective, solutions had to be found to the underlying conflicts of norms or principles that were proving to be incompatible in the face of a globally expanding market and the resulting competition for control over science and technology in UNESCO’s fields of competence. Moreover, in order to find such legal solutions, it was necessary not only to take into account the dialectical relationship between dignity and freedom – the normative aspects of which were not limited to the legal instruments drawn up by UNESCO – but also to ensure that the proposed solutions were compatible with United Nations legal instruments, as well as those of the World Trade Organization (WTO) focused on the freedom of trade in goods and services. Through reviewing the contribution of the first standard-setting instruments produced by UNESCO after the Second World War, it appears that things were simple and in keeping with the initial idea: progress in the areas of science, culture and education was to ensure human well-being, bring about peace through understanding, and safeguard the dignity of peoples through better distribution of the benefits of this progress. The first conventions of the 1950’s on the importation of materials of an educational or scientific character4 and other instruments on the circulation of visual and auditory materials of an educational character,5 on the use of satellite broadcasting6 or on scientific
4. Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character of 1948, with Protocol of signature and model form of certificate provided for in Article IV of the Agreement (all UNESCO standard-setting instruments are available at: http://www.unesco.org). 5. Agreement on the Importation of Educational, Scientific and Cultural Materials with Annexes A and E and the Protocol Annexed in 1950 and its 1976 Protocol; Convention concerning the Exchange of Official Publications and Government Documents between States of 1958; and Convention concerning the International Exchange of Publications of 1958. 6. Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange of 1972.
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and technical education7 were products of that approach, without prejudice to UNESCO’s instruments on the role of the media in the age of cyberspace8 or digital archiving.9 The same is true for the instruments on copyright,10 the status of performers, producers of phonograms and broadcasting organizations11 and the status of teachers and scientists,12 which seek as much to protect the dignity of such specialists as to ensure that nations enjoy the material and intellectual benefits they can bring. In short, the law developed by UNESCO’s Member States sought to globalize the benefits of technical progress and its use in a way that was compatible with respect for human rights – which confirms what Albert Einstein put more simply when he said: [s]cience is a powerful instrument. How it is used […] depends on mankind and not on the instrument. To ensure that humans are not dominated by their tools, the legal instruments of UNESCO refer systematically to human rights instruments and include a clause on the protection of human rights in nearly every case.13 However, the reference to human rights instruments could not itself resolve all of the problems of interpretation and was only based on the assumption of compatibility between these two branches of law. Other UNESCO instruments have thus relied more directly on the concept of human dignity, hoping to find a solution that did not appear to reconcile with technological progress at any cost.
7. Convention on Technical and Vocational Education of 1989. 8. Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace of 2003. 9. Charter on the Preservation of Digital Heritage of 2003. 10. Universal Copyright Convention, revised at Paris on 24 July 1971 with the Annexed Declaration on Article XVII and the Resolution concerning Article XI. 11. 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. 12. 1974 Recommendation on the Status of Scientific Researchers. 13. Several UNESCO conventions, recommendations and declarations contain a clause on the protection of human rights drafted along the lines of the following clause: ‘[n]othing in this [Convention, Recommendation or Declaration] may be interpreted as being able to be invoked in any way by a State, group or person to engage in any activity or perform any act for purposes counter to human rights, to fundamental freedoms and to human dignity.’
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. The Conflict between the Principle of Human Dignity and Technological Progress Accordingly, when the excesses of industrialization, urbanization and exploitation of natural resources have been accompanied by the difficulties of technology transfer and of ensuring that the benefits of such progress are equitably shared, UNESCO has responded swiftly to put an end to such by-products. The objective of its codification work in this field has been to offset the threat to the handing down of traditional know-how and the risks of cultural uniformity, the loss of collective memory, the destruction of tangible or intangible heritage and infringement of human rights through the Internet and control of the media. It is in this context that one must first appreciate the alarm that was sounded by the Declaration of the Principles of International Cultural Cooperation of 1966. By establishing the principle of the equal dignity of cultures, this instrument of soft law was the first to highlight the difference between technical progress and the advancement of humankind.14 The principle of the equal dignity of cultures was not reaffirmed as an independent principle until forty years later, under the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005, demonstrating UNESCO’s will not to reduce culture simply to a standardized and unique culture of technology.15 Another such instrument is the Convention for the Safeguarding of the Intangible Cultural Heritage of 2003, which, in Article 2 on the definition of such heritage, excludes rituals or acts that are incompatible with the dignity of women or human rights in general. The 2005 International Convention Against Doping in Sport likewise prohibits the use of modern pharmaceutical products by athletes in order to prevent abuses that violate the ethics of sport and the dignity of these athletes. Soft-law declarations may also be cited, of which the most important as regards the environment is the Declaration on the Responsibilities of the Present Generations Towards
14. The Preamble to the Declaration of the Principles of International Cultural Cooperation of 1966 states that ‘despite the technical advances which facilitate the development and dissemination of knowledge and ideas, ignorance of the way of life and customs of people still presents an obstacle to friendship among the nations, to peaceful cooperation and to the progress of mankind’, going on to affirm in Article I that ‘[e]ach culture has a dignity and value which must be respected and preserved.’ 15. The Recommendation on the Status of Scientific Researchers of 1974 follows along the lines of the Declaration of the Principles of International Cultural Cooperation of 1966 in that it also affirms the equal dignity of researchers in all Member States and invites them to ‘make every effort to translate into terms of international policies and practices, their awareness of the need to apply science and technology in a great variety of specific fields of wider than national concern: namely, such vast and complex problems as the preservation of international peace and the elimination of want and other problems which can only be effectively tackled on an international basis, such as pollution monitoring and control, weather forecasting and earthquake prediction’ (operative Paragraph 6).
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Future Generations.16 This Declaration states that ‘[s]cientific and technological progress should not in any way impair or compromise the preservation of the human and other species’ (Article 6). It also calls on present generations to ‘take care to use natural resources reasonably and ensure that […] scientific and technological progress in all fields does not harm life on Earth’ (Article 4). Lastly, I believe that it is in the field of the life sciences that the conflict between the concept of human dignity and scientific and technological progress has left its mark on UNESCO’s work since the establishment of the International Bioethics Committee and the World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) as subsidiary bodies of UNESCO. Admittedly, the recent Universal Declaration on Bioethics and Human Rights of 2005 paves the way for the reconciliation of the freedom of scientific research and the principle of dignity by highlighting its roots in international human rights law in such a way as to render indivisible the three generations of human rights instruments, if one considers its reference to vulnerable persons,17 the sharing of the benefits of scientific research, and its provisions for social responsibility towards the right to health and development. However, reconciliation encompasses not only to provisions for the safeguarding of human rights, as do all other UNESCO instruments; it is also based on a universal ethic built on the concept of dignity, which, once translated into law, becomes a means of channelling all fundamental rights towards the ideal of respect for the human person. Indeed, it is not only that UNESCO instruments place certain conditions on scientific research or biotechnology experiments, such as respect for the patient’s consent and private life and the confidentiality of his or her genetic data – all of which are concrete subjective rights exercised on the basis of the principle of human dignity, understood as a ‘cardinal principle’ or ‘matrix’ of those subjective rights. UNESCO instruments go further, inasmuch as certain types of research or experiment, such as reproductive cloning and all similar activity, are prohibited by virtue of the same principle of dignity. This prohibition is proclaimed by those instruments even if an entirely capable and autonomous patient consents to experimentation or pretends to have a subjective and individual right to determine his or her way of life and to create a family.
16. Declaration adopted on 12 November 1997 by the UNESCO General Conference at its twentyninth session. 17. For example, UNESCO’s recent Universal Declaration on Bioethics and Human Rights of 2005 contains an article relating specifically to human vulnerability (Article 8), which provides that ‘[i]n applying and advancing scientific knowledge, medical practice and associated technologies, human vulnerability should be taken into account. Individuals and groups of special vulnerability should be protected and the personal integrity of such individuals respected.’
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. Mutation within the Concept of Dignity Can such body of law, rich in potential legal concepts (where the human genome could form a symbolic part of the heritage of humanity, where dignity could serve both as a democratic ideal and as the foundation for the prohibition of the use of the human body for financial gain and, finally, where dignity could be attributed both to the individual and to his culture), serve as the basis for a coherently defined legal concept of human dignity? For some jurists,18 this principle is too vague to be legally meaningful, all the more so as it is difficult to take the step from agreement on the principle to concrete applications in highly specialized areas, such as therapeutic cloning or euthanasia, which are currently left to the debates of the ethics committees supported by UNESCO. Dignity remains a dubious notion with respect to which there are major uncertainties as to meaning, according to some authors.19 In the present context, it is to be understood as the respect that a person, as a human being, can demand of others – ‘human dignity’ being the opposite of dignity in the sense of ‘liberty’ and vice versa. That said, the polysemous dimension of dignity is both its driving force and main weakness. In fact, the public-order aspect of dignity occasionally makes it possible to conceal in legal guise an ethic similar to that of the notion of accepted standards of behaviour or of decency, the meaning of which is both variable and imprecise in any legal system. However, this analogy is limited in that dignity cannot be reduced to a simple situation of fact or of accepted standards, and implies a duality that is central to its value. The dual nature of the principle of dignity is illustrated by the fact that the rights arising from it must be made compatible with other rights and freedoms. On the one hand, the subjective right is what gives value to the dignity and personality of the individual. Those of UNESCO’s declarations that state that ‘a person’s identity should not be reduced to genetic characteristics, since it involves complex educational, environmental and personal factors and emotional, social, spiritual and cultural bonds with others and implies a dimension of freedom’20 seek to affirm that human dignity is an interpersonal question implying the non-instrumentalisation of persons and their protection from those who seek them out only on account of their genetic characteristics.21
18. See S. Maljean-Dubois, 2006, ‘Le droit international et les organizations internationales face aux risques biotechnologiques: panorama de la diversité des sources et des acteurs’, in Treizièmes Rencontres Internationales d’Aix-en-Provence, a Symposium organized by the Institut d’Études Politiques d’Aix-en-Provence, La communauté internationale et les enjeux bioéthiques, Paris. 19. See C. Girard and S. Hennette-Vauchez (eds.), 2005, La dignité de la personne humaine: recherche sur un processus de juridicisation, Paris, pp. 318 ff. 20. See Article 3 of the International Declaration on Human Genetic Data. In the same spirit, Article 3 of the Universal Declaration on the Human Genome and Human Rights of 1997 states that the human genome ‘contains potentialities that are expressed differently according to each individual’s natural and social environment [including health and education].’ 21. See S. El Zein, 2006, La Déclaration universelle sur le genome humain et les droits de l’homme, in La communauté internationale et les enjeux bioéthiques, op. cit. in note 18.
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On the other hand, human dignity, the matrix principle underlying all human rights, seems in the legal instruments of UNESCO to go beyond the subjective rights arising from it, to merge with the notion of an international public order governing humanity as a whole or to establish a normative standard in which freedom and subjective rights can be reconciled. What is certain is that the human dignity inherent in the human person is a constituent element of a legal concept accepted by all, namely, public order. UNESCO’s legal discourse has thus transformed human dignity into a legal standard modifying the concept of international public order, which is at the origin of the limitation on both scientific power and the principle of the autonomy of the patient’s will. Thus, UNESCO’s standard-setting efforts have been such that in the context of the use of subjective rights, greater account is being taken of the objective rights of the individual, whose dignity goes beyond the subjective use that he or she might make of it, for example by consenting to a particular act, when this act is judged objectively, to be contrary to human dignity. In conclusion, I believe that UNESCO’s legal discourse confirms this duality, owing to which rights and freedoms may be reconciled by asking States that guarantee these rights to review their law, sometimes judged permissive or vague and sometimes restrictive or poorly adapted depending on the technological and human issues at stake. In this sense, the idea of an international public order that monitors bioethical practices relating to the individual, or cultural practices that run counter to cultural diversity is gradually gaining legal force in the quest for overall coherence. Its establishment is becoming increasingly urgent in imposing on States duties that will also be the future rights of the individual or of humanity in this area.
PART III
CONSOLIDATING COLLABORATION AMONG NATIONS IN EDUCATION, SCIENCE AND CULTURE
PANEL 4
Safeguarding the World’s Cultural and Natural Heritage
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Introduction Georges Abi-Saab
The theme of this Panel is ‘Safeguarding the World’s Cultural and Natural Heritage’, to be developed by three excellent contributors. What is particularly interesting about our topic is not so much the examination of the content of legal protection or of the legal safeguards of cultural and natural heritage as the legal techniques used for such protection, as well as their interrelations. For example, Professor Francioni, in his paper ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’, depicts how the concept in question has evolved from protecting a res, a cultural object as ‘cultural property’, into an all-inclusive concept of ‘heritage’ – cultural as well as natural – and relates this horizontal extension to what has always existed in law but has become visible only recently, namely obligations erga omnes, which attach to the wider concept. Professor Redgwell moves from this horizontal extension into a kind of vertical one, focused on how to protect natural heritage in time and prospectively for future generations, thereby revealing a tendency towards ever-widening concepts and techniques of protection. Professor Kono relates the concept of cultural heritage to that of sustainable development – which also reinforces the link to future generations – while dealing with a further extension of the concept and protection to ‘intangible cultural heritage’. Thus, we have complementary approaches to what is, legally speaking, a very rich and fertile concept. However, I am always afraid when dealing with a good concept that we are liable to run away with rhetoric, to the point of rendering the concept in question non-operational. This is why, as we discuss the role of UNESCO in formulating and developing legal concepts for the purpose of protecting the collective goods of the international community, we always have to keep in mind that our concepts must be operational and the protection that goes with them workable. After this very short introduction, let us now proceed to the contribution of my old friend Professor Francesco Francioni, who now teaches at the European
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University Institute in Florence. I am not going to give long introductions for any of our speakers. They are well known to the international academic community.
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A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage Francesco Francioni
. Introduction One of the most important developments in contemporary international law is the emergence of the concept of erga omnes obligations in the course of the second half of the twentieth century. As has been authoritatively indicated by the International Court of Justice,1 this type of obligation is owed by every State to the international community as a whole rather than to individual States, as was typical of the traditional contractual scheme of treaty and customary norms. This new mode of operation reflects the need to protect and promote the collective values of international society as such, not just those of individual States. Accordingly, erga omnes obligations entail the responsibility of every State to act as an agent of the international community in the pursuit of such collective values, as well as the right to react with appropriate measures to violations of this type of obligations committed by other States. As is well-known, the areas of international law touched by this phenomenon include the protection of human rights, peoples’ self determination, prohibition of the use of force and protection of the environment. In these areas, the impact of the concept of erga omnes obligations is a direct consequence of the ‘public law’ nature of the interests involved: human and peoples’ rights, peace and the environment that permits our life. These are international public goods, the preservation of which is in the interest of every State and in respect of which every State, as an active and responsible member of the international community, may take countermeasures in case of violation.
1. Barcelona Traction Case, 1970, ICJ Reports, 1970, p. 3. See also Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, available at: http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm (last visited on 16 October 2006).
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This opening of a new sphere of public international law has been recognized, to a certain extent, in the codification of the law of State responsibility by the International Law Commission.2 But this is only part of the story. The emergence of the concept of erga omnes obligations has also produced far-reaching effects in the vertical dimension of the relationship between international law and the State. In so far as erga omnes obligations trace their origin and their rationale to the idea of international community interest, their recognition goes hand in hand with the progressive identification of a typology of ‘general interests’ whose international legal protection reaches ever more deeply into the internal sphere of State sovereignty, to areas that traditional norms of international law had left within domestic jurisdiction. Since norms creating erga omnes obligations do not protect the interests of individual States, but the general interests of humanity, as in the case of human rights, or of international society as a whole, as in the case of the environment and peace, it is impossible for individual States to claim a prerogative of exclusive government in these areas. Thus, erga omnes obligations become the legal vehicle for the assertion and promotion of international community interests in domestic law not only by interested States, but also by private parties and by members of a civil society increasingly active in a world dominated by market integration and free communication between people. It is in this general context that one needs to place the question of UNESCO’s role in the progressive evolution of international norms, from a system protecting cultural ‘property’ to a more ambitious and comprehensive system safeguarding ‘cultural heritage’. Although the protection of cultural heritage does not figure in the present canon of erga omnes obligations, it is my opinion that the contribution of UNESCO to this field consists precisely in its constant commitment to developing a notion of cultural heritage that forms a constituent part of the general interest of humanity. The conservation and the promotion of diverse forms of this heritage transcend the national interests of individual States or the interests of specific groups and communities, and represent the tangible or intangible expression of our shared humanity. In the following pages, I will first trace the origins of norms for the protection of cultural objects in international law. I will then discuss the development of the concept of ‘cultural property’ in UNESCO’s norm-setting activity. Finally, I will discuss the significance of the introduction of a broader notion of ‘heritage’ in the legal instruments adopted by UNESCO, from the early example of the 1972 World Heritage Convention to more recent instruments adopted at the beginning of the twenty-first century.
. The Origins of the Idea of Protection The idea that objects of artistic, historical or cultural interest are entitled to special protection under international law, both during peacetime and in times of war, is fairly
2. See, in particular, Articles 48.1(b) and 54 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (available at: http://untreaty. un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf ), endorsed by the GA.
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recent. Up to the middle of the eighteenth century, the theory and practice of international law condoned the indiscriminate destruction or appropriation of cultural objects in the event of armed conflict and of military occupation. In spite of the important contribution of the Renaissance to the rediscovery of the ancient world and to the understanding the powerful role of art and beauty as elements of collective identity, decimation of historical and artistic monuments or objects continued unabated in the sixteenth and seventeenth centuries.3 Machiavelli, who was an early political scientist to develop a full-fledged theory of princely virtù, admonished that the only way to vanquish definitively enemy cities was to destroy them completely, since ‘[…] he who becomes the master of a city accustomed to live free and does not destroy it, must expect to be destroyed by her.’4 Albericus Gentili, one of the fathers of international law, meaningfully entitled Chapter VI of his celebrated De jure belli libri tres with the lapidary statement ‘victos praeterea spoliare ornamentis licet ’ (‘besides, it is permitted to spoil the art of the defeated’).5 An early limitation on this unfettered treatment of cultural objects began to emerge in the middle of the eighteenth century in order to promote respect for and eventual restitution of State property, such as archives, State libraries and art collections, which became the object of specific provisions in the treaties ending the Thirty Years War (Westphalia 1648), in the Oliva Treaty between Sweden and Poland (1662) and in the Treaty of Whitehall between England and the Low Countries (1662).6 However, we were still far from having elaborated an organic notion of cultural property during this period. Protection was extended to archives and libraries only as elements of State sovereignty. In the course of the eighteenth century, with the revival of natural law theories and the influence of the Enlightenment, a new focus on cultural objects began to emerge. The fury of the French Revolution, including its zeal to destroy all the remnants and symbols of the ancient regime, stopped short of the total destruction of monuments, art and historical buildings. This was achieved largely thanks to an appeal by some enlightened thinkers (Abbé Grégoire, for example) to the novel idea that historical monuments, works of art and science, and other cultural object belong to the ‘patrimoine’ of the people (the Nation) rather than to a special class or group in the society. Therefore, they must be preserved as a public trust to be passed from one generation to another.7 In spite of the noble intention of its framers, this new concept of cultural object as ‘patrimony’ did not produce immediate results for the progressive development of international law. On the contrary, its focus on a linkage between cultural patrimony
3. One need only recall the sacking of Rome by the German armies of Charles V in 1527 and the prolonged devastation of Germany during the Thirty Years War. 4. N. Machiavelli, Il Principe, Capitolo V, Quomodo Administrandae Sunt Civitates vel Principatus, qui, Antequam Occuparentur, suis legibus Vivebant. 5. De jure belli libri tres, Liber III, Cap. VI, 1612. 6. For this treaty practice, see S. E. Nahlik, 1967, La protection internationale des biens culturels en cas de conflit armé, Recueil des Cours, Vol. I, pp. 77 ff. 7. On the contribution of Abbé Gregoire to the idea of public trust, see J. Sax, 1990, Heritage Preservation as a Public Duty: The Abbé Gregoire and the Origins of an Idea, Michigan Law Review 88, pp. 1142 ff.
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and Nation, rather than on the happenstance of territory, produced an ideological basis for turning cultural patrimony into an instrument of political aggrandisement and of imperial power. The Napoleonic wars produced one of history’s most extensive spoliations of cultural objects in Europe or elsewhere. Very little of what was removed was returned to the countries of origin after 1815. In addition, the Napoleonic experience provided the deleterious model for the political use of cultural objects in the period of colonialism, when antiquities and other objects of a historical or artistic character were removed from the colonies to celebrate conquest and the magnificent destiny of the imperial powers. Now that colonialism is long gone, many of those objects remain in the museums and libraries of former colonial powers as muted testimony to a new cultural ‘internationalism’. It was in the second half of the nineteenth century and at the beginning of the twentieth century that a certain awareness of the importance of cultural objects began to emerge, especially in relation to the conduct of hostilities in times of war. The Brussels Declaration of 18748 and the Oxford Manual on land warfare, whose rules were extended to maritime war in 1913,9 introduced specific rules on the protection of buildings dedicated to religion, arts and science, as well as an obligation (of the belligerent State) to prosecute acts of spoliation and destruction. These early precedents found full normative development with the 1907 Hague conventions on the laws and customs of war, which contain specific provisions of positive international law binding belligerents to the protection and restitution of enemy cultural objects. In spite of the historical importance of these early instruments, it is clear that they fall short of providing a coherent concept of cultural property for the purposes of international protection. The term ‘cultural property’ as a general category of goods worth protecting is absent from the language of these instruments. They refer to ‘institutions dedicated to religion, charity and education, the arts and science […] historic monuments, works of art and science’, which implies both a fragmented approach to the objects in question and a ‘humanitarian’ criterion for protection, i.e. one stemming from the undefended character of the buildings, rather than a ‘cultural’ one. This is confirmed by the 1923 Hague Rules of Aerial Warfare, in which Article 22 lumps together historical and artistic buildings with hospitals and buildings dedicated to worship and charitable purposes. In the years immediately preceding the Second World War, two initiatives are worth mentioning for their role in further developing a rationale for the international protection of cultural objects. The first is the adoption in Washington of the Roerich Pact of 15 April 1935, which for the first time introduced the idea that cultural objects constitute the cultural patrimony of all peoples. The second is a project initiated in the same period by the League of Nations for the elaboration of a convention for the specific safeguarding of cultural objects, inspired by the massive loss of cultural sites and objects that accompanied the Spanish Civil War.
8. See Articles 8 and 17. 9. See Articles 34 and 53.
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. UNESCO and the Emergence of the Notion of ‘Cultural Property’ In the period following the Second World War, with the adoption of the UN Charter, the ban on the use of force and the incorporation of the fundamental principles of human rights and humanitarian law into the Universal Declaration of Human Rights of 1948 and into the Geneva Conventions of 1949, the time was ripe for the newly established United Nations Educational, Scientific and Cultural Organization to undertake a new and comprehensive effort for the protection of cultural property. After the unprecedented cultural destruction wrought by the Second World War – with its new methods of ‘carpet bombing’ and the systematic looting of art objects in occupied territory – it was only natural that the first priority of UNESCO was the adoption of an instrument for the protection of cultural property in the event of armed conflict. This instrument found embodiment in the 1954 Hague Convention, which introduced, for the first time in multilateral standard-setting, the expression ‘cultural property’ as a comprehensive and homogeneous category of objects worth protecting because of their specific cultural value, rather than simply because of their generic undefended or civilian character. The contribution of the Hague Convention to the dynamic evolution of the notion of cultural property can be further appreciated in light of the technical definition provided for this type of ‘property’. Since previous international normative instruments had not referred to a conceptually autonomous category of cultural property, but only to an empirically defined list of sites and buildings of a heterogeneous nature and function, the need to give a legal definition of ‘cultural property’ had not arisen. With the departure from mere listing and the introduction of the synthetic category of ‘cultural property’ the problem of definition became inescapable. The definition provided by the Hague Convention comprises several criteria. First, to qualify as cultural property for the purpose of protection, an object must be of ‘great importance’ for the heritage of all peoples, an admittedly ambiguous criterion, for what may be of great cultural importance to some people may be totally insignificant to others. The second criterion is typological and identifies three general categories of protected objects: a) movable or immovable property, like monuments, archaeological sites, works of art and scientific collections that pass the general test of ‘great importance’; b) buildings containing cultural objects that fall into the first category, such as museums, libraries and archives; c) centres containing monuments. The third criterion is that of a listing, in other words the inscription of particular cultural property into a list for ‘special protection’ or, in the language of the 1999 Protocol to the Hague Convention, ‘enhanced protection’. The Convention marks an important step in the evolution of the concept of cultural property, for it makes clear that the use of the term ‘property’ is not intended to construe cultural objects as having a market value, as being mere ‘goods’ to be bought and sold. This would have been impossible if a large consensus had not existed, in the international community and within the UN, on the need to protect private property under international law.10 On the contrary, the Hague Convention assigns
10. During the Cold War, it was impossible to agree on the inclusion of property as a ‘right’ to be recognized in the UN covenants on human rights, although Article 17 of the Universal
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to the term ‘cultural property’ the character and role of an element of the ‘cultural heritage of all mankind’. In the famous phrase contained in its Preamble, the Convention proclaims the conviction ‘[…] that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.’ This language anticipates the subsequent development of a more complex concept of ‘cultural heritage’ that transcends the material character of what is to be protected and includes objects without owners that must nonetheless be protected because their conservation is in the general interest of the international community as a whole. The term ‘cultural property’ can also be found in the 1970 Paris Convention on the control of the illicit traffic of cultural objects, adopted by UNESCO a decade and a half after the Hague Convention. In the context of trade, it is only natural that the term ‘cultural property’ is understood in the sense of ‘object subject to economic evaluation on the market’. However, a closer look at the Convention shows that the meaning of ‘cultural property’ adopted centres not on private rights and interests, but primarily on the public law concept of general international community interest in the conservation and protection of cultural property at a risk of loss and dispersion through illicit trade. This is made clear by Article 1, where the definition of ‘cultural property’ covers objects ‘[…] designated by each state as being of importance for archaeology, prehistory, history, literature, art or science’ and which constitute private property, public property or res communes omnium. That 1970 Convention construes the term ‘cultural property’ as having predominantly the character of public law is confirmed by the fact that the Convention does not deal with private ownership titles in the event of bona fide purchase of a stolen or illegally exported object. To regulate this private law issue – which finds opposite solutions in civil law and common law jurisdictions – it was necessary to adopt another multilateral instrument, the 1995 UNIDROIT Convention, which entered into force on 1 July 1995.11 But the most persuasive argument to support the view that the term ‘cultural property’, as it is used in the 1970 Convention, does not refer exclusively to private ownership titles, but to a wider public-law concept of national cultural patrimony, is provided by the context of the Convention and of UNESCO practice at the time. As for the context,12 the Convention rests on UNESCO’s and State Parties’ recognition that illicit traffic in cultural property ‘is one of the main causes of the impoverishment of
Declaration of Human Rights (G.A. Res. 217 A (III) of 10 December 1948) had proclaimed the right of everyone ‘to own property’. 11. For a comment on this Convention, see F. Francioni, Controlling Illicit Trade in Art Objects: the 1995 UNIDROIT Convention, in F. Francioni, A. Del Vecchio, P. De Caterini (eds.), 2000, Protezione internazionale del patrimonio culturale: interessi nazionali e difesa del patrimonio commune dell’umanità, Milano, pp. 119 ff. For drafting history, see L. Prott, 1977, Commentary on the Unidroit Convention, Leicester. 12. Needless to say, the context of a treaty and the practice surrounding its adoption and implementation are relevant criteria for interpretation under the Vienna Convention on the Law
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the cultural heritage of the countries of origin of such property;’13 and that in order to combat this traffic it is necessary to establish a system of international cooperation that may help to prevent illicit export and import, and facilitate restitution. To this end, the Convention requires that each Party institute within its territory positive measures of protection, including the adoption of specific legislation and regulations, the compilation of appropriate inventories, the creation of national services for the management of cultural patrimony, and the introduction of export certificates designed to prevent the unauthorized export of cultural objects.14 Furthermore, the cultural property falling within the protected scope of the Convention is not to be the property of private individuals. Rather, it is property acquired by ‘museums and similar institutions’ when such property has been illegally exported from the State of origin, or ‘stolen from a museum or a religious or secular public monument or similar institution in another State Party.’15 Cultural property is thus identified by reference to the public interest of the source country in maintaining its cultural patrimony, on the one hand, and, on the other, by reference to the public duty of the importing country to cooperate in the prevention and suppression of illicit trade in cultural objects. If we move from the context of adoption of the 1970 Convention to UNESCO practice in the period preceding and following its adoption, we find confirmation that the term ‘cultural property’ is constantly used so as to transcend the private interest of the possessor or original owner and to invoke other values attached to cultural objects, notably the national interest of the country of origin and the international public interest in preventing dispersion and loss. Accordingly, the 1956 Recommendation on the conduct of archaeological excavations stresses the value of discovering archaeological objects not only to the territorial State, but also to the international community’s particular intellectual enrichment and to the promotion of international understanding, for ‘the feelings aroused by the […] study of works of the past do much to foster mutual understanding between nations.’16 The 1962 Recommendation on landscapes focuses on the aesthetic value and beauty of landscapes as cultural sites to be safeguarded.17 The 1968 Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, while reminding us that contemporary civilization and its future evolution rest on past cultural traditions and on the creative force of humanity, calls for safeguarding cultural property, which it describes as trésors de l’humanité (treasures of humanity). Significantly, its Preamble indicates that cultural property has a value
of Treaties (1155 UNTS 331). See Article 31, Paragraph 2, and Article 32. 13. See Article 1, Paragraph 1. 14. See Articles 5 and 6. 15. See Article 7(a) and (b).i. 16. UNESCO Recommendation on International Principles Applicable to Archaeological Excavations, 5 December 1956, available at: http://www.unesco.org (last visited on 16 October 2006). 17. UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, 11 December 1962, available at: http://www.unesco.org (last visited on 16 October 2006).
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beyond that of the objects themselves, inasmuch as it is ‘the product and witness of the different traditions and of the spiritual achievements of the past and thus an essential element in the personality of the peoples of the world.’18 The 1976 Recommendation concerning the International Exchange of Cultural Objects refers to cultural property as a source of enrichment for different cultures and of respect for the originality of the culture of other peoples, which together constitute the cultural patrimony of humanity.19 But the clearest contribution to the identification of the complex meaning of cultural property is provided by the 1978 UNESCO Recommendation for the Protection of Movable Cultural Property, according to which: ‘movable cultural property’ shall be taken to mean all movable objects which are the expression and testimony of human creation or of the evolution of nature and which are of archaeological, historical, artistic, scientific or technical value or interest.20 This definition opens the way to appreciation of the historical and scientific significance of cultural property and of its role as a source of information and as an object of scientific research.
. From Cultural Property to Cultural Heritage The notion of cultural property formulated in the UNESCO conventions and recommendations examined above already contains clear elements of public interest at the national and international level. However, a clearly perceptible shift to cultural property as ‘heritage’ and as a component of world community interest occurs with the 1972 World Heritage Convention. The events that led to the adoption of this Convention are known: the international mobilization to save the great treasures of Egyptian civilization from being drowned during construction of the Aswan Dam; the catastrophic floods in Florence and Venice in 1966, which saw an international race to restore the priceless heritage of the Renaissance; and the emergence of a new environmental awareness with the 1972 Stockholm conference, which marked the birth of international environmental law. These developments contributed to the convergence of the concepts
18. See Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, 19 November 1968, available at: http://www.unesco.org (last visited on 16 October 2006). 19. See Recommendation concerning the International Exchange of Cultural Property, 26 November 1976, available at: http://www.unesco.org (last visited on 13 October 2006). 20. See Article 1(a) of Recommendation for the Protection of Movable Cultural Property, 28 November 1978, available at: http://www.unesco.org (last visited on 13 October 2006).
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of cultural and natural heritage in a single instrument, known as the UNESCO Convention concerning the Protection of World Cultural and Natural Heritage.21 The shift to the concept of ‘heritage’ in this Convention, as well as in the contemporaneous Recommendation on the same subject,22 is to be understood primarily as a response to the necessity of accommodating cultural and natural sites in the same legal instrument. It would have been quite impracticable, indeed, to bring under the concept of ‘property’ natural sites that cannot be properly defined in terms of ‘natural property’23. The term ‘heritage’ is intended to capture more complex values than the term ‘property’ can convey. First of all, the Convention is concerned with ‘world heritage’, or cultural and natural sites of ‘outstanding universal value’24 that must be protected in the interest of humanity as a whole because they represent the superlative expression of human creativity and of the works of nature. In this context, the term ‘heritage’ captures the intergenerational importance of cultural and natural sites of world significance. It highlights their character as ‘inheritance’, passed on from one generation to another with the duty of conservation. The concept of world heritage goes well beyond that of cultural property, as it requires a radical shift in perspective from the national interest of the State to which the property belongs, to the general interest of humanity in identifying and preserving a cultural or natural site so exceptional as to be of universal value. The implications of this approach are far-reaching. First, there is the question of reconciling the idea of universal value of cultural heritage with that of cultural diversity. Second, the concept of heritage is capable of bringing together cultural and natural values when the works of nature and the hand or spirituality of man combine to produce an outstanding example of the imposition of intangible human values on nature. When we examine this category of heritage, its distance from the concept of cultural property becomes even more evident, since it tends to capture the importance of traditions and skills, of the history of human settlement, of an ingenious method of cultivation or an exceptional example of ornamental technique or of an associated spiritual value attributed to land, such as a holy mountain, that inspires a sense of the sacred in the local community. Third, the reference to world heritage and to its universal character raises the question of the relationship between this concept and the principle of the ‘common heritage of mankind’, recognized in the 1982 UN Convention on the Law of the Sea (UNCLOS)25
21. The full text of the Convention is available at: http://www.unesco.org (last visited on 13 October 2006). 22. See Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, 16 November 1972, available at: http://www.unesco.org (last visited on 13 October 2006). 23. In this sense, see also J. Blake, 2000, On Defining the Cultural Heritage, ICLQ 49, p. 67. 24. See articles 1 and 2 of the Convention. 25. UNCLOS, Part XI, Article 136. The full text of the UNCLOS is available at www.gc.noaa.gov/ unclos.pdf (last visited on 16 October 2006).
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(and possibly of the ‘common concern of mankind’, proclaimed by the 1992 Convention on Biological Diversity).26 All these problems have been addressed in over thirty years of implementing the World Heritage Convention, primarily through dynamic reinterpretation of the concept of ‘heritage’. As to what constitutes ‘outstanding universal’ heritage, the evolutive interpretation provided by the World Heritage Committee and the continuous adaptation of the Operational Guidelines for the Implementation of the World Heritage Convention27 have gradually shifted from a purely aesthetic and monumental approach to what is outstanding and universal to a more modern vision that prioritizes the diversity of world cultures and recognizes the outstanding contribution that this diversity produces in terms of world heritage. The central mission of the Convention is thus to identify and protect not only superlative examples of man’s and nature’s masterpieces, but also to ensure that selected pieces are representative of the great variety of cultural and natural expressions in the world.28 The second challenge, posed by the inherent or associated cultural value of a natural site, has been met with the introduction, in the early 1990s, of the new category of ‘cultural landscapes’, which include natural formations shaped by the labour of man, artificial landscapes of exceptional value, such as gardens and sacred sites the value of which is enhanced by the spiritual or religious meaning attached to the land. With regard to the concepts of ‘common heritage of mankind’ and of ‘common concern’, the role of UNESCO and of the World Heritage Convention has been quite distinct from that played by the UN Conference on the Law of the Sea and by the UN Conference on Environment and Development. The view that the world’s cultural and natural heritage is to be preserved as ‘heritage of humanity as a whole’29 has been repeatedly proclaimed with the understanding that all pieces of world heritage are subject to the sovereignty of the States in which they are located. The expression ‘heritage of mankind’ in the World Heritage Convention is therefore to be understood not in the sense of establishing the international community as a titleholder, but rather in the sense of a common international commitment to its preservation and protection. At the practical level, this entails the obligation to set up and maintain a system of international cooperation and assistance, managed by the World Heritage Committee with the support of UNESCO, and the duty to accept reasonable interference by State Parties in
26. See 1992 Convention on Biological Diversity, available at: http://www.biodiv.org/convention/ convention.shtml (last visited on 16 October 2006). 27. The current text of the Guidelines is available at: http://whc.unesco.org/en/guidelines (last visited on 16 October 2006). 28. See L. Levi-Strauss, Diversité, universalité et représentativité dans la liste du patrimoine mundial, in F. Francioni, A. Del Vecchio, P. De Caterini (eds.), 2000, Protezione internazionale del patrimonio culturale: interessi nazionali e difesa del patrimonio comune della cultura, Milano, pp. 21 ff., as well as the results of the Special Expert Meeting of the World Heritage Convention: The Concept of Outstanding Universal Value, Kazan, Russian Federation, Doc. WHC-05/29.COM/ INF.9B of 15 June 2005. 29. See the Preamble of the World Heritage Convention.
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monitoring the state of conservation of those properties of theirs that are inscribed in the World Heritage List and in the List of World Heritage in Danger. No provision is made in the World Heritage Convention for cultural or natural sites located in areas beyond national jurisdiction, such as the international seabed area. This gap has been filled in part by the UNESCO’s 2001 Convention on underwater cultural heritage, which is the object of the next section of this chapter.
. The Extra-territorial Expansion of the Cultural Heritage Concept During the last decade, UNESCO has played a very active role in extending the concept of cultural heritage’s reach from traditional cultural objects and sites located within the territory of States to objects found in submarine areas, as well as to immaterial expressions of human creativity, e.g. those of the performing arts, music, traditional skills and oral heritage. The latter trend is discussed in another contribution to the present volume.30 I will limit my remarks to UNESCO’s role in developing the concept of, and protective regime for underwater cultural heritage. The term ‘underwater cultural heritage’ is not used in UNCLOS, which refers only to ‘archaeological and historical objects’ in articles 149 and 303. However, Article 149, in addressing the status of such objects in the international seabed, the resources of which, we may recall, are proclaimed to be the common heritage of mankind, prescribes that they ‘shall be preserved or disposed of for the benefit of mankind as a whole.’31 This provision seemed contradictory to other UNCLOS provisions, particularly the saving provision of Article 203, Paragraph 3, which refers to the continuing applicability of the ‘law of salvage and other rules of admiralty, or laws and practices with respect to cultural exchanges.’ As has been pointedly observed, the law of salvage or the rules of free trade are hardly compatible with a commitment to ‘protect’ cultural heritage.32 It is due to the contradictions and gaps of UNCLOS that UNESCO embarked on the difficult enterprise of negotiating a specific instrument for the protection of underwater cultural heritage. This instrument was adopted in 2001 as the Convention on the Protection of the Underwater Cultural Heritage (UCHC).33 In what sense is this Convention relevant to UNESCO’s role in the development of the concept of heritage?
30. See the chapter by T. Kono in this volume. 31. Emphasis added. 32. See T. Scovazzi, The Application of ‘Salvage Law and Other Rules of Admiralty’ to the Underwater Cultural Heritage: Some Relevant Cases, in R. Garabello and T. Scovazzi (eds.), 2003, The Protection of the Underwater Cultural Heritage, Leiden/Boston, p. 19. 33. The full text of the Convention is available at: http://www.unesco.org (last visited on 16 October 2006).
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First of all, we must note that the term ‘cultural property’ has been totally abandoned in this Convention, in favour of the term ‘cultural heritage’. This is the result of a choice made during negotiations in favour of the creation of an international ‘protective’ rather than of a legal instrument intended to allocate titles to underwater cultural objects. The Preamble of the Convention makes clear that its object and purpose is the preservation of underwater heritage owing to its historical, scientific and educational import, and its being ‘an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations and their relations with each other […].’ Second, the term ‘heritage’ adopted in this instrument encompasses ‘all traces of human existence having a cultural, historical or archaeological character’ (Article 1) that have been under water for at least one hundred years. This definition includes human remains,34 which obviously do not fall under the concept of property. Finally, in our context, the concept of heritage includes the notion of public interest the Convention sees associated with the international community’s concern for the preservation of underwater cultural objects. The development of ever more sophisticated methods and technologies for the exploration of submarine terrain is increasing the possibilities of access to, and the commercialization of underwater cultural artifacts. It is to limit the negative impact of these activities on underwater cultural heritage that the UNESCO Convention has been adopted; and that emphasis has been placed on the term ‘heritage’ rather than on ‘property’. The main focus of the Convention is on prevention of damage due to unregulated activities. It is for this reason that the Convention is supplemented by an Annex on best practices and rules governing activities directed at underwater cultural heritage, which highlights the necessity of applying scientific methods, as well as suitable techniques and equipment in the conduct of underwater research. In this context, the use of ‘heritage’, rather than ‘property’, is a clear indicator of the non-economic value attributed by the Convention to cultural objects, as opposed to the commercial value attached to them by those who carry out underwater exploration for the purpose of acquisition, sale or barter. In a wider sense, UNESCO’s role in the promotion, negotiation, adoption and implementation of the UCHC has had an impact on the development of international law. At a substantive level, this amounts to a further compression of the traditional freedom of the seas by the introduction of overriding considerations of heritage conservation into the regime of legitimate use of the sea. Whether a State is party to the 2001 Convention or not, it is my opinion that the very fact of its negotiation and adoption has enabled the emergence of a general principle according to which freedom of the sea does not include the freedom of unregulated appropriation and exploitation of underwater cultural heritage. Accordingly, every State has a duty under international law to ensure, through its laws, administrative regulations and enforcement procedures, that activities carried out by its organs and by private persons subject to its jurisdiction or control do not cause damage to the underwater cultural heritage. The rules concerning activities directed at underwater cultural heritage, now attached as an Annex to the UCHC, constitute a set of standards of best practices capable of clarifying every State’s general duty of due
34. See Article 1(a)(i).
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diligence with respect to avoidance and prevention of damage to underwater cultural heritage. At the procedural and institutional level, the adoption of the UCHC constitutes a precious opportunity to enhance UNESCO’s role as a competent forum for interstate cooperation toward the common goal of preventing irretrievable dispersal of, and damage to underwater cultural heritage. The growing number of bilateral agreements entered into in order to settle conflicting claims over ancient sunken vessels and other underwater archaeological objects35 confirm the need for international cooperation in this area. Bilateral arrangements may help resolve specific issues of limited importance for the international community. But the overall question of the conservation and proper management of underwater cultural heritage requires multilateral cooperation at a universal or regional level.36 The adoption of the 2001 Convention, with specific functions assigned by UNESCO in matters of reporting and discovery, of consultation and of coordination of underwater cultural heritage activities,37 is an important recognition of international interest in heritage conservation and constitutes a step toward the development of an effective institutional system of cooperation for the protection of this interest within the framework of a truly universal institution like UNESCO.
. The Impact of Cultural Heritage on Domestic Jurisdiction and on Criminal Justice The reiteration of cultural heritage as an integral part of the common estate of humanity in the legal instruments already examined, as well as UNESCO’s evolutive interpretation of the concept of heritage, has led in the last few years to a more ambitious formulation of the obligations of respect for cultural heritage international law places upon States and private actors. Two developments are worth mentioning in this regard. The first concerns the extension of the wartime obligation to respect cultural property to peacetime activities in which, for religious, ethnic, political or other reasons, cultural heritage of great importance for humanity is attacked or destroyed. The catalyst for this further development was the invidious destruction of the great Buddhas of Bamiyan by
35. Examples of such agreements include the Netherlands-Australia Agreement concerning Old Dutch Shipwrecks (The Hague, 6 November 1972); the South Africa-UK Settlement concerning the Wreck of the HMS Birkenhead (Pretoria, 22 September 1989); and the agreements between France and the US concerning the wrecks of the CSS Alabama (Paris, 3 October 1989) and of La Belle (Washington, 31 March 2003). The text of these and other agreements is reproduced with comment in Garabello and Scovazzi, op. cit., pp. 254 ff. 36. A call for regional cooperation in the Mediterranean basin is provided in the Siracusa Declaration of 10 March 2000, reproduced in Garabello and Scovazzi, op. cit., p. 274. 37. See, in particular, Articles 9, concerning notification of activities in the exclusive economic zone and continental shelf, and 12, concerning underwater cultural heritage in the international seabed.
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the regime of the Taliban.38 A reaction to this senseless and barbarous act came not only from Buddhist States and communities, who were most directly offended by the demolition of one of their symbols, but from the entire world, which perceived the iconoclasm as a triumph of intolerance and as aggressive posturing against the symbols and very dignity of other religions. It is not surprising, then, that UNESCO took the initiative in elaborating a Draft Declaration on the destruction of cultural heritage, eventually adopted by the General Conference on 17 October 2003 with the title Declaration Concerning the Intentional Destruction of Cultural Heritage.39 The importance of this Declaration lies not so much in its content or normative strength, which is rather slight, but rather in its adoption by the General Conference, a body comprising the States of the world, which has clearly indicated that the development of international law justifies interference in the domestic jurisdiction of individual States when they engage in, or permit assaults on cultural heritage of importance for humanity in their territory. The second development concerns the evolving linkage between the destruction of cultural heritage and international criminal responsibility. Sixty years of UNESCO action in protecting cultural heritage has helped to create a new perception of cultural heritage as an element of fundamental human values and as a dimension of human rights. This new perception has been embodied in the statutes of international criminal tribunals and courts,40 which contemplate attacks against cultural heritage as a violation of human rights. This has led to the imposition of individual criminal liability for the destruction of cultural property in the event of armed conflict, whether international or internal in character. The most significant manifestation of this development is the Second Protocol to the 1954 Hague Convention,41 negotiated under the auspices of UNESCO and adopted on 29 March 1999.42 The link between cultural heritage and human rights has also been recognized in the judicial practice of international criminal tribunals. The International Criminal Tribunal for the Former Yugoslavia has developed case law that reinforces the
38. For an analysis of the international law implications of such destruction, see F. Francioni and F. Lenzerini, 2003, The Destruction of the Buddhas of Bamiyan and International Law, EJIL 14, pp. 619 ff. 39. The full text of the Declaration is available at: http://www.unesco.org (last visited on 16 October 2006). 40. See Article 3(d) of the Statute of the International Criminal Tribunal for the Former Yugoslavia and Article 8 2.(b)(ix) and 8(c)(iv) of the Statute of the International Criminal Court. 41. The full text of the Protocol is available at: http://www.unesco.org (last visited on 16 October 2006). 42. The Protocol entered into force on 9 March 2004. Article 15, on ‘serious violations’, reads as follows: ‘1. Any person commits an offence within the meaning of this Protocol if that person intentionally and in violation of the Convention or this Protocol commits any of the following acts: a. making cultural property under enhanced protection the object of attack; b. using cultural property under enhanced protection or its immediate surroundings in support of military action; c. extensive destruction or appropriation of, or acts of vandalism directed against cultural property protected under the Convention and this Protocol; d. making cultural property protected under the Convention and this Protocol the object of attack; e. theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.’
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connection between grave violations of human rights and attacks on cultural heritage. In the first place, the Tribunal has imposed individual criminal liability on the independent basis of Article 3(d) of the Statute for attacks against cultural sites of international significance, like the old town of Dubrovnik, a world heritage site inscribed in the World Heritage List.43 Second, in determining the material element of a crime, the Tribunal has considered that singling out the cultural and religious property of a particular ethnic group for destruction constitutes the crime of persecution under Article 5 of the Statute. This is a particularly important development because it recognizes that cultural and religious property is not to be considered a mere object, but rather part of the living culture and spiritual identity of a group, and thus of its heritage. Third, the destruction of cultural property has been considered evidence of the psychological element (mens rea) of the crime of genocide, when, in addition to the physical or biological destruction of a group, there are ‘simultaneous attacks on the cultural and religious property and symbols of the targeted group […], attacks which may legitimately be considered as evidence of an intent to physically destroy the group.’44
. Conclusions At the end of this rapid survey of the evolution of UNESCO’s understanding of cultural objects, from ‘property’ to ‘heritage’, we may conclude with the following remarks: 1) beyond the variation in terminology, there is remarkable continuity in UNESCO’s attitude toward identification of what is to be considered cultural patrimony in need of safeguarding. This continuity is provided by constant reference to the idea that parts of the cultural patrimony of any nation also belong to the common heritage of humanity. As such, the use of the term ‘property’ in early instruments (such as the Hague Convention of 1954 or the Paris Convention of 1970) should not obscure the fundamental fact that UNESCO’s role was to protect the ‘cultural’ value of the object and the public interest attached to it, not its mere economic value as property;
43. See the Jokic Case, Judgment of the Trial Chamber, 18 March 2004: ‘Jokic was aware of the Old Town’s status, in its entirety, as a United Nations Educational Scientific and Cultural Organization (UNESCO) World Heritage site pursuant to the 1972 Convention for the Protection of the World Cultural and Natural Heritage. He was further aware that a number of buildings in the old town and the towers of the Old Town’s Walls were marked with the symbols mandated by the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict’ (Paragraph 23). See also the Strugar Case, Judgment of the Trial Chamber, 31 January 2005, also concerning the shelling of Dubrovnik. 44. See Kristic Case, Judgment of the Trial Chamber, 2 August 2001, Paragraph 580. Affirmed on appeal.
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2) in developing the content of the concept of cultural heritage, UNESCO has contributed to the evolution of the type of international obligation referred to in the introduction to this chapter: that is, an obligation owed not to a single State or a specific group of States, but to the international community as a whole. In this sense, UNESCO has contributed to the elevation of cultural heritage to the rank of international public good on similar footing as human rights and the natural environment; 3) the evolution of the concept of cultural property toward the more complex notion of cultural heritage has brought the traditions, knowledge, and the oral and intangible expressions of the living culture of a nation or group under the scope of protection of its heritage. This linkage of heritage with living culture has also facilitated recognition of the function heritage plays in the exercise and enjoyment of human rights, especially religious, linguistic, cultural and political rights. This explains why attacks against cultural heritage may today, under certain conditions of gravity and discrimination, amount to international crimes for which individual criminal responsibility is imposed by international law.
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UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development Toshiyuki Kono
. UNESCO and Safeguarding Intangible Cultural Heritage ‘Heritage’, describes Harriet Deacon, ‘is often defined as ‘what we value’ or ‘what we wish to pass on to future generations’. Heritage resources provide living communities with a sense of continuity with previous generations.’1 Notwithstanding this broad view of the concept of heritage, the international community has, in the twentieth century, embraced a narrower concept when drafting legal instruments to protect heritage. The 1972 Convention for the Protection of World Cultural Heritage and Natural Heritage, combined with the initiation of the World Heritage List, reveals that the concept of heritage was limited to tangible monuments, sites and landscapes. Monumental, tangible forms of heritage form the icon of civilization, permanence and modernity, especially in Europe, while landscapes have been the traditional focus in North America.2 Any attempts to draw attention to intangible heritage foundered on the inertia of the international community. Rather than resulting in concrete steps toward the creation of an international legal instrument safeguarding intangible heritage, all such attempts for over a period of
1. H. Deacon, Legal and Financial Instruments for Safeguarding our Intangible Heritage, available at: http://www.international.icomos.org/victoriafalls2003/papers/C3-2%20-%20Deacon.pdf (last visited on 25 February 2006), p. 2. 2. Ibid., p. 3.
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nearly twenty years either triggered brave statements regarding protection or led to referral of the subject to an expert meeting.3 A 1973 request by the Government of Bolivia to protect the popular arts and cultural patrimony of all nations was passed to the Cultural Section of UNESCO in 1975 for further study of all aspects of the protection of folklore. Though Bolivia insisted on choosing copyright as a method of protection, the preferred idea was to view the problem through a broader lens than that of copyright only.4 During the year of the Bolivian request, UNESCO convened an intergovernmental meeting on cultural policy in Yogyakarta.5 The meeting called on UNESCO to help preserve popular traditions as part of cultural heritage. Similar meetings were held in 1975 and 1978.6 In 1976, UNESCO launched a Comparative Programme on Intangible Cultural Heritage to ‘promote the appreciation of and the respect for cultural identity, including different traditions, ways of life, languages and cultural values.’7 Three years later, UNESCO started with the evaluation of the situation of folklore by sending out a Questionnaire on the Protection of Folklore to its Member States.8 The establishment of a Committee of Governmental Experts on the Safeguarding of Folklore in 1982 can be seen as a first significant step toward the drafting of an international instrument.9 Within the Committee, UNESCO set up a special Section for the Non-physical Heritage. The 1985 meeting of the Committee in Paris urged the preparation of an interdisciplinary study exploring the possible form of an instrument for the safeguarding of folklore. The experts were convinced that a non-binding instrument with general principles could guide the Member States in adopting legislative or administrative measures. The general principles would focus on the issues of definition, identification, conservation, preservation and utilization of folklore. In 1987, the General Conference adopted a Resolution urging the drafting of a Recommendation aimed at safeguarding folklore. A Special Committee of Governmental Experts set up for the drafting period produced the definitive draft text of the Recommendation on the Safeguarding of Traditional Culture and Folklore, which was then adopted by the General Conference in 1989. The 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore was a significant step forward. As Janet Blake indicates, the 1989 Recommendation constituted the ‘first attempt to safeguard intangible cultural heritage – ‘traditional culture and folklore’ – through an international instrument.’10 Though the 1989 Recommendation
3. See J. Blake, , Developing a New Standard-setting Instrument for the Safeguarding of Intangible Cultural Heritage: Elements for Consideration, Paris, UNESCO, p. 32. 4. Ibid., pp. 18-19. 5. Ibid., p. 32. 6. Ibid. 7. Ibid. 8. Ibid. 9. Ibid.. 10. Ibid., p. 37.
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meant little in practice, it was the first instrument of its kind, and it definitely increased States’ awareness of the ‘importance of this hitherto neglected area of their heritage.’11 Several developments confirm this assumption. First, since 1992 intangible values have been granted a more prominent place in the Operational Guidelines for the Implementation of the World Heritage Convention.12 Second, the Republic of Korea proposed the establishment of a ‘Living Human Treasure’ Programme to honor outstanding persons who possess to a very high degree the knowledge and skills required for performing or creating specific elements of the intangible cultural heritage.13 Third, UNESCO launched the ‘Red Book of Languages in Danger of Disappearing’ project in 1993 to gather updated information on endangered languages.14 Fourth, UNESCO’s Memory of the World Programme of 1996 envisaged the documentation of endangered heritage.15 Fifth, UNESCO established the Masterpieces of Oral and Intangible Heritage Programme in 1998.16 Sixth, the Stockholm Intergovernmental Conference on Cultural Policies for Development of the same year suggested that the world’s intangible heritage was at risk and needed to be properly managed and safeguarded as part of the development agenda.17
11. Ibid. 12. The Operational Guidelines have incorporated intangible values, such as social and aesthetic values, since they were finalized in 1977. These values have traditionally not been used to identify monuments or places as cultural heritage, however. A significant shift occurred with the 1992 amendments. There are now four categories under which places associated with intangible cultural heritage have been inscribed onto the World Heritage List, these being cultural routes, cultural landscapes, sites that evoke a legend or myth, and commemorative sites. See Deacon, op. cit., p. 7. 13. The Republic of Korea proposed to the hundred and forty-second session of the UNESCO Executive Board, in 1993, the establishment of a UNESCO ‘Living Human Treasures’ Programme. The Board adopted a resolution inviting Member States to establish such systems in their respective countries. The first Living Human Treasures System was created in Japan in 1950. The Republic of Korea established its system in 1964. Six other countries – the Philippines, Thailand, Romania, France, the Czech Republic and Bulgaria – have since set up systems that vary quite substantially one from another. See Deacon, op. cit., p. 8. 14. Harriet Deacon mentions that ‘studies of seriously endangered languages in the South-Western Pacific, Siberia, Australia, Indonesia and Thailand were carried out and an International Clearing House and Data Bank Centre for Endangered languages was set up at Tokyo University in 1995.’ See Deacon, op. cit., p. 8. 15. The aim of the Programme is to provide guaranteed access to documents, manuscripts, oral traditions, audiovisual and electronic materials, sound recordings, and library and archival holdings of universal value that make up the memory of the world. Similar efforts have been taken in the context of traditional music. See Deacon, op. cit., p. 8. 16. See Deacon, op. cit., p. 8. The Proclamation rewards two types of expression of intangible cultural heritage: forms of popular and traditional cultural expressions, and cultural spaces. The Programme not only seeks to raise awareness and to recognize the importance of this heritage, but also stresses the need to safeguard and revitalize it. UNESCO awarded this distinction in 2001, 2003 and 2005. 17. See Deacon, op. cit., p. 3.
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The suggestion that intangible heritage should be part of this agenda has been another benchmark in the evolution of safeguarding intangible heritage. Despite its significance, the 1989 Recommendation had a few shortcomings. First, it attributed a minor role to the communities to whom folklore belongs. This claim can be substantiated by the fact that it is not the cultural communities creating and maintaining folklore that are within the ambit of protective measures, but only the folklore as such. Moreover, the 1989 Recommendation failed to ensure that control over the management of folklore and its benefits remained with the communities who owned that folklore.18 To avoid such shortcomings in a future international legal instrument, the Stockholm Intergovernmental Conference drew attention to the importance of the development issue for intangible cultural heritage. The possibility of linking development with culture has been investigated for a longer time within the framework of UNESCO. The shortcomings of the 1989 Recommendation were a major inducement for further action. The Universal Declaration on Cultural Diversity adopted in 2001 encourages Member States to formulate ‘policies and strategies for the preservation and enhancement of the cultural and natural heritage, notably the oral and intangible cultural heritage […].’ The thirty-first session of the General Conference, held in 2001, decided to seek a new international normative instrument on the issue, preferably a convention. The importance of such an international convention was once more addressed in the Third Roundtable on Intangible Heritage and Cultural Diversity in Istanbul, in 2002.19 The draft text of the new Convention was finalized in 2003 and sent to the Executive Board of UNESCO in September. The Board recommended that the General Conference adopt the text as a UNESCO Convention. This is what happened at the thirty-second session of the General Conference, on 17 October 2003. Unlike in the 1989 Recommendation, development found an important place in the 2003 Convention for the Safeguarding of Intangible Cultural Heritage (hereinafter ‘the Convention’), in the form of sustainable development.20 The Convention suggests that intangible cultural heritage is inextricably bound to sustainable development. This suggestion is made in the Preamble and in Article 2 of the Convention. Paragraph IV of the Preamble maintains that intangible cultural heritage is a guarantee for sustainable development. Article 2, in turn, defines intangible cultural heritage and dictates that the Convention will deal only with intangible cultural heritage that complies with the requirements of sustainable development. Notwithstanding the emphasis on an inextricable link, no explanation of sustainable development is included in the Convention. The absence of any explanation compels us to seek answers to several questions. Is there a link between culture and development? Section 2 of this study will introduce the manner in which development has gradually embraced culture and will focus on UNESCO’s action in this regard. Describing the link is not enough, however. We have to analyze how and why culture is important for development. Section 3 deals with this issue. Though we will have discussed the relation
18. See Blake, op. cit., p. 37-38. 19. See Deacon, op. cit., p. 8. 20. See Blake, op. cit., p. 32.
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between culture and development, our analysis will not yet have touched the topic of intangible cultural heritage. That task is left to Section 4. Up to Section 4, our analysis concerns itself only with development. Since the Convention stipulates that sustainable development is important, the concept of sustainable development will form the subject of Section 5. Having established the link between culture and development, as well as the link with sustainable development, our analysis must be placed in the context of the Convention. Which conception of sustainable development reasonably accords with the wording of the Convention? An answer to this question will be provided in Section 6. Before concluding in Section 8, we will discuss in Section 7 how the instruments provided in the Convention contribute to achieving sustainable development. In order to give a better understanding of the meaning of ‘development’ in the Convention, this chapter will quickly sketch the debate on how culture and development have evolved as complementary concepts.
. Development Embracing Culture: A Gradual Evolution 2.1. Development Development theories have matured since the 1950s. However, development has generally been understood only in economic terms. Sir Arthur Lewis’s work, The Theory of Economic Growth, describes how development is concerned mainly with economic growth, employment, capital-intensive technology and productivity. Several authors, referring to different forms of culture, note that culture either contributes to or hampers economic growth.21 W.W. Rostow acknowledges that for economic development to be successful, changes must be made in local institutions and values.22 In his well-known books, The Protestant Ethic and the Spirit of Capitalism and The Religion of China: Confucianism and Taoism, Max Weber investigates whether a set of values and attitudes associated with a particular religion can influence economic progress. Economic progress has been viewed as the rational pursuit of profit making, frugality and accumulation of wealth, and the rationalization of economic activities and their pursuit for predominantly economic ends.23 This narrow economic conception of development has characterized the early development strategies of international organizations. The United Nations’ International Development Strategy for the Seventies assumed that problems of development could be
21. See L. Arizpe, 2004, The Intellectual History of Culture and Development, in V. Rao and M. Walton (eds.), 2004, Culture and Public Action, Stanford, p. 167. 22. Ibid. 23. See K.C. Alexander and K.P. Kumaran, , Culture and Development: Cultural Patterns in Areas of Uneven Development, London, p. 18.
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addressed by looking for economic solutions. Through economic stability and growth, other social objectives would be attained. However, the International Development Strategy for the Eighties introduced, for the first time, measures unrelated to economic growth.24 It held that development should also be linked to environment, housing, disaster relief and social development. The eighties were also the decade in which Amartya Sen advanced his broader understanding of development. According to Sen, development should be concerned not only with maximizing material well being, but also human well-being. This implies that a person may value doing or being various things.25 Since the 1990s, the UNDP has helped to popularize this rephrased concept of development in its annual Human Development reports. Despite these advances, culture was still not a major focus of the UNDP at the time.26
2.2. Culture and Development: UNESCO’s Perspectives While international discourse on development was constructed exclusively in terms of economic development, the discourse on culture utilized an equally restricted definition, with reference only to the arts and other supreme forms of cultural heritage. The 1960s could be considered as the moment when a shift in the structuring of culture and development as two clinically separated fields occurred. Experience had taught economic development planners that attempts to introduce technical improvements in communities very often failed because of the presence of principles running counter to such improvements. An awareness of the presence of such principles led to the introduction of cultural adjustments in economic planning. Jean Meynaud, writing in a 1963 UNESCO publication, noted that ‘the study of cultural models helps us to situate the individual again in his social context.’27 Arizpe specifies that ‘the challenge of relating culture to development was taken up for the first time by governments at the World Conference on Cultural Policies held in Mexico City in 1982.’ MONDIACULT, as it became known, established an international working concept based on a broader anthropological understanding of culture, which it characterized as follows: the whole complex of distinctive spiritual, material, intellectual, and emotional features that characterize a society or social group. It includes not only the arts and letters, but also the modes of life, the fundamental rights of the human being, value systems, traditions and beliefs.
24. See UNESCO, 1995, The Cultural Dimension of Development: Towards a Practical Approach, Paris, UNESCO, Paris, pp. 44 f. 25. See A. Sen, , Commodities and Capabilities, Amsterdam; V. Rao and M. Walton, Culture and Public Action; Relationality, Equality of Agency, and Development, in Rao and Walton (eds.), op. cit., p. 12. 26. See UNESCO,The Cultural Dimension of Development, op. cit., pp. 51 f. 27. Quoted in Arizpe, op. cit., p. 171.
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The Mexico City Declaration further highlighted the cultural dimension of development by stating that ‘balanced development can only be insured by making cultural factors an integral part of the strategies designed to achieve it; consequently, these strategies should always be devised in the light of historical, social, and cultural context of each society.’28 In the mid-1980s, the link between culture and development was further consolidated by a resolution declaring 1988-97 the Decade for Cultural Development (1988-1997).29 Based on this initiative, the General Assembly of UNESCO adopted a resolution in 1991 requesting the Director-General, in cooperation with the SecretaryGeneral of the United Nations, to ‘establish an independent World Commission on Culture and Development comprising women and men drawn from all regions and eminent in diverse disciplines, to prepare a World Report on Culture and Development and proposals for both urgent and long-term action to meet cultural needs in the context of development.’30 The request was endorsed by a resolution of the General Assembly of the United Nations a few weeks later. In November 1992, Boutros Boutros-Ghali and Federico Mayor appointed Javier Pérez de Cuéllar as president of the Commission. The Commission finished its work with a 1995 report, Our Creative Diversity, in which it argued for pluralism in contemporary societies.31 The all-pervasive message of the report is that development embraces not only the production of goods and services, i.e. economic development, but also the ‘opportunity to choose a full, satisfying, valuable, and valued way of living together’,32 i.e. human development. Development has become a process that ‘enhances the effective freedom of people everywhere to create cultural expressions and to exchange them’, a view that broadens the widely accepted notion of human development.33 Culture is the end of development, ‘seen as the flourishing of human existence in all its forms and as a whole.’34 Ever since UNESCO and other organizations stressed the link between culture and development, development has been given its place in the standard-setting instruments drafted under the auspices of UNESCO. For example, development is an oft-returning concept in the Universal Declaration on Cultural Diversity (2001),35 the Convention for the
28. See Arizpe, op. cit., p. 174. 29. See C. Beat Graber, , Handel und Kultur im Audiovisionsrecht der WTO Völkerrechtliche, ökonomische und kulturpolitische Grundlagen einer globalen Medienordnung, Luzern, p. . 30. See http://www.unesco.org/culture/policies/ocd/html_eng/foreword.shtml (last visited on 9 October 2006). 31. J. Perez de Cuellar (ed.), , Our Creative Diversity: Report of the World Commission on Culture and Development, Paris, UNESCO. 32. See Arizpe, op. cit., p. 178. 33. Ibid. 34. Ibid. 35. See Article 3 of the Universal Declaration on Cultural Diversity, 2001, at: http://unesdoc.unesco. org/images/0012/001271/127160m.pdf (last visited on 9 October 2006).
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Safeguarding of the Intangible Cultural Heritage (2003),36 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005).37 The present study will focus only on the relation between intangible cultural heritage and development as it is expressed in the intangible heritage Convention.
. Culture Matters for Development 3.1. Generally The Convention speaks of intangible cultural heritage and sustainable development. Rather than starting out by interpreting the link between these two concepts, however, this chapter will first analyze how culture and development, as such, are intertwined. Amartya Sen has investigated the relationship between culture and development in his article ‘How Does Culture Matter’. In describing the relationship in point, he takes into consideration that development has a human dimension in addition to the economic one and distinguishes seven categories, as described below.38 These categories will be discussed without classifying them as part of the economic or human dimension of development. Some of the categories can indeed be classified as either.
3.2. Amartya Sen’s Categorization of Culture in Relation to Development a) Culture as a Constitutive Part of Development Culture can be seen as a constitutive part of development. If we regard culture as a constitutive part of development, our analysis should ask what development is for. Development needs to be defined. Mainly under the impulse of Sen himself, development has been defined as a process that enhances the effective freedom of the people involved, to pursue whatever they have reason to value. The furtherance of well-being and freedom we seek in development thus necessarily includes the enrichment of human lives through literature, music, fine arts, and other forms of cultural expression and practice which we have reason to value.39 Regarding culture as a constitutive part or dimension of development rejects the perception that development is limited to economic growth, a rapid and sustained
36. See second Paragraph of the Preamble and Article 2, Convention for the Safeguarding of the Intangible Cultural Heritage, 2003, at: http://unesdoc.unesco.org/images/0013/001325/132540e. pdf (last visited on 9 October 2006). 37. See Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005, at: http://unesdoc.unesco.org/images/0014/001429/142919e.pdf (last visited on 9 October 2006). The Preamble of the Convention mentions the link between culture and development in Paragraphs 3, 6, 8, 15 and 16. The body of the Convention refers to such a link in Articles 1; 2 Paragraph. 5; 2 Paragraph.; 6, 13 and 14. 38. See Sen, op. cit., pp. 39-43. 39. Ibid., p. 39.
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expansion of production, productivity and income per head. The quality of life of human beings is a central component in this concept of development. That is why it is often described as human development. In this concept of development, culture is a desirable end in itself. It gives meaning to our existence. Development is only the instrument through which to achieve it. Various features have been suggested to clarify the conception of human development. For example, quality of life can be influenced by longevity, good health, adequate nutrition, education and access to the world’s stock of knowledge, the absence of gender inequality, political and social freedom, autonomy, access to power, the right to participate in the cultural life of the community and in decisions affecting the life and work of citizens, and so forth.40 It might be obvious that any quantitative indicator, though important for economic development, is bound to be less rich than what the concept of human development can embrace. The literature of economics on the topic seems to suggest that culture has more than mere economic value. Cultural capital, in particular, is understood to be an economic reality that encompasses ‘the set of ideas, practices, beliefs, traditions and values that create a group’s cultural identity and that give rise to a flow of services that may contribute to producing future cultural goods and create both its cultural and economic value.’41 It is plain that people value things for symbolic, spiritual, aesthetic, and not merely economic, reasons. b) Culture as Economically Remunerative Various activities that are economically remunerative may be directly or indirectly dependent on cultural sites, activities or objects. Amartya Sen points out that there might be objections to the use of cultural sites, activities or objects for earning money. In some cases, commercial use might be a significant threat to the site, activity or object. Notwithstanding these concerns, Amartya Sen believes that plenty of opportunities remain to combine economic use with cultural pursuit, once the threatening commercial use is excluded.42 The economic approach to culture is linked to the narrow, economic definition of development. In the name of economic development – or rapid and sustained expansion of production, productivity and income per head – culture will be exploited. Formulated differently, culture becomes an instrument, while development is the goal. Culture enters into this analysis not as something valuable in itself, but as a means to the end of promoting and sustaining economic progress. This idea of development pervaded early academic writing and international development programs. The concept of development has changed in the course of time. From a purely economic concept, it has evolved into a human one. The question arises whether economic development can coexist with human development. Without handing down concrete
40. See UNDP, Human Development Report: Cultural Liberty in Today’s Diverse World, 2004, at: http://hdr.undp.org/reports/global/2004/pdf/hdr04_complete.pdf (last visited on 9 February 2006). 41. See Blake, op. cit., p. 4. 42. See Sen, op. cit., p. 39.
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evidence to this end, it is not so hard to imagine that it is possible. Cultural goods and services, which are subject to the production and distribution process and thus to economic development, are purchased for their contribution to our freedom to live in the way that we value. Thus, culture can combine both instrumental and intrinsic valuation. c) Culture and Economic Behavior Cultural factors might influence economic behavior. Amartya Sen points out that one may state that ‘cultural influences can make a major difference to work ethics, responsible conduct, spirited motivation, dynamic management, entrepreneurial initiatives, willingness to take risks and a variety of other aspects of human behavior, which can be critical to economic success.’43 This careful statement is probably instigated by Amartya Sen’s belief that the ‘behavioral contribution of culture would vary with the challenges encountered in the process of economic development.’44 Amartya Sen proceeds with caution when he pronounces on the relation between culture and economic behavior. This prudent stance has much to do with the imprudence of cultural determinism.45 Amartya Sen highlights a part of Lawrence Harrison and Samuel Huntington’s book Culture Matters and takes a critical stance.46 In the same manner, Amartya Sen criticizes Max Weber’s analysis of Protestant ethics and Confucianism. The former supposedly furthers successful development of a capitalist
43. Ibid., p. 40. 44. Ibid. 45. Ibid., p. 46. 46. See L. Harrison and S. Huntington, Why Culture Matters, in L. Harrison and S. Huntington (eds.), 2000, Culture Matters: How Values Shape Human Progress, New York, p. xviii. In the introductory essay, Samuel Huntington wrote: ‘[i]n the early 1990s, I happened to come across economic data on Ghana and South Korea in the early 1960s, and I was astonished to see how similar their economies were then […] Thirty years later, South Korea had become an industrial giant with the fourteenth largest economy in the world, multinational corporations, major exports of automobiles, electronic equipment, and other sophisticated manufactures, and per capital income approximately that of Greece. Moreover it was on its way to the consolidation of democratic institutions. No such changes had occurred in Ghana, whose per capita income was now about one-fifteenth that of South Korea’s. How could this extraordinary difference in development be explained? Undoubtedly, many factors played a role, but it seemed to me that culture had to be a large part of the explanation. South Koreans valued thrift, investment, hard work, education, organization, and discipline. Ghanaians had different values. In short, cultures count.’ Amartya Sen realizes that the contrast described above calls for a probing examination. Except on the matter of culture, Ghana and Korea seemed to be much the same for Samuel Huntington. This starting point is deceptive. Business circles had a much more proactive role in Korea. The government in South Korea was willing and eager to play a primary role in initiating business-centred economic development. There was a close relationship between the Korean economy and the Japanese one, on the one hand, and the American economy, on the other. Korea had also reached a much higher rate of literacy and maintained an expanded school system. Based on this quick survey, Amartya Sen states that it is ‘hard to justify either cultural triumphalism in favor of Korean culture or the radical pessimism about Ghana’s future’ (See Sen, op. cit., p. 47).
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industrial economy, while the latter hampers it. Viewing culture as a singular, stationary and independent source of development is and will remain wrong.47 d) Culture and Heritage Conservation Cultural sites, activities and objects transmit the heritage of a country or community. A complete understanding of the diversity of historical sites, activities and objects might be desirable. At this point, development programmes can contribute to a fuller understanding and appreciation of the breadth of particular cultural sites, activities and objects. Development programmes might support historical excavation and related research. These activities, in turn, may encourage tourism. Tourism will guarantee the sustained income-generating power of the sites, activities and objects.48 e) Culture and Political Participation, Social Solidarity and Value Formation In order to be complete in reviewing Amartya Sen’s analysis of how culture can be relevant to development, this chapter has to treat of the relationship between culture and political participation,49 social solidarity and association,50 and cultural influences on value formation and evolution.51 These topics will be discussed in the following section. Here I wish to emphasize that they may play an important role in the context of either the constitutive component or the economic remunerative dimension of development.
. Amartya Sen’s Categorization and Intangible Cultural Heritage 4.1. Intangible Cultural Heritage as a Constitutive Part of Development A broad definition of development stipulates that culture is a constitutive part of development. Development, in this regard, is defined as a process that enhances the effective freedom of the people involved, to pursue whatever they have reason to value. In this definition, development shifts from being an objectively defined concept to one that
47. See Sen, op. cit., p. 48 f. See also UNDP, 2004, Human Development Report: Cultural Liberty in Today’s Diverse World, available at: http://hdr.undp.org/reports/global/2004/pdf/hdr04_ complete.pdf (last visited on 9 February 2006), pp. 5 and 19. 48. See Sen, op. cit., p. 41. 49. Civil interaction is characteristic of human beings. Yet the extent of political participation can vary between societies. In addition to external rules, culture can have an important role in explaining such variation. There can be a culture of fear or a culture of indifference. 50. Culture can determine what people spontaneously do for each other. In turn, this can influence the workings of society, including care for its less fortunate members, as well as preservation and guardianship of common assets. 51. Culture might play a central role in the formation of values. These values can influence our choice of goals, and the plausible and acceptable instruments used to achieve them. The goals might be related to development.
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is subjectively defined. Poverty of life no longer means a lack of essential goods and services only, but also of opportunities to choose a fuller, more satisfying, valuable and valued existence. Essentially, this means that the evaluation has to be made by individuals, groups or communities. Because of its subjective nature, it is hard to predict which kind of intangible cultural heritage contributes to the enrichment of human life. Only when a particular intangible cultural heritage interests certain individuals, groups or communities can that heritage be seen as a constitutive part of the individuals’, groups’ or communities’ human development. This interest can be expressed either by official institutions or by individual actions. It is perfectly possible that some interest in intangible cultural heritage will never be disclosed. Intangible cultural heritage is thus part of development as long as there is an interest in that heritage. Once interest exists, the maintenance of this intangible cultural heritage guarantees the human development of those who show an interest. Without interest, it is hard to state that intangible cultural heritage offers a guarantee of human development. Before discussing the existence of interest, it should be noted that human development of intangible cultural heritage might run parallel to a kind of economic development.
4.2. The Economic Value of Intangible Cultural Heritage Amartya Sen points out that intangible cultural heritage52 might contribute to economic development. While referring to the Report of the World Commission on Culture and Development, Janet Blake is favorably disposed to this idea. She supports her argument by citing handicrafts as an example. The economic development of the producers of handicrafts is proven, as handicrafts represent almost a ‘quarter of micro-enterprises in the developing world.’53 Moreno, Satagata and Tabassum emphasize that the material output of intangible culture is often a foundation for economic development. They define material cultural heritage as goods that are simultaneously and inextricably intangible in their intellectual nature and tangible in their substance; goods that are material in the sense that they are the result of the accumulation of material culture, that is the answer that a community has given to its needs or to search for its style of living. The material component represents the real things to be produced, demanded and exchanged and it is the bridge towards the market and economic development.54 They assert that economic value and possible impact on development are lost if the intangible aspect of culture gets protection, but not the goods produced by this knowledge.55 In one example, they examine certain products of material culture: ‘woven’
52. Amartya Sen makes reference to dance and music. Both forms of expression can be integrated into the definition of intangible cultural heritage found in the Convention if they fulfil all the requirements set out. 53. See Blake, op. cit., p. 4, footnote 15. See also Perez de Cuellar, op. cit., p. 191. 54. See Y. J. Moreno, W. Santagata and A. Tabassum, 2005, Material Cultural Heritage, Cultural Diversity, and Sustainable Development, at: http://www.eblacenter.unito.it/WP/2005/7_WP_ Ebla.pdf (last visited on 17 February 2006). 55. Ibid., p. 6.
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pottery, accessories and clothing. In comparing the percentage of these products exported against a given country’s GDP, they observe that developing countries have a higher average ratio than developed countries do. Assuming that products are usually exported after domestic demand is met, the authors conclude that material culture is important for the economic development of developing countries.56 A very vibrant and dynamic segment of the Jamaican economy is its music industry. In particular, Jamaica is the home of world-famous reggae. Many Jamaican reggae performers, like Bob Marley, Monty Alexander, Dennis Brown, Beenie Man or Jimmy Cliff, are internationally known. Though reggae is the most recognized genre of music from Jamaica, Jamaican music also includes dance hall, rock steady, ska, folk music, jazz and gospel.57 It is estimated that the music industry provides employment and income for between six thousand and twelve thousand people. Other studies speak of 15,000 Jamaicans involved in the music industry. The impact of the music industry is way out of proportion to the small number of persons it employs. Their product is a major form of capital for Jamaica. It also provides Jamaica with a highly valuable public image. The value of the loyalty created by music for Jamaica may perhaps be gauged by the fact that remittances now amount to more than between 15 and 20% of all exports and are more than twice the net factor of incomes going abroad from the country.58 With respect to the contribution of the industry to the GDP, gross revenue from music and music-related activities was equivalent to 10% of the GDP in 2000. If one looks at the entire tourism sector, this 10% is the third-largest portion. According to James, in 1997 only accommodation and shopping contributed more to the GDP than entertainment, which in Jamaica is heavily concentrated on music. The data sources he uses also indicate that entertainment accounts for 6% of the employment in the tourist industry. Again, only accommodation and shopping accounted for more. As a result, entertainment contributed about US$1.7 billion to the share of tourism in the GDP for 1997.59 A study shows that it was estimated in excess of US$1.2 billion in 1999.60
56. Ibid., p. 10. 57. See United Nations Conference on Trade and Development, 2002, Electronic Commerce and Music Business Development in Jamaica: a Portal to the New Economy Doc. UNCTAD/ ITE/TEB/8, at: http://www.unctad.org/en/docs/iteteb8_en.pdf (last visited on 9 February, 2006), at p. 27 58. See K. Nurse, The Cultural Industries and Sustainable Development in Small Island Developing States, http://portal.unesco.org/en/file_download.php/b53a9208f4f4172298eb47e4b1177d4cC LT3.doc (last visited on 9 October 2006), p. 3. 59. See V. James, 2001, The Caribbean Music Industry Database, at: http://www.wipo.int/aboutip/en/studies/pdf/study_v_james.pdf (last visited on 9 February 2006), p. 33 f. 60. See United Nations Conference on Trade and Development, Electronic Commerce and Music Business Development in Jamaica: a Portal to the New Economy, op. cit., at p. 27.
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4.3 Heritage Conservation and Intangible Cultural Heritage Conservation of culture, for any purpose whatsoever, might imply development as well. This development might be human if one considers conservation a guarantee of multiple choices, which have a positive effect on quality of life. It is hard to find any data on whether this kind of development contributes to economic development, but the possibility cannot be excluded. Two projects will be described to demonstrate how intangible cultural heritage can be the object of preservation. Famous and unique field recordings of traditional Chinese music held by the Music Research Institute (MRI) of the Chinese Academy of Arts have been digitalized. The project, funded by UNESCO, aims at optimizing the preservation of the entire collection and at retarding further degradation of storage conditions. Experts from the Austrian Research Sound Archives (Phonogrammarchiv), a similarly structured archive with considerable experience in digital archiving, provided technical assistance, mainly in the selection and installation of equipment. Experts from Austria and China worked together to set priorities among the materials that are to be digitalized.61 The preservation of this cultural heritage will at least increase the capability of human beings to choose what they value. The economic benefit of the project is not predictable at present. Over three thousand and five hundred years ago, Aryans in India developed and composed a vast corpus of Sanskrit poetry, philosophical dialogue, myths and ritual incantations, called the Vedas. Regarded by Hindus as a primary source of knowledge and the sacred foundation of their religion, the Vedas embody one of the world’s oldest surviving cultural traditions. The term ‘Veda’ derives from the Sanskrit word ‘vid ’, which means ‘knowledge.’62 Although the Vedas were recorded in writing fifteen centuries ago for reference purposes, their principal means of transmission has remained oral. Because of modernization, the Vedic tradition faces difficulties in surviving. Of over one thousand Vedic branches once in existence, only thirteen have survived. Moreover, four noted schools of Vedic recitation – in Maharashtra (central India), Kerala and Karnataka (southern India) and Orissa (eastern India) – are considered in imminent danger of disappearing. A specific action plan makes provision for promoting research and publications, establishing archives, producing audio-visual documentaries about surviving teachers, supporting traditional schools, developing educational programmes and exchanges between different centres of learning, and
61. See UNESCO Web site on Intangible Cultural Heritage, at: http://portal.unesco.org/ci/en/ ev.php-URL_ID=16732&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visited on 9 February 2006). 62. The Vedic heritage embraces a multitude of texts and interpretations, collected in four Vedas commonly referred to as ‘books of knowledge’, despite oral transmission. The Rig Veda is an anthology of sacred hymns; the Sama Veda features musical arrangements of hymns from the Rig Veda and other sources; the Yajur Veda abounds in prayers and sacrificial formulae used by priests; and the Atharna Veda includes incantations and spells. The Vedas also provide an extraordinary historical panorama of Hinduism and offer insight into the early development of several fundamental artistic, scientific and philosophical notions.
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organizing lectures and workshops for the general public. This is a good example of how human development is stimulated by the conservation of tradition.63
. Beyond ‘Just’ Development: Sustainable Development 5.1. Generally The Convention deals with sustainable development, forcing us to consider whether what has been said so far about development generally also applies to this particular kind. The growing concern with sustainable development reflects the basic belief that the interests of future generations should receive the same kind of attention as those of the present generation. We cannot abuse and plunder our common stock of natural assets and resources, leaving future generations unable to enjoy the opportunities we take for granted today. To meet this concern, the concept of sustainability has been introduced into the debate on development. Sustainable development originated in the field of environmental protection. Hence, some reference will be made to this evolution. This chapter’s main concern, however, is with the manner in which the concept of sustainable development can be applied in the field of intangible cultural heritage.
5.2. Environmental Challenge a) The Brundtland Report The idea of sustainable development arose essentially from concern with the overexploitation of natural and environmental resources. Policy-makers and economists recognized the anxieties expressed by ecologists and environmental scientists. Accordingly, sustainable development found a place in private and governmental initiatives to address environmental and developmental objectives in an integrated manner. The 1987 Report of the World Commission on Environment and Development, Our Common Future (commonly referred to as the Brundtland Report in honor of Gro Harlem Brundtland, the Prime Minister of Norway, who chaired the World Commission) is commonly viewed as the source of the term sustainable development.64 Sustainable development was defined as follows: [d]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: the concept of ‘needs’, in particular the essential needs of the
63. See UNESCO Web site on Intangible Cultural Heritage, at: http://www.unesco.org/culture/ intangible-heritage/masterpiece.php?id=66&lg=en (last visited on 9 February 2006). 64. See World Commission on Environment and Development, , Our Common Future, New York.
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world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and the future needs.65 The Commission initially focused its attention and made recommendations on population, food safety, loss of species and genetic resources, industry, energy and human settlements. For years, it was not recognized that this concept should take into consideration the depletion of human resources that, once lost, cannot be replaced.66 However, the term sustainable development now encompasses concerns beyond the exhaustion of natural resources. As time passed, an understanding developed that other social and economic needs, which did not necessarily impact on the environment itself, had to be considered. It goes without saying that adding other elements introduces many potential complications into the original, simple definition of economic development. Many factors will be at play and will work in conjunction to determine whether there has been growth and improvement in an area. The World Commission on Culture and Development issued a report that raised some issues relating to culture and development.67 Since that time, there has been a general recognition that culture must be considered in sustainable development, or alternatively, that culture must be protected if it is to be available for future generations. Many scholars now consider culture the fourth pillar in development.68 Torjman and Minn view the cultural element of sustainable development as linked to the environment through natural heritage, to the economy by material cultural products and to social factors by fostering knowledge and skills development.69 Although the Brundtland Report gave sustainable development a popular definition and political currency, the term predates 1987 and originates in early conservation agreements for the protection of fisheries, flora and fauna. Indeed, the inherent features of the concept have been present in international legal relations since at least 1893, when the United States of America asserted a right to protect Pacific fur seals for the benefit of mankind, in opposition to the assertion of the Untited Kingdom of Great Britain and Northern Ireland that its nationals were entitled to exploit these resources for their own developmental purposes.70
65. Ibid. 66. See M. Bejdaoui, 2004, The Convention for the Safeguarding of the Intangible Cultural Heritage: The Legal Framework and Universally Recognized Principles, Museum Int’l 56, 150, p. 154. 67. See World Commission on Environment and Development, Our Common Future, op. cit. 68. See S. Torjman and D. Minns, , Sustainable Development Framework for Science and Technology Research: Social and Cultural Dimensions, Ottawa. 69. See Torjman and Minns, op. cit., pp. 6 f. 70. See P. Sands, 1995, International Law in the Field of Sustainable Development, BYIL 65, p. 306.
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b) Towards Sustainable Development Particularly since the Second World War, a large body of law has emerged to enhance economic development, protect the environment and promote the protection of human and social rights. Generally, normative instruments have been adopted in separate spheres without reference to each other. Nevertheless, some treaties can be seen as landmarks in the embryonic development of an integrated economic, environmental and social approach.71 Apart from such treaty initiatives, two UN efforts to develop a comprehensive global approach to balancing the use and conservation of natural resources need to be mentioned: the 1949 UN Conference on the Conservation and Utilization of Resources (UNCCUR)72 and the 1972 UN Conference on the Human Environment (Stockholm Conference).73
71. See, e.g., the following instruments: (1) the 1946 Convention for the International Regulation of Whaling (a Convention to provide for the proper conservation of whale stocks to ensure the orderly development of the whaling industry); (2) developments under the 1948 General Agreement on Tariffs and Trade (recognizing that international regulations may impose different standards for particular States depending on their level of development); (3) the 1981 African Charter of Human and Peoples’ Rights (the first agreement to make an express link between human rights and environmental protection); (4) the 1982 UN Convention on the Law of the Sea (a legal order for the seas and the oceans which will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment); (5) the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources (the first treaty to refer to sustainable development); (6) the 1986 Single European Act amending the EEC Treaty (introducing an environmental chapter into an economic agreement); (7) the 1987 Montreal Protocol on Ozone Depleting Substances (Montreal Protocol) (amended in 1990 to provide, for the first time, that the capacity of developing countries to comply with their substantive obligations will depend on the effective implementation by developed countries of their financial obligations); (8) the 1989 ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (linking social, economic and environmental rights); and (9) the 1990 Agreement establishing the European Bank for Reconstruction and Development (required to promote in the full range of its activities environmentally sound and sustainable development). See also Sands, op. cit., pp. 306 f. 72. The UN Economic and Social Council (ECOSOC), recognizing that concerted international action was needed to manage and conserve natural resources, proposed UNCCUR in 1947. The Conference was premised on recognition of the importance of the world’s natural resources, of their role in the reconstruction of areas devastated by war, of threats to their conservation and of the need for ‘continuous development and wide-spread application of the techniques of resource conservation and utilization’. 73. The Stockholm Conference was proposed in December 1968 by the UN General Assembly and held in Stockholm in June 1972. It set the scene for international activities at the regional and global level, and adopted proposals, subsequently implemented, which were to influence legal and institutional developments in the field of environment and development. Three nonbinding instruments were adopted: a Resolution on institutional and financial arrangements, a Declaration containing twenty-six Principles (the Stockholm Declaration) and an Action Plan containing 109 recommendations. The Stockholm Declaration underscores the intergenerational equity principle, since it states that it is man’s responsibility to protect the environment and the earth’s natural resources.
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Following the Stockholm Conference, numerous other initiatives within the UN system generated ideas, policies and rules. The 1981 World Charter for Nature, an avowedly ecological instrument, proclaimed ‘principles of conservation by which all human conduct affecting nature is to be guided and judged.’ The UN General Assembly adopted the ‘Environmental Perspective to the Year 2000 and Beyond’ six years later, as a framework to guide national action and international cooperation in policies and programs aimed at achieving environmentally sound development.74 c) Sustainable Development: A Norm of International Law The ever-increasing references to the concept of sustainable development may have created the impression that it has become a binding international norm. Being a binding norm of international law would imply that it can affect the meaning of sustainable development in treaties in which the concept is not further defined or explained. That sustainable development has not reached this level is demonstrated in Vaughan Lowe’s paper ‘Sustainable Development and Unsustainable Arguments’. Lowe argues that the concept of sustainable development is not formulated as a norm that would constrain States to ‘develop sustainably.’ Hence, further investigation of State practice and opinio iuris is not necessary.75 Rather, sustainable development appears to entail what has been called a holistic approach to the resolution of disputes. This approach indicates that a tribunal dealing with a dispute involving development and – to give an example – the environment should allow the Parties to address the development issue in the broad environmental context. When the tribunal decides the case, its reasoning should be placed within this broader context.76 Sustainable development can be taken out of the context of a tribunal dispute without losing its function as a guide in situations where a developmental issue intersects with another issue. The previous Paragraph mentioned an environmental issue.77 But an issue of intangible cultural heritage may also arise during the elaboration of a development project. This issue can either be neglected or taken into consideration. Rather than allowing for an unfettered right to use this intangible cultural heritage without regard for the interests of others, an equitable solution should be formulated. Sustainable development can fulfil this function. d) Balancing or More? The literature is quite unanimous on the fact that the Brundtland Report has given popular currency to, and set forth a conception of sustainable development. Vaughan Lowe has indicated that this conception is one way of explaining the concept. Indeed,
74. See Sands, op. cit., pp. 310 f. 75. See V. Lowe, Sustainable Development and Unsustainable Arguments, in A. Boyle and D. Freestone (eds.), 1999, International Law and Sustainable Development, Oxford, pp. 24 and 30. 76. Ibid., pp. 31-35. 77. Ibid., p. 36.
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Philippe Sands points to other conceptions: some focus narrowly on the protection of the physical aspect; others stress optimal resource management; others still emphasize human aspects.78 Limiting sustainability to the protection of the physical aspect implies that the main task of becoming sustainable is to foster measures to maintain stocks of renewable and non-renewable natural resources, like oil, groundwater or biomass. If we were to apply this approach to intangible cultural heritage, it would mean that protection of the intangible cultural heritage as such guarantees future availability. According to the optimal resource management approach, sustainable development has to be seen as ‘maximizing the net benefits of economic development, subject to maintaining the services and the quality of natural resources.’79 Intangible cultural heritage should be employed in a way that does not jeopardize its quality and existence, but that nonetheless gives it an economic return. Sustainable development has also been defined in human terms. The main argument here is that development should be tailored to people and not the other way around.80 As an essential factor, intangible cultural heritage capable of affecting people’s development should be safeguarded. With the possible exception of the second economic definition, these approaches do not necessarily address the question regarding the generations for which intangible cultural heritage should be safeguarded. Despite the lack of agreement about a definition of sustainable development, it is obvious that the distinction between the economic and human dimension of development is equally operative in the debate on sustainable development. This is most apparent in the minority definitions of sustainable development. Safeguarding intangible cultural heritage is necessary to realize continuous satisfaction of economic or human needs. However, the distinction is also present, albeit less obviously, when we talk about sustainable development as a balance between the needs of different generations. The needs of different generations are essential in this respect and can be either economic or human in nature. In order to address these needs, the economic, environmental, social and cultural aspects described above have to be taken into account. None of the relevant aspects can be separated from the others.81
78. See Sands, op. cit., p. 317. 79. Ibid., p. 317. 80. Ibid., p. 318. 81. An examination of development projects will serve as evidence of this. UNESCO has instituted several recent projects that serve to protect and promote intangible cultural heritage through extrabudgetary sources. The Revitalisation of Traditional Masquerade Performing Arts and Costuming Making: Development of Tourism Product in the Caribbean aims to identify, safeguard and revitalize traditional masquerade arts in three Caribbean countries. Masquerade arts and costumemaking come from the traditions of enslaved persons brought to the Caribbean during three hundred years of slave trade. The programme will help tradition-bearers to implement projects and establish activities to safeguard the arts and generate income. It also includes community-based research and training to continue this heritage and to develop tourism (see http://portal.unesco. org/culture/en/ev.php-URL_ID=29303&URL_DO=DO_TOPIC&URL_SECTION=201. html, last visited on 9 February 2006). In Egypt, a project called Women, Cultural Heritage and the Wealth of Nations: Enhancing Women’s Role as Custodians and Artisans of Egyptian Handicrafts
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Sustainable development should be defined with a certain context in mind. In the present chapter, the context is the Convention. Sustainable development should be assessed within the wording of Paragraph 2 of the Preamble and of Article 2. The former indicates that intangible cultural heritage is important to sustainable development; the latter determines that something can only be an intangible cultural heritage if it complies with the requirements of sustainable development.
. Sustainable Development and the Convention: What’s the Problem? 6.1. General The report Our Creative Diversity, though not explicitly on the topic of intangible cultural heritage, dispels an economic interpretation of sustainable development. We read in the introduction that cultural sustainability should not be interpreted so as to confine culture to the role of an instrument that sustains some other objective. The chapter on Culture and the Environment tells us that treating culture merely as an instrument for sustaining something else, such as economic development, or viewing it as static is wrong.82 We have
emphasizes traditional knowledge and know-how. Tally embroidery is famous in Upper Egypt as a form of cross-stitch dating back to the nineteenth century. Formerly passed down from mothers to daughters, this technique is in danger of disappearance due to industrialization. The project aims to document and collect forms and patterns of Tally. It will also train younger women artists, craftsmen, documentation experts and teachers. Small enterprises will also be developed to create employment for women living in remote regions and villages (see http://portal.unesco. org/culture/en/ev.php-URL_ID=29145&URL_DO=DO_TOPIC&URL_SECTION=201. html, last visited on 9 February 2006). Another project, in Ghana and Mali, is called Improved Traditional Bead Production and Marketing in West Africa. Beads constitute a form of social and cultural expression, the wearing of which can also mark important moments in life. To improve bead production and marketing in the region, seven producers attended a workshop in Italy. While this type of craftsmanship has been transmitted orally, there is now a manual on bead-making techniques. This manual is to be used for education, to help transmit the traditional knowledge to future generations, as well as to improve the economic situation of producers (see http://portal.unesco.org/culture/en/ev.php-URL_ID=29143&URL_DO=DO_TOPIC&URL_ SECTION=201.html, last visited on 9 February 2006). One last example of a UNESCO project in this area is called Capacity-building for Safeguarding Languages and Oral Traditions and Expressions in Sub-Saharan Africa. This is an initiative to promote African languages. One of its aims is to strengthen national and regional institutional capacities for the preservation of languages – e.g. at universities, research institutes and regional institutions. This project hopes to implement national language policies in the region, which do not get much attention due to a lack of resources and qualified specialists. This project will raise awareness of the CICH and of its view that languages are oral manifestations of intangible heritage (see http://portal.unesco.org/ culture/en/ev.php-URL_ID=29179&URL_DO=DO_TOPIC&URL_SECTION=201.html, last visited on 9 February 2006). 82. See Our Creative Diversity, op. cit., pp. 24-25 and 206-209.
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indicated that the debate on sustainable development has not excluded any possible explanation thus far. The lack of greater specificity regarding the meaning of ‘sustainable development’ in the Convention forces us to take all possible explanations into account. ‘Sustainable development’ could be interpreted in an economic sense. Intangible cultural heritage would then be an instrument to sustain economic growth. Or, as in the general debate on culture and development, intangible cultural heritage could embrace an intrinsic value of culture. In this case, intangible cultural heritage should be preserved to ensure meeting human needs. Sustainable development can be utilized as an equitable approach in possible conflicts between development and intangible cultural heritage, which can arise when a development programme or policy is elaborated. The different meanings will therefore be assessed in the context of the Convention.
6.2. Sustaining Economic Growth ‘Sustainable development’ has been defined as one that sustains a community economically. Intangible cultural heritage is the instrument used to generate economic remuneration. The continued existence of the intangible cultural heritage is of essential importance in this respect. Hence, the statement of the Preamble that intangible cultural heritage is important for guaranteeing sustainable development could be perceived as correct. The degree of sustainability depends on the popularity or kind of intangible cultural heritage. It is possible to argue that economically remunerative intangible cultural heritage is not likely to disappear and needs no further safeguarding. This criticism would make sense if the Preamble stated that safeguarding is important for sustainable development. The opposite is true, however. Article 2 of the Convention poses a greater problem for this understanding of sustainable development. The requirement that practices, representations, expressions and knowledge transmitted by groups and communities as part of their cultural heritage must fulfil in order to be considered intangible cultural heritage is that of contributing to the economic growth of the community. It is hard to imagine that the spirit of the Convention means to deny protection to any practices, representations, expressions or knowledge transmitted by groups and communities to future generations as part of their cultural heritage. Everything seems to point in the opposite direction. But most heritage projects are not economically sustainable; they rely on external funding for their sustenance. The Convention includes intangible cultural heritage (such as language or oral traditions) that will never lead directly to an economic return, to say nothing of sustainable economic growth. Moreover, UNESCO has instituted an award for masterpieces of intangible cultural heritage. The aim of the award is to address the safeguarding and revitalizing of the intangible cultural heritage at hand. Some of the award-winning examples of intangible cultural heritage are on the verge of extinction; yet they are still being recognized as intangible cultural heritage. Economic return might be a possibility in the future, but it certainly becomes concrete at the moment the award gives recognition to the intangible cultural heritage at issue. If we assuming that ‘sustainable development’ can have different meanings within the same Convention, it may be the Preamble that expresses the correct presumption.
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Common sense forces us to the conclusion that the meaning of ‘sustainable development’ in Article 2 cannot be the one we have dealt with in this Paragraph. To make the statement of Article 2 meaningful, another interpretation of the concept of sustainable development needs to be put forward.
6.3. Sustaining Existence Sustainable development that focuses on maintaining intangible cultural heritage for continuous future use requires that intangible cultural heritage exists in the future. The existence of intangible cultural heritage has to be safeguarded. Since its existence is guaranteed, development based on this intangible cultural heritage is warranted as well. Nothing specifies that it has to be economic rather than human development. Since intangible cultural heritage is the instrument leading to development, it is understandable that the Preamble states that such heritage is important for guaranteeing sustainable development. Since preservation of the intangible cultural heritage is a requirement of sustainable development, Article 2 of the Convention must be explained as follows. The requirement that practices, representations, expressions and knowledge transmitted by groups and communities as part of their cultural heritage must fulfil to be considered intangible cultural heritage is that they exist. Hence, following the logic of the understanding of sustainable development just set out, practices, representations, expressions or knowledge that have died out fall outside the scope of the Convention. Nothing in the Convention seems to contradict this reading.
6.4. Sustaining Quality of Life Development need not limit itself to the economic dimension. Human development has been advanced as a broader vision of development. Quality of life is central to this perception of development. Being able to enjoy a certain intangible cultural heritage might affect the quality of life in a certain community. Again, it is hard to tell which kind of intangible cultural heritage has an intrinsic value for a given community. If there is no explicit interest in an existing intangible cultural heritage, it is hard to determine the effect the intangible cultural heritage might have on advancing quality of life. Since quality of life is not quantifiable, it can only be assumed that intangible cultural heritage sustains the human needs of people. The value of the statement in the Preamble can be framed theoretically; offering evidence is another matter. The requirement that practices, representations, expressions and knowledge transmitted by groups and communities as part of their cultural heritage must fulfil in order to be considered intangible cultural heritage is that of improving the quality of life. Whether intangible cultural heritage has this power is a subjective matter, hard to measure. Only when there is explicit interest in the intangible cultural heritage can such a statement be substantiated. The will to preserve intangible cultural heritage, as expressed in different projects, shows such interest. Does UNESCO favor only practices, representations, expressions and knowledge that can contribute to quality of life? Neither a positive, nor a negative answer can be given without substantial proof. The subjective nature of human development makes it as good as impossible to prove, however.
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Intangible cultural heritage as an instrument to sustain quality of life is a possible explanation for both the Preamble and Article 2. The subjective nature of this human development confronts us with the problem of evidence, however. One more problem related to the human dimension of sustainable development is that it does not tell us anything compelling about the relationship between different generations. All possibilities are open in this respect. If we leave aside these problems, this last interpretation of the Convention text is thus a theoretically possible one.
6.5. Sustainable Development as an Equitable Approach The hypothesis that sustainable development can be explained in light of culturesustaining economic growth, set out above, has said nothing about the beneficiaries of this economic growth. The same can be said about the analysis of sustainable development and quality of life. If the question of the beneficiaries of economic growth or higher quality of life through intangible cultural heritage is raised, the concept of sustainability can be read in the context of its equitable approach. An equitable approach to sustainable development demands that economic growth or furtherance of the quality of life should be put in the context of intergenerational and intra-generational equity. The former requires that future generations have the same opportunities provided by intangible cultural heritage as the present generation does. Intangible cultural heritage leading to economic growth for the present generation should generate it for future generations as well. The same could be said for the furtherance of quality of life. Any measure taken regarding the intangible cultural heritage should comply with this standard. What should happen if the intangible cultural heritage does not contribute to economic growth for the present generation? The human dimension of development comes to the forefront. The existence of an intangible cultural heritage means that it has value for the quality of life of the people who still share in it. Hence, any measure taken regarding this intangible cultural heritage should safeguard the opportunities of future generations to enjoy the same quality of life, based on the same intangible cultural heritage. It is not required that the present generation take measures to enable future generations to benefit from economic growth on the basis of this intangible cultural heritage. The measures taken to safeguard intergenerational equity should not jeopardize intragenerational equity. Instead of focusing on economic welfare, Sudhir Anand and Amartya Sen indicate that the aim of intra-generational equity can best be reached by enhancing the capabilities of individuals to lead more fulfilling lives. However, it should be possible for the present generation to have an economic benefit as well. Tourism that does not endanger cultural heritage would agree perfectly with this perspective. Education is another possibility. Can we read this analysis of sustainable development in the phrasing of the Convention? Intangible cultural heritage is an important guarantee for sustainable development. Sustainable development requires equitable distribution between the needs of present generations and those of future ones. Intangible cultural heritage is an important guarantee of equitable distribution. Indeed, once an intangible cultural heritage ceases to exist, future generations cannot have a full choice in relation to their quality of life. Sustainable development thus reaches much further than the short-term needs of the present generation.
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Similar reasoning can be used in regard to Article 2. The requirement that practices, representations, expressions and knowledge transmitted by groups and communities as part of their cultural heritage must fulfil in order to be considered an intangible cultural heritage is that of guaranteeing inter- and intra-generational equity. If intangible cultural heritage exists, it can be a perfect guarantee for these kinds of equity. The mere existence of the intangible cultural heritage allows every generation to enjoy it in a way it values. In other words, sustainable development as an equitable approach fits in with Paragraph 1 of Article 2. With regard to the last assertion, a note of caution needs to be given. When an intangible cultural heritage somehow has negative effects on the natural or social environment, or on the opportunities of people in general, an argument can be made that this intangible cultural heritage should not be protected. For example, the protection of practices or traditions of genital mutilation, which are clearly incompatible with women’s human dignity, should not fall under the scope of the Convention. Equally, should an intangible cultural practice exist, that might endanger the rainforest or encourage widespread destruction of the environment, it should not be protected. This view is fully consistent with the definition of intangible cultural heritage offered by the Convention, which only includes manifestations of heritage that are compatible with existing international human rights standards.
. Sustainable Development and the Instruments of the Convention Some commentators consider support for economic development incompatible with the purpose of the Convention. Its scope is regarded as too limited. Sustaining the existence of an intangible cultural heritage so that it may be a source of development has been perceived as fitting within the wording of the Convention. The development can be either economic or human. Because human development does not exclude economic development, sustainable human development could also be compatible with the reading of the Convention. None of these interpretations compels us to take the interests of different generations into account. Once we talk about human development, these interests cannot be excluded, however. Putting the focus of sustainable development on the creation of a balance between the needs of different generations, we conclude that it would be a perfectly possible enterprise, as long as one takes into account that the needs of various generations are viewed in the human sense. Is this vision of sustainable development suitable for being adequately valorized through the instruments set up by the Convention, i.e. the List of the Intangible Cultural Heritage of Humanity and the Intangible Cultural Heritage Fund?
7.1. Safeguarding Measures a) Inventory System in the Convention The Convention obliges State Parties to identify and define various practices and traditions that could constitute intangible cultural heritage within their borders.
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Everything that has been identified as intangible cultural heritage has to be gathered in an inventory. International obligations are rather minor. According to the Convention, only a representative List of Intangible Cultural Heritage of Humanity and a List of Intangible Cultural Heritage in Need of Urgent Safeguarding are to be established.83 b) Inventory Systems Outside the Convention UNESCO itself has one of the largest databases of intangible cultural heritage. The database is evidence that there is interest in some intangible cultural heritage. The database is linked to the Proclamation of Masterpieces of Oral and Intangible Cultural Heritage of Humanity. UNESCO created this programme in 1997. The Proclamation rewards two types of expressions of intangible cultural heritage: forms of popular and traditional cultural expressions, and cultural spaces. The programme not only seeks to raise awareness and to recognize the importance of this heritage, but also stresses the need to safeguard and revitalize it. UNESCO has awarded the distinction in 2001, 2003 and 2005.84 A similar function can be attributed to the representative list and the list indicating what is in urgent need of safeguarding. Databases of traditional knowledge have already been compiled in some States, like India.85 Other national efforts, such as those of Costa Rica86 and Peru, serve as bases for ensuring that rights to traditional knowledge are community-based, that prior informed consent is given before this type of knowledge is used and that the benefits from its use are equitably shared. All of these national efforts aim to protect traditional knowledge, while providing some means of compensation to the local or indigenous communities concerned. The Philippines, in turn, was the first country to implement bioprospecting regulations.87
83. See, respectively, Articles 16 and 17. 84. See http://www.unesco.org/culture/intangible-heritage/index.htm (last visited on 9 February 2006). 85. See http://www.sristi.org/wsa/ (last visited on 9 February 2006). 86. See G. Dutfield, 2000, Developing and Implementing National Systems for Protecting Traditional Knowledge: a Review of Experiences in Selected Developing Countries, UNCTAD Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices, Geneva, p. 11. 87. See Dutfield, op. cit., p. 16 f. Under the Implementing Rules and Regulations to the Executive Order, while the Philippines States owns all wildlife, flora and fauna, this right is not absolute. Prospecting is only permitted within indigenous lands with the prior informed consent of the communities concerned. These regulations require permission for bioprospecting through a research agreement between the State and the requestor. This agreement must inform both the government and the affected community if any commercial product results from research. Royalty payments to the government and the community are required if commercial use results from the utilization of biogenetic resources. Under the Philippines Indigenous Peoples Rights Act, indigenous cultural communities are entitled to economic, social and cultural well being. Community intellectual property rights are recognized, as are rights to religious and cultural sites or ceremonies, indigenous knowledge systems and practices, and indigenous development of sciences and technologies.
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c) Importance of the Inventory Systems Visibility has been defined as one of the most important factors to prove that practices, representations, expressions and knowledge transmitted by groups and communities as part of their cultural heritage are valued. Recognition of the value of such practices, representations, expressions and knowledge means allowing for their contribution to human development. The inventory aspect of the Convention is interesting, since some scholars have argued that long-term sustainable development for some indigenous communities may depend on their ability to harness traditional knowledge for commercial benefit. The legal requirement to establish an inventory of intangible heritage may provide an avenue for some communities to benefit economically from their traditional knowledge. Growing scholarly attention has been given to the risk of misappropriation; in particular, to determining whether indigenous traditional knowledge should receive sui generis protection, as traditional intellectual property rights do not adequately protect traditional knowledge. Some scholars have noted that a fee-for-use system could be established, with all information put in the public domain and guarded by the State.88 The legal requirement to establish inventories in Member States could be a gateway to creating a licensing system or some other method of recognizing the contribution of traditional knowledge to modern biomedicine and agriculture. Indigenous groups have resisted the use of an inventory, for many reasons. One is that some types of knowledge cannot be listed in an inventory and still produce their full effects.89 Traditional medicine often exists in a culturally specific social framework. The social, physical and psychological effects of this type of medicine may be lost in a static database.90 However, Coombe states that there are fewer objections to a database of agricultural knowledge than one of traditional medical knowledge. Further, there is skepticism about the level of protection a detailed inventory would receive. Biopiracy is the term employed for the use of traditional knowledge by pharmaceutical companies or researchers who develop patents based on information they receive from traditional sources, with no compensation given to the original holder of the information. Even beyond knowledge of herbal medicine and native plant species, there are instances of traditional indigenous culture’s having been recorded and used for profit without the consent or knowledge of the particular community. For example, Riley discusses an incident in which the Ministries of Taiwan and France invited Ami tribal members (as Taiwan’s largest surviving indigenous group) to perform across Europe, recorded their performances on a compact disc without their knowledge and then (the
88. See S. La Voi, 2003, Cultural Heritage Tug of War: Balancing Preservation Interests and Commercial Rights, DePaul L. Rev. 53, p. 921 (citing C. A. Berryman, 1994, Toward More Universal Protection of Intangible Cultural Property, J. Intel. Prop. L 1., 293, pp. 307 f.). 89. See R. Coombe, Protecting Cultural Industries to Promote Cultural Diversity: Dilemmas for International Policy-Making Posed by the Recognition of Traditional Knowledge, in K. E. Maskus and J. H. Reichman (eds.), 2005, International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime, Cambridge, pp. 559-614. 90. Ibid.
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French Cultural Ministry) sold the rights to the recording.91 This incident illustrates the inherent dangers of an inventory of intangible cultural heritage without proper safeguards and measures to ensure that such heritage is in fact protected, in accordance with the wishes of the community which holds the traditions dear. It is clear that the protection of intangible heritage is laudable, but careful research must be undertaken while inventories are being developed by Member States. Under Article 11, the Convention requires States to identify and define intangible cultural heritage with the participation of groups, communities and NGOs. However, community participation is not outlined in Article 12, regarding the establishment of inventories. It is clear that there must be community involvement beyond the identification and definition stage. Adequate consent to the dissemination of information must be given and clear safeguards established in consultation with the individuals or groups concerned. In any case, the establishment of inventories under the Convention could lead to a new facet of sustainable economic development.
7.2. Funds a) Fund for Safeguarding the Intangible Cultural Heritage The Convention foresees the establishment of an Intangible Cultural Heritage Fund, aimed at supporting financing programs, projects and other activities to safeguard intangible cultural heritage. State Parties to the Convention are to contribute a given amount of money, set by the General Assembly, to the Fund. However, States might declare that they are not bound by the provision related to the Fund. Also, extrabudgetary contributions are not excluded. At this moment, Italy, Japan, Norway and the Republic of Korea have created special funds.92 b) External Funds The World Bank views culture as a significant part of economic and social development.93 The Bank has begun to investigate the importance of culture in two ways: first, cultural awareness, as essential for understanding the perceptions and behavior of the populations served; and second, cultural assets, the tangible
91. Musician Michael Cretu and his band Enigma played the Ami’s Song of Joy around the world, despite the folksong’s cultural and sacred significance to the Ami. The Ami were unable to reap profit from their own songs, the recordings or their own traditions. More significantly, they had no control over their intangible cultural heritage or its dissemination. See A. Riley, 2004, Indigenous Peoples and the Promise of Globalization: An Essay on Rights and Responsibilities, Kan. J. L. & Pub. Pol’y 14, p. 158. See also A. R. Riley, Recovering Collectivity: Group Rights to Intellectual Property in Indigenous Communities, 2000, Cardozo Arts & Ent. L. J. 18, p. 175. 92. See http://portal.unesco.org/culture/en/ev.php-URL_ID=29138&URL_DO=DO_TOPIC&U RL_SECTION=201.html (last visited on 25 February 2006). 93. See WOLRD BANK, 2003, Culture and the Corporate Priorities at the World Bank, Report on Progress from April 1999 to December 2002, at: http://siteresources.worldbank.org/INTCHD/ Resources/report-progress-april99-december02.pdf (last visited on 25 February 2006).
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and intangible expressions or products of peoples past and present, which have proven of potential economic and social value.94 Since 1998, the World Bank has explicitly recognized the role of culture in development. There are currently forty World Bank projects with a cultural component or specifically aimed at the conservation, management and economic use of cultural heritage. The Italian Trust Fund for Culture and Sustainable Development, established with the World Bank, currently provides funding for twenty cultural projects with the aim of sustainable development.95 The Japan Funds-in-Trust for the Preservation and Promotion of Intangible Cultural Heritage was created in 1993. The Fund aims to improve the capacity of developing countries to take action to preserve, revitalize, promote and transmit to future generations their intangible cultural heritage. Since the programme of the Masterpieces of the Oral and Intangible Heritage of Humanity was launched, the Japan Fund has shifted its attention to helping with preparatory activities related to the submission of candidatures. On acceptance, the Fund will be used to safeguard further the respective intangible heritage.96 The UNESCO/Norway Funds-in-Trust was established to assist in preparing the implementation of the 2003 Convention. It also focuses on safeguarding traditional music in Ethiopia, the languages and oral traditions of Sub-Saharan Africa, and the Maroon Heritage of Moore Town in Jamaica (a Masterpiece of Oral and Intangible Heritage of Humanity); and it participates in the creation of a Living Human Treasures system in Nigeria.97 The UNESCO/Republic of Korea Funds-in-Trust supports projects to ensure effective transmission of cultural expressions by the establishment of Living Human Treasures systems. At this point, the Fund finances Living Human Treasures in Cambodia and Fiji.98
94. Ibid., p. 2. 95. Italian Trust Fund for Cultural and Sustainable Development, at: http://siteresources.worldbank. org/INTCHD/Resources/itfcsd-rev.pdf (last visited on 9 October 2006). To name a few of the funded projects, the Macedonia Community Development and Culture Project intends to ‘facilitate community socioeconomic development by creating culture-based industries’, such as handicrafts and tourism, in areas next to cultural heritage sites. The Cultural Assets Rehabilitation Project in Eritrea aims to restore historic architecture in Asmara and Massawa, while using a grant to train local Eritrean craftspeople for woodworking, carving, construction and plastering – skills necessary for the restoration and maintenance of the buildings. A number of other projects focus on cultural tourism to support a viable economic future for local people. The success of these projects is not yet attested to, as most are still at a nascent stage. However, it is clear that culture and its associated intangible cultural heritage are positively linked to sustainable development projects. 96. See http://portal.unesco.org/culture/en/ev.php-URL_ID=28439&URL_DO=DO_TOPIC&U RL_SECTION=201.html (last visited on 25 February 2006). 97. See http://portal.unesco.org/culture/en/ev.php-URL_ID=29141&URL_DO=DO_TOPIC&U RL_SECTION=201.html (last visited on 25 February 2006). 98. See http://portal.unesco.org/culture/en/ev.php-URL_ID=29142&URL_DO=DO_TOPIC&U RL_SECTION=201.html (last visited on 25 February 2006).
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c) Importance of Funds The existence of these funds is important in relation to the interpretation of sustainable development. Without their existence, it could have been argued that sustainable economic development is a plausible explanation for the Convention. However, these funds indicate that certain intangible cultural heritage is not able to survive without external funding. Economic development is not the limited goal of this Convention. Rather, its aim can be found in human development.
. Conclusion It seems evident that by protecting intangible cultural heritage the well being of individuals and communities is promoted. It is difficult to isolate the benefits of protecting intangible cultural heritage when this activity is viewed in terms of sustainable development. While there is no specific indicator to determine the impact of the protection of intangible cultural heritage on sustainable development, by protecting intangible cultural heritage and addressing concerns over its extinction and disappearance, a cultural heritage will at least be available for future generations. Whether protecting intangible cultural heritage will lead to sustainable cultural development is a question for future research, once suitable indicators have been established. However, it is clear that protecting intangible cultural heritage will lead to human development. The aim of sustainable development is to improve quality of life for everyone. When we examine whether protecting intangible cultural heritage has a positive impact on sustainable development, perhaps it is important not only to consider economic, social or environmental effects. Maybe the impact is emotive, spiritual or centred on personal wellbeing. Certain indicators of a high quality of life cannot be quantified. The Convention should thus be pushing for a holistic approach to sustainable development, where environmental, economic, social and cultural factors are all taken into account to contribute to improvement of the quality of human life. The concept of human development encompasses all the facets of a better quality of life: reasonable income, social security, education, healthcare, peace and tolerance toward all people, participation in public affairs, law and order, an acceptable natural environment and a sustainable economy and infrastructure. Included in this list is the preservation of cultural heritage and of the conditions necessary for its development. It is now recognized that both the tangible and intangible aspects of culture must be protected and safeguarded to ensure meaningful development. The Convention constitutes a step toward a wellrounded approach to sustainable development, which focuses attention on intangible cultural heritage as an additional area to be considered.
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Protecting Natural Heritage and Its Transmission to Future Generations Catherine Redgwell*
. Introduction In evaluating the contribution of UNESCO to international law there is no doubt that the principal contribution of the Organization in the field of international environmental law is the protection of the natural heritage under the 1972 World Heritage Convention.1 Hitherto, international law had addressed the conservation of nature or specific flora and fauna, but it did so without recourse to the notion of patrimony or heritage. Indeed, the reasons for conservation were frequently both anthropocentric2 and temporally limited to the present generation. The innovation of the World Heritage Convention was to bring the natural environment under the wider category of ‘world heritage’ and to express the intergenerational obligation of conservation and transmission. This happened at a time when ‘it was widely accepted that general international law placed hardly any obligations upon States in the management of their natural resources.’3
* This chapter draws on the author’s contributions: Article 2 and The World Heritage Convention and other Conventions Relating to the Protection of the Natural Heritage, in F. Francioni (ed.), 2007, The 1972 World Heritage Convention: A Commentary, Oxford (forthcoming). 1. The establishment of biosphere reserves under the UNESCO Man and Biosphere Programme also deserves mention. See http://www.unesco.org/mab and, more generally, P. W. Birnie and A. E. Boyle, 2007, International Law and the Environment, 2nd edn, Oxford, p. 61. 2. While ‘world heritage’ originally retained a strongly anthropocentric flavour, underscored in the Preamble to the Convention, this has been mitigated over time, particularly through the development of the criteria for listing natural heritage under the Convention, discussed further below. 3. See F. Francioni, Origin Evolution and Preamble, in F. Francioni (ed.), 2007, The 1972 World Heritage Convention: A Commentary, Oxford (forthcoming), p. 1. He cites exceptions limited to the use of international watercourses (e.g. Lac Lanoux arbitration, Spain v. France) and liability for transboundary harm (e.g. Trail Smelter arbitration, USA v. Canada).
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In utilizing the concept of heritage, the Convention tapped into the emergence in the 1960s and 1970s of the concept of the common heritage of mankind,4 which was to feature so large in the negotiation of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).5 It also reflects the concepts of ‘universal heritage’ and ‘the common heritage of humanity’ found in other UNESCO instruments.6 It has maintained this distinctive voice in protecting the natural heritage both within UNESCO and, more widely, as part of a web of biodiversity treaties under the umbrella of the 1992 Convention on Biological Diversity (Biodiversity Convention).7
. The Negotiation of the Convention The natural heritage component of the Convention had its origins in proposals by the United States of America from the mid-1960s for a ‘World Heritage Trust’, where identified natural and scenic areas and historic sites would be preserved for the benefit of both present and future generations.8 The (United States) Committee for the Conservation and Development of Natural Resources proposed in 1965 ‘[t]hat
4. When the international community was becoming increasingly receptive to the concept of common heritage. See S. Lyster, 1985, International Wildlife Law, Cambridge, p. 208. An earlier echo is found in the 1967 Moon Treaty, which had declared the exploration and use of outer space, the Moon and other celestial bodies, ‘the province of all mankind’. See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Objects, 1967, Article 1. 5. See Article 136 UNCLOS, which declares the resources of the deep seabed to be the common heritage of mankind. Coastal and marine areas are not expressly mentioned in the 1972 World Heritage Convention, in part owing to concerns about a number of unsettled law of the sea issues about to be directly addressed by UNCLOS III (1973-1982). Within the general jurisdictional framework provided by the resulting 1982 Law of the Sea Convention and customary law, coastal and marine ecosystems and flora and fauna are clearly encompassed within the criteria for inscription of natural heritage on the World Heritage List under the Operational Guidelines. For the most recent version, see Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO World Heritage Centre, Paris, Doc. WHC.05/2 of 2 February 2005, Paragraph.77. 6. For a recent example, see Article 1 of the UNESCO 2001 Universal Declaration on Cultural Diversity, which provides that ‘cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations.’ 7. See C. Redgwell, The World Heritage Convention and other Conventions Relating to the Protection of the Natural Heritage in Francioni, op. cit., note 3. See also infra Panel 4. 8. An abbreviated history of the origins of the Convention is provided by the ‘father of the World Heritage’ concept, R. E. Train, 2003, World Heritage 2002: Shared Legacy, Common Responsibility, Paris, UNESCO World Heritage Centre, pp. 36-37; for a fuller account, see R. L. Meyer, 1976, Travaux Préparatoires for the UNESCO World Heritage Convention, ELJ 2, pp. 45-81; M. Batisse and G. Bolla, 2003, The Invention of ‘World Heritage’, History Papers: UNESCO action as seen by protagonists and witnesses, Paper 2, Association of Former UNESCO Staff Members, Paris.
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there be established a Trust for the World Heritage that would be responsible to the (world) community for the stimulation of international cooperative efforts to identify, establish, develop and manage the world’s superb natural and scenic areas and historic sites for the present and future benefit of the entire world citizenry.’9 Further impetus for international negotiations came in 1970 when one of the proponents of a world heritage trust, Russell Train, became the chair of the United States Council of Environmental Quality and prompted President Nixon in 1971 to propose officially that certain natural, historical or cultural zones of unique universal value should be recognized as part of this trust. International efforts were stimulated by preparations for the United Nationssponsored 1972 Stockholm Conference on the Human Environment.10 UNESCO had completed a draft text for the ‘International Protection of Monument, Groups of Buildings and Sites of Universal Value’ in 1971,11 while the International Union for the Conservation of Nature (IUCN) prepared a Draft Convention for the Conservation of the World’s Heritage. These parallel developments became entwined with preparations for Stockholm, where recognition and protection of areas and sites of the world heritage became an agenda item for the Intergovernmental Working Group on Conservation making preparations for the Conference.12 This stimulated further developments within UNESCO, drawing together the cultural and natural heritage in a single instrument under the auspices of UNESCO.13 Cognizant of these developments within UNESCO, State delegates at Stockholm refrained from direct mention of the world heritage in the formal Declaration of the UN Conference on the Human Environment. There is a reference to ‘heritage’ only in a more limited context, found in Principle 4 of the non-binding 1972 Stockholm Declaration of the UN Conference on the Human Environment. It states that ‘[m]an has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat […].’ The accompanying Recommendations for Action acknowledge ongoing work for the
9. See Batisse, op. cit., note 8, at note 1. Recounting his first hearing of a version of this proposal in 1966, Michel Batisse admits that ‘I did not pay much attention to the proposal itself because the word ‘trust’, not translatable in French, conveyed to me a sort of private philanthropic foundation and not at all an intergovernmental mechanism based on an international convention’ (p. 17). During negotiation of the Convention, while the United States draft consistently spoke of a ‘World Heritage Trust’, other translations such as ‘union’, ‘fondation’, ‘fonds’ and ‘tutelle’ illustrated what Batisse recounts as an ‘insurmountable gap’ in terms of the title of the Convention. 10. One of the working groups established was the Intergovernmental Working Group on Conservation: see UN Doc. A/CONF.48/PC.9, 1971, Paragraph 55. UNESCO’s activities were mandated by General Conference Res. 3.412, sixteenth session, Doc. SHC/MD/17, p. 3. 11. This occurred in 1970, pursuant to a General Conference Resolution. The development is more fully addressed by A. Yusuf, Article 1 – Definition of Cultural Heritage, in Francioni, op. cit. in note 3. 12. Supra note 10; see also Meyer, op. cit. in note 8, p. 47. 13. Accordingly, proposals for a bifurcated World Heritage Committee and World Heritage List were also rejected; see Meyer, op. cit., note 8, pp. 54 and 57.
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codification of protection of the world heritage – both natural and cultural – and call on governments to note: that the draft convention prepared by United Nations Educational, Scientific and Cultural Organization concerning the protection of the world natural and cultural heritage marks a significant step towards the protection, on an international scale, of the environment, [and to] examine this draft convention with a view to its adoption at the next General Conference of UNESCO [...].14 The adoption of a text designed to preserve both natural and cultural heritage of outstanding interest as ‘world heritage of mankind as whole’ duly took place on 16 November 1972. While the language of the proposal by the United States of America for a ‘world heritage trust’ was not adopted, the concept of a trust ‘foreshadowed the common interest of humanity’ and the holistic approach of the Convention.15 The Preamble underscores the purpose of the Convention as the protection of the cultural and natural heritage from decay or destruction, and its preservation as part of the world heritage of mankind as whole.16 Article 4 sets forth the duty of each State Party to ensure ‘the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage’ without any words of limitation. As will be explored further below, there is also a linkage to future generations in the concept of ‘outstanding universal value’ (which ‘means cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity’17); in the purpose of appropriate management of inscribed properties (‘[t]he purpose of management is to ensure the effective protection of the nominated property for present and future generations’18); and in their ecologically and culturally sustainable use.19
. How is Nature Protected under the Convention? The Convention entered into force on 17 December 1975 and enjoys widespread participation, with currently 184 State Parties. Protection of designated natural and cultural heritage is conferred by inscription on the World Heritage List. There are presently
14. Recommendations 98 and 99, UN Doc. A/CONF.48/14/REV.1., 1972; see also http://www. unep.org. See further discussion of the Stockholm Declaration in Section 5 below. 15. See Francioni, op. cit. in note 3. 16. See the fifth and sixth indents in particular. 17. Operational Guidelines for the Implementation of the World Heritage Convention, supra note 5, Paragraph 49. 18. Ibid., Paragraph 109. 19. Ibid.
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660 cultural, 166 natural, and 25 mixed sites listed for protection under the Convention in 132 State Parties. This discrepancy between State Parties and the location of protected sites is explained by the fact that, unlike under the 1971 Ramsar Convention on Wetlands of International Importance especially as Wildfowl Habitat (Ramsar Convention), it is not necessary to have a site listed in order to become a full participating party to the Convention. It is also a reflection of the interest of the global community in the protection of world heritage of outstanding universal value, regardless of its location. There is no independent list of protected sites (unlike, say, the 1973 Convention on International Trade in Endangered Species (CITES), which listed endangered species in appendices), nor do the bodies established under the Convention have the authority to list a site absent nomination by the State(s) in which it is located. However, while it is for States to nominate sites for protection, such nomination is subject to a screening procedure, in contrast with the unilateral designation by State Parties to the Ramsar Convention. This ‘nomination subject to scrutiny’ procedure is a balance between the recognition of State sovereignty, on the one hand, and of the common interest, on the other – the antimony at the heart of the Convention.20 Listing applications must include details of how the site will be managed and protected under national legislation. Subsequent protection is thus a task for national law, subject to the general treaty obligation to protect and preserve the natural and cultural heritage contained in Article 4. The Convention makes clear that international protection of world natural and cultural heritage is limited to ‘the establishment of a system of international cooperation and assistance designed to support State Parties to the Convention in their efforts to conserve and identify that heritage’ (Article 7). The chief regulatory tools at the disposal of the Convention bodies for the achievement of such international protection are monitoring entry to, and departure from listed status as sites of world heritage based on the data supplied by State Parties in the reports required under Articles 11 (national inventories) and 29 (implementation reports) and providing international assistance to the resources of the World Heritage Fund established pursuant to Articles 15 ff. International protection and assistance are thus conditional upon the identification of natural heritage’s qualifying for protection under the Convention. Identification is accomplished through the mechanism of the initial listing application,21 as indicated
20. Francioni refers to the dated character of the Convention in its recognition of full State sovereignty and of private property rights provided by national legislation over the sites and objects to be protected by the Convention (Article 6(1)); see Francioni, op. cit., note 3. Although this recognition of State sovereignty has been described as a product of its time, more recent environmental treaty instruments continue to assert, albeit in less robust terms, the sovereign rights of States over their natural resources, while at the same time acknowledging those resources as the common concern of humankind. See, for example, indents 3 and 4 of the Preamble, and Article 3, of the Biodiversity Convention. 21. State Parties are required to indicate a Tentative List of properties from which such nominations are made, a procedure introduced to enhance the representativity of the List and to ensure an appropriate balance between natural and cultural site nominations. See further Section 3.2 below.
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above, which is submitted to the World Heritage Committee.22 Independent evaluation of proposed sites is carried out by two advisory bodies, the International Council on Monuments and Sites (ICOMOS)23 in respect of cultural properties and the World Conservation Union (IUCN)24 in respect of natural properties. It is the responsibility of the World Heritage Committee to stipulate the criteria for listing, published since 1977 in regularly revised Operational Guidelines, the most recent from 2005.25 These provide non-binding guidance for the operation and implementation of the Convention. The Committee is also responsible for establishing the List of World Heritage in Danger, a designation which signals that major operations are necessary to conserve the site and for which assistance may be sought under Article 11 of the Convention.26 Of the 830 listed properties, 30 are presently on the List of World Heritage in Danger, 14 of which have outstanding natural heritage value. Ultimately, a property may be removed from the List, though such a step has never been taken in consequence of the loss of outstanding universal value owing to human or other causes.27
22. This comprises twenty-one members appointed for a six-year term, meeting annually, and selected equitably to represent the different regions and cultures of the world (Article 8). See further commentary by T. Scovazzi, in Francioni, op. cit. in note 3. 23. See http://www.icomos.org. The International Centre for the Study of Preservation and Restoration of Cultural Property (ICCROM) also provides expert advice. 24. See http://www.iucn.org. The International Union for the Conservation of Nature (now World Conservation Union) is one of the oldest international conservation bodies, established in 1948, with an unusual governance structure comprising representatives of governments, government agencies and NGOs. It plays an even more active role under Ramsar, where it serves as the Secretariat for the Convention. See further discussion in M. Bowman, P. Davies and C. Redgwell, 2007, Lyster’s International Wildlife Law, 2nd edn, Cambridge. 25. Doc. WHC.05/2 of 2 February 2005, supra note 5. For the historic evolution of the Operational Guidelines, including the full text of each version, see http://whc.unesco.org.The Guidelines perform a valuable policy function in guiding the implementation of the Convention by key stakeholders, which include the State Parties, members of the Committee, the Bureau, the Advisory Bodies (ICOMOS, IUCN and ICCROM), the UNESCO Secretariat and site managers. 26. For further discussion of the World Heritage in Danger List and the World Heritage Fund, see the respective contributions of G. P. Buzzini and L. Condorelli, and of T. Scovazzi, in Francioni, op. cit. in note 3. The former discuss whether State approval, or at least tacit consent, is required under Article 11(4) for the inscription of a property on the List of World Heritage in Danger and conclude that the Committee, ‘in the absence of any request from the State Party, has only included properties in the List of World Heritage in Danger in cases where the property in question had been the subject of one or more requests for assistance or in situations of ‘urgent need’ (a case of ‘urgent need’ either generated or aggravated, as the case may be, by a lesser degree of cooperation on the part of the States concerned).’ 27. Deletion of property has been debated in the World Heritage Bureau and in the Committee. See Buzzini and Condorelli, op. cit., note 26. They conclude that, while the consent of the State is needed for inscription, it is the Committee that has ultimate authority to add – and, by way of legal parallelism, to delete – properties from the List. Nor is it necessary for the property to first have been included in the List of World Heritage in Danger, e.g. where there has been permanent and irrevocable loss of the outstanding universal value that led to inscription.
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3.1. Definitional Elements and Scope of ‘Natural Heritage’ As indicated above, ‘world heritage’ is not defined in the Convention. Its scope ratione materiae is thus determined, inter alia, by the definitions of the cultural and natural heritage contained in Articles 1 and 2, respectively. Article 2 of the Convention sets out the definition of the natural heritage to be protected, conserved and transmitted to future generations. In so doing, the Convention emphasizes physical areas, features formations or sites, of outstanding universal value, rather than specific flora or fauna, thus further distinguishing the Convention from other habitat and species conservation treaties.28 Article 2 provides: [f]or the purposes of this Convention, the following shall be considered as ‘natural heritage’: natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habit of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated areas of outstanding universal value from the point of view of science, conservation, or natural beauty. In common with the definition of ‘cultural property’ in Article 1, the natural heritage to be protected, conserved and transmitted to future generations must be of ‘outstanding universal value’. Little guidance is given in the treaty for the identification of properties of such value, save for the linkage with science (all three Paragraphs), conservation (second and third Paragraphs) and aesthetics (first and third Paragraphs). The emphasis on science introduces an objective element into the identification of outstanding universal value: a necessary counterbalance in the design of the Convention to the reliance on State Parties to identify and delineate properties for inclusion on the World Heritage List.29 The notion of outstanding universal value reflects the emphasis on patrimony; that it is not all natural heritage, but only that which possesses such value, which is to be protected, conserved and transmitted to future generations. This treaty obligation extends beyond listed properties to embrace all natural heritage of outstanding universal value.30
28. As Lyster, observes, ‘[o]ne might argue, for example, that the blue whale (Baleanoptera musculus) should be considered part of the world’s natural heritage because it is the largest creature ever to have inhabited our planet, but it does not qualify under Article 2 because it is a mobile animal and not immovable property.’ See Lyster, op. cit in note 4, p. 213. 29. Identification of cultural and natural properties is addressed in Article 3. See the commentary by B. Boer in Francioni, op. cit. in note 3. 30. For example, Articles 6(1) and 6(3) refer to world heritage as ‘the cultural and natural heritage mentioned in Articles 1 and 2’, i.e. all heritage protected by the Convention and not just properties listed under Article 11. See further discussion of Article 6 by G. Carducci, in Francioni, op. cit.
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In the absence of definition in the Convention, it is the Operational Guidelines which amplify the definition of the keystone concept of outstanding universal value. The current (2005) version reflects significant changes introduced in 1992 and first reflected in the 1994 Guidelines.31 The timing is significant when seen against the backdrop of the Convention and of general developments in international environmental law. Not only was 1992 the twentieth anniversary of the Convention, an event that prompted review of its implementation, it was also the year of the twenty-year follow up to the Stockholm Conference, the Rio Conference on Environment and Development. The 1992 revision of the natural heritage criteria is clearly influenced by contemporary developments and in particular by new environmental legal concepts, such as the conservation of biological diversity and sustainable development. As Paragraph 49 of the Operational Guidelines underscores, the concept of outstanding universal value is intrinsically linked with the concept of heritage and with its intergenerational transmission. It sets forth the following definition: [o]utstanding universal value means cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole. The Committee defines the criteria for inscription of properties on the [World Heritage List].32 There are three key requirements that the Committee currently applies to decide whether a natural heritage property is of outstanding natural value. The property must: (i) meet one or more of the criteria for outstanding universal value set forth in the Guidelines; (ii) meet the conditions of integrity; and (iii) have an adequate protection and management system in place.33 Each will be considered briefly, in turn.
in note 3. While the treaty obligation to protect, conserve and transmit to future generations extends to all cultural and natural heritage of outstanding universal value, O’Keefe questions whether the obligation has any independent status in general international law; see R. O’Keefe, 2004, World Cultural Heritage: Obligations to the International Community as a Whole?, ICLQ 53, 189, p. 205. 31. These revisions were agreed on at the sixteenth session of the Committee at Santa Fe in 1992, based on discussions from 1988-1991 and the Recommendation of the World Heritage Bureau at its fifteenth session in 1991. 32. For recent consideration see IUCN, The World Heritage List: Guidance and Further Priorities for Identifying Natural Heritage of Potential Outstanding Universal Value (draft paper of 15 May 2006), available at: http://www.iucn.org 33. As set forth in Paragraphs 77, 78 and 87-95 of the Guidelines.
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a) Criteria for Outstanding Universal Value The criteria are set forth in Paragraph 77 of the Guidelines and state that nominated natural heritage properties must: (vii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance;34 (viii) be outstanding examples representing major stages of earth’s history, including the record of life, significant on-going geological processes in the development of landforms, or significant geomorphic or physiographic features;35 (ix) be outstanding examples representing significant on-going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals;36 (x) contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation.37 All of these criteria are related to in-situ conservation, either implicitly or explicitly. The Operational Guidelines also emphasize sustainable use (Paragraph 119), in harmony with the approach of other nature protection treaties, such as wise use38 under the Ramsar Convention and sustainable use under the Biodiversity Convention.39
34. Such as the Belovezhskaya Pushcha/Bialowieza Forest (Belarus/Poland, 1979, 1992). 35. For example, the Triassic period fossils in Ischigualastol/Talampaya Natural Park (Argentina, 2000) and the meteorite impact structure of Vredefort Dome (South Africa, 2005). 36. For example, like the island biogeography of East Rennell (Solomon Islands, 1998) and the beech forest of Shirakami-Sanchi ( Japan, 1993). 37. For example, the Peninsula Valdes (Argentina, 1999), a site of global significance for the conservation of marine mammals, as is the Whale Sanctuary of El Vizcaino (Mexico, 1993). 38. ‘Wise use’ was defined by the third Conference of the Parties in 1987 to be synonymous with ‘sustainable use’. See further Ramsar Convention Secretariat 2004, Ramsar Handbooks for the Wise Use of Wetlands, 2nd edn. 39. The World Heritage Convention criteria for designating natural heritage sites are considered consistent with the ecosystem approach developed under the Biodiversity Convention, with the added benefit of integration of the approach into the management plan for the site. See Cooperation with Other Conventions, Organizations and Initiatives, and Engagement of Stakeholders in the Implementation of the Convention, Addendum Options for Enhanced Cooperation Among the Biodiversity-Related Conventions, Doc. UNEP/CBD/WG-RI/1/7/ Add.2 of 14 July 2005, Paragraph 40.
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b) Conditions of Integrity To be considered of outstanding universal value, a natural property must also meet the conditions of integrity established in the 1977 Guidelines and featured ever since,40 in addition to meeting one or more of criteria (vii)-(x) set out above. In the 2005 Guidelines, the conditions of integrity apply to all properties nominated for inscription, natural and/ or cultural. Integrity is defined as ‘a measure of wholeness and intactness of the natural and/or cultural heritage and its attributes.’ Assessment of integrity involves considering the extent to which a nominated property ‘a) includes all elements necessary to its outstanding universal value; b) is of adequate size to ensure the complete representation of the features and processes which convey the property’s significance; c) suffers from adverse effects of development and/or neglect.’41 Further elaboration of the conditions of integrity is provided in the Operational Guidelines for natural heritage as a general category, as well as for each criterion of outstanding universal value. With respect to natural properties generally, the conditions of integrity require that for properties nominated under these criteria, ‘bio-physical processes and landform features should be relatively intact.’ However, the Convention is not an absolutist, preservationist charter. It recognizes that ‘no area is totally pristine and that all natural areas are in a dynamic state and to some extent involve contact with people.’42 Human activities will occur in such areas, often carried out by indigenous peoples and local communities. While such activities are not ipso facto inconsistent with the outstanding universal value of the property, they must be ‘ecologically sustainable’. Indeed, the World Heritage Committee has explicitly recognized the universality of the Convention and its application to heritage in all its diversity as an ‘instrument for the sustainable development of all societies.’43 The Guidelines stipulate that sustainable use of properties must be ecologically and culturally sustainable and must ‘not adversely impact the outstanding universal value, integrity and/or authenticity of the property.’44 This is an expression of intra-generational equity: permitting sustainable use of the property by the present generation (principally within the State), without impairing its heritage values for the benefit of both present and future generations (within and beyond the State) – intergenerational equity. As indicated above, this balance is consistent with the approach of other, related conventions, such as the Ramsar and Biodiversity conventions.
40. The 2005 Guidelines refer to conditions of integrity and/or authenticity, the latter applied to cultural property (criteria i-vi). Discussions are underway regarding possible application of the condition of authenticity to natural heritage, one of the recommendations of the Kazan experts’ meeting in 2005, though of low priority and long-term in its implementation. See the Assessment of the conclusions and recommendations of the special meeting of experts (Kazan, Russian Federation, 6-9 April 2005), established by Decision 28COM 13.1, Doc. WHC-05/29 COM/9 of 15 June 2005, Paragraph 8(b). 41. Paragraph 88. 42. See 2005 Operational Guidelines, supra note 5, Paragraph 90. 43. See Budapest Declaration on World Heritage, 28 June 2002. 44. See 2005 Operational Guidelines, supra note 5, Paragraph 110.
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c) Protection and Management Outstanding universal value and the conditions of integrity are linked to the protection and management of properties, and to the requirement of adequate longterm legislative, regulatory, institutional and/or traditional protection and management in order to ensure their safeguarding.45 The explicitly intra- and intergenerational purpose of management systems is highlighted in the Operational Guidelines which state that ‘[t]he purpose of management is to ensure the effective protection of the nominated property for present and future generations.’46 For natural sites, effective boundaries, buffer zones, and reactive and periodical monitoring are key management features. In this regard, the 2005 Operational Guidelines set out what might be viewed as a ‘code of good practices’ for effective implementation of the Convention for natural heritage protection.
3.2. Tentative Lists and the Global Strategy: Natural Heritage Sites and Representativity The Convention is dependent on State identification and nomination of properties for inclusion on the World Heritage List. As Francioni has observed, the notion of an ideal inventory, though initially attractive, was abandoned as unrealistic and unworkable.47 However, pursuant to Article 11(1)48 State Parties are required to submit tentative lists – essentially an inventory of property forming part of the cultural and natural heritage situated in their territory and suitable for inclusion on the World Heritage List.49 This forms a benchmark against which to judge the inclusiveness of the World Heritage List, particularly since a nomination to the List will not be considered unless the property is included on the State Party’s Tentative List. Such lists are not static, but will evolve over time, as will the criteria for inclusion of natural properties to reflect the impact of scientific knowledge on law, as in the emergence of the concept of biological diversity. Their efficacy is, of course, dependent on State compliance with the obligation to prepare and submit the lists (and ultimately to nominate properties from the list).50 In addition to tentative lists compiled by State Parties, independent lists have been prepared, e.g. by IUCN, with regional and biome studies to enhance knowledge
45. Ibid., Paragraphs 108 and 97 respectively. 46. Ibid., Paragraph 109. 47. Supra note 3. The Convention on Biological Diversity does not employ inventories or lists, which initially led France to refuse to sign the Nairobi Final Act of the Conference for the Adoption of an Agreed Text on the Convention on Biological Diversity in protest against the omission of a global list of protected areas and species emulating the mechanism employed by the World Heritage Convention. 48. See further Scovazzi, op. cit., note 22. 49. State Parties are encouraged to review and resubmit their Tentative List every ten years; see 2005 Operational Guidelines, supra note 5, Paragraph 65. 50. At its thirtieth session in Vilnius in 2006, the World Heritage Committee had before it the tentative lists of all State Parties as of 20 April 2006. Of the then 182 States Parties to the
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of natural heritage of outstanding universal value, particularly in under-represented regions of the world. A 1997 overview of wetland and marine protected areas on the World Heritage List analysed 77 sites, ‘cross-referenced with their relations with other international programmes and conventions (e.g. Ramsar, Biosphere Reserves and WWF Global 200 Ecoregions)’, and concluded that the World Heritage Convention protects sites with a broader range of biome values than the Ramsar Convention because of the role of the World Heritage Committee in approving sites. That said, at the time of the report six of the 77 sites were on the List of World Heritage in Danger, ‘indicating that inscription on the World Heritage List does not necessarily guarantee effective stewardship.’51 Concern with a wider distribution of listed sites (the preponderance are in developed States) and with improving the balance between cultural and natural sites (the preponderance are cultural sites) led the World Heritage Committee to adopt the Global Strategy for a Representative, Balanced and Credible World Heritage List.52 From 2006, on an experimental basis, the Committee will examine up to two nominations per State Party, provided at least one nomination concerns a natural property.53 An issue highlighted especially by IUCN is the potential for representativity to undermine outstanding universal value. It cautions that in the Committee’s pursuit of a representative, balanced and credible World Heritage List, ‘ IUCN considers that it is not intended that the List should be completely representative of the earth’s entire cultural and natural heritage as this would be contrary to the concept of outstanding universal value.’54 Other conventions, and national and regional measures, have a large role to play in the protection of natural areas and in the conservation of ecosystems, landscapes, habitats and species – only a small number of which are also likely to meet one or more of the criteria of outstanding universal value.55 Current concerns with representativity underscore the evolution that has taken place in regard to the concept of outstanding universal value, from a conception of ‘the best of the best’ to ‘representative of the best’.56
Convention, 151 had submitted tentative lists in accordance with the requirements set out in the Operational Guidelines. The complete tentative lists of all State Parties is available at: http://whc. unesco.org/en/tentativelists 51. See J. Thorsell, R. Ferster Levy and T. Sigaty, 1997, A Global Overview of Wetland and Marine Protected Areas on the World Heritage List, Gland, IUCN, p. 1. See also J. Thorsell and L. Hamilton, 2002, A Global Overview of Mountain Protected Areas on the World Heritage List, IUCN, Working Paper No. 6. 52. Eighteenth session, Phuket 1994. See further http://whc.unesco.org/en/globalstrategy 53. This, within an overall limit of 45 nominations. For discussion of the compatibility of this limitation with the Convention, see Scovazzi, op. cit. in note 22. 54. The World Heritage List, op. cit. in note 32, p. 1. The paper states that it will not make use of the term ‘[t]o avoid any ambiguity or misunderstanding’ (p. 2). 55. Ibid. This is represented diagrammatically by a pyramid, with World Heritage at the pinnacle and national and sub-national sites forming its broad base. 56. Doc. WHC-06/30 COM/9 of 23 June 2006, Paragraph 6.
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. The World Heritage Convention and Other Nature Protection Conventions The novelty of the World Heritage Convention in adopting an intergenerational approach persists, notwithstanding the very significant developments in the field of international environmental law and particularly in nature protection since 1972. The Convention is now part of a biodiversity-related web of instruments, comprising the Ramsar Convention, CITES, the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (CMS) and the Biodiversity Convention.57 The particular contribution of the World Heritage Convention to biodiversity conservation is recognized in ‘concrete international support and partnership for the conservation and sustainable use of biodiversity, including ecosystems, at World Heritage sites.’58 This is achieved through the ‘simple fact’ of the inscription of natural heritage sites for protection under the Convention,59 with criteria (ix) and (x) the most significant in terms of sites most likely to contribute to biodiversity conservation.60 While each of these biodiversity-related conventions has its own distinctive object and purpose, there is increasing recognition of the linkages and interrelationships between
57. In 2002, a Biodiversity Liaison Group (BLG), comprising the executive heads of the five biodiversity-related conventions, was established to further enhance cooperation. In 2005 the secretariats of the five biodiversity-related conventions produced a note setting out options for enhanced cooperation among the conventions. Supra note 39. These options were agreed on at the third meeting of the Biodiversity Liaison Group, Gland, Switzerland, 10 May 2005, Doc. BLG3/REP of 8 June 2005, available at: http://www.biodiv.org/cooperation/related-conventions/blg. shtml 58. Paragraph 42(f ) of the Plan of Implementation agreed at the World Summit for Sustainable Development in 2002. There is also reference to ‘heritage preservation’ in Paragraph 41, addressed to eco-tourism. These are the only two references to world heritage in the Plan of Implementation. See J. Scanlon, 2002, The World Heritage Convention and Outcomes from the WSSD, Siena Workshop on The Legal Tools for World Heritage Conservation, 11-12 November 2002. 59. Doc. UNEP/CBD/WG-RI/1/7/Add.2 of 14 July 2005, Annex, supra note 39, Paragraphs 14-15. This Note was prepared jointly by the secretariats of the five biodiversity-related conventions. It includes an Appendix of Decisions by the Conference of the Parties to Convention on Biological Diversity that Mention Cooperation with the Other Biodiversity-Related Conventions (for the sixth and seventh meetings of the Conference of the Parties, which includes reference to cooperation with the World Heritage Convention in decisions 2 (dry and sub-humid lands), 4 (inland water ecosystems), 14 (tourism), 15 (climate change) and 26-29 (cooperation with other conventions, mountain biodiversity, and protected areas respectively) of COP 7 (2004) and decisions 7 (identification, monitoring, indicators and assessments), 10 (indigenous knowledge) and 23 (alien species) of COP 6 (2002). 60. The Durban Action Plan resulting from the 2003 IUCN World Parks Congress includes in respect of the contribution of protected areas to biodiversity conservation the target that ‘[a]ll sites whose biodiversity values are of outstanding universal value are inscribed on the World Heritage List by the time of the next World Parks Congress’; see World Heritage at the Fifth IUCN World Parks Congress, Durban (South Africa), 8-17 September 2003, World Heritage Reports, 16, 2005, p. 36.
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them,61 and the realisation that improved information exchange and support between biodiversity-related conventions contributes to sustainable development.62 Such exchange and support may take place on an informal basis; or, a framework for cooperation may be provided in a more formal sense through, for example, the conclusion of a memorandum of understanding.63 Cooperation and synergies among these instruments take a variety of forms, ranging from dual and even multiple site designations and joint site visits to the pooling of technical and financial resources.64 The Ramsar Convention, in particular, shares much in common with the World Heritage Convention: using a site designation process, listing for protection and employing a danger listing mechanism.65 There are presently 33 properties listed for conservation and protection under both the Ramsar and World Heritage Conventions, with four of these properties on both the List of World Heritage in Danger and on Ramsar’s Montreaux Record of sites where changes in ecological character are threatened or occurring.66 For sites covered by both conventions, site visits may be requested and carried out jointly. For example, Ichkeul National Park in Tunisia was on both the Ramsar Montreaux Record and the List of World Heritage in Danger, owing to the impact of dam
61. For a comparative overview, see http://www.biodiv.org/rioconv/websites/html 62. This is also expressed in the programme for the further implementation of Agenda 21, approved by the twentieth Special Session of the UN General Assembly in 1997 in the five-year follow-up to the 1992 Rio Conference on Environment and Development. 63. An example is the 1999 Memorandum of Understanding between the World Heritage Convention and the Ramsar Convention, which is an agreement between secretariats: between UNESCO, represented by the World Heritage Centre, and the Bureau of the Ramsar Convention. 64. Because they share the goals of conservation and sustainable use, each employs a complementary approach for its implementation: each is site, species and/or ecosystem-based and employs operational tools, such as programmes of work, monitoring and reporting, and trust funds. See Joint Web Site of the Biodiversity Related Conventions, http://www.biodiv.org/cooperation/ joint.shtml 65. As already noted above, a key difference is the requirement under Ramsar for a State to have a site listed in order to participate in the Convention and the absence of an advisory body comparable to IUCN entrusted under the Convention to carry out independent review of the nomination. In practice non-governmental organizations perform this latter function – e.g. BirdLife International. Indeed, BirdLife International and UNESCO have agreed to cooperate under Ramsar ‘to develop world heritage nominations linking networks of bird migratory sites’; see the Report of the Trieste Workshop ‘Partnerships to Conserve Nature and Biodiversity’ in World Heritage 2002: Shared Legacy, Common Responsibility, UNESCO, Paris, 2003, p. 155. 66. The four properties (using World Heritage designation) are Bulgaria’s Srebarna Nature Reserve; Senegal’s Djoudj National Bird Sanctuary; Tunisia’s Ichkeul National Park; and the United States’ Everglades National Park. For the full list, see http://www.ramsar.org/world_heritage. htm. For comparison of the World Heritage and Ramsar conventions, see C. Redgwell, The International Law of Public Participation: Protected Areas, Endangered Species, and Biological Diversity, in D. Zillman, A. Lucas and G. Pring (eds.), 2002, Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources, Oxford, p. 17 ff.; D. E. Pritchard, 2004, Review of Cooperation between the Convention on Wetlands (Ramsar, Iran, 1971) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), IUCN.
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projects on the river flowing into Ichkeul. In 2000, a visit by the Ramsar Advisory Mission was carried out at the request of the World Heritage Centre, IUCN and the Bureau of the Ramsar Convention.67 In general, dual listing is seen as a ‘useful strategy for taking advantage of the different legal, scientific, management and advocacy approaches of each.’68 Nonetheless, a 2005 report by the biodiversity-related conventions’ secretariats makes a number of suggestions for harmonization of criteria, guidelines and definitions such as ‘sustainable use’ and ‘migratory species’, where possible. It also advocates inclusion of criteria from several conventions in deciding priorities for site-based conservation, e.g. CITES appendices listing with Ramsar and World Heritage Convention listing criteria.69
. The World Heritage Convention and Transmission to Future Generations The Convention has a distinctive role to play in the biodiversity-related web of instruments, with natural heritage site inscription reinforcing the site, habitat and ecosystem protection afforded under other related instruments. A particular feature of the Convention is its explicitly intergenerational focus with respect to the natural heritage to be transmitted to future generations. This was underscored by the UNESCO Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage adopted the same day as the Convention text, which recognizes in its Preamble ‘that […] the cultural and natural heritage […] constitute an essential feature of mankind’s heritage’ and ‘that every country in whose territory there are components of cultural and natural heritage has an obligation to safeguard this part of mankind’s heritage and to ensure that it is handed down to future generations.’70 Of course, the World Heritage Convention was not the first instrument to acknowledge the interests of future generations. The 1946 International Whaling
67. See http://www.ramsar.org/ram_rpt_41e.htm. The site is also a biosphere reserve under the MAB Programme. First inscribed on the Danger List in 1996 owing to increased salinity in the freshwater lake caused by agricultural activities, an emergency plan for safeguarding the Park was agreed to, with an eventual reduction in salinity – and the return of numerous migratory bird species – so that it was removed from the Danger List in 2006. See further http://whc.unesco. org/en/list/8 68. Doc. UNEP/CBD/WG-RI/1/7/Add.2 of 14 July 2005, supra note 39, Paragraph 39, citing Pritchard, op. cit. in note 66. 69. Ibid., Paragraph 42. There are also trilateral meetings on protected areas between the World Heritage, the Biodiversity and the Ramsar Conventions; see Doc. UNEP/CBD/WG-RI/1/7/ Add.2 of 14 July 2005, supra note 39, Paragraph 19. 70. Preamble, third and fifth indents.
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Convention71 and the 1968 African Convention72 both refer to future generations in their Preamble,73 and we have seen that the 1972 Stockholm Declaration refers to ‘our posterity’ and recognizes the need to defend and improve the human environment for ‘present and future generations’ as an ‘imperative goal for mankind’.74 Indeed, the Stockholm Declaration reflects the twin heritage of the World Heritage Convention in the recognition of human beings as both creatures and moulders of their environment and in its approach to the ‘environment’, which must be understood to embrace both the natural and the man-made.75 While the use of the term ‘natural heritage’ is novel in the Convention, the Stockholm Declaration taps into similar reasoning, particularly in Principle 2: [t]he natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. The World Heritage Convention is an expression of this need to safeguard, with the States in whose territory cultural and natural heritage is located acting as guardians in relation thereto. In fact, Principle 2 might have gone further in acknowledging the interests of future generations. The Intergovernmental Working Group established by the Preparatory Committee of the Stockholm Conference had before it a suggestion from the Secretary-General of the United Nations that the Declaration should refer to the duty of all nations to carefully husband their natural resources and to hold in trust for present and future generations the air, water, lands, and communities of plants and
71. Its Preamble recognizes the ‘interests of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks.’ 72. Its Preamble recognizes that nature resources should be conserved, utilized and developed ‘by establishing and maintaining their rational utilization for the present and future welfare of mankind.’ 73. Numerous other preambular acknowledgements of future generations followed the Convention, including the other biodiversity-related conventions: e.g. CITES (‘[r]ecognizing that wild fauna and flora in their many beautiful and varied forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come’); the Bonn Convention (‘[a]ware that each generation of man holds the resources of the earth for future generations and has an obligation to ensure that this legacy is conserved and, where utilized, is used wisely’); and the Biodiversity Convention (‘to conserve and sustainably use biological diversity for the benefit of present and future generations’). For an attempt to identify bilateral (six) and multilateral (fourteen) treaties and soft law (three) instruments making reference to future generations, see the Appendix in E. Agius and S. Busuttil (eds.), 1998, Future generations and international law, London. 74. Paragraph 6, Declaration of the UN Conference on the Human Environment, Stockholm, 5-16 June 1972. 75. See, inter alia, Principle 1.
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animals on which all life depends.76 The concept of resources being held in trust for present and future generations survived the first draft of the Working Group but went no further.77 Twenty years later, Principle 3 of the 1992 Rio Declaration goes further than Principle 2 of the Stockholm Declaration in its express reference to intergenerational equity and the right to development, but once again stops short of any recognition of the rights of, or duties owed to, future generations. It provides that ‘[t]he right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’78 All of the foregoing examples are drawn either from non-binding instruments – ‘soft law’,79 such as the Stockholm Declaration – or from the Preamble of treaty instruments. Whilst the latter are not binding per se, they have indirect effect in their use as evidence of the object and purpose of the treaty in the context of its interpretation.80 A rare exception to soft law or preambular recognition alone is Article 3(1) of the 1992 Framework Convention on Climate Change, which provides that: [t]he Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof. Here is recognition, albeit couched in hortatory language, of the need to act for the benefit of present and future generations. Moreover, intragenerational equity is clearly recognized in the incorporation of ‘common but differentiated responsibility’ and in the reference to ‘respective capabilities’, not to mention the explicit acknowledgement that it is for developed States to shoulder the greater burden in restoring the global patrimony.81 Article 3(1) thus clearly incorporates notions of both intra- and inter-generational equity.
76. See U.N. Doc. A/CONF.48/PC/SG.1/CRP.4, 1971, Paragraph 13, cited by L. B. Sohn, 1973, The Stockholm Declaration on the Human Environment, HILJ 14, 423, p. 456. 77. For further discussion, see Sohn, supra note 76, pp. 456-457. A dominant issue in debates at the Stockholm Conference was the perceived tension between environmental protection and economic development, a tension illustrated by Sohn in his description of the fate of the ‘trust concept’ in Principle 2. See also E. B. Weiss, Conservation and Equity Between Generations, in T. Buergenthal (ed.), 1984, Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn, Kehl, pp. 245 ff. 78. See similar reiteration in the 1993 Vienna Declaration on Human Rights adopted at the World Conference on Human Rights, available at: http://www.unhchr.ch. For discussion of the very limited reference to heritage in the Plan of Implementation agreed on at the 2002 Johannesburg World Summit on Sustainable Development, see further supra note 58. 79. See, generally, D. Shelton (ed.), 2000, Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, Oxford. 80. See further discussion in A. Aust, 2000, Modern Treaty Law and Practice, Cambridge, pp. 188 and 337. 81. See, generally, L. Rajamani, 2006, Differential Treatment in International Environmental Law, Oxford.
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However, there is a chapeau to Article 3, included at the insistence of the United States of America, which states that ‘[i]n their actions to achieve the objectives of the Convention and to implement its provisions, the Parties shall be guided, inter alia, by’ a number of enunciated principles. While the clear intention of this wording is to confine the legal consequences of the principles articulated in Article 3 to the Framework Convention on Climate Change,82 it is doubtful whether Article 3 may be ‘ring-fenced’ in this manner.83 It is striking that similar words of limitation are not found in a chapeau to Article 4 of the World Heritage Convention, which states, inter alia, that: • [e]ach State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage [...] situated on its territory, belongs primarily to that State. No doubt the absence of words of limitation is explained by the fact that it is difficult to see how a recognition that the duty of intergenerational transmission of the cultural and natural heritage falls primarily on each State Party would be perceived as so onerous or precedent-setting a burden as to require any words of limitation. Rather, it may be viewed as acknowledgement of the sovereignty that States exercise over their territory, but also as recognition that this sovereignty is not absolute and is subject to various duties and responsibilities.84 The focus of the Convention is on States and on natural heritage within the territory of the State. No ‘rights’ of future generations arise under the Convention; the duty of
82. See P. Sands, 1995, International Law in the Field of Sustainable Development, BYIL 65, 303, p. 337. He notes that there is a footnote to the Convention specifically indicating that the titles to articles are included solely to assist the reader. Thus, the fact that Article 3 is titled ‘Principles’ has no determinative legal effect. Ibid., at note 140. 83. A similarly worded chapeau precedes the acknowledgement in Article 5(c) of the 1992 Convention on the Protection and Use of Transboundary Watercourses and Lakes that ‘[w]ater resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.’ Article 1 of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters provides that ‘[i]n order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.’ There is no chapeau to Article 1, but the United Kingdom made a declaration on ratification of the Convention indicating that the substantive right to environment expressed in the preamble and in Article 1 ‘express an aspiration which motivated the negotiation of this Convention and which is shared fully by the United Kingdom’ but that the only legal rights each Party guarantees to protect are those found in the three pillars (access to environmental information, public participation and access to justice). For the text of the Declaration see http://www.unece.org/env/pp/ctreaty.htm 84. For discussion of the evolution of the concept of sovereignty and of permanent sovereignty over natural resources, in the light of environmental and other international legal developments, see N. Schrijver, 1997, Sovereignty Over Natural Resources: Balancing Rights and Duties, Cambridge.
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transmission is thus one unenforceable by the ultimate beneficiaries of the natural heritage. Could more be done explicitly to recognize the rights of future generations?85 In 1997 UNESCO adopted the Declaration on the Responsibilities of the Present Generation Towards Future Generations.86 This is a ‘soft, soft’87 instrument; it has no direct binding force and does not employ mandatory language (‘shall’ or ‘must’) but rather ‘diplomatic language’ (‘should’ or ‘may’). Articles 4 (‘Preservation of life on earth’) and 5 (‘Protection of the environment’) are most pertinent to natural heritage. The former speaks of the ‘responsibility’ of present generations to ‘bequeath’ to future generations an Earth not irreversibly damaged; the duty of beneficiaries in temporary enjoyment of the Earth’s resources is to use those resources ‘reasonably’. It does appear to reflect, at least implicitly, the ‘duty’ of conservation of use, one of the three elements of intergenerational equity identified by Edith Brown Weiss in her seminal work on intergenerational equity.88 But, as O’Keefe has observed, the language of the Declaration is very carefully chosen. For example, employing the concept of responsibility is ‘a subtle but significant avoidance of the formal legal terms “obligation” and “duty”, and a semantic ploy common to diplomatic drafting.’89 And the reference made is to the responsibility not of States, but of the present generation, thus further underscoring that the normative intent of the Declaration is to influence the behaviour of the present generation, not of States per se. Indeed, as the Preamble suggests, the obligation (upon States) is a moral one, ‘to formulate behavioural guidelines for the present generations within a broad, future-oriented perspective.’ The Declaration has not had a catalytic effect on State practice, nor has it provoked further institutional responses. This is characteristic of the concept of intergenerational equity itself, which may exert moral force, but has yet to attain the character of a binding norm of international law.90 This is the case notwithstanding assertions to the contrary, most notably by Weiss herself, who argues that intergenerational equity is already part of
85. More fundamentally, the question must be asked: what would recognition of the rights of future generations achieve under the Convention in terms of enhanced protection for the natural heritage? This might be seen as a component of a larger question, which is the utility of rights recognition for environmental protection. For critical analysis see A. E. Boyle and M. Anderson (eds.), 1996, Human Rights Approaches to Environmental Protection, Oxford; J. Merrills, ‘Environmental Rights’, in D. Bodansky, J. Brunnee and E. Hey (eds.), 2007, Handbook of International Environmental Law, Oxford, Ch. 28. 86. Resolution 44, adopted by the General Conference at its twenty-ninth session, 12 November 1997. 87. See D. Shelton, Law, Non-Law and the Problem of ‘Soft Law’, in Shelton, op. cit.in note 79, pp. 4 ff. 88. See E. B. Weiss, 1989, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity, New York. 89. See O’Keefe, op. cit. in note 30, p. 203. 90. As Birnie and Boyle put it, ‘although the idea of moral responsibility to future generations is well established in the writings of Rawls and other philosophers, it is less easy to translate into law, or, more specifically, into rights for future indeterminate generations’; see Birnie and Boyle, op. cit. in note 1, p. 90. See also V. Lowe, ‘Sustainable Development and Unsustainable Arguments, in A. E. Boyle and D. Freestone (eds.), 1999, International Law and Sustainable Development, Oxford, p. 29 (‘[i]t lacks normative status’); C. Redgwell, Intergenerational
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international law.91 Schrijver92 asserts that ‘[t]he principle of intergenerational equity is amply reflected in international law’, citing, inter alia, the Preamble to the 1946 Whaling Convention and Article 4 of the World Heritage Convention. Judge Weeramantry’s dissenting opinion in the Nuclear Tests case is also referred to, where he observed that intergenerational equity is ‘an important and rapidly developing principle of contemporary international law [...] which must inevitably be a concern of this Court.’93 The Philippines case of In re Minors Oposa94 is often used as an illustration of standing for the present generation to sue for the recognition of the environmental rights of future generations, notwithstanding the pyrrhic nature of the victory95 and the paucity of other judicial recognition.96 Nonetheless, while international law does not recognize that future generations have rights, there is a clearly recognized intergenerational impulse behind instruments like the World Heritage and Climate Change conventions and in the concepts of precaution and sustainable development. The establishment of new institutions, such as the Commission on Sustainable Development, further reflects ‘the evolution of a more fiduciary or trusteeship model of man’s relationship with the environment, which may enhance intergenerational perspectives.’97 To this extent Weiss is correct to say that intergenerational equity is a part of international law, even if it has not (and may never) achieve the status of a concrete, binding norm.
trusts and environmental protection, Huntington, 1999, p. 143 (‘the best that may be claimed for intergenerational equity […] is that [it] serves as a guiding principle’). 91. Supra note 88. 92. See N. Schrijver, 1997, Sovereignty over Natural Resources: Balancing rights and duties, Cambridge, p. 243. But he also refers to it as an ‘‘emerging’ principle coined by Weiss’, ibid. 93. New Zealand v. France, ICJ Reports, 1995, at p. 341; see also Judge Weeramantry in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, p. 266. 94. Minors Oposa v. Secretary of the Department of Environment and Natural Resources, Supreme Court of the Philippines, 30 July 1993, reproduced in I.L.M. 33, 1994, p. 173. 95. See D. B. Gatmaytan, 2003, The Illusion of Intergenerational Equity: Oposa v. Factoran as Pyrrhic Victory, GIELR 15, 2003, p. 457. Lowe is also critical of an interpretation of the case acknowledging the rights of future generations and sees it rather as an instance of enforcing the duty of some members of the present generation at the instance of other members of that generation; see Lowe, op. cit. in note 90, p. 27. 96. Oposa was not followed in comparable proceedings before the Bangladeshi Supreme Court only a few years later: Farooque v. Government of Bangladesh, 1997, DLR 49 (AD), 1997, 1. And, as DeMarco points out, it is far from clear that in invoking intergenerational equity the domestic courts are applying it as a rule of international law; see J. V. DeMarco, 2004, Case Note: Imperial Oil Ltd v. Quebec (Minister of Environment), RECIEL 13, p. 108. See also J. V. DeMarco and M. L. Campbell, 2004, The Supreme Court of Canada’s Progressive Use of International Environmental Law and Policy in Interpreting Domestic Legislation, RECIEL 13, p. 320. See also, more generally, M. Anderson and P. Galizzi (eds.), 2002, International Environmental Law in National Courts, London. 97. See Birnie and Boyle, op. cit. in note 1, p. 90.
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One method for the concretization or implementation of the interests (if not the rights) of future generations98 in the transmission of an unimpaired natural heritage of outstanding universal value would be to recognize a broader representative or guardianship role for the Committee – e.g. the ability ex officio to nominate properties to the List. This could be achieved via treaty amendment, though any such revision through the UNESCO General Conference would be binding only upon the States accepting it. Alternatively, the Parties could agree to interpret the Convention in a manner consistent with this enlargement of the Committee’s functions. An example from the law of the sea context is the 1994 Implementation Agreement, which clearly has the effect of excluding or modifying provisions of the UNCLOS, but has been conveniently characterized as an implementation – a subsequent agreement by the Parties – rather than as an amendment (which would require conformity with the amendment procedures of the UNCLOS).99 Either approach would require a high degree of political will and consensus amongst the State Parties to the Convention. Given the controversy that has surrounded the interpretation of Article 11(4) and the question of whether the Committee has the authority to inscribe a threatened site on the List of World Heritage in Danger,100 it seems inconceivable that the political will presently exists to enhance the listing authority of the Committee in this manner. The same argument would apply to an alteration in the Parties’ practice101 to admit of such a listing power by the Committee, as reflected in the Operational Guidelines with the added caveat of their non-legally binding character. Even absent such an independent power of inscription, the role of the Committee in scrutinizing national applications and in monitoring the state of properties inscribed on the List is one analogous to that of the trustee of a property in ensuring that its beneficial use does not deplete the trust res for future generations. This buttresses the guardian or trusteeship role that States assume under Article 4. There is no doubt that the Convention contributes an ‘intergenerational flavour’ to nature protection through its listing approach and the obligation of transmission to future generations, although this remains an obligation unenforceable by its beneficiaries in the present (at least absent domestic recognition of the standing of future generations to challenge diminution of their natural inheritance). Inscription on the List of World Heritage in Danger, including unilateral
98. For a general discussion of methods for safeguarding and representing the interests of future generations in the present, see Agius and Busuttil, op. cit. in note 73. 99. This is provided for in Article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties. Evans refers to the rather euphemistically entitled Implementation Agreement, which ‘de facto amended provisions of the convention dealing with deep seabed mining so as to make them acceptable to as broad a range of states as possible.’ See M. D. Evans, The Law of the Sea, in M. D. Evans (ed.), 2006, International Law, 2nd edn, Oxford, p. 633. 100. See discussion at note 27 above. 101.See Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties, which provides that in the interpretation of a treaty ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ shall be taken into account. Given the general emphasis upon the non-legally binding character of the Guidelines, however, it is doubtful that inclusion here alone would constitute the necessary ‘agreement’ for such purposes.
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inscription by the Committee,102 is one contemporary means for ensuring such heritage is conserved for future generations, even in the absence of their direct standing. Finally, the continued103 addition of natural heritage of outstanding universal value to the List (which presently accounts for only about fifty percent of such natural heritage104) and the protection of existing listed properties will ensure in and of themselves the intergenerational transmission of natural heritage, buttressed by the protection not only of the World Heritage Convention but of one or more of its companion biodiversity-related instruments.
102. See supra note 27. 103. But not continuing, given that there is a limit to the natural heritage that may be recognized as of outstanding universal value – even if the list may be modified over time as perceptions of what constitutes such value adjust in the light of scientific and other knowledge. 104. There are 163 natural and 24 mixed properties inscribed on the List; and IUCN estimates that a complete list of natural and mixed properties might number between 250 and 300; see the Evaluation of the Global Strategy for a Representative, Balanced and Credible World Heritage List (1994-2004), Doc. WHC-04/28.COM/13 of 25 May 2004, Paragraph 24. This number is based on a more detailed analysis of natural and mixed properties contained in A Review of the Global World Heritage Network: Biogeography, Habitats and Biodiversity, prepared by UNEP’s World Conservation Monitoring Centre in collaboration with IUCN and the World Heritage Centre. The full text is available at: http://www.unep-wcmc.org/protected_areas/world_heritage/wh_ review.htm
PANEL 5
Fostering Access to Education and Knowledge
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Introduction Pierre Michel Eisemann
This Panel, in addressing access to education and knowledge, addresses the very heart of UNESCO’s historical missions, the objective of which, needless to say, is education, science and culture. Paradoxically, however, these issues appear to have been somewhat neglected as regards standard-setting instruments. As regards education, in 1960, the Organization adopted the highly symbolic Convention against Discrimination in Education, which was supplemented in 1962 by a protocol for the settlement of disputes. Aside from this instrument of the protection of human rights, there are only a few instruments of a more technical nature. In the 1970s, a series of regional conventions was adopted on the recognition of studies, diplomas and degrees in higher education (Latin America and the Caribbean, 1974; Arab and European States bordering on the Mediterranean, 1976; Arab States, 1978; Europe, 1979; Asia and the Pacific, 1983). It was not until the end of the 1980s that a Convention on technical and vocational education was adopted, in 1989, following several recommendations on the same subject. Higher education has been particularly neglected, having been provided for only very indirectly by a Convention on the recognition of qualifications concerning higher education in the European region, in 1997. This rather limited collection of treaty instruments has only been very inadequately supplemented by ‘soft law’ instruments. Other than the 1978 International Charter of Physical Education and Sport, the Organization has adopted only a limited number of recommendations relating to education, such as those concerning discrimination in education (1960), technical and vocational education (1962, 1974 and 1981), the status of teachers (1966), education for international understanding, cooperation and peace and education relating to human rights and fundamental freedoms (1974), the development of adult education (1976), the recognition of studies and qualifications in higher education (1993) and the status of higher-education teaching personnel (1997). Although the right to education is guaranteed by instruments concerning human rights in general (and developed by bodies other than UNESCO), one might wonder what the reasons are for the relatively modest nature of the Organization’s standard-setting work in this domain, given that the
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Organization indisputably has a specific role to play in it. To give only one example, it is regrettable that the fundamental principle of the independence of higher-education teaching personnel has to date not been affirmed through any treaty instrument. The situation is hardly any better in respect of the access to, and the dissemination of knowledge. Setting aside the domain of copyright, where UNESCO has played a key role, all of the conventions are old and characterized by the concern – somewhat obsolete today – to facilitate international circulation and exchange, particularly with regard to visual and auditory materials (1948), educational, scientific and cultural materials (1950) or publications, particularly official publications and government documents (1958).1 Soft law instruments are hardly more numerous: with the exception of the set of recommendations concerning the standardization of statistics (relating to book production and periodicals (1964 and 1985), libraries (1970), radio and television (1976), education (1978) and science and technology (1978)), there are few besides the 1972 Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange, while the challenges presented by new means of telecommunication have given rise to the adoption of the 2003 Charter on the Preservation of Digital Heritage and the 2003 Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace (2003). Science, in particular, is surprisingly all but absent from this group of standardsetting instruments, except for the Recommendation concerning the specific issue of the status of scientific researchers (1974). However, there is no need to draw overly pessimistic conclusions from this brief assessment. Besides the fact that UNESCO’s contribution is not limited to its standardsetting action, certain instruments relating chiefly to other areas – and which are covered by the other panels – should be added to those we have mentioned, since they are sometimes closely linked to the question of the access to education and knowledge. Moreover, the standard-setting action of other international organizations, such as the United Nations, has come to complement and extend the scope of UNESCO’s work in this area. The fact remains that, even if UNESCO’s efforts in this area cannot be exclusive, it is important to underscore the Organization’s key role in promoting education and access to knowledge. Since it is not possible, given the limitations of this panel, to consider all aspects of the Organization’s standard-setting action as regards access to education and knowledge, the three speakers will each address a specific issue. Professor Wolfgang Benedek of the University of Graz, Chairman of the Austrian office of the World University Service and Director of the European Training and Research Centre for Human Rights and Democracy, well known for his work on human
1. Contrary to what its title suggests, the Convention relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite of 1974 is not intended to promote this mode of distribution but, on the contrary, to control it with a view to protecting the rights of the author. For example, the Contracting States undertake to ‘take adequate measures to prevent the distribution on or from [their] territory of any programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended.’
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rights, will discuss the standard-setting implications of Education for All by analysing the legal issues raised by the exercise of the right to education, particularly from the perspective of the elimination of all forms of discrimination. Mr Alfred Fernandez, Director General of the International Organization for the Development of Freedom of Education (OIDEL), a Swiss law association that aims to promote the right to, and freedom of, education (and which has consultative status with the United Nations, UNESCO and the Council of Europe), will endeavour to put the issue of equal opportunity in education back into the general international context, encouraging us in particular to recognize the distinction between the concept of discrimination and that of differentiation, both of which are found to apply in education. Lastly, Professor Jerome H. Reichman, Bunyan S. Womble Professor at the Duke University School of Law, a recognized expert in intellectual property law and one of whose numerous roles is that of special adviser to the United States National Academies and the International Council for Science (ICSU), will present a comprehensive panorama of UNESCO’s efforts to promote access to scientific and technological knowledge, from its first steps to present-day efforts to build ‘knowledge societies’.
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The Normative Implications of Education for All (EFA): The Right to Education Wolfgang Benedek*
. Normative Obligations under the Right to Education The right to education is considered a fundamental human right, defined first in Article 26 of the Universal Declaration on Human Rights (UDHR) of 1948 and later, with the assistance of UNESCO, in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966.1 The definition of the human right to education given in these instruments emphasizes two major aspects, namely, the content of the right and its purpose, or instrumental nature. The content focuses on access to different forms of education and on equality in the enjoyment of the right. The purpose is described as ‘the full development of the human personality’ and ‘the strengthening of respect for human rights and fundamental freedoms.’ Both elements present the human right to education as an ‘empowerment right’, enabling its beneficiaries to improve their economic and social situation, and to make full use of their human rights. The Constitution of UNESCO, as well as its activities, reflects the concerns of the human right to education and emphasizes the ideal of equal educational opportunities for
* The author wishes to express his gratitude for useful information and advice received from Mr. Kishore Singh, from the Secretariat of the Educational Sector of UNESCO. 1. See J. Delbrück, 1992, The Right to Education as a Human Right, GYIL 35, pp. 92-104 and M. Nowak, The Right to Education in the Economic, Social and Cultural Rights, in A. Eide, C. Krause and A. Rosas (eds.), 2001, Economic, Social and Cultural Rights: A textbook, The Hague, pp. 245-271.
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all.2 The UNESCO Convention against Discrimination in Education (CADE), adopted by the General Conference of UNESCO on 14 December 1960, was the first major legal instrument to implement this right (and constitutional principle) in the context of UNESCO’s mandate and action.3 The proposal for drafting such a Convention was contained in the report of the Special Rapporteur of the United Nations Commission on Human Rights, Charles Ammoun, who completed a ‘Study of Discrimination in Education’ for the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1957.4 The CADE, which entered into force in 1962, thus came well before other international instruments against specific forms of discrimination, like the International Convention on the Elimination of All Forms of Racial Discrimination, adopted in 1965, which also addressed the right to education and training insofar as it was relevant under the prism of discrimination. The UNESCO Convention was drawn up at a time when racial segregation still existed in schools in the United States of America, and apartheid was in effect in South Africa. There have been dramatic improvements in this respect. For example, since the year 2000, South Africa is itself Party to the Convention. As a matter of general evolution, the number of Parties to the Convention reached fifty-one by the end of the 1960s; by the end of the 1970s this number had climbed to sixty-five; and by 1985, to seventy-four. By 2006, the number grew to the current figure of ninetythree Parties.5 The main obligation of States ratifying the CADE is the elimination and prevention of discrimination, which includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education […].6 According to Article 4, State Parties undertake to formulate and apply national policies to promote equality of opportunity and of treatment. These include, in particular: • generally available, free and compulsory primary education; secondary education accessible to all; and the possibility of higher education on the basis of individual capacity; • equivalent standards of education in all institutions of public education;
2. See Paragraph 6 of the Preamble to the Constitution of UNESCO, which speaks of ‘believing in full and equal educational opportunities for all’; and Article 1, Paragraph 2(b), which mentions the ‘ideal of equality of educational opportunity without regard to race, sex or any distinctions, economic or social.’ 3. See Y. Daudet and K. Singh, , The Right to Education: An Analysis of UNESCO’s Standardsetting Instruments, UNESCO, Paris. 4. See UN Doc. E/CN.4/Sub.2/181/Ref.1. 5. See http://portal.unesco.org/la/convention.asp?KO=12949&language=E (last visited on 31 December 2006). 6. See Articles 1 and 3 of the Convention against Discrimination in Education of 1960, available at: http://www.unesco.org (last visited on 11 December 2006).
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• appropriate educational methods for persons who have not received or completed their primary education; and • training for the teaching profession without discrimination. Article 5 restates: • that education has to be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; • that parents are at liberty to choose private schools provided they meet minimum educational standards; and • the right of members of national minorities to carry out their own education activities. According to Article 6, State Parties undertake to pay the greatest attention to any recommendation adopted by the General Conference of UNESCO defining measures against discrimination and ensuring equality of opportunity and treatment in education. Finally, States commit themselves to giving full information on legislative and administrative action taken for the implementation of the Convention as part of their periodic reports in Article 7.7 It is important to note that the same General Conference of UNESCO that adopted the CADE also adopted a Recommendation against Discrimination in Education, with identical content. Thus, the obligations of the Convention became immediately operational for all UNESCO Member States, albeit as political and moral commitments rather than as strict legal obligations. The normative implications of this approach will be analysed in Section 3. However, UNESCO’s standard-setting activities related to the right to education did not stop there. A Recommendation on Technical and Vocational Education was adopted by the General Conference of UNESCO in 1962, to be replaced by a Revised Recommendation concerning Technical and Vocational Education in 1974; and complemented by the Convention on Technical and Vocational Education (CTVE), adopted in 1989, which came into force in 1991.8 This last Convention topped off with fifteen Parties in 2006, however, so that the Recommendation of 1974, generally applicable to all Member States, is, in its revised form from 2001, factually of larger practical relevance. In its exactly one hundred Paragraphs, the Revised Recommendation of 2001 deals with issues of policy, planning and administration, technical and vocational education with regard to general education, both as preparation for an occupational field and as continuing education, guidance, the learning process, staff issues and international cooperation in a much more comprehensive way than the Convention in its fifteen articles.9
7. See, for more detail, Y. Daudet and P. M. Eisemann, 2005, Commentary on the Convention against Discrimination in Education, Paris, UNESCO. 8. See, for all legal instruments, J. Symonides and V. Volodin (eds.), 1999, UNESCO and Human Rights. Standard-setting Instruments, Major Meetings, Publications, Paris, UNESCO, 2nd edn, or consult http://www.unesco.org (last visited on 11 December 2006). 9. Both instruments are available at: http://www.unesco.org (last visited on 11 December 2006).
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The Convention commits State Parties to implement programmes for technical and vocational education for young people and adults, essential to both economic and social development, and to the personal and cultural fulfilment of the individual in society. Furthermore, it contains an obligation of non-discrimination and equal access to technical and vocational education, as well as an obligation to pay attention to the special needs of the handicapped and other disadvantaged groups.10 Additionally, the Convention promotes international cooperation within its scope of application. There are also provisions foreseeing periodic review of the programmes introduced, with attendant reports.11 However, as far as the CTVE is concerned this procedure has never been used. Compared to the Recommendation against Discrimination in Education, the Revised Recommendation concerning Technical and Vocational Education is much more comprehensive than the CTVE; it gives detailed instructions, for example, for programmes of technical and vocational education. But, like the CTVE, the Recommendation is not yet monitored through UNESCO’s Committee on Conventions and Recommendations. Still, the UNESCO Secretariat recently conducted a questionnaire survey on follow-up to the Recommendation. In addition, various other recommendations related to the right to education have been adopted by UNESCO, including the Recommendation on the Status of Teachers, adopted in 1966; the Recommendation on the Development of Adult Education, adopted in 1976; or the Recommendation concerning the Status of Higher Education Teaching Personnel of 1997.12 The obligations laid down in these conventions and recommendations have been further elaborated on, interpreted and concretized in the final declarations of pertinent UNESCO conferences, like the Ouagadougou Declaration on the Education of Girls of 1993 and several declarations on human rights education, starting from the Principles of the International Congress on Teaching of Human Rights in Vienna (1978) through the World Plan of Action on Education for Human Rights and Democracy in Montreal (1993) to the Dakar Strategies for the Promotion of Human Rights Education in Africa (1998) and other regional declarations.13 With regard to non-discriminatory access to education and equality of educational opportunity, the World Declaration on Education for All (EFA), adopted in Jomtien in 1990, and the Dakar Framework for Action, adopted by the World Education Forum of UNESCO in April 2000, are of particular importance.14 UNESCO’s normative
10. See Article 2, Paragraphs 3 and 4 of the Convention on Technical and Vocational Education of 1989. 11. See Articles 4 and 7, ibid. 12. More on these instruments can be found in Symonides and Volodin, op. cit., pp. 150, 245 and 305. 13. Ibid., pp. 404, 343, 390 and 471. On the right to human rights education in general, see G. Alfredsson, The Right to Human Rights Education, in A. Eide, C. Krause and A. Rosas (eds.), 1995, Economic, Social and Cultural Rights: A Textbook, Leiden, pp. 287 ff. 14. See K. Singh, Universalizing Access to Basic Education: UNESCO Normative Action, in J. De Groof and G. Lauwers (eds.), 2004, Access and Equality in Education, Paris, UNESCO, 10, p. 16.
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instruments are used as a basis for linking its activities with the EFA goals.15 However, the focus of the human right to education primarily on the right to basic education must be understood in the strategic sense of creating priorities without limiting the full potential of the right, which also includes higher education.16 Another important development for basic education is the UN General Assembly’s Declaration on the UN Literacy Decade: Education for All (2003-2012).17 The World Education Forum established its own monitoring system to review progress toward the six EFA goals, including achieving universal primary education, in the form of the ‘EFA Global Monitoring Report’, which focuses on different aspects of education; for example, the quality dimension in the 2005 report.18 The Dakar goal of ensuring that ‘all children, particularly girls, children in difficult circumstances and those belonging to ethnic minorities, have access to and complete free and compulsory primary education of good quality’ has been taken over as No. 2 of the eight Millennium Development Goals (MDGs), adopted by the UN General Assembly in 2000, to be achieved by 2015. The Dakar goal of eliminating gender disparity in primary and secondary education at all levels by 2005 to 2015 became MDG No. 3. But other MDGs, like the reduction of child mortality and the improvement of maternal health or the fight against HIV and Aids also cannot be achieved without appropriate educational policies. In this context, the ‘EFA Flagship Initiatives’, like ‘the initiative on the impact of HIV/Aids on education’ or ‘education for rural people’, support the achievement of the priority objectives in coordination with other actors.19 Subsequently, the World Conference on the Right to and the Rights in Education, held in Amsterdam in November 2004, in which professional associations were also included, once again appealed to States to adhere to international conventions and treaties in the field of education. It called on international organizations like UNESCO to, inter alia, promote ‘the principle of non-discrimination in education by encouraging national governments to engage in measures of eliminating discriminatory practices.’20
15. See K. Singh, A Perspective from UNESCO, Normative Action for Education for all and equality of educational opportunities, in C. J. Russo (ed.), 2003, Yearbook of Education Law 2004, Dayton, pp. 300-314. 16. See also the Convention on the Rights of the Child of 1989, which speaks in Article 28, Paragraph 1(c) of the obligation to ‘making higher education accessible to all on the basis of capacity by every appropriate means.’ This has become a binding obligation for all 192 Member States. 17. This is a focus of the EFA Global Monitoring Report 2006, Literacy for Life, Paris, UNESCO, 2005. 18. See EFA Global Monitoring Report 2005, Education for All – The Quality Imperative, Paris, UNESCO, 2004. 19. See the EFA Flagship Initiatives, Multi-partner collaborative mechanisms in support of EFA goals, Paris, UNESCO, 2004. 20. See the Declaration of Amsterdam on the Right to and the Rights in Education, 25-30 November 2004, available at: http://www.ineesite.org/core/declaration_of_amsterdam.pdf (last visited on 11 December 2006).
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With regard to adult education, both the CADE and the ICESCR contain provisions to promote equality of opportunity in education by encouraging and intensifying, through appropriate methods, the education of persons who have not received or completed primary education. Such persons should be offered the continuation of their education on the ‘basis of individual capacity’,21 usually termed ‘fundamental education.’ The Recommendation on the Development of Adult Education, adopted by the General Conference of UNESCO in 1976,22 was to promote the creation of programmes of adult education. Non-discrimination in adult education and the promotion of the participation of underprivileged and illiterate segments of the population were given particular attention. The relevance of this obligation in relation to women and girls is also reflected in Article 10 Paragraphs (e) and (f) of the UN Convention on the Elimination of All Forms of Discrimination against Women of 1979, which requires equality of opportunity in the access to programmes of continuing education and the organization of (specific) programmes for girls and women who left school prematurely. In this context, mention should be made of the Hamburg Declaration on Adult Learning, adopted by the Fifth International Conference on Adult Education in 1997, which emphasizes that (basic) education is not a matter of age and that efforts to achieve it should focus on the most vulnerable groups in society. 23
. Major Obstacles to Implementation of the Right to Education In spite of decades of work on the implementation of the right to education, serious problems still exist around the globe, including Europe. For example, discrimination against Roma children prevents access to, and equal opportunities in, education for Roma in several countries.24 In their reports, the previous and present UN rapporteurs on the Right to Education have provided ample material enabling us to identify present and future threats to the right to education, such as an approach to education as traded service.25 For example, the privatization of education may lead to fees for primary education or to discriminatory practices, in particular toward vulnerable groups, in which
21. See Article 4(c) of the CADE and Article 13, Paragraph (2)(d) of the ICESCR. 22. For the text, see Symenides and Volodin, op. cit., p. 245. 23. For the text, see Daudet and Singh, op. cit., p. 101. 24. See K. Tomasevski, 2003, Education Denied, Costs and Remedies, London, part. p. 153. 25. See The Right to Education, reports submitted by the special rapporteurs on the right to education, Katarina Tomasevski, (U.N. Doc. E/CN.4/2004/45 of 15 January 2004) and Vernor Muñoz Villalobos (U.N. Doc. E/CN.4/2005/50 of 17 December 2004); Girl’s Right to Education, Report submitted by the Special Rapporteur on the right to education, Mr. Vernor Muñoz Villalobos, U.N. Doc. E/CN.4/2006/45 of 8 February, 2006, all available at: http://www. ohchr.org/english/issues/education/rapporteur/annual.htm (last visited on 11 December 2006).
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case the human right to education would be violated.26 The rapporteurs also criticized certain limitations they experienced that have prevented more substantive work.27 While differentiation in education may be necessary in order to address specific needs, various forms of discrimination, including discrimination based on race, ethnicity, gender, religion, language or social origin, are still to be addressed. Given this background, the CADE has retained its relevance.28 The reports of the Special Rapporteur on the Right to Education, since 2004 Mr. Vernor Muñoz Villalobos, confirm that the introduction of free, compulsory primary education is still inhibited by school fees and other financial constraints, as well as by discrimination, particularly against women and girls.29 Inequality in access to information technology, i.e. the so-called ‘digital divide’, can also be a major obstacle to the realization of the right to education.30 The World Summits on the Information Society (WSIS) in Geneva and Tunis have focused on this dimension of the right to education, which includes the problem of intellectual property rights.31 The nine EFA Flagship Programmes focusing on education in relation to HIV and Aids, Early Childhood Care, Persons with Disabilities, Inclusion, Rural People, Situations of Emergency and Crisis, Resources on Effective School Health, Teachers and Quality of Education, UN Girl’s Education Initiative, the UN Literacy Decade and the EFA Monitoring Reports also provide well-illustrated examples of the various problems encountered in achieving full implementation of the right to education.32 It can be taken as a positive development that the obstacles to the implementation of the right to education have drawn increasing international attention.33
26. See F. Coomans and A. Hallo de Wolf, Privatisation of Education and the Right to Education, in K. De Feyter and F. Gómez Isa (eds.), 2005, Privatisation and Human Rights in the Age of Globalisation, Antwerp/Oxford, 229, p. 253. 27. See K. Tomasevski, 2005 Has the Right to Education a Future within the United Nations? A Behind-the-Scenes Account by the Special Rapporteur on the Right to Education 1998-2004, HRLR 5, pp. 205-237. 28. See A. Fernandez and J. D. Ponci (eds.), 2005, Education et discrimination, Réflexions sur la Convention concernant la lutte contre la discrimination dans le domaine de l’enseignement de l’UNESCO, Geneva. 29. See The Right to Education, Report submitted by the Special Rapporteur on the right to education, Mr Vernor Muñoz Villalobos, UN Doc. E/CN.4/2005/50 of 17 December 2004. The report for 2006 has developed this focus further. 30. See UNESCO World Report, 2005, Towards Knowledge Societies, Paris, UNESCO, p. 30. 31. See C. Pekari, IP@WSIS, Negotiating Access to Information and Knowledge in the 21st Century, in P. Sint and E. Schweighofer (eds.), 2006, KnowRight 2006, Knowledge Rights – Legal, Societal and Related Technological Aspects, Vienna, pp. 29-37. 32. So far there have been four EFA Global Monitoring Reports: The EFA Global Monitoring Report 2002 focused on Education For All – Is the World on the Track?; the EFA Global Monitoring Report 2003/2004 on Gender and Education for All – The Leap to Equality; the EFA Global Monitoring Report 2005 on Education For All – The Quality Imperative; and the EFA Global Monitoring Report 2006 on Literacy for Life. 33. See, for example, the yearly UNICEF Reports on the State of the World’s Children, which regularly have a focus on education. E.g., UNICEF, 2006. Gender Achievements and Prospects in
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However, positive developments, like the rollback of school fees in primary education in Africa, which, albeit originally encouraged by World Bank policies, were in violation of the right to education, can also be reported.34 Examples of good practices, in which States have undertaken serious efforts to address the problems mentioned through both legislation and practice, can equally be cited. 35 Several groups have been identified as facing particular problems and obstacles in their access to basic education. They include women and girls, persons belonging to minorities, refugees and migrants, members of indigenous peoples and people with different capacities, and socially and economically disadvantaged groups, which also include demobilized soldiers or marginalized youth. This recognition has led UNESCO, as well as the Special Rapporteurs on the Right to Education, to concentrate on certain target groups, which largely correspond to those just listed. The review of State practice in respect of UNESCO instruments is part of the process of consultation, which will be analyzed more closely with regard to the CADE. This brings us back to the question of how the legal instruments of UNESCO in the field of education have contributed to the realization of the principles and objectives of UNESCO, and of the kind of impact they have had on the national laws and policies of Member States.
. Normative Implications and Ways to Strengthen Normative Impact 3.1. Normative Significance About the normative significance of the CADE, Hector Gros Espiell has said most everything in the book he devoted to the Convention.36 He rightfully points to international recognition of the Convention, as evidenced by the international conventions of the United Nations and the work of its bodies, as well as by national law. However, there is hardly any judicial practice directly based on the Convention to be reported.37 This may be explicable by the existence of other pertinent conventions
Education, Paris, UNICEF or the reports of NGOs like Human Rights Watch, 2005, Failing our Children, Barriers to the Right to Education, Washington. 34. See The Right to Education, Report by Muñoz Villalobos, op. cit., Paragraph 23. 35. See ‘Right to Education’, in W. Benedek (ed.), 2006, Understanding Human Rights, Manual on Human Rights Education, Vienna, 211, p. 224. 36. See H. Gros Espiell, 2005, Significance of the Convention against Discrimination in Education (1960), Paris, UNESCO. 37. One notable instance, however, is that of Mauritius where the Supreme Court took into consideration the Convention in a case involving principles of non-discrimination and parental choice in education; see Supreme Court of Mauritius, Suttyhudeo Tengur vs. The Minister of Education and The States of Mauritius, Judgment of 13 November 2002, Record No. 77397 (available at: http://supremecourt.intnet.mu/Entry/dyn/judgment.htm, last visited on 12
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and by the limited familiarity of complainants and courts with the Convention. Accordingly, UNESCO proposes to examine questions related to the ‘justiciability’ of the right to education and its enforcement both through quasi-judicial mechanisms at the international level and through action at the national level. The Special Rapporteur on the right to education also aims to improve the ‘justiciability’ of the right to education.38 There are numerous cases to be found, in particular regarding parental choice of schools or minority schools, but hardly any that rely explicitly on the UNESCO convention concern the obligation to provide access to free compulsory education, or discrimination in education.39 Many cases, however, concern the fundamental principle of equality of educational opportunities in education, including the educational rights of minorities.40 Gradualism in the obligation to implement economic, social and cultural rights, such as the right to education, may generally create a problem for implementation, but it does not interfere with the obligation of non-discrimination in education, which is effective immediately and fully. 41 The right to education and equality of opportunity is recognized in many national constitutions.42 Governments have also undertaken obligations to achieve education for all in the different frameworks already indicated.43 However, it is difficult to establish whether this situation is a result of the CADE, of the provisions of pertinent UN instruments or of the fundamental rights enshrined in national constitutions. Moreover, it has been argued that certain elements of the right to education, such as the obligation to provide free public primary education and the right to equal opportunity in education, can be considered as having become part of customary law.44 The combined effect of the reaffirmation of the right to education in Articles 13 and 14 of the ICESCR and repeated political commitments can be taken as confirmation
February 2007). The Tengur decision has been affirmed by the Judicial Committee of the United Kingdom Privy Council, in its function as Mauritius’ highest court of appeal (see Bishop of Roman Catholic Diocese of Port Louis and Others v. Suttyhudeo Tengur and Others, Privy Council Appeal No. 21 of 2003, Judgment of 3 February 2004, available at: http://www.privy-council.org.uk/files/ other/bishop%20roman%20catholic-final.rtf, last visited on 12 February 2007). 38. See The Right to Education, Report by the Special Rapporteur on the Right to Education, Vernor Muñoz Villalobos, U.N. Doc. E/CN.4/2005/50 of 17 December 2004, Paragraphs 51 ff. 39. See, for example, the country studies in J. De Groof and G. Lauwers (eds.), 2004, Access to and Equality in Education, Paris, ELA and UNESCO, pp. 152 ff. 40. Thus, there is very rich jurisprudence in India in this area. Cases in a number of other countries also underline the importance attached to the principles enshrined in the CADE. Source: Secretariat of the Educational Sector of UNESCO. 41. Compare General Comment 13 on the Right to Education, para 31. All General Comments of the CESCR are accessible at: http://www.ohchr.org/english/bodies/cescr/comments.htm (last visited on 11 December 2006). 42. See D. Hodgson, 1998, The Human Right to Education, Aldershot, p. 12 (providing several examples of constitutional provisions). 43. See K. Singh, UNESCO’s Experience on Equality of Education, in J. De Groof and G. Lauwers (eds.), 2004, Access and Equality in Education, Paris, UNESCO, pp. 90-108. 44. See Hodgson, op. cit., p. 62.
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of this thesis, despite the lack of a case in which an international court has confirmed the assertion. Furthermore, in view of the fact that the UN Convention on the Rights of the Child (CRC) is applicable to 192 States,45 there are only a few imaginable gaps in which customary law may have to be relied upon. But the problem of a reference to ‘progressive achievement’ only remains in the context of the CRC.46 The CADE, the CTVE, the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997, the World Declaration on Education for All of 1990, the Dakar Framework of Action of 2000 and other UNESCO instruments and materials have been referred to in General Comment No. 13 on the Right to Education, prepared by the Committee on Economic, Social and Cultural Rights (CESCR), with contribution from UNESCO. While highlighting the increasingly rights-based approach, also recognized in the EFA Monitoring Report of 2002,47 it underlines the importance of constitutional and other legislative action to make the implementation of the right to education more effective. With regard to nondiscrimination and equal treatment, explicit reference is made to Articles 2 and 3 of the CADE. The ‘failure to repeal legislation which discriminates against individuals and groups, on any of the prohibited grounds, in the field of education’ and ‘the failure to take measures which address de facto educational discrimination’ are given as illustrations of typical violations of the right to education.48 As we were reminded by the first meeting of the High-level Group on Education for All, organized by UNESCO in 2001, it is the responsibility of States to meet the obligation to implement the right to education. In keeping with that, the EFA Global Monitoring Report of 2002 highlighted the need to mobilize governments to develop and modernize national legislation to implement the Dakar Framework for Action of 2000, which was also endorsed by the second meeting of the High-level Group on Education in Abuja in 2002. Since existing (legal) enforcement mechanisms in the framework of UNESCO are very limited, positive incentives, from technical assistance to capacity building and advisory services, may play a particularly important role. One possibility could be the provision of model laws on the basis of best practices.
45. See http://www.unhchr.ch/pdf/report.pdf (last visited on 11 December 2006). 46. Compare Article 28, Paragraph 1 of the UN Convention on the Rights of the Child of 1989. 47. See Education for All: Is the World on Track?, EFA Monitoring Report, Paris, UNESCO, 2002. 48. See General Comment 13 on the Right to Education, op. cit., Paragraph 59.
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3.2. The Sixth Periodic Consultation of UNESCO: A Case-study of UNESCO Monitoring The Sixth Periodic Consultation of UNESCO on the implementation of the CADE in State practice49 provides us with some answers regarding the question of the normative effects of the Convention. The consultation began in December 1995; results were provided to the Executive Board of UNESCO in March 1999. Discussion focused on the basic education of four population groups, namely, women and girls, persons belonging to minorities, refugees and indigenous peoples. The responses received from States show less than satisfactory participation: only fiftysix reports were received from the then 86 (1998) Member States of UNESCO, although the deadline had been extended from November 1996 to April 1998. It is also disappointing to see that initially only two, and finally seven NGOs made use of the opportunity afforded to contribute to the consultation. However, from the fifty-six responses received only thirty came from the contracting Parties of the Convention, whereas twenty-six were based on the Recommendation, fulfilling the obligation spelled out in Article VIII of the UNESCO Constitution. This shows that Member States do not see a large difference between complying with the Convention and complying with the Recommendation, which in this particular case contains the same obligations as the Convention for all Member States. Compared with previous consultations, the number and the quality of responses continue to be unsatisfactory. For example, during the first consultation, in 1968, sixtyone States reported on implementation although the Convention only had forty-eight Parties at the time.50 Additionally, there appears to be no significant difference between legal compliance with the content of the Convention and that of the Recommendation with regard to the adjustment of national constitutions and/or relevant legislation, which are generally reported to be in conformity with international obligations. This raises the question of why Member States have not become Parties to the Convention itself; and should make the UNESCO campaign for new ratifications, mentioned in the Director-General’s Introduction, more successful. The problems reported usually concern implementation in practice, as numerous obstacles still exist to achieving full equality of opportunity for the groups selected for particular consideration. Consequently, States report a variety of measures undertaken to close the gap between existing law and actual practice. Presently, the Seventh Consultation of Member States on the Implementation of the Convention and Recommendation against Discrimination in Education (1960) is under way. Member States received the request for reports in September 2005 with a deadline of
49. See Examination of the Reports and Responses received in the Sixth Consultation of Member States on the Implementation of the Convention and Recommendation against Discrimination in Education, Doc. 156 EX/21 of 17 March 1999. 50. See Daudet and Eisemann, op. cit., pp. 40 f.
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1 September 2006.51 In contrast to past questionnaires, a set of ‘Guidelines for the Preparation of Reports’52 was supplied, reminding States that the obligation to report under Article 7 of the Convention and of the Recommendation is identical. The reporting period was set for the six-year period of 2000-2005. Specific information has been requested regarding the direct applicability of the Convention in domestic law and its use in domestic courts. Where federal systems exist, it is the responsibility of the central authority to assure implementation by the federal units. In case of conflict, constitutional courts, if such exist, are responsible for enforcing the State’s international obligations. Since 1998, the Convention has only attracted seven new contracting Parties, bringing the number of Parties to ninety-three in 2006.53 Since 2004, there has only been one new ratification and one declaration of acceptance.54 In this context, the new guidelines also seek to ascertain whether a Member State intends to adhere to the Convention. This could be the case for Austria, which is presently in the process of preparing its ratification. With regard to UNESCO’s Medium Term Strategy (2002-2007), which identifies several target groups – i.e. vulnerable and disadvantaged groups – with the purpose of ‘reaching the unreached’, in particular ‘the poor, women and girls, rural populations, minorities, refugees, victims of disasters and people with special needs’, the focus of the consultation has been changed from the four groups specified in the Sixth Consultation to young girls, the children of low-income groups, the children of immigrants and of migrant workers, and those of minorities and indigenous peoples. For all these categories, information on pertinent legislation, policies and programmes, and projects is to be provided with regard to non-discrimination in education, equality of educational opportunity, protection of national minority rights, positive measures for the elimination of discrimination, and specific obligations under the Convention and Recommendation regarding parental rights, among others. The reporting obligations are to be structured according to the articles of the Convention and Recommendation. For this purpose a table has been developed which may be helpful in harmonizing State reports. Also, pertinent resolutions of the Commission on Human Rights concerning the right to education,55 which take up the prohibition of discrimination on the grounds contained in the Convention, should be taken into account. This requirement responds to the fact that States also have to report on similar issues under other conventions, in particular the ICESCR. In this context, the guidelines propose that relevant sections of reports prepared under the ICESCR for the
51. See UNESCO Dec. CL/3770 of 16 September 2005. 52. See Guidelines for the Preparation of Reports on the Implementation of the Convention against Discrimination in Education (1960)/Recommendation against Discrimination in Education (1960), adopted by the Executive Board, 171 EX/Decisions, Paris, 25 May 2005. 53. See supra note 5. 54. Jamaica ratified the Convention in March 2006. In May 2006, Zimbabwe declared that it accepted to be bound by the Convention. See supra note 5. 55. See resolutions 2002/23, 2003/19, 2004/25 and 2005/21.
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same period be attached to the report.56 This not only reduces duplication of reporting, but also links the work of UNESCO with the relevant work of UN human rights bodies. On will note that UNESCO has a practice of assisting the CESCR’s discussion of the education part of State reports under the ICESCR through written comments or by being present in meetings as an observer. But the question remains whether the new approach will work to contribute to better coordination, as was suggested by Laurence Boisson de Chazournes.57 In 2001, UNESCO and the CESCR established a Joint Expert Group UNESCO (CR)/ECOSOC (CESCR) on the Monitoring of the Right to Education. The vice-chairman of the CESCR contributed a paper on the methodology for preparing State reports, in which UNESCO and CESCR expert practices were synthesized.58 Reference was made, for example, to the Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies, produced by the Office of the High Commissioner for Human Rights in 2002 at the CESCR’s request.59 The comprehensive methodology, which suggests the use of benchmarks and a SWOT (Strengths, Weaknesses, Opportunities, Threats) analysis, is expected to generate more substantive reports. An informal meeting on the preparation of reports has been organized to assist Members in better understanding their obligations. Nonetheless, there might be a need for technical assistance on the ground. It has to be noted that States, not Parties to the Convention, are bound by the Recommendation, which contains political and moral obligations. However, the reporting obligation is a legal one based on Article VIII of the UNESCO Constitution. Furthermore, the substantive obligations contained in the Convention and Recommendation are identical to the legal obligations under Articles 13 and 14 of the ICESCR which, as interpreted by General Comment No. 13, has a stronger implementation mechanism. By June 2006, the ICESCR had 153 contracting Parties,60 largely UNESCO Member States. Also, through other relevant UN conventions, like the Convention on the Elimination of all Forms of Racial Discrimination (Articles 5 and 7), the Convention on the Elimination of all Forms of Discrimination against Women (Article 10) and the CRC (Article 29), with 170, 182 and 192 contracting Parties, respectively,61 certain key obligations (in particular, the obligation of non-discrimination in education) have reached quasi-universal acceptance. This fact should be taken into account by States when reporting on the implementation of their obligations. With regard to children of
56. See Paragraph 15 of the Guidelines for the Preparation of Reports (2005). 57. See the chapter by L. Boisson de Chazournes in this volume. 58. See E. Riedel, Methodology for the Preparation of the State Reports, Doc. ED-2005/WS/41. 59. See, for the draft guidelines, http://www.ohchr.org/english/issues/docs/guidelinesfinal-poverty. doc (last visited on 11 December 2006). For a summary of the draft guidelines by Paul Hunt, Siddiq Osmani and Manfred Nowak, see http://www.ohchr.org/english/issues/poverty/docs/ SwissSummary1.doc (last visited on 11 December 2006). At the time of writing the draft guidelines are being revised. 60. See http://www.unhchr.ch/pdf/report.pdf (last visited on 11 December 2006). 61. See for all data UNESCO, 2005, Human Rights, Major Instruments, Status as at 31 May 2005, prepared by Vladimir Volodin, Paris, UNESCO.
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migrant workers, Article 30 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990 contains the ‘basic right of access to education on the basis of equality of treatment with nationals of the State concerned.’ However, this Convention has been ratified by only thirty-four Parties,62 none of which are among the main countries receiving migrant workers. Its entry into force was delayed until 2003.
3.3. Possibilities for Strengthening the Normative Impact of UNESCO Conventions and Recommendations on the Right to Education Efforts to strengthen the normative impact of the CADE have been made since its entry into force. However, the 1962 Protocol Instituting a Conciliation and Good Offices Commission to Be Responsible for Seeking a Settlement of Any Disputes which May Arise between State Parties to the Convention against Discrimination in Education proved to be of little use, since States generally have a tendency not to bring interstate complaints.63 Though the Commission has not received a single case to date, State Parties to the Protocol decided in 2003 only to amend certain provisions rather than to terminate it.64 The UNESCO Committee on Conventions and Recommendations (CR), originally established as the ‘Special Committee to examine the reports of Member States on the implementation of the Convention and Recommendation against Discrimination in Education’65 with a mandate including the consideration of communications concerning cases and questions of alleged violations of human rights within UNESCO’s field of competence, has dealt with a good number of cases related to education, in particular, as regards the status of teachers, but also as regards discrimination in the equal access to education.66 As the CR is also expected to monitor the implementation of several other pertinent recommendations, including those dealing with technical, vocational, and adult education, it might be useful to include relevant obligations in reports, as well as in the analytical evaluation of these reports. There are hardly any instances of the use of UNESCO legal instruments (in particular, of CADE) before national courts, despite the suggestion of the Special Rapporteur on
62. See http://www.unhchr.ch/pdf/report.pdf (last visited on 11 December 2006). 63. The Protocol entered into force in 1968 and, by 2005, had only 33 Parties (see http://portal. unesco.org/la/convention.asp?KO=15321&language=E, last visited on 11 December 2006). 64. See Daudet and Eisemann, op. cit., p. 50. 65. See Doc. 71 EX/Decision 32 and Doc. 75 EC/Decision 6.II. 66. From 1978 to September 2005, five hundred and twenty-nine communications were considered by the CR, of which three hundred thirty were settled. As a result of these cases, fifty-five applicants were authorized to leave the State concerned to study or to teach; ten were able to benefit from changes in education laws that were discriminatory of ethnic or religious minorities; fourteen were able to resume their education. Source: Secretariat of the Educational Sector of UNESCO.
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the Right to Education that greater use of domestic legal procedures be made.67 There are several cases, the segregation of Roma children in schools being one, in which the Convention could have been used, however. The European Roma Rights Centre has filed several such cases, which were partly successful. One case that went to the European Court of Human Rights got a lot of attention, although the Court did not find a violation of Article 14 of the European Convention on human rights, as argued by the applicants.68 An assessment of the monitoring procedures related to the UNESCO Convention and Recommendation against discrimination in education reveals serious limitations. As described above, Member State responses in reporting are not fully satisfactory. The CR does not examine or review reports individually; instead, it examines an analytical report prepared by the Secretariat. Thus, reports from State Parties or Member States, if received at all, cannot be debated in order to gain further information about, or to establish dialogue with the reporting State, as is the case with the CESCR. The CESCR also requests information on the educational discrimination of certain groups of children, previously largely identical with the target groups of the UNESCO monitoring process.69 This raises the issue of a closer, complementary70 cooperation between the CESCR and UNESCO, at present limited to one or two meetings of the joint expert group per year. Accordingly, there is room for improvement of joint supervision, as suggested by Boisson de Chazournes in her contribution.71 For example, UNESCO could be more involved in the CESCR review of State reports; and information available to the CESCR, even if not formally reported, could be taken into account by UNESCO. UNESCO could also consider setting up a committee to elaborate reviews of country situations on its own, albeit in cooperation with Member States. One example of this practice is that of the European Committee on Racism and Intolerance (ECRI) in the framework of the Council of Europe. In the UNESCO context, this could, at least initially, be completed within the framework of technical assistance and capacity-building programmes.
3.4. The Role of ‘Soft law’ in Enforcing Legal Obligations At a time when the importance of standard-setting in the United Nations system has declined,72 the main emphasis should be on implementing the standards already adopted, as suggested by the Director-General in his Introduction. In this context, increased
67. See The Right to Education, Report by Muñoz Villalobos, op. cit., Paragraphs 51-58 on the justiciability of the right to education. 68. See the Report on the case related to Bulgaria, action undertaken with regard to Greece as well as the case D.H. and others v. the Czech Republic before the European Court of Human Rights, at: http://www.errc.org (last visited on 11 December 2006). See also the decision of the European Court on Human Rights of 7 February 2006, No. 57.325/00. 69. See Hodgson, op. cit., pp. 224 f. 70. See also Singh, op. cit., p. 311. 71. See the chapter by L. Boisson de Chazournes in this volume. 72. Only few larger projects, which can be expected to deal also with equal access to education, are still uncompleted. They include a Convention on the Protection and Promotion of the Rights and
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recognition of the relevance of so-called ‘soft law’ is of central importance. It has been held that ‘the effectiveness of international norms tends to depend on factors other than their legal quality.’73 This shows the need for a more holistic approach to the sources of international obligations. As the Convention and Recommendation against discrimination in education demonstrate, there is hardly any difference between the implementation of obligations by States bound by the Convention and that by States bound by the Recommendation. The monitoring mechanism is the same. The interpretation and concretization of obligations with regard to particular problems or situations is secured through various declarations during international conferences. Their authority depends on the importance of the event and the follow-up mechanism created, partly in tandem with other international organizations and bodies. The resolutions and declarations adopted at international conferences may thus be considered subsequent agreements or practice, in accordance with Article 31 Paragraph 3 of the 1969 Vienna Convention on the Law of Treaties. The indisputable fact that States respect political and moral commitments in a manner similar to legal commitments also results from the need for consensual, yet flexible regulation of problems. This flexibility cannot be provided by conventions that foresee legal obligations. Furthermore, international legal and political commitments share the same problems of implementation in the absence of effective enforcement mechanisms. This means that in either case there is a need to mobilize the political will and resources of States by a more activist approach or by, say, financial incentives and assistance, such as advisory services. The main problem is not the legal quality of the underlying obligation, but the gap between formal and substantive or effective compliance, which, in turn, presupposes activity on the part of the national political process. Reporting on new legislation cannot be taken as an example of compliance as long as States do not demonstrate that the new legislation is being implemented in practice. Independent sources of information are needed for this purpose. The Council of Europe, for example, has a system of correspondents in all Member States who report on legislative developments. While reliance on NGO shadow reports for various State reporting obligations has become usual practice, such reports do not seem to play a major role in the compliance with UNESCO instruments. The EFA Global Monitoring Report may be able to close part of this gap. Additionally, national UNESCO commissions could play a larger role, as already suggested by the Joint Expert Group. The trends described above explain, at least in part, the increase of charter-based procedures in the UN human rights system. One example is the activity of the Special Rapporteur on the Right to Education, with a focus on vulnerable groups, which should motivate States to live up to their obligations. These trends also explain the normative
Dignity of Persons with Disabilities, and a Convention for the Protection of all Persons from Enforced Disappearance, which has been accepted by the Working Group drafting it in September 2005. 73. See H. P. Neuhold, The Inadequacy of Law-Making by International Treaties: ‘Soft Law’ as an Alternative?, in R. Wolfrum and V. Röben (eds.), 2005, Developments of International Law in Treaty Making, Berlin, p. 50. See also E. Riedel, 1991, Standards and Sources. Farewell to the Exclusivity of the Sources Triad in International Law?’, EJIL 2, pp. 58 ff.
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value of broadly based UNESCO activities through various actors and on several levels, as in the Education for All Framework, which aims at providing the dynamics to ensure that States take their obligations seriously. Accordingly, implementation appears to be more process-oriented than law-oriented. Better results can be achieved only if an intensive process of implementation accompanies legal regulations.
. General Conclusions In conclusion, the normative effects of UNESCO standards and instruments with regard to the right to education cannot be easily ascertained. Many references to UNESCO instruments can be found in the literature and in the documents of other international organizations. In addition, a number of States report that they have brought their legislation and, to a lesser extent, their policies in line with UNESCO obligations, whether conventions or recommendations. However, UNESCO lacks a proper evaluation system to review independently what is reported. In the practice of courts or administrative bodies, little evidence can be found regarding the role of UNESCO instruments in educational matters. Most cases are based on national law. Some good practices can be reported from Indonesia, Rwanda, Kenya Brazil and Cambodia, where UNESCO provided advisory services resulting in constitutional and other legislative amendments.74 The overall normative effect is also expected to depend on the Constitution-based activities of the Organization, including international cooperation with other organizations and NGOs, as manifested in the various declarations, programmes of action and guidelines adopted in order to translate the regulatory framework into regulatory activities and the practice of States. For this purpose, national UNESCO commissions and professional associations, as well as other NGOs, can play an important role. For example, NGOs could bring cases of discrimination to national courts or to the CR using the CADE as their legal basis. Furthermore, though the previously parallel monitoring processes found at UNESCO, the UN and the ILO have increasingly become linked and mutually reinforcing, they can still be improved. By opening itself to the contribution of other organizations, UNESCO can also secure a larger impact for its own standard-setting activities and increase the chances of implementation and compliance in accordance with the principles and objectives of its Constitution. Certain key obligations, like the right of access to free public primary education and the right to equal opportunity in education, can now be considered international customary law. Generally, UNESCO legal instruments in the field of the right to education, whether in the form of conventions or recommendations, should be made better known in order to be taken into greater account. Efforts undertaken in this direction will not remain without results, particularly since 2005, in the context of the seventh Consultation of Member States on the measures taken for the implementation of the Convention and the Recommendation against discrimination in education.
74. Information obtained from the Secretariat of the Educational Sector of UNESCO.
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Ensuring Equal Opportunities in Education Alfred Fernandez In 2006, guaranteeing equal opportunities in education is as much a basic priority for the international community as it was in 1960, when the UNESCO General Conference adopted the Convention against Discrimination in Education. For instance, Goal 5 of the Education for All programme, the Dakar Framework for Action on Education for All of 2000, sets the aim of ‘eliminating gender disparities in primary and secondary education by 2005, and achieving gender equality in education by 2015, with a focus on ensuring girls’ full and equal access to and achievement in basic education of good quality.’ Since 1960, the discrimination debate has gradually been enlarged both in the field of academic research and with regard to the practice and policy of international organizations, including human rights bodies and UNESCO. These changes place our debate in a new international context, which we would characterize under four headings without claiming to be exhaustive: 1. Education for All (EFA). With the adoption of the World Declaration on Education for All and the Dakar Framework for Action in 2000, the international community for the first time set itself an ambitious programme to universalize basic education. This consensus, despite reservations as to the genuineness of the Parties’ commitments following the initial assessments, offers an exceptionally favourable climate for questions relating to the right to education. 2. Increased debate on the right to education, including within human rights bodies. Since 1997, the development of debate has been remarkable in every respect, including in terms of content and of the bodies involved in developing theory, namely, the Commission on Human Rights, the Sub-Commission on the Promotion and Protection of Human Rights and the Committee on Economic, Social and Cultural Rights (CESCR).1 Mention should also be
1. The Sub-Commission on the Promotion and Protection of Human Rights has devoted two reports to the right to education (docs. E/CN.4/Sub.2/1998/10 and E/CN.4/Sub.2/1999/10), the Commission on Human Rights, eight. The Committee on Economic, Social and Cultural
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made of the creation of a Joint Expert Group UNESCO (CR)/ECOSOC (CESCR) on the Monitoring of the Right to Education. 3. Recognition of the rights of minorities and of the importance of cultural diversity, with important implications especially for the concept of discrimination. We shall develop this point further below. 4. A human rights-based approach to education policy. If education is held to be a basic human right, this approach clarifies States’ obligations to it. We would now like to dwell on a major change in international human rights law in our field of concern. Some idea of this change may be gained from considering the emergence of the concepts of affirmative action (positive discrimination) and the right to be different,2 as well as the importance acquired by the concept of equity in education in light of the deficiencies and pernicious effects of purely formal equality. The concept of affirmative action (positive discrimination) is a good illustration of this major change in international human rights law. Affirmative action results in unequal treatment of subjects of law in response to antecedent inequalities. The right to be different, for its part, goes further. It entails not only provisional ‘inequalities’ but also permanent recognition of ‘unequal’ treatment, aimed not at separating or segregating a cultural or ethnic group, but rather at including it in the political vision of a broader community – the community of a State – in acknowledgement of the fact that cultural diversity is, above all, an asset and a resource. This recognition of difference also leads to the realization that cultural freedoms are vital to sustainable human development.3 This conception of difference owes much to the thinking of contemporary Anglophone political philosophy, as that is found in the work of such authors as W. Kymlicka4 and C. Taylor.5. The reasons for this recognition of difference are highlighted in the following quotation from Taylor: ‘[t]here is a form of the politics of equal respect, as enshrined in a liberalism of rights, that is inhospitable to difference, because (a) it insists on uniform application of the rules defining these rights, without exception, and (b) it is suspicious of collective goals […] [This conception is] inhospitable to difference because it can’t accommodate what the members of distinct societies really aspire to, which is survival.’6
Rights has issued general comments on Articles 13 and 14 of the 1966 International Covenant on Economic, Social and Cultural Rights. Lastly, the Committee on the Rights of the Child has issued a general comment on Article 29 of the 1989 Convention on the Rights of the Child. 2. K. Tomasevski, former Special Rapporteur on the right to education, highlighted this in her 2004 Report to the Commission on Human Rights, borrowing the concept from the 1978 Declaration on Race and Racial Prejudice. See UN Commission on Human Rights, Doc. E/CN.4/2004/45, ‘The Right to Education’, report by the Special Rapporteur, K. Tomasevski, 15 January 2004. 3. On this subject, see the Human Development Report 2004. 4. See W. Kymlicka, 1995, Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford. 5. See C. Taylor, 1989, Sources of the Self: The Making of the Modern Identity, Cambridge. 6. See C. Taylor, 1994, Multiculturalism: Examining the Politics of Recognition, Princeton, p. 60.
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We have drawn attention to the last sentence because it is essential: recognition of difference is not a matter of minor importance. It is a question that seems vital to, and represents a basic cultural human right for, the person who is different. In legal terms, it was UNESCO that ‘forged the concept of a right to be different’ in 1978, positing that ‘[a]ll individuals and groups have the right to be different, to consider themselves as different and to be regarded as such’.’7 According to K. Tomasevski, ‘Albie Sachs took this one step further in 2000, affirming “the right of people to be who they are without being forced to subordinate themselves to the cultural and religious norms of others”. International human rights law demands substitution of the previous requirement upon children to adapt themselves to whatever education was available by adapting education to the best interests of each child.’8 We should note that this right to be different presupposes a differentiation and pluralism in the education system that would enable it to be adapted to the child’s best interests. This has not been adequately emphasized in education policies and in the debate on both the quality of education and the effectiveness of the system, which must always be measured by the yardstick of the child’s best interest.9 The latest concept to reflect this change of view is that of equity, which has ousted the concept of equality from policy discussion. But what does equity mean? Definitions abound. We have chosen a fairly descriptive definition, used by the most important European project in the field, the European Group of Research on Equity of the Educational Systems: [a] fair educational system is a system that treats all pupils as equals and which aims to encourage a fair society, in which essential assets are distributed in accordance with the rules of justice [...]. Such a definition of equity demands that certain educational assets are distributed equally – teachers of identical quality, for example – but that other assets are distributed in proportion between contribution and reward – marks, punishment, the careers accessible with the same qualifications, for example – that the inequalities in others should not be ‘excessive’, that more of certain assets are given to the best pupils (longer education) and more of other assets to less able pupils (better ratio of students to teaching staff or specialized education).10 Equity therefore implies proportionality, balance, compensatory policies and, in fact, a large measure of political prudence to judge the situation properly and implement fair policies.
7. See Declaration on Race and Racial Prejudice, Article 1(2). 8. See K. Tomasevski, op. cit. in note 2. 9. 1989 Convention on the Rights of the Child, Article 18(1). 10. See Equity of the European Educational Systems: A Set of Indicators, available at: http://ec. europa.eu/education/programmes/socrates/observation/equality_en.pdf
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Let us now turn to the rights-based approach to education, which may be defined as follows: ‘policies and institutions […] should be based explicitly on the norms and values set out in the international law of human rights. Whether explicit or implicit, norms and values shape policies and institutions […]. [I]nternational human rights provide a compelling normative framework for the formulation of national and international policies’ (United Nations High Commissoner for Human Rights, 2002). The Dakar Framework for Action adopts this view when it affirms that education is a right: ‘[e]ducation is a fundamental human right. It is the key to sustainable development and peace and stability within and among countries, and thus an indispensable means for effective participation in the societies and economies of the twenty-first century, which are affected by rapid globalization. Achieving EFA goals should be postponed no longer’ (Paragraph 6). The concepts of the right to be different and of equity, and the rights-based approach have had a profound effect on the international human rights system and, consequently, on the perception of equal opportunities. Unfortunately, it has to be acknowledged that a clear awareness of the scale of change afoot in the conception of rights and democracy is lacking. As everyone knows, the main international instrument for combating inequality is the 1960 Convention against Discrimination in Education, which we have studied in a recent work.11 This visionary Convention, well ahead of its time, contains possibilities that ought to be explored. This instrument has been supplemented over the years by a large number of other provisions. We may cite in particular the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the United Nations General Assembly in 1992; the 1978 Declaration on Race and Racial Prejudice, which we have already mentioned; and the 2001 UNESCO Universal Declaration on Cultural Diversity. Among other things, this last instrument introduces the concepts of equality and cultural identity, which are obviously most pertinent to our subject. In light of these texts, it is clear that equality of opportunity must be understood, above all, as a process of differentiation. Consequently, it is important not to consider distinction or difference as discrimination in the field of education. It is all the easier to make mistakes in this matter as discrimination has traditionally been associated with the introduction of differences and divisions, as typified by apartheid. Even in their preliminary work for the 1960 Convention, experts were careful to draw a distinction between the (two) concepts of differentiation and discrimination, in order to explain that differences in schooling were considered acceptable if they constituted adaptations to differences in the learning ability of pupils or to special individual needs and conditions, e.g. physical handicaps.12
11. See A. Fernandez and J. D. Ponci (eds.), 2005, Education et discrimination: réflexions sur la Convention concernant la lutte contre la discrimination dans le domaine de l’enseignement de l’UNESCO, Genève. 12. See Preliminary Report on the 1960 Convention, Doc. UNESCO/ED/167, Paragraph 34.
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In the 1960 Convention, ‘the term ‘discrimination’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education’ (Article 1). The key words in this definition of discrimination are thus ‘nullifying or impairing equality of treatment in education.’ Equality of treatment cannot simply be translated into a single policy for everybody, as has often been the case, because equality is compromised by policies that take no account of previous inequalities. The 1960 Convention stresses that States have both positive and negative obligations. The negative obligations require them to abrogate any questionable statutory provisions and administrative instructions and to discontinue any practices involving de facto or de jure discrimination. The positive obligations require States to ensure, by legislation if necessary, that there is no discrimination in the admission of pupils.13 The relationship between discrimination and differentiation can be summed up by saying that, with regard to education, we are all equal (in law) but also all different (in terms of our needs and characteristics). As M. Bossuyt states in his report to the SubCommission on the Promotion and Protection of Human Rights, ‘[n]owadays, it is universally accepted that the term ‘discrimination’ has to be reserved for arbitrary and unlawful differences in treatment […]. The term ‘differentiation’, on the contrary, points to a difference in treatment, which has been deemed to be lawful.’14 The 1960 Convention itself accepts the existence of legitimate differences when it draws attention in Article 2 to three cases not deemed to constitute discrimination: • separate educational systems for pupils of the two sexes; • separate education systems for religious or linguistic reasons; • private educational institutions. It would be reductive to examine the question of equal opportunities in isolation, however. This question forms part of the right to education; this right has undergone some very important developments since 1997, as we have seen. We should point out the following aspects of the right to education, as emphasized by the Sub-Commission on the Promotion and Protection of Human Rights in an important but little-known document:15 • education is a cross-sectoral right, i.e. both a right of access to a service, calling for affirmative action by the State, and a ‘freedom right’, i.e. a right protecting a person in his or her fundamental freedoms;
13. See K. Singh, Convention concernant la lutte contre la discrimination dans le domaine de l’enseignement: enjeux majeurs, in Fernandez and Ponci, op. cit. in note 11, pp. 26-30. 14. See UN Commission on Human Rights, Doc. E/CN.4/Sub.2/2002/21, The concept and practice of affirmative action, report by M. Bossuyt, Special Rapporteur, 17 June 2002, Paragraph 91. 15. See M. Mehedi, Multicultural and Intercultural Education and Protection of Minorities, Working paper submitted by Mr. Mustapha Mehedi, Commission on Human Rights. SubCommission on Prevention of Discrimination and Protection of Minorities. Working Group on Minorities. Fifth session, 25-31 May 1999, Doc. E/CN.4/Sub.2/AC.5/1999/WP.5.
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• the role of the State in matters regarding the right to education consists not only in respecting this right, but also in protecting it from infringements by private individuals or bodies and in taking affirmative action to ensure its full implementation; and • international instruments concerning the right to education assign to parents the primary responsibility for educating their children and the right to choose the kind of education that these children shall be given. As we have pointed out above, there have recently been some major developments in the interpretation of this right. Accordingly, education must combine four interrelated and essential features:16 • • • •
sufficient availability of centres and resources; physical and cultural accessibility; acceptability to all Parties; and adaptability to change and different groups (intercultural education).
These features impose specific obligations on States, which may be summarized as follows (General Comment No. 13, Paragraphs 46 and 47): [t]he right to education, like all human rights, imposes three types or levels of obligations on States Parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect requires States Parties to avoid measures that hinder or prevent the enjoyment of the right to education. The obligation to protect requires States Parties to take measures that prevent third Parties from interfering with the enjoyment of the right to education. The obligation to fulfil (facilitate) requires States to take positive measures that enable and assist individuals and communities to enjoy the right to education. We must now consider more directly the requirements for equity of access in the current climate. For such access (i.e. access that takes account of social and cultural differences) to be possible, it must, in our opinion, meet three conditions. It is necessary: 1. first, to determine the precise legal obligations of States and of other parties: parents, teachers and pupils; 2. second, to adopt a systems approach to education, since human rights policies constitute a whole; and
16. Committee on Economic, Social and Cultural Rights, General Comment No. 13, Paragraph 6.
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3. third, to build good governance, which entails the involvement of civil society and the private sector in education, as well as a new conception of public service and, consequently, a change in the role of the State. It is important to realize and make others aware that education is a fundamental human right. As such, it entails obligations – justiciable obligations – for all stakeholders. However, these obligations are different for States, on the one hand, and parents and teachers, on the other. It must be emphasized that parents, teachers and pupils also have legal obligations with regard to education. As far as equal opportunities are concerned, States’ obligations have been clarified by the Committee on Economic, Social and Cultural Rights in its General Comment No. 13, particularly in relation to accessibility, which has three dimensions: [n]on-discrimination – education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds [see paras. 31-37 on non-discrimination]; physical accessibility – education has to be within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g. a neighbourhood school) or via modern technology (e.g. access to a ‘distance learning’ programme); economic accessibility – education has to be affordable to all. This dimension of accessibility is subject to the differential wording of article 13(2) in relation to primary, secondary and higher education (para. 6). It should be stressed that policies relating to equal opportunities are not subject to the progressive implementation characteristic of economic, social and cultural rights. The Committee has offered the following opinion on this subject: ‘[t]he prohibition against discrimination enshrined in Article 2(2) of the [International] Covenant [on Economic, Social and Cultural Rights] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination’ (Paragraph 31). The Committee interprets the Covenant in light of the 1960 Convention against Discrimination in Education and relevant provisions in other conventions on discrimination. It thus makes specific reference to the affirmative action measures and distinctions provided for by the Convention: [t]he adoption of temporary special measures intended to bring about de facto equality for men and women and for disadvantaged groups is not a violation of the right to non-discrimination with regard to education, so long as such measures do not lead to the maintenance of unequal or separate standards for different groups, and provided they are not continued after the objectives for which they were taken have been achieved [para. 32]. In some circumstances, separate educational systems or institutions for groups defined by the categories in article 2(2) shall be deemed not to constitute a breach of the
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Covenant. In this regard, the Committee affirms article 2 of the UNESCO Convention against Discrimination in Education (1960) (Paragraph 33). The Committee also anticipates the monitoring of public policy to confirm the reality of non-discrimination. ‘States Parties must closely monitor education – including all relevant policies, institutions, programmes, spending patterns and other practices – so as to identify and take measures to redress any de facto discrimination. Educational data should be disaggregated by the prohibited grounds of discrimination’ (Paragraph 37). Another fundamental aspect of equity of access concerns governance of the education system. Although in reality the education system has fallen mainly within the province of the State in terms of both financing and provision, good governance instead advocates cooperation and a division of responsibilities between public authorities, civil society and the private sector. In the EFA context, civil society has been assigned basic roles as a) an alternative service-provider, b) an innovator and c) an informed critic and advocate.17 This division of responsibilities must be properly designed, so that it will not ultimately entail a decrease in State obligations in this field. The obligations of public authorities must be clearly defined, as a matter of urgency, to avoid swapping a monopoly situation – admittedly inimical to human rights – for total deregulation, since education is a public good and must remain so. It is clear that in the field of equal opportunities the State plays an irreplaceable role. However, reaffirming this right does not mean barring the whole of society from providing education, especially as civil society was first to establish schools. Subsidiarity must play a central part here. The State should act only when faced with the inability of civil society and the private sector to play their roles. As the European Union’s White Paper on European governance points out, ‘[t]his means that before launching an initiative, it is essential to check systematically (a) if public action is really necessary [...] and (c) if the measures chosen are proportionate to those objectives.’18 The Dakar Framework for Action calls for support from ‘civil society organizations in developing, implementing and monitoring EFA plans, and a well-defined, consultative process for sector planning and management’ (Paragraph 48). It advocates genuine sharing of decision-making power and asserts that civil society’s participation should not only be limited to endorsing decisions of, or financing programmes designed by, the State. Rather, at all levels of decision-making, governments must put in place regular mechanisms for dialogue that will enable citizens and civil society organizations to contribute to the planning, implementation, monitoring and evaluation of basic education. This is essential in order to foster the development of accountable, comprehensive and flexible educational management frameworks. It concludes that, ‘[i]n order to facilitate this process, capacity will often have to be developed in the civil society organizations’ (Paragraph 54).
17. See UNESCO, Civil Society’s Role in Education, available at: http://www.unesco.org/education/ efa/partnership/civil_society.shtml#role 18. See EUROPEAN UNION, 2001, European Governance, A White Paper, Doc. COM (2001) 428 final, p. 11.
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In conclusion, we should like briefly to address the case of higher education, since the question of equal opportunities is particularly acute at this level and often stirs up political controversy. We may begin by pointing out that State obligations relating to the right to education are graduated obligations. As the above-mentioned General Comment on Article 13 underlines: education has to be affordable to all. This dimension of accessibility is subject to the differential wording of article 13(2) in relation to primary, secondary and higher education: whereas primary education shall be available ‘free to all’, States Parties are required to progressively introduce free secondary and higher education. The key concepts for higher education may be summed up as follows: higher education shall be equally open to all (non-discrimination) on the basis of merit (non-universal), by every appropriate means, and in particular through the progressive introduction of free education (free education as a means). This inevitably brings us back to the concept of equity. Admission to higher education should be based on the merit, abilities, efforts, perseverance and determination shown by those seeking access to it, as emphasized by the World Declaration on Higher Education for the Twenty-First Century: Vision and Action. The same text stresses the importance of diversification for enhanced equity of opportunity. ‘More diversified systems of higher education are characterized by new types of tertiary institutions: public, private and nonprofit institutions, amongst others. Institutions should be able to offer a wide variety of education and training opportunities.’ Finally, we believe that it is perhaps time to work within UNESCO on developing a consolidated normative instrument on the right to education. The development of such an instrument, which would incorporate all elements of the right to education in all its forms and at all levels in a forward-looking perspective, would indeed be appropriate in a ‘learning society’, as Mr. Daudet and Mr. Singh suggest.19 It would be a specific instrument with an effective monitoring mechanism and should be the linchpin of all UNESCO work in the field of education, placing education matters firmly in a rightsbased context.
19. See Y. Daudet and K. Singh, 2001, The Right to Education: An Analysis of UNESCO’s Standardsetting Instruments, Paris, UNESCO, p. 65.
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Access to Scientific and Technological Knowledge: UNESCO’s Past, Present and Future Roles Jerome H. Reichman, Paul F. Uhlir * and Heather J. Ritch
. Introduction Prior to its formation, the inclusion of science as a distinct focus under the mandate of UNESCO was far from certain, because the founders had initially perceived science as a part of culture. They envisioned a United Nations Educational and Cultural Organization instead. Recognition of science as a distinct component of the Organization’s name and mission occurred only after the scientific community lobbied for its inclusion during the preliminary negotiations of 1942-1945.1 The acknowledgement of science as a separate branch of the United Nations Educational, Scientific and Cultural Organization (UNESCO), founded in 1945, testified to the organizational strength of the international scientific community after the Second World War2 and to the efforts it was making to carve out a role for itself in world affairs.3 Once established, UNESCO viewed the promotion of worldwide access to scientific and technical (S&T) knowledge as a primary goal and focal point of its activities, in
* The views expressed here are those of the author and not necessarily those of the National Academies of Washington, D.C. 1. Sir Henry Dale and Joseph Needham persuaded the establishing conference to accept science as a distinct part of UNESCO. See P. Petitjean, Needham, Anglo-French Civilities and Ecumenical Science, in S. I. Habib and D. Raina (eds.), 1999, Situating the History of Science: Dialogues with Joseph Needham, Oxford, pp. 152 ff. 2. M. Finnemore, 1993, International Organizations as Teachers of Norms: the United Nations Educational, Scientific, and Cultural Organization and Science Policy, Int’l Org 47, pp. 565 ff. 3. Julian Huxley, the first Executive Director of UNESCO, and Joseph Needham, the first Director of UNESCO’s Natural Sciences Department, were instrumental in the founding of that Organization and wrote extensively on their views of science as a transnational activity.
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keeping with its constitutional mandate.4 This interest followed from its general institutional responsibilities for the advancement of scientific research and the diffusion of its benefits to the world at large, and from a commitment to championing the role of science in economic development within a larger United Nations framework devoted to improving the conditions of developing and least-developed countries.5 From the late 1950s on, its policies were characterized by increasing emphasis on science as a natural resource, to be developed by States acting through formally organized administrative entities. In this context, it is well to remember that UNESCO’s activities were focused less on developing international law in the ordinary sense6 and more on the diffusion of local scientific structures throughout the world. UNESCO thus sought primarily to stimulate the formation of local science agencies and to influence the practices and norms of local scientific communities. Throughout the 1970s and 1980s, UNESCO was deeply engaged in efforts to improve national information infrastructures in developing countries and, more generally, to allocate telecommunications spectra and other information resources on an equitable basis at the international level.7 This controversial programme, known as the New World Information and Communications Order (NWICO), was an extension of the United Nations’ New International Economic Order (NIEO) agenda.8 At the same time, a number of important initiatives were taken to promote the concept of a global science and technology network, built around a new administrative approach rooted in international decentralization.9 UNESCO also took action to clarify the legal status of scientific researchers10 and to standardize statistics on science and technology at the international level.11 Since the early 1990s, UNESCO’s activities in this field have gradually assumed a more comprehensive and even visionary role. This most recent period followed the end of the Cold War era and saw the predominant focus shift from East-West politico-military competition to North-South development concerns. In assessing the challenges of a ‘Third Industrial Revolution’, UNESCO published a watershed document in 2005,
4. See infra Section 2. Although the UNESCO Charter includes science equally with education and culture as part of its core mandate, there is very little specific reference to scientific objectives. Constitution of the United Nations Educational, Scientific and Cultural Organization, Nov. 16, 1945, Preamble, 4 UNTS 275. 5. See Finnemore, supra note 2, p. 562. 6. See, e.g., the chapter by N. Schrijver in this volume. 7. See, e.g., Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education, and Greater Cultural Exchange (1972). All UNESCO standard-setting instruments are available at: http://www.unesco.org. 8. United Nations Declaration of Establishment of NIEO, G.A. Res. 3201, U.N. GAOR, 5-VI, Supp. No. 1, at 3, UN Doc. A/9559 (1974), reproduced in 13 I.L.M. 715 (1974). 9. See infra text accompanying notes 20-22. 10. See Recommendation on the Status of Scientific Researchers (1974). 11. See infra text accompanying notes 25-30.
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entitled Towards Knowledge Societies – A UNESCO World Report.12 It views access to scientific and technological knowledge and data as a central prerequisite of the ‘knowledge societies’ emerging from the convergence of new information and communication technologies and from the unprecedented developments in interdisciplinary sciences that these technologies have facilitated.13 In portraying science as a ‘common public good’, if not a global public one,14 UNESCO’s World Report outlines a programme for achieving ‘equal and universal access to knowledge, and genuine sharing’ in ‘knowledge societies’ that builds on technological breakthroughs, while adding ‘much broader social, ethical, and political dimensions.’15 Because of the cardinal importance of this Report, we have used it as a vehicle for organizing our survey of UNESCO’s activities concerning access to scientific and technological knowledge. Thus, in Sections 2 and 3, we briefly summarize the Organization’s early activities in this field, with a view to identifying the historical continuity between past and present initiatives. Then, in Section 4, we highlight UNESCO’s current efforts to promote greater openness in public science. In Section 5, we conclude by briefly assessing some of the mounting challenges that UNESCO will face in seeking to implement the universal access goals it has undertaken to promote, in keeping with the vision embodied in its 2005 World Report.
. The Formative Years: UNESCO as Promoter of Scientific Infrastructure In the early, formative period, UNESCO had a strong and palpable impact on the establishment of a worldwide scientific infrastructure, precisely at a time when old colonial empires were breaking up and newly emancipated countries emerging with varying degrees of experience in science and science policy. As is typical after major conflicts, policy makers after the Second World War were seeking to exploit scientific discoveries for military advantage and national security. The early Cold War years thus led to massive government expenditures on scientific research and yielded notable scientific and technological breakthroughs. Nevertheless, there were growing concerns at
12. See Towards Knowledge Societies – A UNESCO World Report, prepared by the Council of the World Report, François Rivièvre, Chairman (Paris, UNESCO, 2005) (hereinafter Towards Knowledge Societies), at 5-7 (Preface by Koïchiro Matsuura, Director-General of UNESCO). 13. Ibid., at 17-23. 14. Ibid., at 170-71. See generally J. E. Stiglitz, Knowledge as a Global Public Good, in I. Kaul et al. (eds.), 1999, Global Public Goods: International Cooperation in the 21st Century, Oxford, p. 308 ff. (hereinafter GPG—International Cooperation); see also K. E. Maskus and J. H. Reichman, The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods, in K.E. Maskus and J. H. Reichman (eds.), 2005, International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime, Cambridge, p. 3 ff. (hereinafter International Public Goods and IP). 15. Towards Knowledge Societies, supra note 13, p. 17-20.
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the international level that State interference in science on security grounds could stifle normal scientific exchanges and hinder the progress of knowledge and human welfare.16 In this period, UNESCO viewed the promotion of worldwide access to scientific and technical knowledge as a primary goal, even a focal point for its activities. In keeping with a constitutional mandate to this end, UNESCO undertook general institutional responsibilities for the advancement of science and the diffusion of research results to the world at large. It was particularly committed to championing the role of science in economic development, within a larger United Nations framework devoted to improving the conditions of developing and least-developed countries. From the late 1940s on, these policies were characterized by increasing emphasis on science as a resource, to be developed by States acting through formally organized administrative entities. At the community level, the basic goals were: • to establish a worldwide network of science cooperation field offices; • to support non-governmental scientific unions affiliated with the International Council of Scientific Unions (ICSU); to add to their number; and to assist them in their work; • to organize and operate an international clearinghouse for scientific information; • to inform the general public in all countries of the international implications of scientific discoveries; • to support the work of the United Nations and its specialized services; • to create new forms of international scientific cooperation.17 Over time, increasing emphasis was placed on State actors and on the promotion of science at the State level, especially with a view to helping newly emancipated developing countries to organize and establish their own national science agencies. ‘Recognizing that national prosperity depends largely on the accumulation and sound application of scientific and technical knowledge’, UNESCO increasingly sought to link relations between scientists and social and economic development planning at the national level.18 Looking back, one may say that the concept of a national public science policy as a high-level executive government function was not a priority for most States before the mid-1950s. Arguably, UNESCO ‘taught’ many States the value and utility of science policy organizations and activities, while its programmes encouraged the development of national science policies in newly decolonized countries all over the world.19
16. See Y. De Hemptinne, 1963, Unesco’s Role in the Organization of Scientific Research’, UNESCO Chronicle 9, p. 244. 17. Sub-Commission on Natural Sciences, first meeting, 30 November 1946. 18. See De Hemptinne, supra note 17, p. 244. 19. See Finnemore, supra note 3.
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. UNESCO in the Cold War Years The initial post-Second World War euphoria that led to the establishment of the United Nations, based on idealistic universal principles, quickly gave way to a new set of conflicts. Cold War rivalries between East and West dominated the geopolitical landscape for the next four decades. No international intergovernmental organization was immune from this bipolar political context, which quickly came to dominate the relationships of nation States and to shape their agendas. UNESCO was certainly no exception. While educational and cultural matters were more prone to ideological wrangling than the largely fact-based and non-ideological nature of science, the increasing importance of S&T applications to economic growth and military superiority made this a politically sensitive area as well. It is, of course, impossible to chronicle or even to characterize faithfully all of UNESCO’s S&T activities during this lengthy period. Therefore, we have singled out just a few of what we consider some of the most important developments. The first was UNESCO’s attempt to decentralize its S&T activities, a structurally significant process that as yet has not been fully realized. The other two themes are more emblematic of Cold War rivalries: the attempt, on the one hand, to stay above the fray and remain committed to its founding principles by championing the open exchange of scientists and scientific knowledge, while, on the other, eventually succumbing to the politicization of S&T, which resulted in the withdrawal of the United States of America and the United Kingdom of Great Britain and Northern Ireland from UNESCO and the consequent weakening of the organization for a protracted period.
3.1. Fostering a Decentralized Regional Approach The nineteenth session of the UNESCO General Conference in Nairobi in 1976 had adopted a resolution calling on UNESCO to ‘prepare a feasibility study on the establishment of an international institute for the planning of scientific and technological development.’20 The various consultations held within the framework of the feasibility study during 1977-1983 demonstrated a preference for international decentralization. UNESCO’s programmes from the late 1970s and into the 1980s accordingly oriented the Organization toward a decentralized scheme focused more on regional activities. This decentralized model operated with a lead office in each region that provided the necessary coordination and operational support. The role of the regional offices for science and technology encompassed an array of general functions, including preparing, planning, executing and evaluating programmes; establishing guidelines for project formulation and development; acquiring and developing appropriate training material; maintaining
20. Resolutions adopted on the report of Programme Commission I at the thirty-first and thirtysecond Plenary meetings, on 25 November, 1976; Doc. 23 C/81 of 9 August 1985, Report by the Director-General on the Establishment of a Decentralized Scheme for Training and Research in the Field of Science and Technology Development Policies.
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relations with the governments of the region concerned; and selecting project managers for each activity. Research and information exchanges were also included, as were advisory services in liaison with UNESCO headquarters, with a view to maintaining contact and collaboration with authorities. UNESCO headquarters authorities were responsible for liaising, as well as organizing intergovernmental meetings, including conferences and meetings between national science council experts, promoting studies and research, and providing support for operational programs.21 Essentially, what emerged was ‘the concept of a global network, based on regional networks.’22
3.2. Promoting Open Scientific Exchange As previously noted, the UNESCO mission, which began in the late 1940s with such energy and optimism, suffered some setbacks in the Cold War period, owing to ideological divisions, political tensions and both the perception and reality of science, and especially of technology, as an instrument of military threat and power. In general, this was a rather dark period for international cooperation and the open and sharing ethos of science. To its credit, UNESCO’s main positive contribution was to keep the torch of free and open scientific enquiry lit, despite contrary ideological winds. From this perspective, the 1974 Recommendation on the Status of Scientific Researchers23 was an important milestone. This document recognized that ‘scientific discoveries and related technological developments and applications open up vast prospects for progress’ and that a cadre of talented and trained personnel was the cornerstone of indigenous research and experimental development capability, which would become indispensable for the utilization and exploitation of research carried out elsewhere. It also stressed that ‘open communication of results, hypotheses and opinions […] lies at the very heart of the scientific process.’ The overall goal was that ‘Member States should develop adequate science and technology policies [to] exploit the positive prospects inherent in such discoveries.’24 The Recommendation particularly addressed the role of scientific researchers in the context of national policy-making. It encouraged Member States to recognize that science and technology are not activities to be carried out in isolation and stressed the need to cultivate opportunities for researchers to participate in national development policy-
21. Although the establishment of an International Scientific Council was recommended in 1984, it did not meet until late 1988, when its recommendations were taken into account for the third Medium-Term Plan. See Draft Statutes of the International Scientific Council for Science and Technology Policy Development, Doc. 129 EX/7 of 25 March 1988. 22. General Conference twenty-third session, 19 August 1985, Item 3.5 of the provisional agenda, Report by the Director-General on the Establishment of a Decentralized Scheme for Training and Research in the Field of Science and Technology Development Policies, Doc. 23 C/81. 23. Recommendation adopted on the report of the Commission for science at the thirty-eigth plenary meeting on 20 November 1974, Paragraph 40. 24. Ibid., Part II.
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making, while balancing researcher autonomy with public accountability. In this connection, the Recommendation emphasized the importance of treating public funding for scientific research as a form of public investment with long-term returns, a theme that was destined to become of primary importance in UNESCO’s later work. Given the political climate of the Cold War, the Recommendation took an important stand on freedom of movement by urging Member States to encourage and support the involvement of researchers in the international scientific and technical community. This plank thus lent intergovernmental support to the International Council for Science’s (ICSU) campaign to preserve scientific contacts and exchanges, despite the hostile political environment. Viewed in hindsight, while the 1974 Recommendation appears rather hortatory and full of wishful thinking, the noble sentiments it endorses acquire an added degree of importance when read against the closed-minded ideological conflicts of the time. Of particular importance was UNESCO’s willingness to support ICSU’s efforts to maintain scientific contacts and exchanges across the Iron Curtain. Working together, these organizations helped to encourage open scientific enquiry and collaboration in an otherwise dark period, indeed. Finally, it is worth noting that some planks from this Recommendation have figured in later, more important science policy initiatives. In particular, the Recommendation was used in preparing the Universal Declaration on Human Genome and Human Rights of 1997 and again in the Declaration on Science and the Use of Scientific Knowledge Project, discussed below. Also of some importance in this period was the Recommendation Concerning the International Standardization of Statistics on Science and Technology (1978).25 UNESCO’s twentieth General Conference in 1978 recommended that certain standards in regard to collecting, compiling and communicating statistics relating to science and technology should be established by Member States, in order to improve the international comparability of such statistics.26 Convinced that such efforts would advance economic and social progress, the drafters of the Recommendation designed it to cover all national institutions that perform or finance scientific and technological activities, in particular, research and development. The Recommendation included a list of standardized definitions,27 an outline of how data were to be classified28 and presented,29 as well as eight points on the long-term development of science and technology statistics.30
25. Recommendation adopted on the Report of Programme Commission V at the thirty-fifth Plenary meeting, on 27 November 1978, Annex I. 26. Ibid., Preamble to the Recommendation, 1978 Annex I. 27. Ibid., Part I. 28. Ibid., Part II. 29. Ibid., Part III. 30. Ibid., Part IV.
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Here, UNESCO was actually ahead of its time. The problem of standardization has become of primary importance in an era when digital communication makes it possible to create virtual archives available to scientists all over the world, as UNESCO’s World Report recognizes. The UNESCO Institute for Statistics and national statistics offices worldwide have devoted substantial time, effort and funds to implementing policies consonant with UNESCO’s 1978 Recommendation.
3.3. Succumbing to Political Realities The basic agenda of the United Nations in the 1970s and 1980s was ostensibly predicated on the interests of ‘third world’ countries, albeit with a heavy overlay of the spheres of influence established by the powers of the East and West. During these years, UNESCO was drawn into the maelstrom of ideological conflict associated with the drive for a New International Economic Order,31 which called for the restructuring of the international economic and legal system in a manner consistent with notions of ‘equity and justice’, as defined by the poorer countries. For UNESCO, a major manifestation of this trend was the Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange (1972).32 This Declaration was meant to become an instrument of a New World Information and Communication Order (NWICO), in which a more equitable redistribution of the means of communication was a major goal. However, the principle of the free flow of information was ultimately subordinated to the principle of prior State consent and of a ‘free and balanced flow of information’, which was tilted toward the policies of the Soviet Union and the countries within its sphere of influence, including the so-called non-aligned countries. The response of the United States of America to NWICO was highly negative. The United States opposed the plan as an attempt to limit the free flow of information and hinder the workings of the free market. The United States also claimed that the document was biased against the private sector’s participation in communications.33 In 1984, these tensions led to the withdrawal of the United States and the United Kingdom from UNESCO, which subsequently undermined the effectiveness of the Organization both in terms of diminished resources and political influence.
31. UN Declaration on Establishment of NIEO. G.A. Res. 3201, U.N. GAOR, S-IV, Supp. No. 1, at 3 U.N. Doc. A/9559 (1974), in I.L.M. 13, 715 (1974). This international Declaration was part of a general push to transfer power and resources from more developed nations to developing and least-developed countries (LDCs). 32. Doc. 17 C/Resolution 4.11. 33. See J. M. Spectar, 2000, Bridging the Global Digital Divide: Frameworks for Access and the World Wireless Web, N.C. J. Int’l L. & Com. Reg. 26, 57, p. 74.
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. The Current Era: Promoting Greater Openness in Public Science A much brighter picture emerges when we look at the current spectrum of activities dealing with access to scientific knowledge, which we believe characterizes the most recent post-Cold War period. In this period, there was a fundamental shift away from bipolar military confrontation between East and West to a more positive focus on economic and social development along a North-South axis. Other salient features of this modern era, which we see as beginning in the early 1990s, have included greater international integration and globalization, and the advent of the Internet, leading to the so-called information society and, more recently, to the knowledge economy.
4.1. Promoting and Framing Scientific Norms and Standards Although even the preceding Cold War era had witnessed many important initiatives concerning access to scientific knowledge, a major milestone of the most recent era was reached at the World Conference on Science, entitled ‘Science for the Twenty-First Century: A New Commitment’. This conference was cosponsored by UNESCO and the International Council for Science (ICSU), and held at Budapest from 26 June to 1 July 1999. It produced a notable Declaration on Science and the Use of Scientific Knowledge,34 as well as a second document, known as the Science Agenda - Framework for Action.35 The latter emphasized both ‘the promise and […] dynamism of the natural sciences’, as well as ‘potential adverse effects’ and the need to focus more attention on the social impact of specific scientific activities.36 The former stressed the ability of all cultures to contribute to universally valid scientific knowledge and the responsibility of the scientific community to address human needs in an interdependent world. The Declaration on Science and the Use of Scientific Knowledge called upon nations and on the scientists of the world to ‘[a]cknowledge the urgency of using knowledge from all fields of science in a responsible manner to address human needs and aspirations without misusing this knowledge.’ It further sought collaboration across all fields of scientific endeavour and emphasized the need to understand the impact of natural sciences on society. While recognizing that technologies based on new methods of communication, information handling and computation have brought unprecedented opportunities and challenges for scientific research and society at large, it stressed the need for a vigorous and informed democratic debate on the production and use of scientific knowledge.
34. See Declaration on Science and the Use of Scientific Knowledge, adopted by the World Conference on Science, UNESCO and ICSU, Budapest, 1 July 1999, available at: http://www.unesco.org/ science/wes/eng/declaration.htm. 35. Resolution adopted on the report of Commission III at the twenty-fifth Plenary meeting, on 16 November 1999. 36. See Declaration on Science and the Use of Scientific Knowledge, supra note 34, Paragraphs 4-5.
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Under the rubric ‘Science for Knowledge: Knowledge for Progress’, the Declaration called on governments to increase publicly funded research in collaboration with the private sector, and generally to recognize ‘the key role of scientific research in the acquisition of knowledge.’37 On the topic of ‘Science for Development’, it stressed the potential role of enhanced scientific capacity in developing countries, the role of universities and the need for regional and international cooperation to build scientific capacity and ‘to foster a critical mass of national research capabilities.’38 It also called for greater access by scientists from developing countries to facilities in developed countries;39 greater use of information and communication technologies to promote the free flow of knowledge;40 greater research and development cooperation between public and private entities, especially universities;41 appropriate funding mechanisms;42 and the need to reconcile global access to scientific data and information with intellectual property rights in a way that is ‘mutually supportive’ and that accommodates both ‘the specific requirements of developing countries’ and those of the suppliers of traditional knowledge.43 Finally, under the heading ‘Science in Society and Science for Society’, the Declaration stressed the relation between the free flow of information and the larger ethical issues posed by science.44 The Declaration concluded with a commitment to making every effort to promote dialogue between the scientific community and society, to remove all discrimination with respect to education and the benefits of science, to act ethically and cooperatively and to promote the use of scientific knowledge for the well being of populations and for sustainable peace and development.45 Viewing the second document, the Science Agenda - Framework for Action, as a ‘strategic guide for partnership with the United Nations system and between all stakeholders in the scientific endeavour in the years to come’,46 the Declaration called on both UNESCO and ICSU to identify and implement follow-up action and to mobilize support for coordinated international cooperation in science.47 Both the Declaration and the Framework for Action lay out a detailed blueprint for partnership among the Specialized Agencies of the U.N., national governments and ICSU for follow-up action and international cooperation in science.
37. Ibid. 38. Ibid., Paragraphs 29-30. 39. Ibid., Paragraphs 33-35. 40. Ibid., Paragraph 36. 41. Ibid., Paragraph 37. 42. Ibid. 43. Ibid., Paragraph 38. 44. Ibid., Paragraphs 39-43. 45. Ibid., Paragraph 44. 46. Resolution adopted on the report of Commission III at the twenty-fifth Plenary meeting, on 16 November 1999. 47. See Declaration on Science and the Use of Scientific Knowledge, supra note 34, Paragraph 38.
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Here, in short, UNESCO resumed the mission it had undertaken earlier, but without the overriding ideological constraints of the Cold War and the socialist model of Statecontrolled science. The Organization now shifted its emphasis to further decentralization of its programs and to its role as a bridge, facilitator and supporting mechanism for knowledge-exchange, especially for countries that lack adequate scientific resources. Many follow-up projects based on the World Conference for Science were then instituted, some of which are summarized below.48 Other follow-up activities have led to important declarations concerning the ethics of science, especially bioethics, as discussed elsewhere in this volume.49
4.2. Fostering Economic Development and Global Communication Through Science and Technology Another broad theme of the 1999 Declaration on Science and the Use of Scientific Knowledge was the potential role of scientific knowledge as a crucial factor in economic development. To this end, the Preamble to the Declaration stated that ‘[m]ost of the benefits of science were unevenly distributed’ and that sustainable world development would require both ‘greater investment’ with appropriate priorities ‘and the sharing of scientific knowledge.’ It also emphasized the relation between scientific research and economic growth;50 the need to reduce the knowledge gap between developed and developing countries;51 the importance of ‘full and open access to information and data belonging to the public domain’;52 the potential role of ‘local or traditional knowledge systems’;53 and the need for ‘a new relationship between science and society’ to cope with such pressing global problems as poverty, environmental degradation, inadequate public health, and food and water security.’54 a) Digital Heritage and Universal Access to Cyberspace One specific product of these imperatives was the Charter on the Preservation of the Digital Heritage (2003),55 an effort to preserve digital resources that may have ‘lasting
48. A comprehensive overview of numerous follow-up activities is presented in two UNESCO documents, Harnessing Science for Society – Analytical report to governments and international partners on the follow-up to the World Conference on Science, Paris, UNESCO, December 2002; and Harnessing Science for Society: Further Partnerships, Paris, UNESCO, 2005. Detailed examination of all the activities and issues identified in these reports is beyond the scope of this article. 49. See, in particular, the contribution by H. Gros Espiell. 50. See Declaration on Science and the Use of Scientific Knowledge, supra note 34, Paragraph 11. 51. Ibid., Paragraph 14. 52. Ibid., Paragraph 16. 53. Ibid., Paragraph 28. 54. Ibid., Paragraphs 27-28. 55. Resolution adopted on the report of Commission V at the eighteenth Plenary meeting, on 15 October 2003.
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value and significance, and therefore constitute a heritage that should be protected and preserved for current and future generations’.56 The Charter recognizes that resources of information and creative expression that have been produced, distributed, and maintained in digital form give rise to a new human legacy, called the ‘digital heritage’. Aware that access to this heritage potentially offers broad opportunities for the creation, communication and sharing of future knowledge, it seeks to address the formidable risk that most of this information may simply perish or become inaccessible for lack of attention or adequate funding. The purpose of preserving digital heritage is to ‘ensure that it remains accessible to the public.’ Accordingly, access to digital heritage materials, especially those in the public domain, ‘should be free of unreasonable restrictions.’ At the same time, ‘[a] fair balance between the legitimate rights of creators and other rights holders and the interests of the public to gain access to digital heritage materials should be reaffirmed and promoted, in accordance with international norms and agreements.’57 The Charter sets out provisions dealing with the threat of loss,58 the need for action,59 and digital continuity.60 It then calls for developing strategies and policies61 that would set common standards and compatibilities, and stimulate resource sharing to facilitate these ends. Other articles deal with criteria for selecting what should be kept,62 specific measures to protect the digital heritage63 and still other measures to preserve the cultural heritage.64 The irony of this important initiative was that it arrived on the scene precisely at a time when efforts to fence in the public domain by legal and technical means emerged as a potent threat to achieving the Charter’s objectives.65 Given the reality of these threats, which are enabling both public and private interests to capture vast segments of the digital public domain and close it off to all those unwilling to ‘pay per use’,66 the Charter’s call for ‘a fair balance between the [...] rights of creators and other rights holders’ and the public interest in access to digital heritage materials seems rather weak and ambiguous.
56. Ibid., Article 1. The Charter defines the digital heritage as consisting of unique resources of human knowledge and expression embracing cultural, educational, scientific and administrative resources, as well as technical, legal, medical and other kinds of information created digitally. 57. Ibid., Article 2. 58. Ibid., Article 3. 59. Ibid., Article 4. 60. Ibid., Article 5. 61. Ibid., Article 6. 62. Ibid., Article 7. 63. Ibid., Article 8. 64. Ibid., Article 9. Under the heading ‘Responsibilities’, there are articles on roles and responsibilities, partnerships and cooperation, and the role of UNESCO. See ibid., Articles 10-12. 65. See generally 2003, Symposium Issue: The Public Domain, Law & Contemp. Probs. 66, pp. 1 ff. 66. See, e.g., J. Boyle, 2003, The Second Enclosure Movement and the Construction of the Public Domain, Law & Contemp. Probs 66., p. 33 ff.; J.H. Reichman and P. F. Uhlir, 2003, A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment, Law & Contemp. Probs. 66, pp. 315 ff..
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Clearly, the norms applicable to ‘creators’ in the traditional and ordinary sense have been consensually elaborated in international copyright law. But what happens when publishers add a fig leaf of barely copyrightable material to public domain matter,67 shelter the ensemble behind electronic fences and then invoke the strong anticircumvention measures of the WIPO copyright treaties,68 which can effectively appropriate the very public domain matter that was once freely available?69 Fortunately, UNESCO has sought to address the balance of proprietary rights and the public interest through several other, more recent initiatives. The UNESCO document with perhaps the most significant potential impact in this regard was the 2003 Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace.70 This Recommendation focuses on equitable access to information and knowledge, with particular emphasis on the public domain. While this Recommendation was not UNESCO’s first resolution on the topic,71 it addressed the importance of governmental public domain information and of public access to that information with unprecedented vigor. Under UNESCO’s definition, information in the public domain covers two distinct notions. On the one hand, ‘public domain information’ can be defined as what is left outside the scope of copyright or other forms of statutory protection, such as database protection laws: it covers all that is not eligible or no longer eligible for protection. On the other hand, ‘public domain information’ describes information of an intrinsically public nature; that is, certain types of information produced by public authorities (‘government’ in the broad sense) in the course of their duties that are seen as a public good.72 This governmental public domain information is not, in principle, subject to appropriation at the national and subnational levels, to which some public information produced by public international organizations can be assimilated. With regard to governmental information, including scientific data generated by government entities, the 2003 UNESCO Recommendation notably endorsed several
67. See, e.g., J. Ginsburg, U.S. Initiatives to Protect Works of Low Authorship, in R. Dreyfus et al. (eds.), , Expanding the Boundaries of Intellectual Property, Oxford, 55, pp. 68-72. 68. WIPO Copyright Treaty, 20 December 1996, I.L.M. 36. 65 (1996), available at: http://www.wipo. int/documents/en/diplconf/distrib/94dc.htm (last visited on 13 March 2005); WIPO Performances and Phonograms Treaty (presented in Geneva, 6-7 December 1999), available at: http://www. wipo.org/eng/meetings/1999/wct wppt/pdf/imp993.pdf (last visited on 13 March 2005). 69. See, e.g., P. A. David, 2000, The Digital Technology Boomerang: New Intellectual Property Rights Threaten Global ‘Open Science’, Stanford Dep’t of Econ. Working Paper; Reichman and Uhlir, supra note 66. 70. Recommendation adopted on the report of Commission V at the eighteenth Plenary meeting on 15 October 2003. 71. Other resolutions on the promotion of multilingualism and universal access to information in cyberspace were made at the twenty-ninth, thirtieth and thirty-first sessions of the General Conference. 29 C/Resolution 28, Paragraph 2.A(h), 29 C/Resolution 36, 30 C/Resolution 37, 30 C/Resolution 41, and 31 C/Resolution 33. 72. See Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace, supra note 71.
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actions concerning both the development of public domain content73 and the need to reaffirm an ‘equitable balance between the interests of rights-holders and the public interest.’74 Here, there is a much more realistic assessment of possible threats to the public domain from excessive intellectual property protection, as well as a clearer understanding of the role of government as primary provider and supplier of public goods. For example, UNESCO specifically recommended that its Member States undertake the following: • Member States should recognize and enact the right of universal online access to public and government-held records, including information relevant for citizens in a modern democratic society, giving due account to confidentiality, privacy and national security concerns, as well as to intellectual property rights, to the extent that they apply to the use of such information. International organizations should recognize and promulgate the right for each State to have access to essential data relating to its social or economic situation.75 • Member States and international organizations should identify and promote repositories of information and knowledge in the public domain and make them accessible by all, thus shaping learning environments conducive to creativity and audience development. To this end, adequate funding should be provided for the preservation and digitization of public domain information.76 • Member States and international organizations should encourage cooperative arrangements which respect both public and private interests in order to ensure universal access to information in the public domain without geographical, economic, social or cultural discrimination.77 • Member States and international organizations should encourage open access solutions, including the formulation of technical and methodological standards for information exchange, portability and interoperability, as well as online accessibility of public domain information on global information networks.78 Also in 2003, UNESCO hosted and cosponsored, with the U.S. National Academies, the International Committee on Data for Science and Technology (CODATA) and the International Council for Science (ICSU), an international ‘Symposium on Open Access and the Public Domain in Digital Data and Information for Science’, which resulted in the publication of a volume of Proceedings under the same name.79 The Symposium examined, in some detail, the policies and practices underlying access to,
73. Ibid., Clauses 15-22. 74. Ibid., Clauses 23-25 in particular. 75. Ibid., Paragraph 13. 76. Ibid., Paragraph 16. 77. Ibid., Paragraph 17. 78. Ibid., Paragraph 18. 79. See J.M. Esanu and P.F. Uhlir (eds.), 2004, Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium, Washington, D.C.
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and the public domain status of, scientific and technical (S&T) data and information internationally, with particular focus on developing countries. It looked at some of the underlying legal, economic and technological issues; at innovative models for publicdomain production of, and open access to, S&T data and information; and at examples of successful models for providing open access to such material, as well as new initiatives in developing countries. The following year, UNESCO published Policy Guidelines on the Development and Promotion of Governmental Public Domain Information (2004).80 Their purpose was to build on the impetus of the 2003 UNESCO Recommendation, discussed above, and thus to: help develop and promote information in the public domain at the government level, with particular attention to information in digital form. The Policy Guidelines aim to better define governmental public domain information and to describe its role and importance, specifically in the context of developing countries; to suggest principles that can help guide the development of policy, infrastructure and services for provision of information produced by governments to the public; to assist in fostering the production, archiving and dissemination of government electronic public domain information for development, with emphasis on ensuring multicultural, multilingual content; and to help promote access of all citizens, especially including disadvantaged communities, to information required for individual and social development.81 The Policy Guidelines treated this topic in three parts. The first part presented the definitions, context and rationale for developing and promoting governmental information in the public domain. The second provided specific principles, policies and procedures for producing, disseminating and preserving governmental public domain information. The final part briefly addressed access to and use of governmental information protected by intellectual property laws. In this connection, UNESCO did not endorse intellectual property protection of governmental information. However, to those government entities whose public information is protected by such laws, it recommended that they provide open access to their information resources or use permissive licenses that derogate from the full enforcement of available intellectual property rights, in order to allow greater freedom in the use of their information.82
80. See P. F. Uhlir, 2004, Policy Guidelines on the Development and Promotion of Governmental Public Domain Information, Paris, UNESCO, available at: http://portal.unesco.org/ci/en/ev.php-RL_ ID=15862&URL_DO=DO_TOPIC&URL_SECTION=201.html. 81. Ibid., Paragraph 24. 82. Ibid., Paragraph 25.
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What seems most encouraging about the 2003 Recommendation, the 2003 Symposium and the Policy Guidelines of 2004 is that they reveal greater awareness than before of the dangers of encroachment on the public domain, especially from unwarranted expansion of intellectual property law, and seem to reflect a greater willingness to champion the larger public interest, with particular regard to publicly-funded science and technology. If so, UNESCO could become an important intergovernmental voice to help to solve a governance problem that some view as particularly acute in the area of preserving knowledge as a global public good. Indeed, if UNESCO, WHO and UNCTAD were to coordinate their activities on issues covered by the 2003 Recommendation, it could create a springboard for further coordinated action to preserve global public goods, like education, the environment, public health and scientific research, from the excesses of intellectual property standard-setting exercises.83 b) Contributions to the World Summit on the Information Society Also during the 2002-2005 period, UNESCO was actively engaged in the planning and development of both phases of the United Nations World Summit on the Information Society (WSIS), which built upon the prior initiatives already discussed and sought to focus high-level attention on them. Relevant activities included raising awareness, setting standards and monitoring progress in achieving the goal of universal access to information. UNESCO has also worked toward developing ‘infostructures’, which entail information standards, management tools and other measures to promote access to information. For example, the programme ‘UNESCO Institute for Information Technologies in Education’ (IITE) has been put on the agenda since 2003.84 The cross-cutting theme of the programme is ‘the contribution of information and communication technologies to the development of education, science and culture, and the construction of a knowledge society.’ In addition, a Major Programme introduced the theme of ‘Higher Education and Globalization: Promoting Quality and Access to the Knowledge Society as a Means for Sustainable Development.’85 Another resolution urges Member States to ‘develop policy frameworks that will facilitate active participation in the knowledge society, narrowing the knowledge and technological divide.’86 The Director-General was also instructed to work in liaison with the World Intellectual Property Organization (WIPO) to encourage the development and dissemination of open source software and to promote common international standards in the area of new information and communication technologies, to ensure free and
83. See generally Maskus and Reichman, supra note 14. 84. Resolution adopted on the report of Commission II at the eighteenth Plenary meeting, on 15 October 2003. Major Programme IV: Communication, Information and Informatics. This Resolution was reinforced in the report of Commission II at the seventeenth Plenary meeting, on 19 October 2005. 85. Resolution adopted on the report of Commission II at the eighteenth Plenary meeting, on 15 October 2003. 86. Doc. 32 C/Resolution s. 10.1(a).
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universal access to public domain information.87 The Director-General was further authorized to ‘move ahead with the Information for All Programme’, with a view to contributing to a narrowing of the digital divide, and to work in close collaboration with the International Telecommunication Union on preparing the World Summit on the Information Society.88 By 2003, the Director-General was accordingly taking steps to strengthen the capacities of communication and information institutions through new training methods and networking, and through professional and academic exchanges; as well as to foster community-centred projects to enhance information access, especially in the public domain.89 Among these and other WSIS-related projects, the following seem particularly relevant here: • the UNESCO publication ‘Measuring and Monitoring Information and Knowledge Societies: A Statistical Challenge’. This report looks at data systems and measurement issues regarding ICTs, including data availability, content, and international comparability and quality; • the UNESCO publication ‘Status of Research on the Information Society.’ This publication gives an overview of the state of research and aims to provide ideas and suggestions to researchers, academics and professionals in the area of mass research undertaken and produced on aspects of the use of information and technologies; • a UNESCO Position Statement on Internet Governance, a core issue for UNESCO. It advocates an open, transparent and inclusive approach encompassing the free flow of information, freedom of expression and technical interoperability. UNESCO also participated in the Internet Governance Forum held at Geneva on 16-17 February 2006. Meanwhile, the General Conference focused on the need to follow up on the World Summit on the Information Society by providing a mandate to the Director-General to continue planning activities, mobilize partners and resources, and promote widely its new, post-WSIS vision of ‘the knowledge society.’90 In addition, the General Conference endorsed UNESCO’s competence to act as facilitator to implement the Action Lines: ‘Access to information and knowledge’; ‘Capacity-building’; ‘E-learning and e-science (as per ‘ICT applications’)’; ‘Cultural diversity and identity, linguistic diversity and local content’; ‘Media’; and ‘Ethical dimensions of the information society’, all of which were included in the Plan of Action adopted at the first phase of WSIS in December 2003.
87. Doc. 30 C/Resolution para. 41. 88. Doc. 31 C/Resolution V.1.1. 89. Doc. 32 C/Resolution V.1.2. 90. Resolution adopted on the report of Commission V at its nineteenth Plenary meeting, on 20 October 2005.
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The General Conference also stressed the roles of the International Telecommunication Union and UNESCO in coordinating the implementation of the WSIS Plan of Action at the Action Line level and in managing any coordination needed at the United Nations inter-agency level. Finally, the 2005 session produced the Second World Information Technology Forum (WITFOR 2005): Gaborone Declaration.91 This Declaration focused on the ‘crucial role of information and communication technologies in accelerating development’ and on the need to bridge the digital divide, to ‘address [...] the need for creative capacity-building strategies for ICT innovation’ and to ‘encourag[e] [...] diverse partnerships and promot[e] collaborative networks.’ The Gaborone Declaration highlighted eight thematic concerns, in particular: • Building Infrastructure: ‘supporting research, development and economic analysis for enhanced ICT infrastructure in poorly served areas’; • Economic Opportunity: ‘[e]xploring appropriate scalable, replicable ebusiness models which promote sustainable development’; • Environment: ‘[u]sing and promoting ICTs for environmental protection and the sustainable use of natural resources’; • Health: ‘[u]sing ICTs to improve the efficiency and equity of health service provision’; • Education: ‘[u]sing innovative and effective methods to exploit ICTs to improve teaching, learning and knowledge generation’; • Agriculture: ‘[u]sing ICTs to improve sustainable agricultural production systems by disseminating knowledge and information, particularly to rural communities’; • Social, Ethical and Legal Aspects: ‘promoting socially responsible and ethical use of ICTs and taking appropriate legal measures’; • Empowerment and Participation: ‘[e]ncouraging universal access strategies, e-government and e-democracy to enable participation in the information society.’ c) Creating the Global Information Commons for Science There was one major new initiative, the Global Information Commons for Science,92 actively supported by UNESCO, but led by CODATA, ICSU and Science Commons (in collaboration with the U.S. National Academies and several international scientific
91. Gaborone Declaration, Second Information Technology Forum, (WITFOR 2005, International Federation for Information Processing, Gaborone, Botswana). 92. The original ideas for the Global Information Commons for Science Initiative were presented in a series of reports published at the U.S. National Academies between 1995 and 2004 and in a major monograph by Reichman and Uhlir, supra note 66. These ideas were fully fleshed out during an international workshop at UNESCO Headquarters in Paris, 1-2 September 2005 on the theme of Creating the Information Commons for Science: Toward Institutional Policies and Guidelines for Action. See infra note 93 regarding the details of the Workshop rationale and the proceedings.
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umbrella organizations), which built upon the results described here and is expected to become a key focal point for S&T data and information access and public domain issues in the future. The rationale for this initiative was explored in some detail in September 2005, when UNESCO hosted and coorganized with these same groups another international workshop on the theme, ‘Creating the Information Commons for e-Science: Toward Institutional Policies and Guidelines for Action.’93 Based on the results of that workshop, the organizations involved proposed to create the Global Information Commons for Science Initiative, a multi-stakeholder undertaking that was launched formally as an outcome of the second and final phase of WSIS. This project, which is expected to be fully funded in 2007, has the overall goal of accelerating the development and scaling up of open scientific data and information resources on a global basis, with particular focus on ‘common use’ licensing approaches. As one of the founding organizations of this initiative, UNESCO has the capability to promote the adoption of a more open approach among its broad constituencies in the public scientific and information sectors. Activities pertaining to this major programme were just getting underway at the time of writing.
. Challenges for the Future Already in the mid-1990s, UNESCO had begun to lay the foundations for a major shift in emphasis that would attempt to bring both its activities directed toward the scientific community and those aimed at building State science administrations within a more organic framework, to be erected around the concept of ‘knowledge societies.’ This ambitious undertaking focused more directly on tensions between access to knowledge, including scientific knowledge, and intellectual property rights. Another major milestone was reached at the thirty-third session of the UNESCO General Conference in 2005, as the Organization officially began to look beyond ‘the information society’ that had been the focus of WSIS to a broader, more visionary concept to be known as the ‘knowledge society.’ Under a programme that called for ‘empowering people through access to information and knowledge with special emphasis on freedom of expression’, the Director-General was authorized to ‘foster actions to build knowledge societies by promoting universal access to information and knowledge’ and ‘by encouraging the development of the public domain of information.’94
5.1. Towards Knowledge Societies UNESCO’s most ambitious and comprehensive plans for augmenting the contributions of science to global economic development are set out in a watershed document published
93. See at: http://www.codataweb.org/unescomtg/index.html. 94. Doc. 33 C/Resolution V.1.1 (iv).
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in 2005, entitled Towards Knowledge Societies – A UNESCO World Report.95 In this Report, according to Director-General Koichiro Matsuura, UNESCO lays ‘particular stress on how certain core principles can best be operationalized, namely, freedom of expression, respect for cultural and linguistic diversity, universal access to information, and equal access to quality education for all.’96 Towards Knowledge Societies views access to scientific and technological data and information as a central prerequisite of the ‘knowledge societies’ emerging from the convergence of new information and communication technologies and from the unprecedented developments in interdisciplinary sciences that these technologies have facilitated. In seeking to stimulate debate about the choices that the concept of ‘building knowledge societies’ will entail, the Report highlights the value of pluralism and diversity; the ‘public good’ aspects of making quality information publicly available; and ‘the need to educate for digital creativity as well as consumption.’ ‘Above all, in keeping with UNESCO’s Constitution’, the Report emphasizes ‘the free flow of ideas by word and image’, and defends and promotes ‘freedom of expression in cyberspace.’97 While this approach clearly overlaps with the interests and activities of sister organizations within the United Nations – especially those of WIPO, WHO and UNCTAD – the UNESCO World Report stands out for its unique focus on the diffusion of information as a key to new development opportunities in networked societies and on the general importance of retaining the supply of knowledge as a global public good. In this respect, UNESCO’s approach fits into the WIPO Development Agenda recently launched in that forum by a group of countries known as the Friends of Development.98 As the UNESCO Director-General recently observed, UNESCO’s drive for universal access to knowledge in a ‘knowledge society’ has multiple dimensions, ‘including the promotion of ‘open access’ to online repositories; the creation of digital libraries’; and the availability of licenses supporting ‘free open source software.’ There are also ‘many innovative ways […] emerging […] for the sharing of scientific information (the ‘information commons’) through networks, the development of standards and metadata, and online repositories.’99 However, as the Director-General himself acknowledged and the Report underscores, one of the biggest challenges ‘will be to ensure that this knowledge can be applied within the existing intellectual property rights framework while finding ways to benefit as many as possible from this know-how.’100 This tension between intellectual property rights and
95. See supra note 12. 96. See K. Matsuura (Director-General, UNESCO), Address presented to the Opening session of the International Workshop, 2005, Creating the Information Commons for e-Science: Towards Institutional Policies and Guidelines for Action, UNESCO, 1 September (hereinafter: Matsuura (2005)). 97. Ibid.; see also UNESCO Constitution, Preamble, supra note 4. 98. Available at: http://www.wipo.int/edocs/mdocs/mdocs/en/pcda_1/pcda_1_5.pdf. 99. See Matsuura (2005), supra note 96. 100. Ibid.
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the sharing ethos of science is a potential obstacle to implementing UNESCO’s ‘knowledge society’ blueprint, as we have explained elsewhere.101
5.2. Access to Knowledge: Potential Stumbling Blocks and Concluding Observations A much longer article would be needed if we were to review the major threats to gaining access to, and using scientific and technical data and knowledge, posed by increasingly expansive intellectual property laws.102 This trend has been characterized by: […] the progressive privatization and commercialization of scientific data, and by the attendant pressures to hoard and trade them like other private commodities. This trend is reinforced by the creation of new legal rights and protectionist mechanisms that are largely extrinsic to the scientific enterprise, but increasingly adopted by it. These include greatly enhanced copyright protection of digital information; new ways to control access to and use of digital data by contractual restrictions that are technologically enforced; and the enactment of proposals for novel intellectual property rights to protect collections of data […] [T]he new laws pose the danger of disrupting the normative customs at the foundation of public science, especially the traditional cooperative and sharing ethos, by producing both the pressures and the means to enclose the scientific commons and to greatly reduce the scope of data in the public domain.103 This imbalance stems partly from the lack of trusted governance institutions at the global level: a vacuum that has been filled by a galloping attempt to privatize global public goods.104 This premise should not be understood to mean that we are biased against the private sector’s use of intellectual property rights; on the contrary, that is the engine for global high-tech development. The problem is that, since the TRIPS Agreement of 1994, we are witnessing the emergence of an incipient transnational system of innovation that requires a careful balance of public and private interests, with the understanding that knowledge is both a public and private good. Because the private sector will always tend to undersupply public goods, we face the risk of compromising future science and innovation by overprotecting current knowledge outputs.
101. See Reichman and Uhlir, supra note 66. 102. See, generally, ibid. 103. Ibid., pp. 319-20. See also David, supra note 69; A. Kaur Rai, 1999, Regulating Scientific Research: Intellectual Property Rights and the Norms of Science, Northwestern U.L. Rev 94, p. 77. 104. See, generally, Maskus and Reichman, supra note 14.
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The future role of UNESCO, WHO, UNCTAD and certainly WIPO is to supply some of the governance mechanisms needed to ensure the maintenance and supply of global public goods in a transnational system of innovation, with due regard for scientific research, the environment, education, public health and competition. UNESCO’s Report, Towards Knowledge Society, is one of the most mature blueprints for sensible action available, whether in government or academia. It is worth noting that the U.S. government spends more than fifty billion dollars annually funding basic scientific research, much of it at universities via peer-reviewed grants from the National Institutes of Health, the National Science Foundation and various other mission agencies. Consistent with this model, UNESCO might consider promoting a worldwide fund for scientific research in developing countries, which could provide competitive peer-reviewed grants only to scientists in those countries.105 We also believe that UNESCO could assist developing countries in finding ways to transfer scientific research from the public to the private sector, as has been done quite successfully in the United States of America, the Republic of Korea and certain other countries. UNESCO’s input here might give greater regard to preserving the social value of public research output than occurs in most OECD countries. Finally, it is important to query whether UNESCO will have the political will and clout to defend the larger public interest in the intellectual property arena. Clearly, this sort of political will was absent from the WSIS deliberations, which ducked the hard intellectual property issues. The Knowledge Society Report is an excellent blueprint for action, but without political tenacity it could become just another academic exercise that leaves facts on the ground unchanged. UNESCO, as an organization, has a unique standing in both the United Nations system and the worldwide scientific community. It champions private incentives to produce cultural and scientific goods, but within a larger framework that promotes benefits to society at large. In this respect, it has traditionally adopted a balanced approach and, from its inception, followed a development-friendly agenda. One would therefore hope that UNESCO will continue to build on this balanced perspective and, in so doing, help other intergovernmental agencies to implement more developmentoriented policies, without undermining the incentives needed for investing in technological innovation destined for a global marketplace. If so, UNESCO could play a pivotal role in nurturing the incipient transnational system of innovation that holds the key to future global welfare.*
105. Some private foundations, like the International Foundation for Science in Sweden, already provide such grants, but do so on a financially limited basis. * The authors gratefully acknowledge the support of the National Humane Genome Research Institute and the Department of Energy (5P50H6003391-02)
PART IV
IMPACT OF UNESCO STANDARDSETTING ON INTERNATIONAL LAW
PANEL 6
Beyond Treaty Law: The Influence of the Legal Instruments Adopted by UNESCO on General International Law
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Introduction Abdulqawi A. Yusuf
We have dealt in previous panels with the impact of UNESCO’s standard-setting instruments on the constitutional objectives of the Organization and with the extent to which these instruments may have contributed to the realisation of said objectives. The other panels also discussed the impact of UNESCO’s normative instruments on the domestic laws of its Member States, on professional societies and on the status or activities of certain professional categories operating in the areas of education, culture and science, such as scientific researchers, translators and artists. We will now turn to an examination of the impact of UNESCO standard-setting instruments on international law and on methods of institution building and rule-making at the international level. With sixty years of standard-setting activity in the fields of its broad and varied competence and the adoption, thus far, of thirty-five conventions, thirty-one recommendations and thirteen declarations, UNESCO has marked the landscape of international law with clearly discernible footprints. These footprints are all the more important as they relate to specialized fields of international cooperation, such as education, science and culture, where the crucial role played by international law is sometimes overlooked. However, the question arises whether some of the principles and rules laid down in these instruments have made their way into the corpus of customary international law. A related issue is the contribution of these instruments to the progressive development and advancement of international law, and to its methods and techniques of law making. In assessing such influences, it is of course useful to bear in mind the formal differences – in terms of legal implications and effects – among the various instruments utilized in UNESCO for standard-setting purposes. Such formal differences should not, however, obscure the actual, real-world significance and effects of the instruments. It is easy to categorize legal instruments as binding and non-binding, or as hard and soft law. But reality is much more complex than that. It is through careful analysis of that reality and of the actual effects and influence of each instrument that we will be able to discern and assess its contribution to the norms and principles applicable to international cooperation
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in the specific field for which it was enacted. This is not a simple task, of course. But the members of our panel have a long-standing and well-known track record in tackling the most complicated of legal issues. They will share with us their views on the different aspects of these issues. The first chapter is by Professor Pierre-Marie Dupuy, of the European University Institute of Florence and the University of Paris II. He will analyse the influence of the legal instruments adopted by UNESCO on the evolution of customary international law, and particularly their contribution to the emergence of customary principles, norms and rules. This chapter is followed by the contribution of Professor Nico Schrijver, of the University of Leiden, on the impact of UNESCO’s standard-setting activities and practices on the progressive development and advancement of international law in the Organization’s fields of competence. The third and final chapter of this panel is by Mr John Donaldson, of UNESCO’s Office of International Standards and Legal Affairs. He will discuss UNESCO’s simplified agreements, procedures and methods for the creation of intergovernmental institutions, and their influence on techniques of institution-building in international law. Let us now turn to the three chapters, so that they may enlighten us on the aforementioned important issues.
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The Impact of Legal Instruments Adopted by UNESCO on General International Law Pierre-Marie Dupuy
. Introduction Assessing the impact of legal instruments adopted by UNESCO on general, essentially customary, international law raises at least three types of difficulty. The first is inherent in the number and diversity of legal instruments adopted by UNESCO in its sixty years of existence. We can read in this volume that they are highly varied in both purpose and legal nature. In addition to treaty instruments, there is a large number of instruments that are not strictly legally binding. The second difficulty relates to what might be called the standard-setting trend within the international legal order today: while it can be traced back to the Charter of the United Nations, which in some respects stands as the new constitution of the legal system established sixty years ago, it is now directed at a community undergoing constant change. Here we need only note the fourfold increase in the number of existing States and the emergence of a transnational ‘international civil society’ characterized by the rise of associations and private economic actors. This complexity is compounded by: the interlinking of standards, some of which tend to take on a life of their own without ever becoming self-contained, despite the statements of disconcerted legal theorists; the assertion of mandatory law and of the continuing decisive role of custom in the sources of law; and lastly – as I have attempted to explain elsewhere – competition, if not necessarily conflict, between the foundations of the unity of the international legal order, that is, between the forms of law and their methods of production and enforcement, on the one hand, and, on the other, the substantive content of principles that ‘the international community as a whole’ has qualified as peremptory because they form part of jus cogens, the outline of which is increasingly being defined by international case law, whatever some people may say.1
1. See P.M. Dupuy, 2002, L’unité de l’ordre juridique international: cours général de droit international public, Recueil des Cours, Vol. 297, The Hague.
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The third difficulty consists in identifying, in the analysis, the various stages and completion of the process by which international custom crystallizes into new norms. A case in point here is the technical complexity of the links between custom and treaties and between hard law and soft law, which raises, in sometimes complex terms, the question of how and when a norm leaves the well-charted shores of treaty-dom to join the ceaseless swell of custom. Given these three difficulties, and especially the third, there seem to be only two ways of proceeding: analytically or synthetically. The latter is clearly the only realistic choice, as the former would be too time-consuming. I shall therefore start with a statement – which should be verified in regard to custom –, namely, that UNESCO, an organization upholding the rights of peoples and individuals to culture on the basis of a shared humanity, constantly endeavours, through its work, to shape the attitudes of all the players in contemporary international law, beginning, of course, with States. Human dignity and the promotion of solidarity among peoples in furtherance of humanity are thus the two themes of the summary review below.
. UNESCO’s Contribution to the Affirmation of the Mandatory Nature of the Principle of Respect for Human Dignity Of the Organization’s many fields of action over the past sixty years, two will be selected in which its work has influenced the development of general international law. They are not the only ones, of course, but are undoubtedly particularly representative of UNESCO’s impact on the content of international customary law relating to respect for human dignity. The two fields are, on the one hand, access to education and, on the other, the legal – and not simply moral – affirmation of the basic principles meant to govern the use of biotechnology.
2.1. Access to Education In the inter-war period, the International Labour Organization (ILO) paved the way for an affirmation of the dignity of the human being in his or her occupational environment – the dignity of the worker. It is in the Preamble to the Charter of the United Nations, however, that the first general and universal affirmation of the ‘dignity’ and ‘worth’ of the human person is to be found. Article I refers to ‘respect for human rights and for fundamental freedoms’ in direct relation to the maintenance of peace. UNESCO’s Constitution, for its part, refers in Article I.2(b) to the received idea, expressed by Condorcet as early as the late eighteenth century, that the dignity of the individual is guaranteed by education. Consequently, the latter must be accessible to all without any discrimination. The connection thereby asserted between individual dignity and non-discrimination is to be found again in the Preamble to the Universal Declaration of Human Rights, and in its Articles 1, 2 and 7, while Article 26, echoing UNESCO’s Constitution, asserts that ‘everyone has the right to education.’ UNESCO thus appears primarily in the guise of a
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human rights organization; while human rights constitute not a new area somewhat apart from international law, but in their growing role are the other foundation of the law of nations, with the maintenance of sovereign equality of States tempered by an a priori renunciation of the use of force. In this connection, among the numerous instruments adopted by UNESCO regarding access to education, one, the Convention against Discrimination in Education,2 is particularly noteworthy. Adopted on 14 December 1960, it entered into force in 1962 and unfortunately has only 91 State Parties to date. With regard to the impact of the Convention on international custom, the objection of privity of contract arises immediately. As a treaty, the Convention is binding only on those States that have ratified it. This objection is, of course, justified. A distinction should be drawn, however, between specific treaty obligations and the general aim of non-discrimination in access to education; it is the latter that is given prominence in the provisions of this lex specialis, which is a special development in this regard. It should also be noted that, in addition to the 1960 Convention, there is a Recommendation on the same subject, basically restating the provisions of the Convention for the benefit of those States that have not ratified it. In particular, these provisions include the prohibition on depriving any person or group of persons of access to education on the grounds of, among other things, race, sex, religion or opinions, as well as the general goal of promoting equal opportunities and treatment in education. An attempt must therefore be made to understand the actual scope of the 1960 Convention not as instrumentum, but as substance or negocium insofar as it explains the implications of a general obligation arising from the goals of UNESCO, a universal organization. To this end, two views must be taken into consideration: • Upstream, non-discrimination in education must, as shown above, be placed in the context of a human rights corpus focused on the fundamental principle of human dignity. As shown above, non-discriminatory access to education is an expression of this and plays a decisive role in it. • Downstream, the content of the Convention, followed up by the accompanying Recommendation, has become established as a benchmark, and not only within the group of State Parties to the 1960 Convention. It was the basic content of the latter that inspired, among other things, the International Strategy set out in 2002 to operationalize the Dakar Framework for Action on Education for All.
2. See, for example, H. Saba, 1960, La convention et la recommendation concernant la lutte contre la discrimination dans le domaine de l’enseignement, AFDI 6, p. 646-652; A. S. Nartowski, 1974, The UNESCO System of Protection of the Right to Education (as an Example of the Most Rational Model of the Protection of Human Rights by an International Organization), PYIL 6, pp. 280-309; J. Blat Gimeno, 1995, La influencia de la UNESCO en las políticas educativas nactionales, in Federico Mayor Amicorum Liber: solidarité, égalité liberté, Vol. II, Brussels, pp. 1183-1196; Y. Daudet and P. M. Eiseman, 2005, Commentary on the Convention against Discrimination in Education, Paris, UNESCO, Paris; H. Gros Espiell, 2005, Significance of the Convention against Discrimination in Education, Paris, UNESCO.
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It must thus be noted that the principle of equal opportunities in education is to be found in many other instruments negotiated under the auspices of UNESCO: some are other conventions (such as the 1989 Convention on Technical and Vocational Education), while others are simply policy instruments, like the World Declaration on Education for All adopted by the World Conference on Education for All in Thailand in March 1990, the 1997 Hamburg Declaration on Adult Learning and the 1998 World Declaration on Higher Education for the Twenty-First Century. Outside UNESCO, but still within the framework of the United Nations, the basic principle of non-discriminatory access to education is to be found in the 1989 Convention on the Rights of the Child.3 It also remains one of the major aims of the ILO.4 In addition, many resolutions adopted by the United Nations Commission on Human Rights,5 and General Comment No. 13 on access to education adopted by the Committee on Economic, Social and Cultural Rights with respect to Article 13 of the International Covenant on Economic, Social and Cultural Rights expressly refer to the principles laid down in the 1960 Convention against Discrimination in Education. However, it is first and foremost in their domestic practice that States must observe or be guided by the provisions of the 1960 Convention, depending on whether they are State Parties or, so to speak, ‘only’ Members of UNESCO. It is therefore important to make sure that domestic legislation and the case law of some supreme courts refer to the promotion of equal, non-discriminatory access to education as a basic requirement for respect for human dignity. For example, it was recognized by the Supreme Court of India in its 1996 ruling in M.C. Mehta v. State of Tamil and Others6 in regard to free access to education. Of course, this is no substitute for simply acceding to the 1960 Convention; and Member States are in any case under an obligation to submit the treaty to their parliaments to this end.7 Only the Convention specifically requires State Parties to submit periodic reports to the Organization on the domestic effort made to implement all of its substantive provisions. The fact remains that, apart from the State Parties, all UNESCO Member States, through their very membership in UNESCO, have a constitutional obligation to regard equal and non-discriminatory access to education as a crucial element of respect for human dignity, as proclaimed by the Charter of the United Nations and propagated by a number of subsequent legal instruments. Among the latter, those deemed ‘legally nonbinding’ owing to their soft law nature are no less significant for this, since, being all
3. Article 28, Paragraph 1 states that: ‘States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity’. 4. See, for example, the Equal Remuneration Convention (C100) and the Discrimination (Employment and Occupation) Convention (C111). 5. See, for example, resolutions 2002/23, 2003/19, 2004/25 and 2005/21. 6. 6 SCC 756, cited by Gros Espiell, op. cit. in note 2, pp. 12 f., footnote 8. 7. Under Article IV, Paragraph 4 of the Constitution.
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substantively repetitive, they gradually bring into existence legal opinion or opinio juris, which forms part of the progressive interpretation of UNESCO’s Constitution itself.8 Non-discrimination in access to education is thus not only a necessity but also an obligation that is inescapable and even ‘intransgressible’, to quote the International Court of Justice in its 1996 Advisory Opinion on the legality of the threat or use of force.9 In the formation and consolidation of customary law, opinio juris cannot be repudiated as a result of systematic failure in practical implementation. On the contrary, it plays an essential role in guiding such practice, which, understood as a goal to be gradually achieved, must be assessed somewhat flexibly. Thus, to the extent that UNESCO’s promotion of respect for human dignity encourages States to acknowledge equal access to education as an imperative aim and to promote such equality of access in practice, it further strengthens the right to education as a high-priority principle of customary law. However, access to education, though fundamental, is obviously far from being the only field in which UNESCO has contributed to the strengthening of respect for human dignity. There is one other, in particular, which has emerged as a result of progress in the biological sciences. It is linked to research on the human genome.
2.2. Bioethics10 UNESCO has acted as a trailblazer in this field. In view of the speeding up of basic research on mapping the human genome and of the potential for technical or commercial abuse that could arise from such research, UNESCO was the first to establish a committee of independent experts, which produced a draft Declaration adopted by the General Conference on 11 November 1997.11 UNESCO thus accomplished its twin mission of organizing science and culture with due regard for human rights, seemingly endorsing François Rabelais’s famous statement at the dawn of the modern age that ‘knowledge without conscience is but the ruin of the soul.’ The Organization explicitly considers that the content of the Declaration is derived from the major United Nations conventions on human rights and non-discrimination.
8. On the progressive interpretation of treaties in public international law, see, for example, T. Georgopoulos, 2004, Le droit intertemporel et les dispositions conventionnelles évolutives: Quelle thérapie contre la vieillesse des traités?, RGDIP 108, pp. 123-148. 9. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, available at: http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm 10. See, for example, S. Maljean-Dubois, 2000, Bioéthique et droit international, AFDI 46, pp. 82109; R. Pavoni, 2004, Biodiversità e biotecnologie nel diritto internazionale e communitario, Milano; N. Boschiero (ed.), 2006, Bioetica e Biotechnologie nel Diritto Internazionale e comunitario, Questioni generali e tutela della proprietà intellettuale, Torino (see, in particular, N. Boschiero, Le biotecnologie tra etica e principi nel diritto internazionale ed europeo, Introduzione sulle moderne biotecnologie ed il diritto internazionale, pp. 4-128). 11. Universal Declaration on the Human Genome and Human Rights, available at: http://www.unesco. org
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Indeed, the Declaration establishes the basic legal principles of bioethics in view of the rapid growth in biotechnology. From the outset, that is to say in its Preamble and in Articles 1 and 2, the Universal Declaration on the Human Genome and Human Rights is meant to guarantee mutual respect and respect for human dignity. In asserting that ‘everyone has a right to respect for their dignity and for their rights’ irrespective of their genetic characteristics (Article 2), the 1997 Declaration lays down the fundamental principle intended to inform the conduct of all research and the development of all technology in the biological field. It stresses the diversity inherent in each individual’s genetic heritage (Article 3) and prohibits any financial exploitation of the human genome (Article 4). These are the core principles designed to govern basic research into the genome and all the technologies and applications to which it may give rise. The additional rules laid down later in the Declaration or in subsequently adopted treaty or policy instruments all flow from these basic principles, which form the basis of an evolving universal code for medical and biological research. It would, however, be wrong to think that the numerous repetitions, developments and adaptations in later texts, at the United Nations and specifically at UNESCO or in various other bodies, are redundant. On the contrary, it is their accumulation, convergence and complementarity that gradually shape social consciousness in the international community, both internationally and transnationally. That is the context in which actual UNESCO declarations adopted after the 1997 Declaration, such as the 1999 Guidelines for the implementation of the Universal Declaration on the Human Genome and Human Rights12 or, in the same year, on genetic data,13 must be placed. It was obviously important for the 1997 Universal Declaration to be endorsed by the United Nations General Assembly in 1998,14 so that it would have an impact. The following instruments, adopted outside the Organization, can also be mentioned: the Cartagena Protocol on Biosafety (2000),15 designed to protect biodiversity under the precautionary principle; the 2001 FAO International Treaty on Plant Genetic Resources for Food and Agriculture,16 which asserts the principle of sharing the benefits derived from scientific and commercial use of these resources; European Community (EC) Directive of 12 March 2001 on the deliberate release into the environment of genetically modified organisms (2001/18/EC);17 and the Oviedo Convention on Human Rights and Biomedicine, concluded under the auspices of the
12. Doc. 30 C/Resolution 23 of 16 November 1999, available at: http://www.unesco.org 13. See, in particular, F. Francioni, Genetic Resources, Biotechnology and International Human Rights: Which Rights? What Rights? Whose Benefits?, in F. Francioni (ed.), 2007, Biotechnology and Human Rights, Oxford (forthcoming). 14. Doc. A/RES/53/152 of 9 December 1998, available at: http://www.un.org 15. See http://www.org//doc/legal:cartagena-protocol-en.pdf 16. See http://www.fao.org/ag/cgrfa/itpgr.htm 17. O.J. No. L106 of 17 April 2001, p. 1.
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Council of Europe in April 1997,18 as well as its additional protocols on the prohibition of human cloning (12 January 1998),19 transplantation of organs (24 January 2002)20 and biomedical research (25 January 2005).21 Here again, a careful distinction must indeed be drawn between binding unilateral instruments (such as EC directives), strictly treaty-based instruments, whose entry into force and scope are subject to rules governing the ratification and privity of treaties, and instruments establishing non-binding programmes and objectives. This procedural aspect is essential, but must not constitute the only dimension. Experience of what might be called the ‘phenomenology of custom’, to describe the gradual empirical hardening of standard-setting principles into genuinely binding rules, proves that international practice, as understood in the theory on sources of public international law, includes treaty practice. More generally, it first becomes established as social practice, which is admittedly heterogeneous, multifaceted and repetitious but is based on a variety of components that bear witness to an increasingly clear belief in the deontic aspect of some basic rules and principles. This cumulative process often results from the substantive convergence of norms disseminated through formal instruments, some of which – treaties or conventions – are immediately binding upon entry into force, whereas others only become so after a period of hardening into binding rules, which the acceleration of history often compresses into a few years. The fundamental principles enshrined by UNESCO and propagated by national laws and national bioethics committees play an essential role in this process, the outcome of which is admittedly yet uncertain. In any event, without the Organization’s initiatives and the general trend towards standardization in biological research, there would simply be no hope of establishing a universally accepted code of principles to govern scientific practices, the discoveries they lead to and the use to which they will be put.22 While treaties lay down for States Parties alone the legal rules and specific implications that arise from principles enshrined more broadly in non-treaty instruments,
18. CETS No. 164. 19. CETS No. 168 20. CETS No. 186 21. CETS No. 195. 22. Last year’s headline-grabbing announcement by a well-known South Korean professor, Dr. Hwang Woo-suk, that he had made a breakthrough in creating human embryos through cloning and stem cell differentiation raised justifiable concerns in the international scientific community, which subsequently turned into unanimous reprobation when it was learnt that the claim was a fraud. Admittedly, work on human embryo stem cells has been authorized in countries that had previously been very reluctant to do so, including France, since February 2006. But the international scientific community appears unanimous in radically condemning any attempt at human cloning for the purposes of creating an identical copy of a specific individual.
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both contribute specifically to the affirmation of basic prohibitions. These are all derived from the absolute obligation, here again, to respect the irreducible dignity of every human being. From the outset, UNESCO has thus served as a matrix for what might almost temptingly be called the ‘core principles’ of international law governing biotechnology. Its successive universal declarations have laid down standards of conduct, that is, criteria for identifying permitted practices to ensure observance of the principles that the criteria are supposed to protect. The most recent version of the bonus pater familias of Roman law or of the well-governed state mentioned in the old Alabama arbitration (1872) has been directly or indirectly developed under the auspices of UNESCO, a world Organization that strives to keep the voice of conscience in science. Furthermore, the 1997 Declaration on the Human Genome defines the latter, ‘in a symbolic sense’, as the heritage of humanity. This highly significant description thus links UNESCO’s standard-setting action in this field to action long undertaken in a separate field that also relates to mutual respect of cultures and unity in diversity.
. UNESCO’s Contribution to the Promotion of Customary Law to Safeguard the Common Heritage of Humanity It is at this level that the Organization strives to protect world cultural heritage. Vattel himself stated that depriving people of monuments of art is tantamount to declaring oneself ‘an enemy to mankind.’23 The 1972 Convention for the Protection of the World Cultural and Natural Heritage is certainly one of the most notable advances to date, the effect of which on general international law is beyond question. Its ratification by a very large majority of existing States further strengthens the Organization’s legitimacy and the authority with which it can influence the content, scope and authority of general principles of protection of the most representative national expressions of universal culture. The reactions prompted by the recent destruction of important elements of this heritage are extremely significant, emphasizing as they do the customary nature of general obligations to safeguard it, even if the specific arrangements introduced by the 1972 Convention are restricted to State Parties.
3.1. Concept of ‘Common Heritage of Humanity’ The concept of common heritage was developed as early as 1970, in now familiar circumstances, when the seabed was declared to belong to the common heritage of mankind in a Resolution adopted by the General Assembly of the United Nations.
23. See E. de Vattel, The Law of Nations, Book 3, Chapter 9, quoted by R. Goy, 2005, La destruction intentionnelle du patrimoine culturel en droit international, RGDIP 109, p. 273.
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Drawing on the model provided by the 1959 Antarctic Treaty and the 1967 Outer Space Treaty, the Resolution applied the idea of heritage specifically to the seabed and focused primarily on prohibiting appropriation by nations of a natural environment that was coveted by certain sovereign States. This same idea again came to the fore much later, in relation to the human genome; and applied to various environments and fields of human intervention, the principle of non-appropriation may be attributed from the outset largely to UNESCO. Admittedly, the idea that cultural heritage is of ‘general interest to humanity’24 is to be found in earlier texts, such as the Roerich Pact (or Treaty of Washington) of 15 April 1935 and later in the Preamble to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. UNESCO’s Constitution, for its part, also refers to the universality of the world’s inheritance of ‘books, works of art and monuments of history and science’ in Article I, Paragraph 2(c). Still, in regard to world cultural heritage, the 1972 Convention stands as a model for associating territorial sovereignty with the attribution of major cultural and natural assets to humanity. It is this specific recognition of national ownership of cultural property belonging to humanity, together with its classification as world heritage, that now constitutes a key point of reference even outside the Convention. This holds true even if the provisions establishing the specific arrangements for managing world heritage are still drawn up strictly on a treaty basis. Under the 1972 Convention, it is for each State Party with a natural site or major expression of universal culture on its territory to identify it for potential inclusion in the World Heritage List by the committee established for that purpose. It is also for the territorial State to take the initial steps required to protect and safeguard the site or monument in question. Most striking, however, is the fact that respect for the territorial sovereignty of the State concerned is coupled with an assertion of its duty to act to ensure protection. To discharge this duty the State may – under certain conditions – rely on a practical expression, usually material and financial, of solidarity by the community of State Parties. The association of territorial sovereignty with international solidarity in this manner is thus one of UNESCO’s major intellectual contributions to a general understanding of the need for rational management of the world’s natural and cultural heritage. The association between the concepts of national ownership, inclusion of property among the heritage of humanity, cultural identity and universal solidarity provides the basis for the standard-setting principles promoted by the 1972 Convention.
3.2. Translation of these Concepts into Customary International Law The whole question is then to what extent these concepts (if not the 1972 Convention’s related treaty provisions concerning rights and obligations) have become part of customary
24. See R. O’Keefe, 2004, World Cultural Heritage: Obligations to the International Community as a Whole?, ICLQ 53, pp. 189-209; F. Francioni and F. Lenzerini, 2003, The Destruction of the Buddhas of Bamiyan and International Law’, EJIL 14, pp. 619-651, part. p. 641.
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international law. There is nothing theoretical about this question. Let us just think of the current upsurge of cases in which damage – usually deliberate and sometimes irreparable – has been inflicted on valuable cultural property during local or international armed conflict or even in the absence of conflict. It unfortunately suffices to consider the past twelve years, from the collapse of the Mostar Bridge or the attacks on Dubrovnik during the Balkan war in the 1990s to the deliberate destruction of the two Buddhas of Bamiyan, systematically carried out from 1 to 10 March 2001 by the Islamic Emirate of Afghanistan, the de facto government that had replaced the State of Afghanistan at the time. The situations are not all alike, however. In particular, under customary international law on the destruction of cultural property, distinctions must be drawn depending on whether such destruction has occurred during armed conflict or not. In the former case it is covered by the case law of the Nuremberg Tribunal, as well as, much more recently, that of the International Criminal Tribunal for the former Yugoslavia (ICTY), which has held, for example, that the deliberate destruction of a mosque was a ‘crime against humanity’ since the perpetrators were attempting to attack the cultural identity of a people. The ICTY found that ‘all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects.’25 Although it is primarily the Hague Convention of 14 May 1954 and its two protocols of 1954 and 1999 that apply in regard to destruction in wartime,26 UNESCO has itself acted to emphasize the customary-law nature of the fundamental principles enshrined in the 1972 Convention. This was the purpose of 27 C/Resolution 3.5 adopted by the General Conference in 1993. For its part, the World Heritage Committee, custodian of the 1972 Convention, took the unilateral initiative of adding the city of Dubrovnik to the World Heritage List, as it would later do with the Buddhas of Bamiyan in 2003.27 However, the 1972 Convention was ratified by Afghanistan in 1979; and the value of the Buddhas to the world did not depend on their inclusion in the World Heritage List.28 Nevertheless, UNESCO wanted to emphasize in various ways that their destruction was also illegal under customary international law. Accordingly, drawing on various resolutions adopted since 1972, the General Conference referred in 31 C/Resolution 26 of 2 November 2001 to a ‘crime against the common heritage of humanity’; and that expression was reiterated in the Resolution on the protection of the cultural heritage of Afghanistan adopted by the General Assembly of State Parties to the World Heritage Convention at its thirteenth session (30-31 October 2001).
25. See ICTY, Judgment of 26 February 2001, Prosecutor v. Dario Kordic and Mario Cerkez, Paragraph 207, and Judgment of 3 March 2000, Prosecutor v. Blaskic, Paragraph 185; see also Judgment of 31 March 2003, Prosecutor v. Naletilic, Paragraph 605. See Francioni and Lenzerini, op. cit in, note 24, p. 636. See also Goy, op. cit. in note 23, p. 281. 26. See Goy, op. cit. in note 23, p. 280; S. Nahlik, 1967. La protection internationale des biens culturels en cas de conflit armé, Recueil des Cours, Vol. 120, p. 69. 27. See World Heritage Newletter No. 41, September-October 2003; UNESCO, The New Courier, October 2003, p. 21. See also Francioni and Lenzerini, op. cit. in note 24, p. 651. 28. See UNESCO Doc. WHC-01/Conf/201/23.2.
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It should be noted that the representatives of various organizations represented at the General Conference, like the Islamic Conference and the Asia-Pacific Group, endorsed similarly worded denunciations. Such qualifying expressions must be put in the context of provisions such as those in Article 3(d) of the ICTY Statute adopted by the United Nations Security Council on 25 March 1993 in Resolution 827,29 concerning the violation of the ‘laws or customs of war’, which include ‘seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science.’ The equivalent of this provision is to be found in the Statute of the International Criminal Court in Article 8,30 which is largely the result of an effort to codify existing customary law, even if it is in itself a treaty provision. Inasmuch as the obligation to respect elements of the cultural heritage of humanity falls within customary law, there seems to be no doubt that it is erga omnes. In the event of a breach, this may have important consequences as regards the rules governing international liability for this type of wrongful act. It should be noted that under Article 48 of the Draft Articles on State Responsibility for Internationally Wrongful Acts, adopted by the International Law Commission in 2001, ‘any State other than an injured State is entitled to invoke the responsibility of another State […] if […] the obligation breached is owed to the international community as a whole.’31 The UNESCO General Conference is also particularly qualified to punish breaches of the principles arising from the Organization’s Constitution, which it in fact has done on a number of occasions in the last sixty years.32 Furthermore, in the case of the Buddhas of Bamiyan, the World Heritage Committee called on the entire international community as early as 6 November 1997 to assist Afghanistan in protecting its cultural heritage. These are typical expressions of the customary law affirmation of the obligation to protect all world heritage property wherever it may be, both in peacetime and in the event of armed conflict. It was against this legal, social and political background that the General Conference of UNESCO unanimously adopted the Declaration concerning the Intentional Destruction of Cultural Heritage, a clear reaction to the destruction of the Buddhas of Bamiyan, in 2003. It is worth noting that, in its Preamble, the Declaration refers, among other things, to ‘the development of rules of customary international law as […] affirmed by the relevant case law, related to the protection of cultural heritage in peacetime as well as in the event
29. See P.M. Dupuy, 2004, Les grands textes de droit international public, 4th edn, Paris, pp. 197 ff. 30. Article 8, Paragraphs 2(b)(ix) and 2(e)(iv). 31. Res. 56/83 adopted by the General Assembly of the United Nations on the codification of the legal responsibility of States for internationally wrongful acts, ‘taking note’ of the Draft Articles on State responsibility adopted by the International Law Commission in 2001 (in Dupuy, op. cit. in note 29, pp. 878-879). See P.M. Dupuy, Bilan général des rencontres de la dimension multilatérale des obligations avec la codification du droit de la responsabilité, in P.M. Dupuy (ed.), 2003, Obligations multilatérales, droit impératif et responsabilité internationale des Etats, Paris. 32. See Goy, op. cit. in note 23, p. 284.
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of armed conflict’, and to the above-mentioned provisions of the Statute of the International Criminal Court. Without dwelling on the matter, it is frankly to be regretted that the ‘measures to combat intentional destruction of cultural heritage’ referred to in the Declaration are drafted in the conditional tense (‘States should [...]’), which does not give them the ring of authority. Be that as it may, the text, no doubt too-much amended during the negotiations, states in a strikingly firm tone: [a] State that intentionally destroys or intentionally fails to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity […] bears the responsibility for such destruction, to the extent provided for by international law. This measure is clearly, and for all the reasons mentioned above, extremely significant and would seem to admit force majeure as the sole ground for mitigating the responsibility of a State that has harmed any world cultural heritage property.
. Conclusion As a general conclusion to what is by nature a very summary appraisal, it must be observed that UNESCO remains the forum in which the world’s legal consciousness of the cultural dimensions of human dignity has been affirmed. Consequently, its contribution to the development of general international law is decisive, especially in the fields of human rights, human dignity and the right of peoples to their own cultural identity within a framework of universal solidarity. This all comes together in legal opinion concerning the rights of humanity. Humanity is, if I may say so, UNESCO’s speciality, which means that this Organization has a particular responsibility to preserve the strength of the concept of humanity and its expression in general international law. In his famous address delivered on this very spot almost sixty years ago, Claude Lévi-Strauss said: ‘the concept of humanity as covering all forms of the human species, irrespective of race or civilization, came into being very late in history and is by no means widespread. Even where it seems strongest, there is no certainty – as recent history proves – that it is safe from the dangers of misunderstanding or retrogression.’ Now that the clash of civilizations no longer seems to be merely an abstract idea but rather a real threat, the Organization must more than ever preserve the strength of the opinio juris according to which there are indefeasible human rights, just as there is an overarching subject of law, a holder of rights to whom all countries owe obligations, namely, humanity. This means that the United Nations Educational, Scientific and Cultural Organization must step up its standard-setting action. As if to dispel the anxieties that may arise from Claude Lévi-Strauss’s warning, as I arrived at Place Fontenoy in the morning when we celebrated the sixtieth
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anniversary of UNESCO, I thought again of the preface written by Victor Hugo for his play The Burgraves, to which my father drew my attention a long time ago. In it, the dream of the visionary encounters the hard work of the technicians of what is possible and of what ‘should be’, i.e. the diplomats. In the Preface, Hugo wrote: [l]et us hope that one day the entire globe will be civilized, [and] all areas of human habitation will be enlightened. And then the magnificient dream of intelligence will be realized: to have the world as one’s country and humanity as one’s nation.33
33. Quoted in R. J. Dupuy, 1991, L’humanité dans l’imaginaire des nations, Conférences, essais et leçons du Collège de France, Paris, p. 36.
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UNESCO’s Role in the Development and Application of International Law: An Assessment Nico Schrijver*
. Introduction Since its establishment, UNESCO has been actively engaged in standard-setting practice. During its sixty years of existence, the world’s primary cultural organization has developed an impressive number of international legal instruments to address a wide variety of key issues in international and national policies. The objective of this contribution is to survey and assess UNESCO’s role in the development and application of international law. The principal question to answer in this respect is how to characterize UNESCO’s contribution to international law. For this purpose, this chapter will first review UNESCO’s constitutive instrument (Sections 2 and 3), as well as consider UNESCO’s position within the international legal system (Section 4). Next, the impact of UNESCO’s standard-setting activities on international law in six selected areas will be assessed (Section 5). Some of the problems the Organization has faced in the darker period of its existence will then be considered (Section 6). Finally, the functions and legal significance of UNESCO’s standard-setting instruments (Section 7) will be appraised, before some concluding observations are made (Section 8).
. The Constitution of UNESCO Both the name of the Organization and its constituent instrument demonstrate that UNESCO has a broad mandate in the fields of education, science and culture. This
* The author gratefully acknowledges support from Daniëlla Dam-de Jong (LL.M., M.A.) in finalizing this chapter.
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mandate includes the international law dimensions of policies in each of these three fields, as well as in their interrelationships. Moreover, the Constitution of UNESCO also makes explicit reference to promoting universal respect for justice, the rule of law, and human rights and fundamental freedoms. According to Article 1, Paragraph 1 of its Constitution, the purpose of the Organization is ‘to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for the human rights and fundamental freedoms.’1 In order to realize this purpose, the Organization has been given the power to adopt conventions and recommendations within UNESCO’s broad terms of reference in Article IV, Paragraph 4 of the Constitution. This particular competence serves as the basis for UNESCO’s standard-setting function. On this basis, UNESCO has adopted as many as thirty-five conventions, thirty-one recommendations and thirteen declarations. Member States are obliged to report on action taken on the basis of these conventions and recommendations.2 Apart from this, UNESCO organs can also adopt housekeeping rules and internal decisions in the areas concerned, including establishing subsidiary organs and taking budgetary decisions. The latter often impact directly on the policies of the Organization. In relation to national action to be taken by Member States and to their reporting obligations under Article VIII of the Constitution, Article 1, Paragraph 3 of the UNESCO Constitution confines the scope of UNESCO’s activities to matters not ‘essentially falling within the domestic jurisdiction’ of Members of the Organization. The wording of this provision is identical to Article 2, Paragraph 7 of the UN Charter, which embodies the principle of non-interference with the domaine réservé of States. The dividing line between matters falling within the domestic jurisdiction of States and those outside it, is difficult to trace. Over the years, the principle of State sovereignty has been challenged by various developments in international relations. In modern international law, sovereignty has become a qualified concept, to be exercised within the limits of contemporary international law in the fields of peace and security, human rights, economic cooperation and environmental conservation.3 Developments in international environmental law, such as duties emanating from the principle of permanent sovereignty over natural resources and from the principle of intergenerational equity, for example, are relevant to UNESCO’s field of activities.4 These principles are among the cornerstones of the UNESCO World Heritage
1. Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO), adopted in London on 16 November 1945, 4 UNTS 275. 2. Article VIII of the UNESCO Constitution. 3. See on this subject N. J. Schrijver, 1999, The Changing Nature of State Sovereignty, BYIL 70, pp. 65-98. 4. See E. B. Weiss, 1989, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity, New York. On the subject of rights and duties arising from the principle of permanent sovereignty over natural resources, see N. J. Schrijver, 1997, Sovereignty over Natural Resources: Balancing Rights and Duties, Cambridge.
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Convention, which aims to preserve the cultural and natural heritage and to transmit it to future generations.5 Further, the Organization can convene international conferences of States, as well as non-governmental conferences relating to education, the sciences and humanities or the dissemination of knowledge.6 This facilitates one of UNESCO’s most important purposes, which is to function as a clearinghouse.7 Also, under Article IV, Paragraph 5 of its Constitution, UNESCO has the right to advise the United Nations proper on educational, scientific and cultural matters; while under Article XI it can enter into working relations with other specialized intergovernmental organizations and agencies. Finally, under Article V, Paragraph 12, UNESCO may request advisory opinions from the International Court of Justice.8 UNESCO has so far used this right only once, when it appealed certain judgments of the Administrative Tribunal of the ILO concerning the renewal of fixed-term appointments for UNESCO officials.9 In this regard, a classic compromissory clause can be found in Article XIV, Paragraph. 2 of the Constitution, which states that ‘any question or dispute concerning the interpretation of this Constitution shall be referred for determination to the International Court of Justice […] as the General Conference may determine under its Rules of Procedure.’ In the Case concerning Armed Activities on the Territory of the Congo (DR Congo v. Rwanda), the DRC sought to found the jurisdiction of the Court on this particular provision of the UNESCO Constitution, among other instruments.10 It argued that owing to war the country was unable to fulfil its obligations within UNESCO, as laid down in Article I of the Constitution. Rwanda argued that the Court was precluded from finding that it had jurisdiction on the basis of this provision. It argued, inter alia, that the dispute between the Parties was confined to the application of the Constitution, and did not concern its interpretation; and further that the procedures for referral to the Court required under the provision had not been respected. In its judgment of 3 February 2006, the Court followed the arguments set out by Rwanda. It noted that Article XIV, Paragraph 2 of the Constitution ‘provides for the referral, under the conditions established therein, of questions or disputes concerning the Constitution, but only in respect of its
5. UNESCO Convention for the Protection of World Cultural and Natural Heritage, Paris, 16 November 1972, 1037 UNTS 151. 6. Article IV, Paragraph 3 of the UNESCO Constitution. 7. The clearinghouse function relates to ‘the collection, analysis and distribution of information, carrying out study and research, both for the sake of the participating countries and for the sake of the organization’s activities themselves’ (as discussed by P. Ver Loren van Themaat, 1981, The Changing Structure of International Economic Law, The Hague/Boston/London, p. 31). 8. This Article corresponds to Article X, Paragraph 2 of the Relationship Agreement between the UN and UNESCO, which will be dealt with below. 9. ICJ Advisory Opinion of 23 October 1956 concerning Judgments of the Administrative Tribunal of the ILO upon Complaints made against UNESCO, ICJ Reports, 1956, p. 77. 10. Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), new application 2002, ICJ case No. 126, 3 February 2006.
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interpretation.’11 The Court was of the opinion that the matter did not involve a question or dispute concerning the interpretation of the Constitution. It further considered that even if this had been the case, the DRC had failed to show that the conditions for referral established pursuant to the provision and the Rules of Procedure had been met. The DRC had not referred its question to the General Conference for determination of referral to the International Court of Justice.
. Membership in UNESCO Membership in UNESCO, as an international organization, is open to both UN and non-UN Members. So far, entities like the European Community have not been allowed to apply for membership. The original Relationship Agreement between the UN and UNESCO, concluded in 1946, stipulated that applications from non-UN Members must be referred to the Economic and Social Council (ECOSOC) for approval.12 It should be noted that this provision was deleted in 1962.13 Non-autonomous territories can also join UNESCO as ‘Associated Members’, as Aruba and the Netherlands Antilles have done. Although membership in the Organization is reserved to States, international non-governmental or semi-governmental organizations can be granted observer rights.14 Moreover, international organizations can obtain consultative powers, such as being heard at meetings and transmitting documents.15 Article II of the Constitution contains a provision on suspension and expulsion from membership in the Organization. Member States that are suspended or expelled from the UN will also be suspended at the request of the UN or automatically expelled by UNESCO. The procedure for suspension or expulsion of a Member State from the UN is laid down in Articles 5 and 6 of the UN Charter. Since the inception of the UN, no action has ever been taken under those provisions. However, references to Articles 5 and 6 of the Charter were repeatedly invoked in UN debates on the policies of apartheid of the Government of the Republic of South Africa from the early 1960s to the end of the apartheid regime in 1994. This debate even included the submission to the Security Council of a draft resolution, cosponsored by Kenya, Mauritania, the United Republic of Cameroon and Iraq, demanding ‘the immediate expulsion of South Africa from the United Nations in compliance with Article 6 of the Charter.’16 The draft resolution obtained ten votes in favour and three against, with two abstentions. Its adoption failed
11. Ibid., Paragraph. 107. 12. Repertory of Practice of United Nations Organs (1954-1954), Volume 3, p. 331. 13. See H. G. Schermers and N. M. Blokker, 2003, International Institutional Law: Unity within Diversity, Boston/Leiden, 4th rev. edn, p. 1081. 14. Article IV, Paragraphs 13 and 14 UNESCO Constitution. 15. Article XI, Paragraph 4 and Article V, Paragraph 11 UNESCO Constitution. 16. Doc. S/11543 of 24 October 1974.
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as a result of the negative votes of the three Western permanent Members.17 The General Assembly also adopted many resolutions in regard of South Africa’s apartheid policy. In Resolution 2105 (XX) of 20 December 1965, the Assembly requested ‘all States and international institutions, including the specialized agencies of the United Nations, to withhold assistance of any kind’ to the government of South Africa until it renounced its policy of racial discrimination. This call was taken up by UNESCO, which decided to withhold assistance from the government of South Africa in matters relating to education, science and culture, as well as to deny invitations to attend conferences or take part in other UNESCO activities.18 This was more or less a symbolic gesture, since South Africa had voluntarily withdrawn from the Organization ten years before the adoption of the resolution. It was not until the end of apartheid that the General Assembly welcomed South Africa back ‘to the community of nations as represented in the General Assembly of the United Nations’19 and called on specialized agencies and related organizations of the United Nations system to take all necessary actions to reestablish full membership for South Africa. It was also then, in 1994, that South Africa was re-admitted to UNESCO. Several references to Articles 5 and 6 of the UN Charter were also made with regard to the situation in the former Yugoslavia, without actually initiating procedures. In Resolution 777 (1992), the Security Council considered ‘that the state formerly known as the Socialist Federal Republic of Yugoslavia (SFRY) had ceased to exist’ and that ‘the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the SFRY.’ Furthermore, it recommended that the General Assembly decide that ‘the Federal Republic of Yugoslavia should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.’ This matter was addressed by the General Assembly in Resolution 47/1 of 19 September 1992. In Resolution 821 (1993) the Security Council also extended this recommendation to ECOSOC. The recommendation was finally taken up by the General Assembly and followed by a resolution urging the Secretariat of the UN ‘to end the de facto working status of Serbia and Montenegro.’20 As for UNESCO, the Organization suspended the membership of the SFRY following General Assembly Resolution 47/1 and decided against allowing the participation of the representatives of Serbia and Montenegro in the work of the Organization.21
17. See Repertory of Practice of United Nations Organs (1954-1954), Supp. 5 (197—1978), Vol. 1, pp. 79-80 and Repertoire of the Practice of the Security Council (1972-1974), Chapter 7, pp. 78-79. 18. Resolution concerning UNESCO’s Tasks in the Light of the Resolutions Adopted by the General Assembly of the United Nations at its Twentieth Session on Questions relating to the Liquidation of Colonialism and Racialism, adopted at the thirty-fifth plenary session of the General Conference on 28 November 1966. 19. UN Doc. A/RES/48/258 of 6 July 1994. 20. See UN Doc. A/RES/48/88 of 29 December 1993, Paragraph. 19. For more details, see Repertory of Practice of United Nations Organs (1989-1994), Vol. 1, Supp. No. 8, Articles 5 and 6. 21. Resolution 0.53 Participation in the Work of the twenty-seventh session of the General Conference, in Records of the General Conference, 27th session, Paris, Vol. 1: Resolutions, p. 8; and
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. UNESCO as a Specialized Agency within the UN System As the words ‘United Nations’ in its name demonstrate, UNESCO is very close to the United Nations proper. It is part of the UN family. UNESCO is a so-called specialized agency, as referred to in Articles 57 and 63 of the UN Charter. Specialized agencies are autonomous organizations with specific functions, affiliated with the UN through agreements. At the inception of the UN, its founders opted for a system of ‘functional decentralization.’ Specific fields of international cooperation were to be covered by specialized organizations, established by intergovernmental agreements.22 This system is based on the functional thesis of David Mitrany, who enunciated the theory that world peace should be constructed on a functional rather than a political approach to international relations.23 ECOSOC obtained the power to enter into agreements with specialized agencies and to define the terms on which the agency concerned would be associated with the UN. It was also given the responsibility to coordinate the activities of the specialized agencies.24 In 1946, ECOSOC concluded a Relationship Agreement with UNESCO, which was subsequently approved by the General Assembly.25 The Preamble of the Relationship Agreement states that UNESCO is to be one of the specialized agencies, ‘with the function of advising the United Nations on the educational, scientific and cultural aspects of matters of concern to the latter.’ This reference to UNESCO’s advisory function has to be understood as a compromise, after rejection by the ECOSOC Negotiating Committee of a clause proposed by UNESCO obliging the UN to ‘consult the Organization as its permanent principal advisor in promoting international cooperation in all educational, scientific and cultural fields and related matters.’ The Negotiating Committee found this clause to go beyond the terms of the Charter.26 The UN-UNESCO Relationship Agreement is in many ways rather similar to those concluded with other specialized agencies. It comprises provisions concerning reciprocal representation; exchange of information and documents; the use of administrative and technical services; and budgetary and financial arrangements. Further, UNESCO is bound to submit UN recommendations to its decision-making organ, as well as to consult and report on the action taken on such recommendations; to assist the Security Council upon
Resolutions 8.5 The Issue of Participation of the Member Nominated by the Former Socialist Federal Republic of Yugoslavia and 8.6 Participation in the Work of the Executive Board, in Decisions adopted by the Executive Board at its 140th session, Paris, 18 November 1992, p. 36. 22. See Schermers and Blokker, op. cit. in note 13, p. 1075. 23. See D. Williams, 1987, The Specialized Agencies and the United Nations, London, p. 2. See also J. Harrod, United Nations Specialized Agencies: from Functionalist Intervention to International Cooperation?, in J. Harrod and N. J. Schrijver, 1988. The UN Under Attack, Aldershot/Brookfield USA/Hong Kong/Singapore/Sydney, p. 134. 24. Article 63 UN Charter. 25. Agreement between the United Nations and UNESCO, G.A. Res. 50 (I) of 14 December 1946. 26. Repertory of Practice of United Nations Organs (1945-1954), Vol. 3, p. 330.
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request, including in carrying out decisions of the Security Council for the maintenance or restoration of international peace and security; to furnish information to the International Court of Justice; and to inform the UN on formal agreements with other organizations. Moreover, UNESCO has the right to request advisory opinions from the International Court of Justice without prior approval. According to Article 10 of the Relationship Agreement, UNESCO is authorized to request advisory opinions on all legal questions arising within the scope of its activities, except on questions concerning the mutual relationships of the Organization and the United Nations or other specialized agencies. When submitting a request of this kind, UNESCO has the obligation to inform ECOSOC. The original draft agreement stated that the Organization should give ECOSOC prior notice of all such requests. The Council could then declare that the request should not be made; in which case it was foreseen that the UN General Assembly would determine whether the request was to be submitted.27 This provision was also included in the draft agreements of the FAO and ICAO. On their request, the Council eventually decided that these agencies, as well as UNESCO, should be granted the same procedure concerning access to the ICJ as the ILO.28 As mentioned above, the right to request advisory opinions excludes questions concerning the mutual relationships of the Organization and the United Nations or other specialized agencies. This rule has not stopped the Court from expressly taking into consideration the relationship between the UN and the World Health Organization (WHO) in its advisory opinion of 8 July 1996 concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, however.29 The question of the principle of speciality was an important reason for the Court to reject the WHO request for an advisory opinion on this matter.30 Although UNESCO is an autonomous organization, the UN can coordinate its activities through recommendations. Under the Relationship Agreement, UNESCO agrees to submit these recommendations to the General Conference. It further agrees to enter into consultation with the UN with respect to the recommendations and to report
27. See Article XI, Paragraph 2 of the Draft Agreement between the United Nations and the United Nations Educational, Scientific and Cultural Organization (UN Doc. A/77 of 30 September 1946): ‘[t]he United Nations Educational, Scientific and Cultural Organization is authorized, pursuant to Article 96 of the Charter of the United Nations, to submit to the International Court of Justice requests for opinions on legal questions arising within the scope of its activities, other than questions concerning the mutual relationship of the Organization and the United Nations or other specialized agencies, provided that the Organization shall give prior notice to the Council of all such requests. The Council shall have the right to declare that in its judgment any such request should not be made. If, after the Council has made such a declaration, the request is not withdrawn, the General Assembly shall itself determine whether the request shall be submitted to the Court.’ 28. See the Corrigendum to Draft Agreement between the United Nations and the United Nations Educational, Scientific and Cultural Organization (UN Doc. A/77/Corr.1 of 12 December 1946) and Repertory of Practice of United Nations Organs (1954-1954), Vol. 3, p. 328. 29. ICJ Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 8 July 1996, ICJ Reports, 1996, p. 66. 30. Ibid., Paragraph. 26. See also Schermers and Blokker, op. cit. in note 13, pp. 1077 and 1080.
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on the actions taken upon them.31 Nevertheless, UNESCO is not bound by these recommendations. Williams identifies this as a ‘constitutional lack of effective coordination’ and ‘one of the structural weaknesses of the System.’32 Recent efforts to strengthen ECOSOC’s role in the coordination of the specialized agencies have largely evolved around the development agenda. Important documents relating to UN reform recognize ECOSOC’s central role with regard to economic and social development, as well as with regard to the implementation of the Millennium Development Goals.33 As regards the goals relating to education, close cooperation between ECOSOC and UNESCO has been pursued through the establishment of a joint expert group on the monitoring of the right to education. The terms of reference of this joint expert group aim specifically at closer cooperation between the two organizations.34 Under Article VII of the UN-UNESCO Relationship Agreement, UNESCO agrees to cooperate with ECOSOC ‘in furnishing information and rendering such assistance to the Security Council as that Council may request including assistance in carrying out decisions of the Security Council for the maintenance or restoration of international peace and security.’ The assistance of UNESCO – as one of the specialized agencies – was called for on several occasions. Examples include the situation in Southern Rhodesia in the 1960s and the invasion of Kuwait by Iraq in the early 1990s. Regarding the illegal regime in Southern Rhodesia, the Security Council established a committee to look into the situation and called upon the specialized agencies to ‘supply such further information as may be sought by the Committee in pursuance of this resolution.’35 The Security Council also decided to continue the measures provided for in earlier resolutions. In light of failing results, the Security Council adopted a new resolution in 1970, submitted by Finland. This resolution called on Member States of the specialized agencies to suspend Southern Rhodesia’s membership in the organizations; and requested that the agencies give aid and assistance to refugees from Southern Rhodesia and increase their assistance to Zambia.36 In response to this resolution, as well as several General
31. See Articles 58 and 63, Paragraph 2 of the UN Charter, and Article IV of the UN-UNESCO Relationship Agreement. 32. See Williams, op. cit. in note 23, p. 17. 33. See UN Doc. A/RES/55/2 of 18 September 2002, Paragraph 30 (Millennium Declaration); UN Doc. A/59/2005 of 21 March 2005 (report of the Secretary-General ‘In Larger Freedom’), Paragraphs 171-180, and UN Doc. A/RES/60/1 of 24 October 2005 (‘Outcomes of the 2005 World Summit’), p. 32. 34. Decision 5.4 Examination of the Methods of Work of the Committee on Conventions and Recommendations, in Decisions adopted by the Executive Board at its 162nd session, Paris, 27 November 2001, p. 23-24. See on this subject, K. Singh, 2004, Right to Education and International Law: UNESCO’s Normative Action, Indian Journal of International Law 44, pp. 488-520. 35. Security Council Res. 253 of 29 May 1968, Paragraph 22. It is interesting to note that the Security Council explicitly exempted educational materials from the embargo imposed on Southern Rhodesia, in operative Paragraph 3 (d) of the Resolution. 36. Security Council Res. 277 of 18 March 1970 and Repertoire of Practice of the Security Council, Supp. 1969-1971, United Nations, New York, 1976, Chapter 8, pp. 126-136.
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Assembly resolutions, UNESCO reaffirmed its decision not to accord any help to […] the illegal regime in Southern Rhodesia in the realms of education, science and culture and, in particular, not to invite them to participate in conferences and other Unesco activities. It further invited the ‘Director-General to send a mission to the Organization of African Unity and […] evolve concrete programmes for assistance to refugees from colonial territories.’37 In the case of the Iraqi invasion of Kuwait in 1990, the Security Council affirmed in resolution 670 that the specialized agencies ‘are required to take such measures as may be necessary’ to give effect to the sanctions imposed on Iraq. Following this resolution, the Permanent Delegate of Kuwait appealed to UNESCO ‘to do its utmost to investigate Iraqi crimes against humanity especially in the fields of culture, education, science and human rights.’38 At its hundred and thirty-fifth session, UNESCO’s Executive Board adopted a decision in which it expressly refers to Article 48, Paragraph 2 of the UN Charter and Article VII of the UN-UNESCO Relationship Agreement.39 It further expresses its deep anxiety ‘concerning the violation of human rights including, more particularly, the disruption of the educational process, the willful damaging of educational and cultural institutions and property and the destruction of the national cultural identity of the Kuwaiti people.’ The Executive Board decided, inter alia, to send a special representative to survey the condition of educational and cultural institutions and ‘to take all necessary measures’ to ensure the implementation of the Security Council resolutions.40
. Impact of UNESCO’s Standard-setting Activities on International Law UNESCO’s conventions, recommendations and declarations cover a wide array of issues. Six areas can be identified in which UNESCO has been particularly active in setting standards. First of all, UNESCO has been instrumental in advancing international law in
37. Resolution 8, UNESCO’s Contribution to Peace and Its Tasks with respect to the Elimination of Colonialism, and Utilization of UNESCO’s Programme as a means of Strengthening Cooperation between European States in the Interests of Peace and Security in Europe, in Records of the General Conference, 16th Session, Paris, 1971, Vol. 1, Resolutions, pp. 79-83. 38. UNESCO Doc. 135 EX/27 of 11 October 1990. 39. Article 48, paragraoh 2 of the UN Charter reads: ‘[s]uch decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.’ 40. Decision 8.4, The Destruction of the Educational, Cultural and Scientific Institutions in the State of Kuwait occupied by Iraq, and the Role of UNESCO in Its Fields of Competence in relation to the Execution of the Resolutions of the Security Council in accordance with Chapter VII of the United Nations Charter, in Decisions adopted by the Executive Board at its 135th Session, Paris, 14 November 1990, pp. 39-40.
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the field of human rights, especially as regards the right to education and the right to equal treatment and opportunity. UNESCO’s work in the field of cultural rights and especially cultural diversity is also closely related to this activity. Furthermore, UNESCO has been active in the field of copyright regulation and the exchange of knowledge. Moreover, UNESCO has greatly contributed to the development of international law with regard to the protection of cultural heritage in times of armed conflict and with regard to the protection of both natural and cultural world heritage. Finally, UNESCO has been very active in the field of bioethics.
5.1. Human Rights UNESCO’s activities for the advancement of human rights have been numerous and multifaceted. In fact, one could even argue that the entirety of UNESCO’s activities relates to this area of international law. After all, the purpose of the Organization, as stated in Article 1 of its Constitution, is ‘to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for […] human rights and fundamental freedoms.’ As for standard-setting, UNESCO has been particularly active in promoting the right to education and the right to equal treatment and opportunity. Fulfillment of the right to education for all, as enshrined in Article 26 of the Universal Declaration of Human Rights and in Article 13 of the International Covenant on Economic, Social and Cultural Rights, is one of the priorities of the Organization, as reflected in its Constitution.41 This is also made explicit in its Education for All (EFA) strategy set out in the Dakar Framework of Action.42 Furthermore, UNESCO’s legal instruments approach fulfillment of the right to education not only as a purpose, but also as a means to advance other human rights like the right to development. As Singh notes ‘UNESCO’s normative action reflects the right to education as entitlement, inextricably linked with the right to basic education as empowerment.’43 This also explains the close relationship between the right to education and the right to equal treatment and opportunity in UNESCO’s instruments relating to education, such as the Convention against Discrimination in Education.44 The Preamble to this Convention refers to the principle of non-discrimination as set out in the Universal Declaration of Human Rights. It further recognizes that UNESCO ‘has the duty not only to proscribe any form of discrimination in education but also to promote equality of opportunity and treatment for all in education.’ This is also reflected in Article 1 of the
41. See the Preamble of UNESCO’s Constitution, which refers to ‘full and equal opportunities for education for all.’ 42. Universal Declaration of Human Rights, G.A. Res. 217 A (III), 10 December 1948; International Covenant on Economic, Social and Cultural Rights, New York, Annex to General Assembly Resolution 2200 (XXI) of 16 December 1966, I.L.M. 6, 360 (1967). See also the Dakar Framework for Action, Education for All: Meeting our Collective Commitments, adopted by the World Education Forum, Dakar, 26-28 April 2000, G.A. Doc. ED/2000/Conf/211/1 of 28 April 2000. 43. See Singh, op. cit. in note 34, pp. 488-489. 44. Convention against Discrimination in Education, Paris, 14 December 1960, 429 UNTS 93.
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Convention, which defines discrimination as including ‘any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education.’ Furthermore, the right to equal treatment, opportunity and access is reflected in specific UNESCO instruments relating to discrimination and intolerance. Of course, realization of the right to equality in general is at the core of these instruments. More specifically, Article 2 of the Declaration of Principles on Tolerance states that in order to achieve a more tolerant society, States should ratify existing international human rights conventions, and draft new legislation where necessary to ensure equality of treatment and of opportunity for all groups and individuals in society.45 Moreover, the Declaration on Race and Racial Prejudice links the right to equal access to the right to development.46
5.2. Cultural Rights In the field of cultural rights, UNESCO has recently developed two normative instruments expressly dedicated to cultural diversity: the Universal Declaration on Cultural Diversity and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.47 These instruments respond to UNESCO’s constitutional mandate with regard to the promotion and preservation of the ‘fruitful diversity of […] cultures.’48 Both instruments contain several elements with a potential impact on international law. First, these legal instruments are the first to proclaim cultural diversity as the ‘common heritage of humanity’, to be ‘cherished and preserved for the benefit of all.’49 Second, the instruments link cultural diversity to the concept of sustainable development. In this respect, Article 11 of the Declaration calls the preservation and promotion of cultural diversity ‘the key to sustainable human development’, while Article 2, Paragraph 6 of the Convention declares ‘the protection, promotion and maintenance of cultural diversity […] an essential element for sustainable development for the benefit of present and future generations.’ Third, Article 2, Paragraph 2 of the Convention confirms the sovereign right of States ‘to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory.’ This is an interesting provision in light of the national treatment principle included in the WTO agreements, which requires Parties to accord to foreign goods and services a treatment no less favourable than that accorded to
45. Declaration of Principles on Tolerance, 16 November 1995. 46. Declaration on Race and Racial Prejudice, 27 November 1978, Article 3. On the subject of human rights, see J. Symonides, 2001, UNESCO’s Contribution to the Progressive Development of Human Rights, Max Planck YUNL 5, pp. 307-340. 47. Universal Declaration on Cultural Diversity, Paris, 2 November 2001; Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Paris, 20 October 2005 (entry into force on 18 March 2007). 48. See Article 1, Paragraph 3 of UNESCO’s Constitution. 49. See Article 1 of the Declaration and the Preamble of the Convention.
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like goods and services of national origin.50 At this stage, it is not yet possible to determine the impact of the Convention on Cultural Diversity on the current state and future evolution of international law. However, the aforementioned provisions, as well as the Convention’s dispute settlement mechanism, no doubt constitute a challenge to the applicability of WTO law to cultural expressions.51
5.3. Copyright Protection and Exchange of Knowledge UNESCO’s normative activities in the field of copyright protection and the exchange of knowledge could be regarded as expressions of the right to creativity and the right to information. These are equally intrinsic to the work of the Organization, the purpose of which includes advancing the mutual knowledge and understanding of peoples, through all means of mass communication and to that end recommending such international agreements as may be necessary to promote the free flow of ideas by word and image.52 Over the years, UNESCO has adopted several standard-setting instruments in relation to copyright protection, including the 1952 and 1971 universal copyright conventions.53 Less well known but equally important to the free flow of ideas are UNESCO’s activities in the field of promotion of the international exchange of knowledge. Normative instruments in this area include the Convention concerning the International Exchange of Information, the Convention concerning the Exchange of Official Publications and Government Documents between States, both adopted on 3 December 1958, and the Florence Agreement with its Nairobi Protocol.54 The latter have been instrumental in promoting the exchange of ideas and knowledge essential to realization of human rights by creating a legally binding obligation on Parties to exempt books, publications and educational, scientific and cultural materials from customs duties and charges. The Protocol of Nairobi annexed to the Agreement is a response to the changing ways and means of transmitting information and knowledge that accompany technical progress.
50. See the Annexes to the Agreement Establishing the World Trade Organization, Marrakesh, 1867 UNTS 154. The aforementioned provision regarding the rights of Parties to adopt policies and measures to protect cultural diversity could conflict with the WTO requirements on equal treatment when the former have a discriminatory effect on trade. On this subject, see T. Voon, 2006, UNESCO and the WTO: a Clash of Cultures?, ICLQ 55, pp. 635-652. 51. The Convention’s dispute settlement mechanism provides for conciliation concerning the interpretation or application of the Convention by a Conciliation Committee. See Article 25 of the Convention and the Annex to the Convention on Cultural Diversity. 52. See the Preamble to UNESCO’s Constitution. 53. On the subject of UNESCO’s standard-setting activities in relation to copyright protection, see the chapter by R. L. Okediji in this volume. 54. Agreement on the Importation of Educational, Scientific and Cultural Materials, Florence, 17 June 1950, 131 UNTS 25, and the Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials, Nairobi, 26 November 1976.
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5.4. Protection of Cultural Heritage in Times of Armed Conflict Advancement of the protection of cultural heritage in times of armed conflict has been among the earliest activities of the Organization. The large-scale destruction of cultural property during the Second World War made the need for a legal instrument on this subject apparent; and resulted in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.55 This Convention is the first to recognize that protection of cultural property concerns not only the country in which it is situated, but the international community as a whole. This view is reflected in the Preamble of the Convention, which notes that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind’ and ‘that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection.’ In order to safeguard their cultural property in times of armed conflict, State Parties are required to take appropriate measures against the foreseeable effects of an armed conflict in times of peace.56 Thus, the Convention creates obligations for Parties both under ius in bello and under ius pacis. This is also explicitly stated in Chapter VI of the Convention, which determines that the Convention is applicable in times of peace, in both international and internal conflicts and during occupation. In this manner, the Convention lays the foundations for the protection of cultural heritage in times of peace later consolidated in the 1972 World Heritage Convention. Since the adoption of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO has sought numerous ways to enhance the protection of cultural heritage, both during peacetime and in the event of armed conflict. The Declaration Concerning the Intentional Destruction of Cultural Heritage, adopted in response to the wanton destruction of the Afghan Buddhas of Bamiyan by the Taliban regime in 2001, is a recent example.57 Unfortunately, these instruments have proven to be far from superfluous and are in need of stronger compliance mechanisms.
5.5. Protection of World Cultural and Natural Heritage UNESCO’s activities have also made a large contribution to the development of international law in the broader field of the protection of world heritage. UNESCO’s most important contribution in this field is the aforementioned 1972 World Heritage Convention, which includes the protection of both cultural and natural heritage. In introducing the notion of World Heritage, the Convention strikes a delicate balance
55. Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, 249 UNTS 240. 56. Article 3 of the Convention. 57. UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, 17 October 2003. On this subject, see F. Lenzerini, 2003, The UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage: One Step Forward and Two Steps Back, IYIL 13, pp. 131-145.
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between legal regimes based on concepts like ‘common heritage of mankind’, on the one hand, and traditional State sovereignty, on the other. The Convention establishes an international regime for cultural and natural heritage ‘of outstanding universal value’, while at the same time leaving primary responsibility for the protection of the cultural and natural heritage to the State in the territory of which it is situated.58 Furthermore, the Convention was the first binding multilateral legal instrument to adopt the principle of intergenerational equity – an essential element of the later concept of sustainable development – both through the notion of ‘heritage’ and by explicitly referring to the interests of future generations.59 UNESCO has confirmed this approach in its Declaration on the Responsibilities of the Present Generation Towards Future Generations, in which it also explicitly notes that ‘the present generations have the responsibility to bequeath to future generations an Earth which will not one day be irreversibly damaged by human activity. Each generation inheriting the Earth temporarily should take care to use natural resources reasonably.’60 By already adopting the principle of intergenerational equity in its 1972 World Heritage Convention, UNESCO made an important contribution to the development of international environmental law.61
5.6. Bioethics UNESCO has also been very active in setting standards in the field of bioethics. In this respect, the Organization has adopted three normative instruments. These are the Universal Declaration on the Human Genome and Human Rights, the International Declaration on Human Genetic Data and the Universal Declaration on Bioethics and Human Rights.62 Thus far, these are the only international legal instruments, albeit all of soft law status, to set out ethical guidelines for research in the field of the life sciences. One could thus say that UNESCO has taken up a pioneering role in this particular, new field of international law. The first normative instrument to formulate ethical principles in this area was the 1997 Universal Declaration on the Human Genome and Human Rights, endorsed by the UN General Assembly in 1998.63 The first Article of this Declaration characterizes the human genome as ‘the heritage of humanity’ albeit ‘in a symbolic sense.’ Central to the Declaration is the protection of human dignity and human rights.
58. See Articles 1, 2 and 4 of the Convention. 59. See Article 4 of the Convention, which imposes a duty on State Parties to ensure ‘the identification, protection, conservation, presentation and transmission to future generations’ of cultural and natural heritage situated in their territory. 60. See the Preamble and Article 4 of the Declaration on the Responsibilities of the Present Generation Towards Future Generations, 12 November 1997. 61. On the subject of the World Heritage Convention, see also the chapters by F. Francioni, P. M. Dupuy and C. Redgwell, in this volume. 62. Universal Declaration on the Human Genome and Human Rights, 11 November 1997; International Declaration on Human Genetic Data, 16 October 2003; Universal Declaration on Bioethics and Human Rights, 19 October 2005. 63. See UN Doc. A/RES/53/152 of 10 March 1999.
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Although referred to in several provisions, the Declaration does not define the concept of human dignity. It does, however, qualify the concept by noting in Article 3 that ‘dignity makes it imperative not to reduce individuals to their genetic characteristics and to respect their uniqueness and diversity.’ The Declaration also prohibits discrimination based on genetic characteristics ‘that is intended to infringe or has the effect of infringing human rights, fundamental freedoms and human dignity.’64 This is also reflected in the Preamble, which emphasizes that research on the human genome ‘should fully respect human dignity, freedom and human rights, as well as the prohibition of all forms of discrimination based on genetic characteristics.’ As a result, the Declaration sets out a clear ethical framework for research into the human genome.65 Some years later, it was followed by the International Declaration on Human Genetic Data, which provides a human rights framework for the collection, processing, use and storage of human genetic data. The guiding principle in this instrument is also protection of human dignity and human rights. Finally, the 2005 Universal Declaration on Bioethics and Human Rights aims to ‘state universal principles that will provide a foundation for humanity’s response to the ever-increasing dilemmas and controversies that science and technology present for humankind and for the environment.’66 It is a framework of principles and procedures in the field of bioethics intended to provide States with a guideline for their national legislation and policies. The principles set out in the Declaration relate, inter alia, to privacy; non-discrimination; the sharing of benefits obtained from scientific research in this field; the impact of life sciences on future generations; and protection of the environment, the biosphere and biodiversity. The adoption of this universal framework as a guideline for legislation in the field of life sciences is potentially of great importance to international law.
. Standard-setting Practice and Resolutions that Partially Caused the Politicization of UNESCO Despite differences of opinion on these sensitive issues, UNESCO has largely proceeded without great controversy in the areas described in the last section. However, some of the Organization’s standard-setting practice and resolutions have, in part, caused the unfortunate politicization of UNESCO. We refer here to a somewhat dark period in the existence of UNESCO, in the 1980s, during which it experienced problems that prompted several States to resign temporarily their membership in the Organization.
64. See Article 6 of the Declaration. 65. For more details, see N. Lenoir, 1999, Universal Declaration on the Human Genome and Human Rights: The First Legal and Ethical Framework at the Global Level, CHRLR 30, pp. 537-587. See also H. Gros Espiell, The Common Heritage of Mankind and the Human Genome, in K. Wellens (ed.), 1998, International Law, Theory and Practice: Essays in Honour of Eric Suy, The Hague, pp. 519-531. 66. See the Preamble to the Declaration.
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These problems related to UNESCO’s role in contributing to peace and the elimination of colonialism and radicalism; the safeguarding of Jerusalem and the Israeli-Palestinian conflict; and the world information order. In particular, UNESCO was accused of action not always based on solid facts, in which allegedly political motivations dominated. Also, as illustrated in debates on UNESCO’s role in contributing to the attainment of independence by colonial countries and peoples, it was accused of dealing with questions outside its competence.67 In this particular case, the accusation is debatable in light of Article IX of the UN-UNESCO Relationship Agreement, which clearly states that UNESCO will cooperate with the UN in giving effect to the principles and obligations set forth in Chapter XI of the UN Charter concerning non-self-governing territories. However, UNESCO had let itself be caught between the opposing political motives of its Member States. Perhaps UNESCO got too involved in current politics. Several issues were at stake, culminating in a politicized eighteenth session of the General Conference in 1974 that triggered a boycott by Western European countries and a temporary suspension of payment of contributions by the United States of America. The first issue related to the protection of the cultural property of Jerusalem under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Following the outbreak of the 1967 Arab-Israel war, Israel was accused of violating Article 4 of the Convention, as well as Article 32 of UNESCO’s Recommendation on Archaeological Excavations and several UNESCO resolutions, by continuing archaeological excavations and by altering the historical features of the city.68 This action resulted in a highly controversial Resolution, adopted at the eighteenth session of the General Conference in 1974 by sixty-four votes to twenty-seven, with twenty-six abstentions.69 The most debated section, Paragraph 3 of the Resolution, invited the Director-General to ‘withhold assistance from Israel in the fields of education, science and culture until such time as it scrupulously respects the aforementioned resolutions and decisions.’ This amounted to the de facto expulsion of Israel from UNESCO, without a legal basis in the UNESCO Constitution and allegedly without solid evidence as to
67. See S. Dutt, 1995, The Politicization of the United Nations Specialized Agencies: A Case Study of UNESCO, Lewiston/Lampeter, pp. 78-85. 68. Under Article 4 of the 1954 Hague Convention Parties ‘undertake to respect the cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property.’ Under Article 32 of the Recommendation on International Principles Applicable to Archaeological Excavations of 5 December 1956, Member States ‘should refrain from carrying out archaeological excavations in the occupied territory.’ 69. Resolution 3.427, Implementation of the resolutions of the General Conference and decisions of the Executive Board concerning the protection of cultural property in Jerusalem, in Records of the General Conference, 18th session, Paris, 1974, Vol 1., Resolutions, pp. 59-60. For voting records, see Proceedings of the General Conference, 18th session, thirty-ninth Plenary Meeting, Paris, 1974, pp. 378-379.
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Israeli breaches of the 1954 Hague Convention.70 The second issue concerned the participation of Israel in UNESCO’s regional activities. In 1964, the General Conference had adopted a resolution establishing five regions and designating a number of countries to these regions.71 Israel was one of the countries not yet assigned to a region. At the eighteenth session of the General Conference, a new draft resolution, ‘Definition of regions with a view to the execution of regional activities’, was under discussion.72 Israel proposed an amendment to the draft resolution, assigning Israel to the European region. This proposal was supported by most Western States, but opposed by all Arab States and the Soviet bloc countries. The amendment was finally rejected. However, two years later Israel was assigned to the European region. 73 The UNESCO campaign for a new world information order also raised some eyebrows. The question arose whether this world information order was sufficiently human rights-proof. Doubts concerned primarily UNESCO’s activities in the field of defining journalistic standards and a code of ethics, and in investigating freedom and responsibility in communication; and issues relating to the protection of journalists and the principles and procedures of the right of reply and rectification. According to Western countries, UNESCO’s proposed activities concerning the world information order were potentially harmful to the free flow of information.74 Underlying discussion of the New World Information and Communication Order was a report by the International Commission for the Study of Communication Problems chaired by Nobel Prize winner Sean MacBride, entitled Many Voices, One World.75 This report contained several proposals and recommendations for a more just and efficient world information and communication order. These included recommendations aimed at strengthening the independence and self-reliance of developing countries in communication policies and at reducing the commercialization of communication, e.g. through the promotion of non-commercial forms of mass communication; the integration of communication policies into
70. See Dutt, op. cit. in note 67, pp. 122-129. 71. Resolution 5.9, Definition of Regions with a view to the Execution of Regional Activities, in Records of the General Conference, 13th session, Paris, 1964, Resolutions, p. 85. 72. Adopted as Resolution 46.1, Definition of Regions with a view to the Execution of Regional Activities’, in Records of the General Conference, 18th session, Paris, 1974, Vol. 1, Resolutions, p. 183. 73. See Proceedings of the General Conference, 18th session, forty-second Plenary Meeting, Paris, 1974, pp. 426-427; and Resolution 37.1, Definition of Regions with a view to the Execution of Regional Activities, in Records of the General Conference, 19th session, Nairobi, 1976, Vol. 1, Resolutions, p. 115. For details on the discussion see Dutt, op. cit. in note 67, pp. 129-132. 74. For an account of the objections of developed countries to the world information order, see Dutt, op. cit. in note 67, pp. 197-211. 75. Report by the International Commission for the Study of Communication Problems, Many Voices, One World: Towards a new more just and more efficient world information and communication order, UNESCO, Paris, 1980. On the relation between the New International Economic order and a new world information and communication order, see B. Pavli and C. J. Hamelink, 1985, The New International Economic Order: Links between Economics and Communications, Paris, UNESCO.
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development strategies; the concepts of freedom and responsibility in journalism; and the democratization of communication. Subsequent UNESCO action caused the United States of America to withdraw from the Organization in 1984, as mentioned above, to return only in 2003. Following the withdrawal of the United States, the United Kingdom of Great Britain and Northern Ireland also withdrew in 1985, returning in 1997. In addition, Singapore also turned its back on UNESCO in 1985. This country has not yet reassumed its membership.
. The Functions and Legal Significance of UNESCO Standard-setting Activities In order to determine the legal significance of UNESCO’s standard-setting practice, a distinction should first be made between binding and non-binding instruments. Binding instruments include conventions, the legal value of which depend on their wording – not every convention is cast in mandatory terms – and the status of their ratification records. As described above, some UNESCO conventions are highly successful, and have made an important contribution to the development of international law. Examples are the 1954 Hague Cultural Property Convention and the 1972 World Heritage Convention. The status and contribution of others, including the 2005 Cultural Diversity Convention, are as yet unclear. Aside from conventions, UNESCO can adopt recommendations and declarations, which in principle are non-binding. That is not to say that they are without legal significance or effect. In this respect, four particular functions can be highlighted. First, UNESCO’s activities have a declaratory function, in that they can state the law as it exists at that particular juncture. Second, they can give further clarification and interpretation of binding legal instruments. This can be called their interpretative function. Third, they can have a pioneering role as catalysts, especially in new areas of international law. As such, UNESCO’s resolutions are often programmatic in nature. This fourth function operates through agenda setting and by laying out principles and rules on the basis of which action can be taken. In this way, non-binding UNESCO instruments can in some cases resemble the ‘droit programmatoire’, a phrase coined by René-Jean Dupuy in connection with the impact of UN resolutions on the emergence of international environmental law in the 1970s.76 In this sense, UNESCO’s declarations are of utmost importance for the development of international law. As far as UNESCO’s recommendations are concerned, they are generally intended to give Member States guidelines for national legislation and policies with regard to issues of concern to the Organization. UNESCO’s declarations, on the other hand, often incorporate one or several of these functions. For example, UNESCO’s Declaration on Race and Racial Prejudice of 27 November 1978 is both declaratory, in that it emphasizes obligations already formulated in the International Convention on the
76. See R. J. Dupuy, 1974, Droit éclaratoire et droit programmatoire de la coutume sauvage à la ‘soft law’, Société française pour le droit international, Toulouse.
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Elimination of all Forms of Racial Discrimination, and programmatic, in that it formulates new human rights, such as the right to be different.77 Also, the aforementioned declarations in the field of bioethics are both a catalyst and of a programmatic nature. They formulate principles in a new area of international law and simultaneously set the agenda for further action. Another example of this type is the Universal Declaration on Cultural Diversity, which sets out the basic principles for the subsequent Convention on this subject.78 The 1997 Declaration on the Responsibilities of the Present Generation Towards Future Generations is also declaratory and programmatic. The responsibilities of the present generation toward future generations in the field of international environmental law have been referred to in most modern environmental treaties. In this sense, the Declaration is of a declaratory nature. However, the Declaration extends these responsibilities to other fields of international law. As expressed in its Preamble, it intends ‘to formulate behavioural guidelines for the present generations.’ It is difficult to predict at this stage whether the programmatic provisions in this Declaration will really be of legal significance. Thus far, the principle of intergenerational equity has not yet found application beyond the field of international environmental law.
. Concluding Observations In conclusion, UNESCO has had ups and downs in its sixty years of existence. Fortunately, after its decline during a period of politicization, the Organization has managed to resurrect itself with notable vigour and vitality. Since its inception, it has adopted close to eighty legally relevant instruments and has addressed a wide field of subjects. It has been very active in terms of standard-setting, especially in the six areas described in Section 5. Also, UNESCO has been particularly instrumental in addressing new concerns and giving legal expression to possible approaches to be taken. Examples include its activities in the field of world heritage, bioethics and cultural diversity. Obviously, the status of UNESCO conventions differs, but most have entered the corpus of international law. Some of its non-binding instruments have remained in the realm of politics, while others have had legal significance, in the sense that they were declaratory or of an interpretive nature. On occasion they have had a pioneering effect; and in new areas they have been of a highly useful programmatic nature. UNESCO’s accomplishments in the development and application of international law can be explained by some features of its work method. UNESCO’s standard-setting activities are marked by an integrative and value-based approach. From an early stage and more genuinely and intensively than most other international institutions, UNESCO has sought input from and cooperation with non-governmental organizations active in its
77. International Convention on the Elimination of all Forms of Racial Discrimination, 21 December 1965, 660 UNTS 195. Compare, e.g., Article 7 of the Convention to Article 6 of the Declaration. See also Article 1 of the Declaration. For more details, see N. Lerner, 1981, New Concepts in the UNESCO Declaration on Race and Racial Prejudice, Human Rights Law Quarterly 3, pp. 48-61. 78. This is also typical of UNESCO’s multi-phased approach in elaborating standards.
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fields of concern. Lastly, the interaction between standard-setting at the international level and the monitoring of implementation at the national one through a kind of peer review by the General Conference has proven to be innovative and constructive for the application of international law.
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Developing New Intergovernmental Institutions through Simplified Agreements John Donaldson
. Introduction The adoption by UNESCO of international conventions concerning education, science, culture and communication is a well-known standard-setting activity of the Organization. A less well-known action is UNESCO’s occasional adoption of agreements, in a simplified form and through simplified procedures, by which it creates intergovernmental institutions with specialized activities in UNESCO’s fields of competence. The traditional procedure for creating an intergovernmental institution of course consists in the adoption of a constitutive act (for example, a charter or constitution) by States meeting in a diplomatic conference convened for that purpose, usually after a lengthy and complex series of negotiations. Given the time and complications involved in this traditional procedure, it is understandable that UNESCO, at various times over its sixty years of existence, has experimented with alternative, simplified procedures for creating intergovernmental institutions. The procedures that UNESCO has developed to this end can be divided into two categories: a) the first procedure involves the adoption by UNESCO’s General Conference (or by a body to which the Conference delegates authority, such as a regional conference convened by UNESCO) of a simplified constitutive instrument in the form of statutes that comprise a framework for the institution to be created. These statutes, after their adoption within UNESCO, are then transmitted for ratification to States eligible to become members of the institution. UNESCO is normally designated as the depositary of these
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statutes. This procedure will be referred to below as the ‘multilateral simplified procedure’. b) The second procedure involves the conclusion of a bilateral agreement between UNESCO and the State that is to host the institution to be created. The agreement in this case contains both the constitutive act for the intergovernmental institution (statutes) and the elements of the headquarters (seat) agreement. This procedure will be referred to below as the ‘bilateral simplified procedure’.
. The Multilateral Simplified Procedure This procedure consists of using UNESCO’s governing bodies as a convenient forum for the negotiation and adoption of statutes or other simplified agreements that are to be used for creating the intergovernmental institution. Two intergovernmental institutions that have been created by UNESCO by way of this procedure are the following: a) the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), whose statutes were adopted by the General Conference at its ninth session in 1956;1 b) the International Centre for Synchrotron Light for Experimental Science and Applications in the Middle East (SESAME), whose statutes were approved by UNESCO’s Executive Board at its hundred and sixty-fourth session in 2002.2 UNESCO has no prescribed rules for the aforementioned process, but it can be seen from the records that the procedure has generally consisted of the following steps: a) a proposal for the creation of an intergovernmental organization is made by one or more interested States or by the Director-General; b) a study on the subject is carried out by the UNESCO Secretariat; c) if the outcome of the study is positive, draft statutes are presented for adoption to the General Conference (accompanied by the eventual comments of the Executive Board); and d) if the General Conference agrees to the proposal, it either adopts the statutes or delegates the authority for their adoption to another appropriate body, such as a regional conference of States convened by UNESCO’s General Conference or by its Executive Board.
1. See General Conference Res. 9C/4.5.3, Appendix III. 2. See Executive Board Decision 164 Ex/3.3.3.
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For example, in the case of the creation of the intergovernmental organization known as the International Centre for Synchrotron Light for Experimental Science and Applications in the Middle East (SESAME), a preliminary study3 was prepared by UNESCO’s Science Sector and was presented to UNESCO’s General Conference at its thirty-first session in November 2001. Having considered the study, the General Conference adopted a resolution in which it delegated ‘to the Executive Board the authority for further examining and approving the creation of such a centre in Jordan, including approval of any necessary agreements, in the light of the full feasibility study to be submitted to it by the Director-General.’4 The following year, after consideration of the full feasibility study, the UNESCO Executive Board approved the SESAME Statutes at its hundred and sixty-fourth session (2002).5 When the multilateral simplified procedure was used for the creation of the intergovernmental organization known as the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) in the 1950s, the UNESCO Deputy Legal Adviser, Mr Claude Lussier, commented on this simplified procedure to the Legal Adviser of the ILO, Mr Francis Wolf, in a letter dated 22 May 1959. He explained that the procedure followed for the establishment of ICCROM was one of the legal tools used by UNESCO to create bodies that ‘complement and complete’ the activities of the Organization, and that the tool used for the creation of ICCROM was à mi-chemin (mid-way) between the adoption of a multilateral intergovernmental agreement negotiated at a conference convened by UNESCO and a national act creating national institutions that operate under the legal system of a Member State.
. The Bilateral Simplified Procedure The bilateral simplified procedure is the more unusual and innovative of the two procedures; and the agreements concluded in this manner give rise to some rather interesting legal considerations. The bilateral procedure involves the conclusion of an agreement between UNESCO and the Member State on whose territory the new intergovernmental institution is to be located. To date, UNESCO has created two institutions through this bilateral procedure. They are: a) the Center for the International Serial Data System (ISDS), now known as the International Centre for the Registration of Serial Publications, located in Paris, created through a bilateral agreement between UNESCO and France concluded on 14 November 1974; and
3. See Doc. 31 C/57. 4. See General Conference Res. 31C/19. 5. See Executive Board Decision 164 Ex/3.3.
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b) the Sahara and Sahel Observatory (OSS), located in Tunis, created through a bilateral agreement between UNESCO and Tunisia concluded on 18 June 1999. The two agreements are quite similar, because the ISDS Centre was used as a precedent and model for the creation of the OSS. The main elements in both agreements are: a) the commitment of the Parties to create the intergovernmental institution; b) the recognition of the juridical personality of the institution; c) the granting to it, by the host State, of various privileges and immunities; d) various customary final clauses concerning dispute settlement, entry into force, etc.; e) an annex to the agreement, which constitutes an integral part thereof, containing the text of the statutes for the institution. Apparently one of the intended advantages of this particular procedure was to enable eligible States to become members of the intergovernmental institution through a less formal and/or cumbersome form of ‘acceptance’ than the traditional treaty-ratification process. In other words, the intention was that the acceptance notification would not need to be signed by one of the signatories traditionally required under international law. This aspect of the procedure will be explained in greater detail below. It is also interesting to note that for both of these institutions the simplified bilateral procedure appears to have been used by the UNESCO Secretariat without submission of the matter to UNESCO’s governing bodies for prior approval. It seems that the creation of these two institutions was considered by the Secretariat to be justified and tacitly authorized by existing General Conference resolutions concerning the relevant programme activities.
3.1. Peculiarities of the Bilateral Agreements The bilateral agreements creating the ISDS Centre and the OSS contain two unusual elements. The first oddity concerns the headquarters (seat) agreement. The normal procedure concerning headquarters agreements of intergovernmental organizations is that such agreements are negotiated and signed by the intergovernmental organization (after it has come into existence) and the host State. However, in the case of the ISDS Centre and the OSS, the simplified bilateral procedure resulted in a situation in which UNESCO and the host State agreed between themselves on all headquarters matters for the future institutions, including those of privileges and immunities, before the statutes annexed to the agreements entered into force. This produced an odd situation in theoretical legal terms, because neither the ISDS Centre nor the OSS, after they came into existence, had the possibility of direct recourse against their host State in case the latter were to breach their obligations concerning promised privileges and immunities or other commitments.
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This is the case because the institution is not a party to the agreement in which the host State made such commitments. If the host State were to not respect its commitments concerning, say, headquarters matters or privileges and immunities, the two institutions could only request UNESCO to take action against the host State, since the commitments of the host State had been made in an agreement with UNESCO. An attempt was made to avoid such a situation in the case of the OSS, because Article 1.2 of the statutes stipulates that ‘[t]he modalities of [the OSS] establishment and functioning shall be defined in a Headquarters Agreement with the host country.’ This agreement has apparently not yet been concluded; and it is difficult to envisage what would motivate the host State to enter into such a new agreement seeing that the OSS is already established and functioning on its territory. The second oddity in these agreements is that the statutes of both the ISDS and the OSS stipulate that if UNESCO or the host State withdraws from the institution, it shall go into liquidation unless it can be transferred to another State. This creates an unusual situation, whereby either UNESCO, by itself, or the host State, by itself, can force the liquidation of the ISDS Centre or of the OSS by simply withdrawing from them, even if other Members are opposed to such action. This is unlikely to happen, of course, but it is interesting to note that the drafters of the agreements decided in advance that UNESCO and the host States should have such an option.
3.2. Details concerning the ISDS The ISDS agreement entered into force on 21 January 1976, after France had completed its relevant internal procedures. As a result of this entry into force, the ISDS came into legal existence as an intergovernmental entity on that date. However, the de facto functioning of the ISDS had to be postponed until a number of States became members of the Centre by notifying their acceptance of the statutes. The statutes do not, in fact, indicate any required minimum number of Members for the ISDS to function legally, but it is clear that the functioning of the Centre was dependent on having a sufficient number of States to contribute to its budget. Obviously, it would have made no sense to have only France and UNESCO as members of the Governing Board, even though the wording of the statutes, in purely theoretical terms, would have permitted it. In any event, the membership of the ISDS grew relatively quickly in the years immediately after entry into force of the Statutes, in part because the UNESCO Secretariat, acting as depositary, did not insist that acceptance notifications bear the signatures that would normally have been required under international law. It is interesting to note in this regard that in 1976 the legal adviser of UNESCO, Claude Lussier, was asked to provide a legal opinion on the required procedure for a State to become a member of the ISDS. He explained in a memo dated 24 September 1976 that the intention of UNESCO had always been to avoid ‘having recourse to a multilateral agreement for setting up the centre.’ He further explained that, at the time of the drafting of the ISDS Statutes, UNESCO had suggested to the French authorities that instead of requiring an instrument of accession it was preferable to require interested States to simply submit a ‘notification’ of their ‘desire to participate in the activities’ of the Centre.
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According to Mr Lussier, it was the French authorities that proposed that the statutes require States to deposit a notification of ‘accession’. The language finally used in Article 2 of the statutes stipulated that States had to deposit a ‘notification’ ‘in which [the States] announce their accession to the Statutes.’ The UNESCO Secretariat nevertheless stayed flexible regarding the form of the notification, and for many years accepted instruments signed by permanent delegates and by various ministers other than foreign ministers. This lasted until approximately 1995, when the UNESCO legal adviser of the time began advising that only documents bearing the signatures required by international law should be accepted. Finally, as concerns the ISDS, it is interesting to note that its statutes foresee in Article 4 that they can only be amended ‘by majority vote including the votes of the representative of the host State and the representative of the Director-General of the Organization [i.e. UNESCO].’ In other words, both UNESCO and France have de facto veto power over any proposed amendments of the Statutes of the ISDS.
3.3. Details concerning the Sahara and Sahel Observatory (OSS) The OSS was initially created as an NGO in France, in 1992. However, it soon became apparent to its founders that the NGO structure was not an appropriate one for the intended intergovernmental programmes of the organization. Consequently, UNESCO was approached for advice. It proposed the idea of creating an intergovernmental organization following the precedent of the ISDS. As a result, after a few years of discussions and negotiations, on 18 June 1999, Tunisia concluded an agreement with UNESCO for the creation of the OSS and its hosting in Tunis. In order to avoid the odd situation that had occurred when the ISDS came into existence without any State having acceded to its Statutes, the drafters of the OSS agreement included, in the Agreement, certain specific prerequisites for its entry into force. The Agreement stipulated in Article 15 that it (and consequently the OSS Statutes appended to it) would enter into force only when all three of the following had occurred: a) UNESCO and Tunisia had informed each other that their necessary internal approval procedures had been completed; b) the Executive Secretary of the OSS (in its NGO form) had informed UNESCO and Tunisia that the Extraordinary General Assembly of the OSS (as an NGO) had approved the Statutes of the future OSS (as an IGO); and c) the Executive Secretary had notified UNESCO and Tunisia that he had received written notification of accession to the statutes from at least two African and two European States. This somewhat complex procedure had been devised to ensure that no essential element was missing when the OSS came into existence. Through careful orchestration this procedure worked, and the OSS as an IGO came into existence in March 2000. The
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OSS NGO entity in France was dissolved shortly thereafter; and all interested staff Members were transferred to Tunis. Another interesting particularity of the OSS agreement is that the organization serves as depositary for its own statutes. Perhaps following the tradition of the ISDS or with other motivations, the OSS Secretariat has been very flexible in accepting instruments of accession bearing various signatures other than those that would normally be required by international law. In addition, Article 2.5 of the statutes indicates that States may become a member of the OSS simply by making a certain financial contribution to the OSS. These flexible procedures for becoming a member were apparently an aspect of the ISDS model that appealed to interested States; and the OSS grew in membership quite quickly after its statutes entered into force.
. Conclusion The question has arisen occasionally as to whether these simplified procedures for creating intergovernmental institutions give rise to problems or risks. As far as UNESCO is concerned, the consensus of its Member States appears to be that these accelerated and simplified procedures have had a number of advantages and no significant disadvantages. Nor do there seem to have been any problems or disadvantages for the institutions created by this process. ICCROM, for example, has steadily grown in membership since its creation; and its status and accomplishments as a successful intergovernmental entity are well established. The ISDS has also been functioning well for several decades. SESAME is still a relatively recent case;, as such, it is as yet difficult to say whether its creation gave rise to institutional or structural problems. In the period immediately after the adoption of the statutes there was apparently some confusion on the part of certain State ministries concerning the ratification procedure. As a result, they sent to the depositary (i.e. to UNESCO) notifications of acceptance that were not signed by the appropriate authorities. Consequently, it was necessary for UNESCO to inform the ministries concerned that their government’s instrument of acceptance of the statutes could only be accepted if it bore one of the signatures required under international law (i.e. that of the head of State or Government, of the Minister of Foreign Affairs or of someone duly empowered by one of the three). The confusion eventually dissipated, however, as UNESCO explained the pertinent requirements to the various States concerned. In due course the requisite number of acceptances for entry into force was received, and the statutes of SESAME entered into force on 15 April 2004. It should also be noted that both ICCROM and SESAME have negotiated headquarters agreements with their host countries (Italy and Jordan, respectively) and that this has naturally confirmed their status and legitimacy as intergovernmental organizations.
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Given that UNESCO’s fields of competence are among the broadest and most varied of any intergovernmental organization, it is not surprising that UNESCO’s governing bodies and Secretariat have made use of such simplified approaches to provide the international community with additional intergovernmental bodies that can ‘complement and complete’ its wide-ranging work.
PART V
CONCLUSIONS
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General Conclusions Georges Abi-Saab
. Introduction What conclusions can one draw from the wealth of arguments and reflections included in this volume, celebrating the sixtieth anniversary of UNESCO by examining its standardsetting achievements in education, science and culture? To try and synthesize all that is said, to constrain it into a string of linear conclusions would be an impossible task. It would also do the contributions a grave injustice of simplification, given the great diversity of perspectives and opinions. I would rather like first to recall, against this rich background, the questions we were invited to address in the Programme of the Colloquium from which this volume originated. After stating that ‘UNESCO has adopted over the last sixty years thirty-five conventions, thirty-one recommendations and thirteen declarations in the fields of education, science and culture’, the Programme asks: What has become of all these instruments? Have they contributed to the realization of the principles and objectives of UNESCO? What has been their impact on the national laws and policies of Member States? Have they become part of international law? In his opening speech, the Director-General goes further in specifying these questions: how can we gauge both the process of standard-setting and the outcome of this process in terms of legal instruments (conventions, recommendations and declarations), as well as their social impact? In other words, to what extent have these instruments contributed to the realization of the objectives of UNESCO, as expressed in its Constitution, by encouraging and fostering cooperation among nations in the fields of education, science and culture, and by promoting better understanding among peoples, cultures and civilisations, as well as by ‘affecting the lives and livelihood of ordinary people’ in rendering
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more concrete and palpable the human rights to education, culture and information, presumably through the impact of these instruments on national laws and policies? In order to formulate an answer to these queries, Professor Pierre Michel Eisemann proposes, in his Introduction of the first Panel, a grid of analysis: starting with the internal production of UNESCO’s normative action, it examines the mechanisms and processes of this production and the normative content thereby generated, before situating it within the general framework of international law. This is an excellent grid, encompassing the reflections included in this volume. But it leaves out the last stage of the social impact of UNESCO’s normative action. I would like to reformulate it slightly by saying that the queries we were requested to address invite us to evaluate the standard-setting activities of UNESCO from the inside, as well as from the outside: the inside being the elaboration and application of the instruments and their normative content, while the outside consists of their place in international law and their impact on society. Most of what we may read in this volume concentrates on the ‘interior’ part of this exercise. Thus, in the first Panel we have an insightful and critical look at the elaboration of standard-setting instruments, at their monitoring mechanisms, follow-up and coordination, and at their dispute settlement procedures. The following panels provide a critical examination of the content of these instruments and of the value they add to normative articulation, elaboration and extension in the different fields corresponding to the objectives of UNESCO. Finally, the last Panel turns to the ‘outside’ by endeavouring to assess the impact of these instruments, including resolutions and declarations, on international law in general and customary law in particular. I do not intend to retrace what is said, and well said, in the previous chapters, which should be read in full in order to savour all the richness of their texture. I propose to use the rest of the space allotted to me to proceed a little further into the ‘outside’, by looking at the phenomenon of UNESCO standard-setting from or through two other perspectives or paradigms: first, by situating it in the evolution of international law in general, from the ‘international law of coexistence’ toward the ‘international law of cooperation’, to shed new light on some of the specificities and shortcomings of UNESCO standard-setting pointed out in our debates; secondly, by assessing it as part of the interaction between law and society, between social needs and values, on the one hand, and legal norms on the other.
. From ‘International Law of Coexistence’ to ‘International Law of Cooperation’ I start with the distinction between the ‘international law of coexistence’ and the ‘international law of cooperation’ coined by Professor Wolfgang Friedman. In a way, the law of coexistence is traditional international law; a law that emerged with what is called the ‘Westphalian system’. It came about as a result of the collapse of an international community, that of the ‘world state of medieval Christiandom’, as the great legal historian Vinogradoff called it. It collapsed because of the schism that ensued from the
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Reformation, leading to wars of religion in Europe. Entities were ideologically set one against the other. But as none of them was strong enough to eliminate the others, they decided, after long wars, to find a way to coexist despite their divisions. That was the law of coexistence, based on sovereign equality: every sovereign has the last word in his realm, within the ambit of his functional and territorial jurisdiction; but he has to recognize the same right to other sovereigns. If they do not look at the inside of his realm and he does not look at the inside of theirs, all have to assume that each is an opaque billiard ball, to be treated as equivalent from the outside. This was a legal system created to regulate relations between potentially antagonistic units. The only way to render it sustainable was to make abstract any internal differences, whether material or ideological, and not to assume any community of interests or values, except in having certain rules of the game: most fundamentally, that of non-intervention in the realm of others. This is comparable to players agreeing on rules that allow each player to win at the expense of the others, a perfect zero sum game. On the other hand, the idea of international cooperation – and the law of cooperation that goes with it – emerged in the second half of the nineteenth century and started to take hold at the turn of that century with the World Federalist movement, the movement for the creation of an international court and the Hague Peace Conferences, and so forth. But its concretization came in a big way after the Second World War, with the Charter of the UN. Unlike the law of coexistence, the law of cooperation is based on an assumption of common interests and values that cannot be protected or served except by collaborative endeavour. Its logic is that of a non-zero sum game. The UN Charter consecrates a supreme common value, that of peace, protected by a system of collective security. But sustainable peace cannot be secured unless it rests on a solid foundation of shared ideas about underlying economic, social, cultural and human rights conditions. These conditions are perceived as common interests and values, i.e. as collective goods that need to be elaborated, nurtured and cultivated, and for the protection and furtherance of which all UN Members are called upon to cooperate according to the third objective of the Charter (Article 1(3)), particularly in the framework of ‘specialized agencies’, among which UNESCO figures prominently. Looking at what UNESCO was supposed to do from this angle, it can be described as helping to articulate, consolidate and promote shared ideas about collective goods that are the common interests and values on which States and peoples at large can agree and for the protection and enhancement of which they have to work together. This clearly situates the standard-setting activities of UNESCO in the perspective of the international law of cooperation and explains much of the nature and characteristics of the instruments and norms we have been examining. One of the major differences between the law of coexistence and the law of cooperation is that the former basically prescribes a passive obligation of non-interference in the territorial and functional spheres of other sovereigns, as mentioned earlier. By contrast, the international law of cooperation prescribes a positive obligation to act or rather to act together in a collaborative endeavour. The abstention of the mouse and the elephant is of the same nature, but their action is quite different, because it is a function of their capacities. This is why in the law of cooperation we find a lot of obligations of ‘best efforts’ or obligations de moyen and not de résultat: in a common endeavour there is a division of
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labour according to the capacity of each participant; and the result of the common enterprise cannot be fully guaranteed beforehand. This explains what we may read in Professor Kono’s chapter about the Convention for the Safeguarding of the Intangible Cultural Heritage of 2003, which contains a lot of ‘should’ and so forth. In many instances it is impossible to go beyond that, at least at a certain stage. For the same reason, ‘soft law’ is very prominent in the international law of cooperation. But first we have to distinguish two types of softness. We usually speak of soft law when speaking of instruments as legally binding (treaties) or not binding (resolutions, declarations). But many hard instruments have a soft normative content; and, in reverse, the evolution of the normative content can outgrow the instrument that serves as its vehicle, so that a soft instrument may express a hard law norm. Thus, softness can characterize either the instrument itself or its content. I think this is what Professor Redgwell means when she speaks of ‘soft-soft law’, namely, soft content in a soft instrument. Soft law can play many useful roles, as Nico Schrijver eloquently demonstrates in examining UNESCO’s resolutions. It can be particularly useful if what is sought is the realization of a common goal or collective good that cannot be reached in one go. A respectable treaty has to define very clearly the elements of the obligations it prescribes: who owes what to whom. Sometimes one or the other of these elements is not yet clear or does not yet marshal the requisite consensus. In such a situation, starting with something not completely defined or not very constraining – in other words, using the soft law vehicle – can take us one step further, even if it doesn’t get us completely there. Another characteristic of the law of cooperation relates to the modalities of implementing obligations. When what is prescribed is positive action – as is generally the case in the law of cooperation – what is needed to ensure performance is continuous monitoring and surveillance contemporaneous with the required action, not traditional verification after the fact. This is the concept of contrôle in French, or scrutiny or followup in English. Obviously, as Laurence Boisson de Chazournes demonstrates, the existence of standing organs is essential to discharge this function. However, as is pointed out in this volume, several of these are ‘dormant organs’ in UNESCO. For example, Professor von Schorlemer notes that the mechanisms of dispute settlement are hardly used, although they may have a deterrence effect. To me, the real explanation for this phenomenon is that ex post judicial control is not what is best suited to this type of regulation, which calls more for continuous monitoring, direction and prodding to accompany the required action all along its course. This brings me to another characteristic of the law of cooperation, relating to the quality of compliance. There are no qualitative differences or degrees in abstention. But when what is prescribed, is positive action, such action can be graded. This is why continuous and contemporaneous monitoring is very important to keep performance at an acceptable level or to prod it higher. In other words, it increases the probability and enhances the quality of compliance. In these different ways, through its standard-setting activities, UNESCO has served as an experimental laboratory for new techniques in the international law of cooperation, perhaps even without realizing that it was handling a new type of legal regulation,
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different from the traditional law of coexistence. In so doing, it has contributed to the evolution of contemporary international law from the latter to the former.
. The Interaction of Law and Society I now turn briefly to the second paradigm or prism through which I would like to look at UNESCO standard-setting ‘from the outside’, namely its social impact or rather the interaction of law, particularly legal norms, and society, especially felt social needs and values. Law is a science of means; it is not an end in itself. It is rather a means of ordering and maintaining order in society. But the content and shape of this order, the Weltanschauung from which it proceeds, are given by society, like the aspirations and values that constitute the telos or finality of the legal system, its guiding star or magnetic pole. But law can also help, by way of feedback, to articulate and crystallize common understandings (or visions), values and aspirations, and to heighten awareness of and commitment to them in society. These are general propositions. They also apply to the ‘new international legal order’ established by the UN Charter at the end of the Second World War, mentioned by Pierre-Marie Dupuy. To what extent have UNESCO standard-setting activities contributed to the elaboration and promotion of a common understanding among peoples, cultures and civilisations of collective interests and values in the post-war international community? And how far have they propelled States to collaborate for their realisation? The Director-General perceptively remarks in this respect that ‘it is not only a matter of codifying legal norms, but also a general process of maturing of ideas.’1 Indeed, if we go back to the instruments to assess their social impact, we find that treaties, recommendations and declarations (as well as the discussions leading up to them), regardless of their being soft or less soft in legal status or content, have by and large had a profound social effect. Through an incremental and cumulative process spanning three or four decades, they have helped transform what were initially perceived as remote and abstract propositions about the common interests and values (i.e. the public goods) of a hardly discernible international community into palpable concepts familiar to large sectors of international public opinion. Moreover, thanks largely to standard-setting activities, these concepts have been evolving both horizontally, by extending their coverage and enriching their content, and vertically, by deepening their roots in the social psyche through heightened awareness of their importance, and the necessity to work together for their protection and promotion. This explains why, for example, a very rich and developed country like Switzerland (where I live) is striving so hard to have one of its nicest wine-growing regions, Le Lavaux, declared part of the World Natural Heritage by UNESCO. For the Swiss, the
1. See the introductory chapter of this volume.
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importance of this recognition – one is almost tempted to say ‘dedication’ – needs no demonstration. We have a parallel here with human rights, which emerged in the late forties with the Universal Declaration of Human Rights amid great debate regarding whether it was a mere recommendation or something more (an authentic interpretation of the Charter and hence mandatory). Today, regardless of instruments, human rights are one of the most widely used legal arguments (particularly with a view to curbing government action) before national tribunals, not only in Western countries but all over the world. In the same manner, we can read in Professor Francioni’s contribution to the fourth Panel how the almost private law concept of ‘cultural property’ in the Hague Convention of 1954 has given way to ‘cultural heritage’ in the World Heritage Convention of 1972, which extended protection to ‘natural heritage’ as well. This evolution also embraced our understanding of the legal nature of the objects protected by these instruments, as ‘public goods’ pertaining to the world heritage and not only to that of their country of origin; this development, in turn, is linked to the concept of the ‘common heritage of mankind’ that originated from the law of the sea. Professor Kono describes how the concept was again extended through the conventions of 20032 and 20053 to ‘intangible cultural heritage’, i.e. traditional culture and folklore, and other non-written or recorded ‘cultural expressions.’ Professor Redgwell, for her part, explains the inter-temporal and intergenerational dimensions of the concept of (natural) heritage. This transmutation of the legal characterisation of cultural objects and expressions, as well as of ‘cultural landscapes’ and unique natural sites into ‘world heritage’, widely perceived as part of the ‘common heritage of mankind’, is largely due to the continuous process of standard-setting by UNESCO. The maturation of ideas and their crystallisation into clear concepts from which one can draw clear consequences is of the utmost importance. Professor Pierre-Marie Dupuy raises the question of whether the concepts of ‘world heritage’ or ‘common heritage of mankind’ have become part of general international law. If they have, then they obviously create erga omnes obligations beyond the instruments that launched them, a conclusion drawn by Professor Francioni as well. The same trajectory can be depicted in relation to the concept of human dignity – much discussed in this volume – which is undergoing the same process of refinement and crystallisation in different contexts. This process of maturation of ideas is what counts most in evaluating what has been taking place, rather than how many cases went to courts, the litmus test mentioned by Professor Redgwell when speaking of endangered zones. That may be the next step. Once the concept is well entrenched, better protection becomes much easier to beget. This is why I think that the continued normative or standard-setting activities of UNESCO work as a hot-house for maturing ideas – though they may not produce
2. See Convention for the Safeguarding of the Intangible Cultural Heritage, 2003, available at: http:// www.unesco.org 3. See Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005, available at: http://www.unesco.org
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immediate, concrete results in terms of hard and fast obligations – and bring such activities closer to the objective the Constitution of UNESCO has assigned to them. Dr Yusuf asks whether more emphasis should be placed on normative or on operational activities, and answers that the Constitution mandates the former. But I do not think we can radically separate the two. This is because normative activities, even if they do not always produce immediate results (in terms of binding obligations), contribute to the realisation of the constitutional objectives of UNESCO as, I would say, ‘operational activities’, by heightening awareness and deepening the sense of imperativeness of the collective interests and values of the international community. In the final analysis, if there is a litmus test for law, it is how well this law is entrenched in society and how closely it corresponds to the generally shared views of that society of the common interests and values the law is supposed to protect and promote. In sum, I join Dr Yusuf in his conclusion: all in all, what has been achieved up to now in terms of standard-setting has fulfilled to a significant degree what was expected of it. But of course, standard-setting is a continuous, not to say an unending, process.
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List of Contributors
Georges Abi-Saab. Emeritus Professor of International law, Graduate Institute of International Studies, Geneva, Switzerland; Honorary Professor, Faculty of Law, Cairo University, Egypt; Member of the Appellate Body, World Trade Organization. Wolfgang Benedek. Professor of International Law, University of Graz, Austria; Director of the European Training and Research Centre for Human Rights and Democracy (ETC) in Graz, Austria. Laurence Boisson de Chazournes. Professor and Director of the Department of Public International Law and International Organization, Faculty of Law, University of Geneva, Switzerland; Visiting Professor at the Graduate Institute of International Studies (HEI). John Donaldson. Senior Legal Officer, Office of International Standards and Legal Affairs, UNESCO. Pierre-Marie Dupuy. Professor of Law, University of Paris II (Panthéon-Assas), France and European University Institute, Florence, Italy. Pierre Michel Eisemann. Professor of Law, University Paris I Panthéon-Sorbonne, France; Director of the Doctoral School of International and European Law. Souheil El Zein. Senior Legal Officer, Office of International Standards and Legal Affairs, UNESCO. Julio Faundez. Professor of Law, University of Warwick, United Kingdom. Alfred Fernandez. Director-General, International Organization for the Right to Education and Freedom of Education (OIDEL); President ‘Collège Universitaire Henri Dunant’, Geneva, Switzerland. Francesco Francioni. Professor of Law at the European University Institute, Florence, and the University of Siena, Italy; Delegate of Italy at numerous UNESCO diplomatic conferences; Chairman of the World Heritage Committee in 1997–1998.
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Héctor Gros Espiell. Professor Emeritus of the Universidad de la República, Uruguay; Permanent Delegate of Uruguay to UNESCO; Ambassador of Uruguay to France; Member of the Institute of International Law; Former Foreign Minister of Uruguay; Former President of the Inter-American Court of Human Rights; Former member of the International Bioethics Committee of UNESCO; Former representative of Uruguay to the Office of the United Nations of the High Commissioner for Human Rights. Toshiyuki Kono. Professor of Law, Kyushu University, Japan. Federico Lenzerini. Researcher of International Law, University of Siena, Italy; Consultant to UNESCO; Member of the Italian Delegation at various UNESCO diplomatic conferences. Ruth L. Okediji. William L. Prosser Professor of Law and Solly Robins Distinguished Research Fellow, University of Minnesota Law School, Minnesota, United States of America. Catherine Redgwell. Professor of International Law, University College London, United Kingdom. Jerome H. Reichman. Bunyan S. Womble Professor of Law, Duke University School of Law, North Carolina, United States of America. Heather J. Ritch. BA, LLB, BCL (McGill), BCL (Oxon), SJD Candidate, Duke University, North Carolina, United States of America. Sabine von Schorlemer. Chair of Public International Law, European Union Law and International Relations, University of Dresden, Germany; Member of the ‘Advisory Board on UN Policy’ of the German Foreign Ministry. Nico Schrijver. Professor of Public International Law and Academic Director of the Grotius Centre for International Legal Studies, Leiden University, The Netherlands. Pemmaraju Sreenivasa Rao. Member of the International Law Commission 1987–2006; Member of the Institut de Droit International; Former Additional Secretary and Legal Adviser, Ministry of External Affairs, Government of India. Paul F. Uhlir. Director, International, Scientific and Technical Information Programs, The National Academies, Washington, D.C., United States of America. Maarten Vidal. Researcher, Institute for International Law, Catholic University of Leuven, Belgium. Jan Wouters. Professor of International Law and the Law of International Organizations, and Director of the Institute for International Law, Catholic University of Leuven, Belgium. Abdulqawi A. Yusuf. Director, Office of International Standards and Legal Affairs, UNESCO; Member of the Institut de Droit International, Geneva, Switzerland; Founder and General Editor, African Yearbook of International Law.
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List of Abbreviations
AFDI Annuaire Français de Droit International AJPIL Austrian Journal of Public and International Law AULR American University Law Review BYIL British Year Book of International Law Cardozo Arts & Ent. L.J. Cardozo Arts and Entertainment Law Journal CETS Council of Europe Treaty Series CHRLR Columbia Human Rights Law Review CILJSA Comparative and International Law Journal of Southern Africa Denver J. of Int’l L. & Pol’y Denver Journal of International Law and Policy DePaul L. Rev. DePaul Law Review DLR Dominion Law Reports EJIL European Journal of International Law ELJ Earth Law Journal Emory L. J. Emory Law Journal GIELR Georgetown International Environmental Law Review GYIL German Yearbook of International Law HILJ Harvard International Law Journal HRLR Human Rights Law Review HR Human Rights Quarterly
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ICJ Reports International Court of Justice, Reports of Judgments, Advisory Opinions and Orders IICI International Institute of Intellectual Cooperation IJCP International Journal of Cultural Property ICL International and Comparative Law Quarterly I.L.M. International Legal Materials Int’l Org International Organization IRRC International Review of the Red Cross IYIL The Italian Yearbook of International Law JIBL Journal of International Business and Law J. Copyr. Soc’y Journal of the Copyright Society of the United States JDI Journal du Droit International JIEL Journal of International Economic Law J. Intel. Prop. L. Journal of Intellectual Property Law JWI Journal of World Investment Kan. J. L. & Pub. Pol’y Kansas Journal of Law and Public Policy Law & Contemp. Probs. Law and Contemporary Problems Max Planck YUNL Max Planck Yearbook of United Nations Law MJIL Michigan Journal of International Law Museum Int’l Museum International N.C. J. Int’l L. & Com. Reg. Commercial Regulation
North Carolina Journal of International Law and
NILR Netherlands International Law Review NYIL Netherlands Yearbook of International Law NYU J. Int’l L. & Pol New York University Journal of International Law and Policy Northwestern U.L. Rev. Northwestern University Law Review O.J. Official Journal of the European Communities PYIL Polish Yearbook of International Law RdO Revista de Occidente Recueil des Cours Recueil des Cours de l’Académie de Droit International de La Haye RECIEL Review of European Community and International Environmental Law
List of Abbreviations
REDI Revista Española de Derecho Internacional RGDIP Revue Générale de Droit International Public RIDA Revue Internationale du Droit d’Auteur RIDE Revue Internationale de Droit Economique RUDP Revista Uruguaya de Derecho Procesal SCC Supreme Court Cases (India) Tulane JICL Tulane Journal of International and Comparative Law UNTS United Nations Treaty Series U.S.T. United States Treaties and Other International Agreements Va. J. of Int’l. L. Virginia Journal of International Law Vand. J. of Transnation’l L. Vanderbilt Journal of Transnational Law
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Index
Notes: contributors to the document are indexed only when mentioned otherwise than in reference to their own contribution. Other individuals mentioned in the text are referenced (except where mentioned only in a list of exemplars), but not those mentioned only in footnotes. Footnotes are referenced as e.g. 17n1 for note 1 on page 17. Countries discussed are referenced, but not those in reference lists. UNESCO and UN conventions, declarations and recommendations are referenced under their names, and not under UNESCO or United Nations; ILO conventions are referenced under ILO. UN commissions and conferences are referenced under United Nations. The words ‘and’, ‘concerning’, ‘for’, ‘of’, ‘on’ and ‘to’ are disregarded in alphabeticizing the names of conventions, declarations and recommendations.
104 EX/Decision 3.3
61, 61n33, 99
A A2K 125 Aarhus Convention see Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters Abi-Saab, G. 17–18, 26 affi rmative action 314 Afghanistan 233–4, 360, 361, 376 Africa cultural charter 154 handicrafts in 256n81 languages 256n81, 264 traditions 264
African Charter of Human and People’s Rights (1981) 253n71 African Convention (1968) 282 African Union 161 Agenda 21 280n62 agenda for General Conference 35, 38–40, 42 agenda setting 382 Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific and Cultural Character (1948) 11, 18n7, 79, 82n23, 85n34, 124, 124n32, 151n22, 209n4 Agreement on the Importation of Educational, Scientific, and Cultural Materials (Florence Agreement) (1950) 18n7, 75, 79, 85n34, 133, 134, 151n22, 209n5, 376 Nairobi Protocol (1976) 79, 133, 134, 376
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Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 68, 59n59, 113–14, 113n2, 113n3, 114n4, 117–19, 122–3, 343 membership 127–32 agreements, UNESCO adoption of 385–92 agriculture 340, 356 ambiguity, constructive 26 Ami people 262–3, 263n91 Ammoun, Charles 296 Anand, Sudhir 269 ancient monuments, protection of 16 see also cultural heritage, cultural property, World Heritage List Antarctic Treaty (1959) 359 apartheid see racial segregation arbitration procedures 77–8, 81–3, 82n23, 83–4, 89 see also disputes, settlement of archaeology, conduct of 11, 227, 380, 380n69 architecture Eritrean 264n95 international competitions 16 see also cultural heritage, cultural property, World Heritage List archives protection of state 223 provisions for return of 17 sound 250 of the Vedic tradition 250–1 virtual 330 see also cultural heritage, cultural property Arizpe, L. 242 armed confl ict see Convention on the Protection of Cultural Property in the Event of Armed Confl ict (1954), Draft International Convention for the Protection of Ancient Monuments and Works of Art During Periods of Armed Confl ict, wars art access to 156 exhibitions, organization of 16 masquerade arts 255n81 protection of collections 16 protection of works of 16 trade 89 works, provisions for return of 17, 88 (see also under cultural heritage, cultural property) artists conditions/status of 17, 133, 134, 153n39, 156–7
income of 154–5 preferential treatment of 167 ASEAN Agreement on the Conservation of Nature and Natural Resources (1981) 253n71 Asmal, Kader 83 Aswan Dam 228 audiovisual sector 158–60 Austria 306 Austrian Research Sound Archives (Phonogrammarchiv) 250 authentication process 42, 45–7
B Bamiyan, Buddhas of 233–4, 360, 361, 376 Batisse, Michel 269n9 Beirut Agreement 11 Berne Convention for the Protection of Literary and Artistic Works 114n5, 115–16, 115n8, 115n11, 117–23 Berne Appendix 123 Berne Safeguard Clause 119–20 Berne Union 155 signatories 122 biodiversity, protection of 356 Biodiversity Liaison Group 279n57 bioethics 58, 68, 110, 142–5, 333, 355–8, 374, 378–9 UNESCO standards 13, 142–5, 383 see also ethical issues, Universal Declaration on Bioethics and Human Rights, Universal Declaration on the Human Genome and Human Rights biopiracy 262 bioprospecting 261, 261n87 biosafety 356 BirdLife International 280n65 Blake, Janet 238, 248 Boisson de Chazournes, Laurence 29, 307, 309 Bolivia, Government of 238 Bosnia and Herzegovina 201 Bossuyt, M. 317 Boutros-Ghali, Boutros 243 Boylan, Patrick 55, 56n13 broadcasting 159 for peace 16 production and exchange of programmes 17 Brundtland Report 251, 254
Index 411 Brussels Convention see Convention Relating to the Distribution of ProgrammeCarrying Signals Transmitted by Satellite Brussels Declaration (1874) 224 Buddhas of Bamiyan see Bamiyan, Buddhas of Buenos Aires Convention 116n10 Bystroe Canal 63, 64n43
C Cambodia 78n13, 265 CAME see Conference of Allied Ministers of Education Capacity-Building for Safeguarding Languages and Oral Traditions and Expressions in Sub-Saharan Africa 256n81 Caribbean 255n81 see also Jamaica Cartagena Protocol on Biosafety 356 CEART see Committee of Experts on the Application of the Recommendation concerning the Status of Teachers CEDAW see Convention on the Elimination of All Forms of Discrimination Against Women CESCR see Committee on Economic, Social and Cultural Rights Chad–Cameroon pipeline 67, 67n56 Charter on the Preservation of Digital Heritage (2003) 210n9, 292, 333–5 charters 56, 310–11 adoption procedure 47–8 checks and balances (in standard-setting procedure) 43–5 children care in early childhood 301 child labour 185 disadvantaged 184 and education see education influences on 188 provision of care 182 right to education 175 see also Convention on the Rights of the Child China, music in 250 Chinese Academy of Arts 250 CIOMS see Council of International Organisations of Medical Sciences civil society, international 351 cloning 213, 357, 357n22
CODATA see International Committee on Data for Science and Technology Cold War 325, 327–30 colonialism 178, 198, 224, 380 COMEST see World Commission on the Ethics of Scientific Knowledge and Technology commissions of enquiry 76 Commissions for International Cooperation 16 Committee on Conventions and Recommendations see under Executive Board Committee on Economic, Social and Cultural Rights (CESCR) see under United Nations Committee of Experts 39, 39n24, 40–1, 43, 47 Committee of Experts on the Application of the Recommendation concerning the Status of Teachers (CEART) 65 Committee of Government Experts on the Safeguarding of Folklore 238 Committee for Promoting the Return of Cultural Property 101–2 community, concept of 142 Comparative Programme on Intangible Cultural Heritage 238 competition impact of ethos 109 international, organization of 16 complaints procedures 61 see also disputes compliance mechanisms 51–72 rates and dispute settlement mechanisms 81 see also law, international; monitoring of standards; supervision of standards Conciliation and Good Offices Commission 30, 76, 92–3, 92n60, 93n61, 93n65, 95–7, 308 members 92n60 conciliation procedures 76–7, 84–5, 84n28, 89–91, 167 Conference of Allied Ministers of Education (CAME) 17, 17n3, 18 confidentiality 61 confl ict resolution 73–103 see also under disputes Congo, Democratic Republic 367 Consortium on International Dispute Resolution 91
412
Normative Action in Education, Science and Culture
Constitution of UNESCO 31, 100, 109, 145, 167, 175, 295–6, 324n5, 352, 355, 367–8, 395 Article I 11, 15, 31, 73, 100, 147, 167, 207–8, 296n3, 352, 359, 366, 374 Article II 368 Article IV 11, 15, 26, 31, 33, 36, 47, 55n10, 366, 367 Article V 41, 41n26, 41n27, 367 Article VII 16 Article VIII 28, 59–60, 305, 307, 366 Article XI 367 Article XIV 367 entry into force (1946) 17 formulation of 17 fundamental ideals 12, 15, 109 ` Preamble 139, 140, 142, 189, 207, 207n1, 208n2, 296n3 reporting obligations under 12 consultation in dispute resolution 87 of Member States 48, 305–6 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) (1998) 64, 64n45, 71n65, 284n83 Convention Against Discrimination in Education (1960) 12, 30, 76, 79, 80, 99, 175, 180–1, 183, 183n28, 196, 197, 291, 296–7, 300, 302–11, 313, 316–19, 353, 354, 374 Article 2 317, 320 parties to 296, 305–6, 353 Protocol (1962) 76, 291, 308 Seventh Periodic Consultation 305 Sixth Periodic Consultation 305–8 see also Conciliation and Good Offices Commission Convention Against Doping in Sport 41n25, 78, 211 Convention on Biological Diversity (1992) 68n59, 166, 230, 268, 275, 275n39, 277n47, 279, 282n73 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention) (CMS) 279, 282n73 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979) 68n59, 300, 307 Convention concerning the Exchange of Official Publications and Government
Documents between States 124, 124n34, 376 Convention to Facilitate the International Circulation of Films of an Educational Nature 16, 17 Convention on Human Rights and Biomedicine (Oviedo Convention, Council of Europe) (1997) 356–7 Convention concerning the International Exchange of Publications 124, 124n33, 292, 376 Convention for the International Regulation of Whaling (1946) 253n71, 286 Convention on International Trade in Endangered Species (CITES) 271, 279, 281, 282n73 Convention on the Law of the Sea (UN) (UNCLOS) 81, 83, 229, 231, 253, 268, 268n5, 287 Implementation Agreement (1994) 287 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris Convention) (1970) 18n7, 75, 78, 80, 86n34, 88, 134, 153n39, 226 Convention on the Prevention and Punishment of the Crime of Genocide (1948) 153n32 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 71n64 Convention for the Protection of All Persons from Enforced Disappearance (draft) 310n72 Convention on the Protection of Cultural Property in the Event of Armed Confl ict (1954) (Hague Convention) 12, 18, 46, 46n33, 55, 55n10, 55n11, 76, 79, 82n23, 86, 134, 225–6, 359, 360, 376, 380–1, 380n69, 382 First protocol (1954) 55n10, 360 Second protocol (1999) 46, 55–6, 55n10, 55n12, 56n13, 56n14, 225, 234, 234n42, 360 Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms (1971) 18n7 Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) 30, 41n25, 57, 69–70, 69n61,
Index 413 70n62, 70n63, 74–5, 79, 80, 83, 84, 85n31, 85n33, 86, 92n59, 111, 133, 134, 141, 150, 156, 163–5, 168, 193n14, 211, 244, 244n37, 375–6, 382 signatories 163, 163n93 unclear status/contribution of 382 Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (proposed) 309n72 Convention on the Protection of the Underwater Cultural Heritage (2001) 79, 81, 82, 83, 84, 92n59, 134, 231–3 Convention on the Protection and Use of Transboundary Watercourses and Lakes (1992) 284n83 Convention for the Protection of World Cultural and Natural Heritage (1972) 18n7, 54, 62, 62n36, 62n37, 63n38, 63n39, 67, 78, 80, 102, 134, 150, 229, 237, 358 parties to 80, 358, 360 Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in Asia and the Pacific (1983) 87n36, 291 Convention on the Recognition of Studies, Diplomas and Degrees concerning Higher Education in the States Belonging to the European Region 46n34, 80n16, 291 Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (Brussels Convention) (1974) 18n7, 292n1 Convention on the Rights of the Child (1989) 68n59, 175n8, 181n24, 195n22, 299n17, 304, 354 signatories to 304 Convention for the Safeguarding of the Intangible Cultural Heritage (2003) 41n25, 78, 111, 134, 150, 211, 240, 243–4, 257–63 and sustainable development 240 Convention on Technical and Vocational Education (1989) 12, 80n16, 180, 210n7, 291, 297–8, 304, 354 parties to 297 Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) 64, 64n43, 64n46, 80, 271, 272n24, 275, 278, 279, 280–1, 280n65,
Memorandum of Understanding with World Heritage Convention 280n63 Montreaux Record 280 conventions adoption by UNESCO 11, 17, 25 (see also individual conventions by name) adoption procedure 34 binding nature of 382 dispute settlement mechanisms 78 draft see under Draft monitoring of 52 (see also monitoring of standards) not yet in force 81 number/year adopted 49 number of parties to 80 provided for in UNESCO Constitution 11 (see also Constitution of UNESCO) relationship to other instruments 35–7, 40, 42, 143 UNESCO’s fi rst 11 Coombe, R. 262 cooperation, notion of international 396–9 coordination of instruments 51–72 ex ante 67–8 ex post 69–70 copyright 17, 110, 113–34, 150, 155, 156, 210, 238, 292, 335, 374, 376 arguments for reconstructing system 119 compulsory licensing 122, 122n28, 123 draft international convention 16 international relations membership 127–32 period of protection 120 Universal Copyright Convention see Universal Copyright Convention see also intellectual property rights Corell, Hans 77n12, 89, 93 Costa Rica 261 costs of dispute resolution procedures 94–5 of education 301, 302 see also funding Council of Europe 64, 161, 309, 310, 356–7 Eurimages fund 159 Council of International Organisations of Medical Sciences (CIOMS) 68 Covenant on Economic, Social and Cultural Rights 110 cultural agreements, bilateral 17 Cultural Charter for Africa 154, 154n41 cultural cooperation 153
414
Normative Action in Education, Science and Culture
cultural diversity 69, 110–11, 192–3, 192n14, 339, 375–6 promotion of 147–68, 374 and a sustainable future 179–80, 375 valorization of 200 ‘cultural DNA’ 188 cultural exchanges 17, 110–11 promotion of 147–68, 204 cultural expressions 13 definitions of 164–5 cultural heritage 162, 221–36, 334, 358–62, 376–7 definition of 226, 232 destruction of 223–5, 228, 358 intangible 13, 231, 237–66 (examples of preservation 250–1) (see also Convention for the Safeguarding of the Intangible Cultural Heritage) material, definition 248 reconstruction after armed confl ict 201 underwater 231–3 (see also Convention on the Protection of the Underwater Cultural Heritage) UNESCO initiatives to protect 12–13, 358–62, 374 see also Declaration concerning the Intentional Destruction of Cultural Heritage, World Heritage Convention, World Heritage List cultural industries, measures to protect 159 cultural landscapes 230, 237, 239n12 cultural property 13, 67, 221–36 categories of 225 definition of 225 destruction of 223, 224, 225, 360 evolving into cultural heritage 13, 221–36 international disputes over 17, 76–7, 79, 87, 87n38, 88–90, 88n41, 101–2, 226–7 international law on 89–91 privately owned 79, 79n14, 88 protection of 223–4, 227, 376–7 works with cultural significance 120 see also cultural heritage cultural routes 239n12 cultural ‘war crimes’ 66 culture 247n50, 247n51 CAME’s work in field 17 and copyright issues 116–18 definition 148–9, 192n13 and development 242–4 economically remunerative 245–6 of fear 247n49 freedom and 314
of indifference 247n49 material 248–9 world culture 149 custom and law see law, customary
D Dakar Framework for Action (2000) 298–9, 304, 313, 316, 320, 353, 374 see also Education for All Dakar Strategies for the Promotion of Human Rights Education in Africa 298 Danube Delta 63–4 Daudet, Y. 321 Deacon, Harriet 237 Decade for Cultural Development (1988– 1997) 243 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief 189n5 Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War (1978) 56–7, 153n34, 153n39, 198 Declaration of Guiding Principles on the Use of Satellite Broadcasting for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange (1972) 56, 151n22, 153n39, 209n6, 292, 324n8, 330 Declaration on Human Genetic Data (2003) 110 Declaration of Helsinki on Ethical Principles for Medical Research Involving Human Subjects 68 Declaration concerning the Intentional Destruction of Cultural Heritage (2003) 234, 361–2, 376 Declaration of the Principles of International Cultural Cooperation (1966) 12, 48, 57, 150–4, 168, 193, 196, 211, 211n14 Declaration of Principles on Tolerance (1995) 189, 189n5, 194–5, 375 Declaration and Programme of Action on a Culture of Peace (1999) 190n5 Declaration on Race and Racial Prejudice (1978) 68n59, 190–2, 195–6, 200, 316, 375, 382–3
Index 415 Declaration on the Responsibilities of the Present Generations Towards Future Generations (1997) 62, 69n59, 140, 145, 211–12, 285–6, 378, 383 Declaration on the Revision of School Textbooks 16 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 181, 316 Declaration on Science and the Use of Scientific Knowledge 329, 331–3 Declaration of the UN Conference on the Human Environment (Stockholm Declaration) (1972) 269–70, 282, 283 Declaration on the UN Literacy Decade: Education for All (2003–2012) 299 declarations by UNESCO 12, 13, 16, 143 adoption procedure 47–8 choice of format 13 monitoring of 52, 56–9 non-binding nature of 382 number adopted 12, 17, 25, 48, 49, 56 structure of 56 Definition of regions 381 Dell’Oro Maini, A. 18, 19 democracy 172 attempts to export 194 and cultural diversity 162 e-democracy 340 and education 178, 298 developing countries 204, 330 and communications 381 and copyright protection 120–1 education in 182, 184–6 preferential treatment for 167 and relations with developed countries 140 and use of science 332, 333, 337, 344 development definition of 247–8 different concepts of 241–3 human 244–5, 265 Sen’s seven categories of 244–7 see also sustainable development difference, right to 191, 314–15, 383 see also cultural diversity digital divide 301, 338, 340 heritage 333–5 (definition 334n57) (see also Charter on the Preservation of Digital Heritage) dignity, human definitions of 379
mutation of the concept 213–14 and scientific/technological progress 207–14 UNESCO’s upholding of 352–8 diplomas, recognition of 46 Director-General authentication by 45 comments on reports 52 and good offices 75 initiating consultation 87, 87n37 and monitoring and implementation of declarations 57–9 personal intervention of 87n37 role in standard setting 40–2 work on the information society 338–9 disabilities, persons with 301, 316 disadvantaged groups 305–6 discrimination in access to information 336 definitions of 375 vs differentiation 316–17 in education see under education positive 314 principles of non-, 175 racial 183, 187, 190–2, 368–9 ` against Roma 300 and tolerance 187–205 UNESCO standards regarding prevention 12, 190–5, 379 against women 300 disputes over development issues 254 evolution of dispute settlement 78–86 lack of settlement clause 29–30 proposed reform of settlement procedures 86–91 settlement of 29, 73–103, 166–7, 398 trigger mechanism for settlement procedures 85 under-utilization of settlement procedures 92–4 WTO 160, 166 diversity see cultural diversity documentation supporting standards 27 Doha Declaration 69n59 Draft Articles on State Responsibility for Intentionally Wrongful Acts 361 Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies 307 Draft International Convention for the Protection of Ancient Monuments and Works of Art During Periods of Armed Confl ict 16
416
Normative Action in Education, Science and Culture
Draft International Convention for the Protection of National Art and Historical Collections 16 Draft International Convention on the Rights of Scientists 16 Draft Universal Statute on Copyright 16 drafting process 26, 34, 40–2, 47, 48 improvement of process 45, 49 preliminary draft 42 revised drafts 43, 44 ‘ droit assourdi’ 26 ‘ droit programmatoire’ 382 Dubrovnik 55, 66, 66n50, 66n51, 235, 360 Dupuy, René-Jean 382 Durban Action Plan 279n60
E earthquakes, prediction of 211n15 e-business 340 economic behaviour 246 development and material culture 248–9 development and science 333 growth and ideas of development 241 import of the Washington Consensus 172 issues and concept of development 245–6 issues and education 179, 184–5 sustainable growth 257–8 value of intangible cultural heritage 248–9, 257 ECOSOC see UN Economic and Social Council education 173–86, 291–321 about standards 62 access to 175n8, 352–5 adult 177, 298, 300 for all 295–312 CAME’s work in 17 conventions regarding 291 (see also individual conventions by name) and copyright issues 123–4 discrimination in 180, 196n23, 296, 301–9, 313–14, 332, 353, 374–5 (see also Convention Against Discrimination in Education) educational fi lms see fi lms, educational equality of opportunities in 303–21 features of systems 183, 317 freedom and choice in 181, 188
higher 321, 338 on human rights 200 and information technology 340 for international understanding 17, 176–7 level of opportunities 182 and literacy 118 objectives of 174–6, 178–80, 183–4, 195n22, 196 policy principles 177 privatization of 300–1 and promotion of tolerance 195–6 recommendations regarding 291 resource constraints 184 right to 174–6, 180–6, 295–312, 314–16, 374 state obligation to provide 182–3, 182n26 of teachers 200 technical and vocational 180 on UNESCO standard-setting 12 UNESCO support for 173–86, 200, 291–321 Education for All (EFA) 185, 311, 313, 374 flagship programmes 301 global monitoring reports 301, 301n32, 304 Goal 5 313 High-Level Group 304 see also Dakar Framework for Action Egypt 228 UNESCO project in 255–6n81 Einstein, Albert 210 empowerment 340, 374 Environmental Perspective to the year 2000 and Beyond 254 environmental protection 60n30, 70, 71, 221, 251–2, 267–88, 340, 366 environment seen as world heritage 267 equality of cultures 152 and diversity 190–5 of opportunities in education 303–21 intrinsic of peoples 199 of opportunity and treatment of people 175, 198, 300, 374 see also discrimination, human rights equity definition 315 inter-generational 259, 283–5, 378, 383 (see also Declaration on the Responsibilities of the Present Generations Towards Future Generations) intra-generational 259, 283
Index 417 in the New International Economic Order 330 erga omnes 221–2, 361 Eritrea 264n95 Espiell, Hector Gros 302 Essentials of Peace 174 ethical issues and education 178–9 and the information society 339 in journalism 381–2 and the pharmaceutical industry 204 in reconciling scientific/technical progress and human dignity 207–14 of science and technology 135–45, 325, 332, 340 and tolerance 187–205 see also bioethics European Bank for Reconstruction and Development, Agreement establishing 253n71 European Committee on Racism and Intolerance (ECRI) 309 European Group of Research on Equity of the Educational Systems 315 European restrictions on biotechnological products 166 European Union 64, 159 directive on genetically modified organisms 356 MEDIA programme 159 Single European Act 253n71 White Paper on European governance 320 euthanasia 213 ex ante coordination 67–8 ex post coordination 69–70 Executive Board (of UNESCO) 163, 185n31, 373 appointing fact-fi nding missions 100 Committee on Conventions and Recommendations 52, 53–4, 61, 65, 99– 101, 298, 308, 308n66 (membership of 99n82; terms of reference 54) role in compliance process 52 role in standard setting 39, 39n23, 41, 42, 44, 47, 48 experts lack/absence of 94, 97 role of 40–1 External Relations Commission 33
F fact-finding missions 100 FAO see UN Food and Agriculture Organization Farley, R. 100, 100n87 Fiji 265 fi lms, educational 16, 17 financial monitoring and supervision 66–7 Florence Agreement see Agreement on the Importation of Educational, Scientific, and Cultural Materials folklore 238 see also cultural heritage follow-up financial 66–7 meaning of 27 penal 66 see also monitoring of standards, supervision of standards Food and Agriculture Organization see under United Nations Footer, M. 159 force, prohibition of use 221, 353, 355 see also peace Framework Convention on Climate Change 61n30, 283–4 France 262–3, 357n22 copyright law in 115 funding by government 16 and the ISDS 387–90 Revolution 223 Francioni, F. 267n3, 271n20, 277 Francophonie 161 Friedman, Wolfgang 396 Friends of Audiovisual Services Group 160n68 Friends of Development 342 funding of dispute settlement procedures 95 for education 182n25, 184 for implementing the Hague Convention 56, 56n14 of the League of Nations Commission for Intellectual Cooperation 16n1 for safeguarding intangible cultural heritage 263–5 for scientific research 332, 344 see also costs
418
Normative Action in Education, Science and Culture
G Gaborone Declaration 340 Gandhi, Mahatma 176, 203 General Agreement on Tariffs and Trade (GATT) 70, 163, 253n71 General Agreement on Trade in Services (GATS) 70, 159, 163 General Conference of UNESCO 1st session (1946) 17 2nd session (1947) 32 4th session (1949) 33, 36 5th session (1950) 32, 34 7th session (1952) 38, 38n17, 38n20 9th session (1956) 386 11th session 60 13th session 53 14th session 57n17 16th session 18 17th session (1972) 38, 38n18, 59–60 18th session (1974) 380 ` 19th session (1976) 44, 44n29, 45, 61n32, 327 20th session 48, 57n16 29th session 62n35 31st session 57n18, 96, 240, 387 32nd session (2003) 38, 38n19, 38n20, 54, 96, 240 33rd session (2005) 32, 47, 47n35, 48, 58, 87n38, 90–1, 91n57, 102, 143n18, 163, 341 agenda for 35, 38–40, 42 boycott of 380 declarations of 16 level of standard-setting activity 17, 158n59 resolution regarding Jerusalem 380 role in standard setting 17, 34–5, 38, 42–3, 47–8 and UN recommendations 371 generations, future generational confl ict/equity 259, 283, 378, 383 responsibility of present generation to 285 transmission of natural heritage to 267–88 see also Declaration on the Responsibilities of the Present Generations Towards Future Generations, equity genetics 142–5, 355–8, 378–9 genetic differences between peoples 192 genetically modified organisms 356 see also bioethics Geneva Conventions (1949) 225
Geneva Protocol for the Pacific Settlement of International Disputes 139 genital mutilation 260 genocide 191 psychological element of 235 genome, human see bioethics, genetics Gentili, Albericus 223 Germany, return of cultural property requested from 98, 102 Ghana 246n46, 256n81 Global Alliance for Cultural Diversity 152 Global Information Commons for Science 340–1 Global Strategy for a Representative, Balanced and Credible World Heritage List 278, 288n104 globalization and cultural diversity 111, 149, 161, 165, 168 and international organizations 171 and the knowledge society 338 and moral issues 137 and need for tolerance 202 of technical progress 210 and values 177–8 good offices in dispute resolution 75–6 governance of the education system 318, 320 global 171–2, 343 on the Internet 339 Graber, C. B. 159 Great Britain see United Kingdom Greece claim over Parthenon Marbles 101–2 resolution to General Conference 91n57 Gregoire, Abbé 223, 223n7
H Hague Convention see Convention on the Protection of Cultural Property in the Event of Armed Confl ict Hague Convention (1899) 73 Hague Convention (1907) 73, 224 Hague Rules of Aerial Warfare (1923) 224 Hamburg Declaration on Adult Learning 300, 354 handicrafts 248, 256n81 Harnessing Science for Society 333n49 Harrison, Lawrence 246 Havana Convention 116n10
Index 419 headquarters of intergovernmental institutions 388–9 health services 340 heritage conservation of 54–5, 247 cultural see cultural heritage definition of 237, 268 definition of natural 273 development of concept 219 digital see digital heritage human genome as 358 of humanity as a whole 230, 358–9, 375, 376–7 natural 229, 267–88 see also cultural heritage, cultural property, culture, World Heritage Convention, World Heritage List Helsinki Declaration 68 Higher Education and Globalization 338 historical collections, protection of 16 history, objective books on 17 HIV/AIDS 299, 301 Holocaust deniers 202 Hormones case (1998) 166 Hüfner, Klaus 96n74 Hugo, Victor 363 human beings as living human treasures 239 Human Development Reports 242 human rights 177, 212, 313, 362, 374 and bioethics see bioethics clause in UNESCO standards 210, 210n13 and Committee on Conventions and Recommendations 54 and cultural diversity 162 to be different 314–15, 383 and dignity 207–14, 352–3 education on 298 to education see education made concrete by UNESCO standards 12 moral dimension 142 procedures for protection 61, 99, 221 property as 225n10 reluctance to press for 171 third-generation 137 three generations of instruments 212 UNESCO action in field 374–5 violations of 61, 234, 308 World Conference on (1993) 189n5 see also Universal Declaration of Human Rights Human Rights Committee 164, 313
humanity, concept of 362 Huntington, Samuel 246n46
I ICAO see UN International Civil Aviation Organization ICESCR see International Covenant on Economic, Social and Cultural Rights Ichkeul National Park (Tunisia) 281, 281n67 ICJ see International Court of Justice ICOMOS see International Council on Monuments and Sites ICTY see International Criminal Tribunal for the Former Yugoslavia IICI see International Institute of International Cooperation immigrants 204, 302, 306 implementation of standards 309–11 budgetary problems with 27 see also monitoring of standards, ratification, supervision of standards Improved Traditional Bead Production and Marketing in West Africa 256n81 income differentials 204 India 303n40 Aryan culture 250–1 database of traditional knowledge 261 education levels 182n25 legal ruling on access to education 354 indigenous peoples 165, 194n19, 302, 306 exploitation of 262–3 genocide of 191 information access to 15 commons 340–1 dissemination as follow-up 27 infrastructure 324, 340 new world order 324, 330, 381 open access to 336–7, 342 provided by monitoring 71 in the public domain 334–7 society 331, 341 on standards, communication of 58, 62, 203 technology 172, 301, 339, 340 (technology convergence 342) see also knowledge Information for All 338 Institute for Information Technologies in Education (IITE) 338 Institute for Statistics (UNESCO) 330
420
Normative Action in Education, Science and Culture
intangible cultural heritage see cultural heritage, intangible Intangible Cultural Heritage Fund 260 integrity, conditions of 276 intellectual property rights 68, 70, 110, 113– 34, 301, 334–8 and access to knowledge 342–4 and dissemination of drugs 204 and innovation 157–8 and traditional knowledge 262 see also copyright Inter Cetera 191 Intergovernmental Bioethics Committee (IGBC) 58 Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation 887n38, 89–90, 98, 98n78, 98n81 Intergovernmental Copyright Conference (1952) 155 intergovernmental institutions, development of 385–92 International Bioethics Committee (IBC) 58, 212 International Centre for the Registration of Serial Publications (ISDS) 387–90 International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) 62n37, 386–7, 391 International Centre for Synchrotron Light for Experimental Science and Applications in the Middle East (SESAME) 386–7, 391 International Charter of Physical Education and Sport 291 International Cinema Congress (1926) 16 International Civil Aviation Organization (ICAO) 31n1, 36n13, 371 International Commission for the Protection of the Danube River 64 International Commission for the Study of Communication Problems 381 International Committee on Data for Science and Technology (CODATA) 336, 340 International Convention concerning the Use of Broadcasting for Peace (1936) 16 International Convention on the Elimination of All Forms of Racial Discrimination (CEDAW) (1965) 68, 189n5, 296, 307, 382 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) 308
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) (1961) 75n5, 79, 86, 155, 210n11 International Council on Monuments and Sites (ICOMOS) 62, 62n37, 272 International Council for Science/of Scientific Unions (ICSU) 326, 329, 331, 336, 340 International Court of Justice (ICJ) 78, 78n13, 81–3, 83n27, 92, 95, 221, 355, 367, 371 International Covenant on Civil and Political Rights (1966) 68n59, 175 International Covenant on Economic, Social and Cultural Rights (ICESCR) 65, 149– 50, 150n15, 154, 162, 175n4, 175n7, 295, 300, 304, 306–7, 317, 354, 374 International Criminal Tribunal for the Former Yugoslavia (ICTY) 66, 66n50, 234–5, 360, 361 International Cultural Property Society 89 International Declaration on Human Genetic Data (2003) 58, 141, 144–5, 378 International Development Strategy for the Seventies 241–2 International Development Strategy for the Eighties 242 International Ethical Guidelines for Biomedical Research Involving Human Subjects 68 International Institute of International Cooperation (IICI), 16 International Institution for the Unification of Private Law (UNIDROIT) 79n14, 79n15, 226 Convention on Stolen and Illegally Exported Cultural Objects 78–9, 79n14 International Labour Organization (ILO) 28, 33, 61, 65, 155, 311, 352, 354, 367, 371 constitution 31n1, 36n13, 37 Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (1957) 194n19 Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) 69n59, 181, 194n19, 253n71 standard-setting activities 32 International Law Association 91 International Law Commission 222, 361 International Monetary Fund (IMF) 172
Index 421 International Scientific Council 328n22 International Telecommunication Union 339 International Treaty on Plant Genetic Resources for Food and Agriculture 69n59, 356 International Union for the Conservation of Nature (IUCN) see World Conservation Union International Whaling Convention (1946) 281–2 Internet governance 339 and infringements of human rights 211 information disseminated via 28, 331 Iraq 372–3 Islamic Conference 361 Israel 380–1 Italy floods in 228 host for ICCROM 391 Italian Trust Fund for Culture and Sustainable Development 264, 265n95 IUCN see World Conservation Union
J Jamaica 249 Moore Town Maroon Heritage 264 Japan 239n12 Funds-in-Trust for the Preservation and Promotion of Intangible Cultural Heritage 264 Jerusalem 380 Joint Expert Group UNESCO (CR)/ ECOSOC (CESCR) on the Monitoring of the Right to Education 65, 307, 310, 314, 372 Jordan 391 journalism 381–2 judicial bodies 78 for international cultural property law 88 see also International Court of Justice judicial procedures 61, 66, 77–8, 81–6 jus cogens 351
K knowledge access to (A2K) 125, 301, 323–44 dissemination of 116, 203, 333–5 economy 126, 331
and education 179 and ethics 355 exchange 124, 374, 376 gap 333 inventories 262 in the public domain 334–6 society 325, 341–2 systems to control access 119 traditional see traditional knowledge see also information, intellectual property rights Korea, Republic of (South Korea) 239, 246n46, 344 Kuwait 372–3 Kymlicka, W. 314
L languages in danger of disappearing 239 safeguarding of 256n81 UNESCO official 28 law customary 303, 351–2, 357, 359–62 different systems of 115, 135 interaction with society 399–401 international see law, international national see legislation, national law, international 103 from coexistence to cooperation 396–9 compliance mechanisms 51–72 concept of sovereignty in 366 on copyright/intellectual property rights see copyright core concepts of 141 crimes against peace 173–4 criminal 66, 66n50, 234 on cultural property 89–91 or customs of war 361 and destruction of cultural heritage 360–1 and discrimination in education 308–9 erga omnes 221–2, 361 on human rights 314 impact of standard setting on 349–92 legal concept of solidarity 135–7, 139 nature of 32 and political/diplomatic or judicial settlement 74–8 and recommendations 37 on salvage 231 ‘soft law’ see ‘soft law’ and sustainable development 254
422
Normative Action in Education, Science and Culture
trade 166–7 UNESCO contribution to 267, 349–92 UNESCO declarations as sources of 144 on use of nuclear weapons 371 on use of outer space 151, 359 see also standards, conventions by name League of Arab States 161 League of Nations 16, 139, 174, 224 Commission for International Cooperation 16, 17 legal relativity 26 Legality of the Use by a State of Nuclear Weapons in Armed Confl ict 371 legislation, national reporting on 310 and UNESCO conventions and recommendations 12, 382 Lévi-Strauss, Claude 362 Lewis, Arthur 241 lex lata 69, 160 libraries, protection of 233, 292 List of the Intangible Cultural Heritage of Humanity 260–1 List of the Intangible Cultural Heritage in Need of Urgent Safeguarding 261 List of World Heritage in Danger see under World Heritage List literacy 118, 182, 812n25, 184–5, 299 UN Literacy Decade 301 see also education ‘Living Human Treasure’ programme 239, 239n13, 264 loan agreements 66 Lowe, Vaughan 254 Lussier, Claude 387, 389–90
M MacBride, Sean 381 Macedonia Community Development and Culture Project 264 Machiavelli 223 Mali 256n81 Man and the Biosphere (MAB) programme 63–4, 64n43, 64n44 management of natural sites 277 Many Voices, One World 381 Margiotta-Broglio, Francesco 96 masquerade arts 255n81 Masterpieces of Oral and Intangible Heritage programme 239, 257, 261, 264 Matsuura, Koichiro 161, 341–2
maturity of subject matter 34, 37, 43 Mauritius 302n37 Mayor, Federico 243 ‘Measuring and Monitoring Information and Knowledge Societies’ 339 media control of and human rights 211 journalistic ethics 381–2 mass, as complement to education 56–7, 153n34, 153n39, 198, 202–3 mediation procedures 74, 76–7, 84, 89–91 medicine biomedicine 356–7 traditional 262 Mediterranean region 233n36 Member States changing political regimes of 172 collective action by 48 comments and observations by 44 commitment required of 26 constitutions of 303 consultation of 48, 305–6 domestic jurisdiction of 366 hosts for intergovernmental institutions 387–91 not required to sign standards 46 number 351 obligations to the international community 221–2 observations on standard-setting procedure 33 overall response to standards 25–6 participation in standard-setting 40, 43–4, 49 ratification of standards see ratification reluctant to resort to dispute settlement procedures 93–4 reporting by see reporting by Member States role in applying standards 45, 57, 310, 336 role in providing equal opportunities 320 role in World Heritage system 271, 277 solidarity among 140 voluntary action by 57 see also General Conference, individual states by name Memory of the World programme 239 Merryman, John 89 Meynaud, Jean 242 Mexico City Convention 116n10 Mexico City Declaration on Cultural Policies 192n13, 193n16, 243 migrant workers, children of 306, 307–8
Index 423 Minns, D. 252 minorities educational rights of 303, 306, 314 rights of members 181 Mitrany, David 370 model agreements 154 clauses on cultural exchanges 17 laws 155, 157n57 Model Rules for the Conciliation of Disputes between States 89 Mondicault 242 monitoring of standards 27–8, 51–72, 184, 309, 398 anticipatory 67–8 and coordination 67–70 declarations with none 56 direct forms of 61 in education 320 external to UNESCO 62–4 inter-actor 62 internal 59–61 joint 65 problems with methodology 28–9 reactive 63 specific mechanisms for 68 vs support for implementation 29 see also reporting Montevideo Convention 116n12 Montreal Protocol on Ozone-Depleting Substances (1987) 253n71 Moon Treaty (1967) 268n4 moral rights 117n16, 122, 150 solidarity 135–45 (see also solidarity) Moreno, Y. J. 248 Morin, E. 178–9 Mostar 55, 66n51, 201, 360 Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties (1979) 75n5, 79, 81, 82n23, 83n27, 92n59, 133 music Ami people’s 262–3, 263n91 Chinese 250 Ethiopian 264 Jamaican 249
N negotiation in dispute settlement 74–5, 86–7 New Delhi Declaration 195n21
New World Information and Communications Order (NWICO) 324, 330, 381 New International Economic Order (NIEO) 324, 330 Nigeria 264 non-compliance mechanisms 71 non-government organizations (NGOs) 29 information provided by 62 monitoring and supervision of standards 62–3, 311 Sahara and Sahel Observatory as 389 shadow reports 310 Nuclear Test case 286 Nuremberg Trials 173, 360
O Office of International Standards and Legal Affairs 27, 60, 102 O’Keeffe, R. 285 Operational Guidelines for the Implementation of the World Heritage Convention 230, 239, 239n12, 272, 272n25, 274–7, 276n40, oral transmission of culture 250 organ transplants 357 Organization of Economic Cooperation and Development (OECD) 158 Organization of Iberoamerican States for Education, Science and Culture (OEI) 161 OSS see Sahara and Sahel Observatory Ougadougou Declaration on the Education of Girls (1993) 298 Our Common Future 251, 254 Our Creative Diversity 161, 243, 256 outstanding universal value, criteria for 274–5 Oxford Manual 224
P Palestine 221n1, 380 Parthenon Marbles 101–2 patrimony, concept of 223, 267, 273 see also cultural heritage, heritage peace crimes against 173–4 culture of after armed confl ict 201 and education 176, 179 essentials of 174
424
Normative Action in Education, Science and Culture
and mutual understanding 189, 195 promotion of 73, 109, 152–3, 189, 198– 9, 332, 380, 397 and solidarity 139, 141 Pérez de Cuéllar, Javier 243 Permanent Court of Arbitration (PCA) 83, 88 persecution, crime of 235 Peru 261 pharmaceutical industry and doping in sport 211 and intellectual property rights 204 Philippines 261, 261n87, 286 plans of action 58 Poland 173 Policy Guidelines on the Development and Promotion of Governmental Public Domain Information 337 political participation 247 regimes, change in nature 172 politicization of UNESCO 379–82 pollution monitoring 211n15 Popes Alexander VI 191 Paul VI 137–8 poverty 204, 333 Preah Vihear 78n13 precautionary principle 356 prejudice see discrimination Preliminary Consolidated Report to the United Nations on a Culture of Peace (1998) 203 preliminary study 35, 39, 40, 42, 43–4 and quality assurance 44 Principles of the International Congress on Teaching of Human Rights 298 Principles on the Settlement of Disputes Concerning Cultural Objects Displaced in Relation to the Second World War 87 privatization of knowledge 343 procedure for setting standards 31–49 Procedures for the Protection of Human Rights 99 Proclamation of Masterpieces of Oral and Intangible Cultural Heritage of Humanity 261 property cultural see cultural property private 79, 79n14, 88, 226 ‘Protecting Powers’, 76 public domain 120, 120n23 publications, exchanges of 17
see also Convention concerning the Exchange of Official Publications and Government Documents between States, Convention concerning the International Exchange of Publications publicity campaign on tolerance and equity 200
Q quality assurance in standard setting 44 quality of life 258–9, 265 see also sustainable development questionnaires on follow-up to the Revised Recommendation concerning Technical and Vocational Education 298 general to Member States 59–60 on the Protection of Folklore 238
R Rabelais, François 355 racial discrimination see discrimination segregation 296, 368–9 Ramsar Convention see Convention on Wetlands of International Importance especially as Waterfowl Habitat ratification levels of 181n24 need for focus on 13 too few for quorum 27, 81, 163 Recognition of Studies, Diplomas and Degrees in Higher Education (1983) 12, 79 Recommendation Against Discrimination in Education (1960) 196, 291, 297, 353 Recommendation on the Development of Adult Education (1976) 177, 291, 298, 300 Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms (1974) 144, 176–7, 195, 196, 200 Recommendation on the International Exchange of Cultural Property (1976) 101, 154n42
Index 425 Recommendation on International Principles Applicable to Archaeological Excavations 11, 227, 380, 380n69 Recommendation concerning the International Standardization of Statistics on Science and Technology (1978) 329 Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It (1976) 153n39, 200, 200n37 Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works (1968) 153n39, 227–8 Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace (2003) 41n25, 210n8, 292, 335 Recommendation for the Protection of Movable Cultural Property (1978) 228n20 Recommendation concerning the Protection, at National Level, of the Cultural and National Heritage (1972) 229n22, 281 Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites (1962) 227 Recommendation on the Safeguarding of Traditional Culture and Folklore (1989) 133, 238–40 shortcomings of 240 Recommendation concerning the Status of the Artist (1980) 133, 134, 153n39, 156 Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) 65, 291, 298, 304 Recommendation on the Status of Scientific Researchers (1974) 68n59, 110, 144, 210n12, 211n15, 292, 324, 328–9 Recommendation concerning the Status of Teachers 65, 291, 298 Recommendation on Technical and Vocational Education (1962) 297–8 Revised Recommendation concerning Technical and Vocational Education (1974) 297–8 recommendations adopted by UNESCO 11, 17, 25 authentication of 46 content of 45 definition of term 33, 35–7, 45 monitoring of 52 (see also monitoring of standards, supervision of standards) not binding on Member States 12, 382
number/year adopted 49 relationship to conventions 26–7, 35–7, 40, 42, 143 rules of procedure for 46 significance of UNESCO’s 11–12 Red Book of Languages in Danger of Disappearing 239 refugees 204, 302 Regulations for the general classification of the various categories of meetings convened by UNESCO 47 religion and economic progress 241 Hindu 250 intolerance of other 233–4 Roman Catholic doctrine 137–8 and subjugation of non-believers 191 tolerance of 176 wars of 397 Renan, Ernest 135 reporting by Member States 28, 52–4, 57, 59–60, 71, 305–9 Constitutional obligation 12, 28, 52–3 failures in 28–9, 60 initial special and periodic reports 54 reporting culture 28 response rate to requests 60 reports from Committee on Conventions and Recommendations 100 from the Director-General 40 from other groups 61 from Member States see reporting by Member States research biomedical 357 on the information society 339 research, scientific 323–44 and bioethics 110, 355–8 cooperation in 332 freedom for 143, 209 funded by the US government 344 prohibition of certain types 212 see also scientists resolutions on the adoption, monitoring and implementation of declarations 57–9 UN, on the common heritage of the seabed 358–9 restitution see cultural property Revitalisation of Traditional Masquerade Performing Arts and Costume Making 255n81
426
Normative Action in Education, Science and Culture
Ridruejo, José A. Pastor 137 Riley, A. 262–3 Rio Conference on Environment and Development (1992) 274, 280n62 Rio Declaration 283 Rio de Janeiro Convention 116n10 Roerich Pact (1935) 224, 359 Roma peoples 300 Rome Convention see International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations Rostow, W.W. 241 Rules of Procedure concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4 of the Constitution 26, 32–3, 42, 43n28, 45, 48–9 adoption of (1950) 37 amendments to 38 drafting of 33–9 and monitoring arrangements 52 potential improvements to 49 scope and content 38–41, 42, 43n28, 45, 46, 52n2, 53 Rules of Procedure of the World Heritage Committee 62n37, 63n39 Rwanda 367
S Sachs, Albie 315 Sahara and Sahel Observatory (OSS) 388–9, 390–1 Sands, Philippe 255 Santagata, W. 248 Schorlemer, Sabine von 30 Schrijver, N. 286 science access to knowledge 323–44 privatization of 343 scientific progress and human dignity 207–14 see also research, scientists Science Agenda – Framework for Action 331, 332 Science for the Twenty-First Century (World Conference) 331, 333 scientific unions 326 see also International Council for Science/ of Scientific Unions
scientists 328 freedom of research 143, 209 and moral issues 135–45 rights of 16 see also Recommendation on the Status of Scientific Researchers Second World War 17, 224, 225, 325 Secretariat (of UNESCO) assistance with reporting 52, 60 role in creating international bodies 388 role in drafting standards 35, 39, 39n22, 40, 42–3, 48 self-determination, right to 221 Sen, Amartya 242, 244–8, 259 Serbia and Montenegro 369 SESAME see International Centre for Synchrotron Light for Experimental Science and Applications in the Middle East Siehr, Kurt 89 signing conventions 42, 45–7 see also ratification Singapore 382 Singh, K. 321, 374 Siracusa Declaration (2000) 233n36 ‘soft law’ 26, 87, 103, 123, 163, 167, 352 enforcement role of 309–11 types of 398 solidarity 109, 247, 352 material 136 moral 135–45 South Africa 296, 368–9 Southern Rhodesia 372–3 Soviet Union 330 sovereignty, concept of in law 366 Spain, Civil War 224 Special Committee see Committee of Experts Special Rapporteur on the Right to Education 302–3, 310 Sphinx of Bogazköy 98, 102 Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) 68n59 standards basic requirements for 26 binding and non-binding 12, 46, 382 impact on international law 349–92 interlinking of 110, 165, 351 level of UNESCO setting activity 17, 18, 25, 158, 158n59 purposes of 25 setting procedures 13, 31–49 (see also drafting process, preliminary study)
Index 427 see also individual standards by name; law, international States see Member States see also individual countries by name statistics 339 standardization of 292, 329 ‘Status of Research on the Information Society’ 339 Statute of the International Criminal Court 361 Stockholm Conference see UN Conference on the Human Environment Stockholm Intergovernmental Conference on Cultural Policies for Development (1998) 239 Strategy to Facilitate the Restitution of Stolen or Illicitly Exported Cultural Property 77n10, 90n55, 90n56 structure of the book 19 Sub-Commission on the Prevention of Discrimination and Protection of Minorities 296 subsidiarity 320 Summit of the Americas 161 supervision of standards 51–72 and coordination 67–70 declarations with none 56 external to UNESCO 62–4 internal 59–61 joint 65 sustainable development 211–12, 251–65, 378 and culture 69, 160, 375 definitions 251–2, 255, 257 and intangible cultural heritage 237–66 sustainable future and education 179–80 Switzerland 399–400 Symposium (on Standard-setting at UNESCO) details 15, 25 Symposium on Open Access and the Public Domain in Digital Data and Information for Science 336–7
telecommunications, improvement of 324 terrorism 202 textbooks 16, 17 objective history 17 Thailand 78n13 Third Industrial Revolution 324 tolerance definition of 193, 194 fostering of 187–205 see also cultural diversity, discrimination Tomasevski, K. 315 Torjman, S. 252 tourism 247 in the Caribbean 249, 255n81 cultural 294n95 and music/entertainment 249 Towards Knowledge Societies 325, 341–2, 343 town planning 16 trade in art 89 and cultural sensitivity 159 illicit 89 liberalization 158, 165–6, 172 in services 158 see also Agreement on Trade-Related Aspects of Intellectual Property Rights, General Agreement on Tariffs and Trade, General Agreement on Trade in Services traditional knowledge 117, 120, 157–8, 165, 211, 333 commercial use of 262 databases of 261 Train, Russell 269 training in dispute resolution 103 translation of works 118 translation rights 121 treaties, clauses to protect cultural objects 223 TRIPS see Agreement on Trade-Related Aspects of Intellectual Property Rights Tunis Model Law 157n57 Tunisia 390 Turkey 98, 102
T Tabassum, A. 248 Taiwan 262–3 taxes/import tariffs 124 Taylor, C. 314 technology access to knowledge 323–44 transfer 211 see also information technology, science
U Ukraine 63–4, 99 underwater heritage see under cultural heritage, see also Convention on the Protection of the Underwater Cultural Heritage UNESCO analysis of effect of activity 395–6
428
Normative Action in Education, Science and Culture
boycotted 380 clearinghouse function 367, 367n8 in the Cold War era 17–18, 209, 327–30 creation 15, 17n2, 174 decentralization 327–8, 333 early years of 16, 16n1, 325–6 Medium Term Strategy 306 membership 368–9 name and scope 323 National Commissions 16 politicization 379–82 primary goals 109, 189, 326 reputation 172, 344 technical assistance programmes 172 website 28 withdrawal of members 80, 159n64, 327, 330, 380, 382 within the UN system 370–3, 380 see also other aspects indexed separately UNESCO/Norway Funds-in-Trust 264 UNESCO/Republic of Korea Funds-inTrust 264–5 UNIDROIT see International Institution for the Unification of Private Law United Kingdom 252 and copyright law 115 and Parthenon Marbles 101–2 withdrawal from UNESCO 80, 327, 330, 382 United Nations Charter 77, 110, 139, 145, 171, 189n54, 207–8, 351, 352, 354, 366, 368, 369, 370, 373, 397, 399 Commission on Human Rights 313, 354 Committee on Economic, Social and Cultural Rights (CESCR) 65, 150, 174–5, 176, 182n26, 183, 304, 306–7, 309, 313 (General Comment on the Right to Education 304, 319, 354) Conference on the Conservation and Utilization of Resources (UNCCUR) (1949) 253, 253n72 Conference on Environment and Development 230 Conference on the Human Environment (Stockholm Conference) (1972) 228, 253, 253n73, 269 Conference on the Law of the Sea 230 Conference on Trade and Development (UNCTAD) 338, 342, 343 Development Programme (UNDP) 242 Economic Commission for Europe 71n65
Economic and Social Council (ECOSOC) 150, 253n72, 369, 370–2 Educational Scientific and Cultural Organization see UNESCO establishment of 174 Food and Agriculture Organization 31n1, 68, 69n59, 356, 371 General Assembly 174, 189n5, 243, 299, 356, 369, 371 goals 326 limitations on capabilities 172 Millennium Declaration/Development Goals 164, 167, 299, 372 Organization for Educational and Cultural Reconstruction 17n2 Relationship Agreement with UNESCO 368, 370–3, 371n28, 380 role in promoting peace 73 Security Council 361, 368–9, 372 standard setting 292, 309 structure of 370–1 Sub-Commission on the Promotion and Protection of Human Rights 313, 313n1, 317 Year for Tolerance 189n5, 194 United States 166 attitudes to copyright 116n12, 117, 117n16, 120, 158–9 Committee for the Conservation and Development of Natural Resources 268–9 heritage protection initiatives 268 National Academies 340, 340n93 and protection of seals 252 rejoined UNESCO 159n64 response to NWICO 330 scientific research in 344 suspension/withdrawal from UNESCO 80, 159n64, 327, 330, 380, 382 Universal Copyright Convention (1952) 12, 18, 75n5, 79, 115–25, 133, 134, 155, 210n10, 376 membership 127–32 revised 1971 18n7, 79, 119, 123, 376 Universal Declaration on Bioethics and Human Rights (2005) 68, 110, 140, 141, 143, 145, 212, 212n17, 378–9 Universal Declaration on Cultural Diversity (2001) 57, 69n59, 134, 141, 141n12, 148, 157, 161–2, 164, 168, 192n14, 240, 243, 268n6, 316, 375, 383 Universal Declaration on the Human Genome and Human Rights (1997) 58, 110, 140, 143, 144, 329, 355–6, 378 Guidelines for implementation 356, 358
Index 429 Universal Declaration of Human Rights (1948) 110, 110n2, 145, 154, 162, 175, 177, 196, 209, 225, 295, 352, 374, 400 Universal Declaration of Principles of International Cultural Cooperation (1966) 156–7 Uruguay Round 114n5
V values formation of 247, 247n51 fundamental human 109 maximized in interacting through institutions 177n18 Vasak, Karel 137 Vattel, E. de 358 Vedas 250–1, 250n62 Venice Court of National and International Arbitration 89 verification procedures 61 Vienna Convention on the Law of Treaties 11, 45–6, 114, 114n7, 120n22, 164, 226n12, 287n101, 310 Vienna Declaration on Human Rights (1993) 283n78 Vienna Declaration and Programme of Action 189n5 Villalobos, Vernor Muñoz 301
W wars 173 action to abolish 203 civil 201 Cold see Cold War and the ‘enemy’ 203 First World 173 and founding of UNESCO 174, 207n1, 323 and intolerance of diversity 191 Napoleonic 224 of religion 397 rules of 224 ‘scourge of ’ 73 Second World 17, 224, 225, 325 Spanish Civil 224 treaties ending 223 see also armed confl ict Washington Conference Principles (on NaziConfiscated Art) 88n42 Washington Consensus 172
Washington Convention (on copyright) 116n10 Washington, Treaty of see Roerich Pact weather forecasting 211n15 Weber, Max 241, 246–7 Weil, Prosper 26 Weiss, Edith Brown 285, 286 Weissbrodt, David 100, 100n87 Westphalian system 396 WIPO see World Intellectual Property Organization ‘wise use’, definition 275n38 Wolf, Francis 387 women and girls discrimination against 300 education of 298, 300, 302, 306, 313 and genital mutilation 260 rights of 211 Women, Cultural Heritage and the Wealth of Nations 255n81 World Bank 66–7, 172, 273–4, 302 operational policies 66–7 World Charter for Nature 254 World Commission on Culture and Development 161, 248, 252 World Commission on Environment and Development 251–2 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) 212 World Conference on Cultural Policies (Mondicault) 242 World Conference on the Right to and Rights in Education (2004) 299 World Congress on the Status of the Artist (1997) 157 World Conservation Union (IUCN) 62, 62n37, 269, 272, 272n24, 277, 281 World Declaration on Education for All (1990) 298, 304, 354 World Declaration on Higher Education for the Twenty-First Century 321, 354 World Education Forum 298–9 World Health Organization (WHO) 31n1, 36n13, 68, 338, 342, 343, 371 world heritage, definition of concept 229, 230, 237, 268, 273 see also cultural heritage, heritage World Heritage Bureau 272n27 World Heritage Centre 63, 64n44, 281 World Heritage Committee 54–5, 62, 63, 64n44, 230, 272, 272n27, 361 World Heritage Convention (1972) 228, 231, 267–88, 366–7, 376–7, 382
430
Normative Action in Education, Science and Culture
General Assembly of State Parties to 360 Memorandum of Understanding with Ramsar Convention 280n63 negotiation of 268–70 signatories to 270 World Heritage Fund 271, 272n26 World Heritage List 54–5, 63, 231, 235, 237, 268, 270, 277–8, 359, 360, 399–400 and intangible cultural heritage 239n12 List of World Heritage in Danger 231, 272, 272n26, 272n27, 278, 280n66, 287 sites listed 270, 288n104 State Parties 270–1, 277n50 World Heritage sites damage to 66 general 229 specific 63–4, 275nn34–37 World Intellectual Property Organization (WIPO) 70, 115, 119, 155, 156, 335, 338, 342, 343 Performers and Phonograms Treaty 119, 127–32 World Copyright Treaty 119, 127–32 World Medical Association 68 World Observatory on the Social Status of the Artist 157 World Parks Congress (2003) 279n60
World Plan of Action on Education for Human Rights and Democracy (1993) 298 World Summit on Sustainable Development (Johannesburg) (2002) 283n78 World Summits on the Information Society 301, 338, 339–40, 344 Plan of Action 339 World Trade Organization (WTO) 68, 69n59, 70, 111, 114, 158–60, 165–6, 168, 172, 209, 375–6 Appellate Body 160 disputes 160, 166 wrecks, agreements over 233n35 see also cultural heritage, underwater
Y Yugoslavia (former) 55, 369 Yusuf, Abdulqawi 27
Z Zambia
372
