Professional Documents
Culture Documents
STANDARD-SETTING IN UNESCO
Volume I
NORMATIVE ACTION
IN EDUCATION, SCIENCE
AND CULTURE
Essays in Commemoration
of the Sixtieth Anniversary of UNESCO
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.
© UNESCO 2007
All rights reserved
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
PART II
FROM CONSTITUTIONAL OBJECTIVES
TO LEGAL COMMITMENTS
Panel 2
Promoting a Peace Founded on
Intellectual and Moral Solidarity
Introduction
F. Francioni . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Panel 3
Promoting Dignity, Equality and Mutual Respect
among Human Beings
Introduction
J. Faundez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
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
Panel 5
Fostering Access to Education and Knowledge
Introduction
P. M. Eisemann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
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
PART V
CONCLUSIONS
General Conclusions
G. Abi-Saab . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395
INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
NORMATIVE ACTION
IN EDUCATION, SCIENCE
AND CULTURE
11
Foreword
Koïchiro Matsuura
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,
14 Normative Action in Education, Science and Culture
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.
16 Normative Action in Education, Science and Culture
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:
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.
18 Normative Action in Education, Science and Culture
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
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
. 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
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
Introduction
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, thirty-
one 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
26 Normative Action in Education, Science and Culture
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
Elaborating and Implementing UNESCO’s Standard-Setting Instruments 27
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
28 Normative Action in Education, Science and Culture
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
Elaborating and Implementing UNESCO’s Standard-Setting Instruments 29
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
30 Normative Action in Education, Science and Culture
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.
31
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:
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.
32 Normative Action in Education, Science and Culture
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 standard-
setting 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.
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:
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:
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:
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:
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.
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.
UNESCO Practices and Procedures for the Elaboration of Standard-Setting Instruments 37
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:
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.
38 Normative Action in Education, Science and Culture
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 Director-
General 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
40 Normative Action in Education, Science and Culture
Executive Board at its one hundred fourth session. See 19 C/Resolution 4.132, adopted on
29 November 1976.
UNESCO Practices and Procedures for the Elaboration of Standard-Setting Instruments 41
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 Director-
General.’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 Director-
General – 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 self-
contained. 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.
42 Normative Action in Education, Science and Culture
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.’
44 Normative Action in Education, Science and Culture
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.
UNESCO Practices and Procedures for the Elaboration of Standard-Setting Instruments 45
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.
(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.
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.’
UNESCO Practices and Procedures for the Elaboration of Standard-Setting Instruments 47
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.
48 Normative Action in Education, Science and Culture
. 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 standard-
setting 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 thirty-
one 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
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.
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. 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 back-
up 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.
52 Normative Action in Education, Science and Culture
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.
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 53
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.
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 standard-
setting 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
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
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.
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 55
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
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.
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 57
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,
• [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,
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
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.
62 Normative Action in Education, Science and Culture
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
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 63
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.
64 Normative Action in Education, Science and Culture
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 Decision-
making 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.
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 65
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.
66 Normative Action in Education, Science and Culture
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
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 67
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.
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.
68 Normative Action in Education, Science and Culture
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
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 69
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
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.’
Monitoring, Supervision and Coordination of the Standard-setting Instruments of UNESCO 71
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.
72 Normative Action in Education, Science and Culture
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.
73
. 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.
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).
UNESCO Dispute Settlement 75
• [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.
76 Normative Action in Education, Science and Culture
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 Director-
General 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:
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.
UNESCO Dispute Settlement 77
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
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.
78 Normative Action in Education, Science and Culture
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.
UNESCO Dispute Settlement 79
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.
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).
80 Normative Action in Education, Science and Culture
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).
UNESCO Dispute Settlement 81
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.
82 Normative Action in Education, Science and Culture
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, Guinea-
Bissau) 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
(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).
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:
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.
UNESCO Dispute Settlement 85
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
86 Normative Action in Education, Science and Culture
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:
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.
UNESCO Dispute Settlement 87
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.
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.
88 Normative Action in Education, Science and Culture
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:
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 Secretary-
General, 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 Holocaust-
Looted 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.
UNESCO Dispute Settlement 89
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
• 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
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.
92 Normative Action in Education, Science and Culture
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).
UNESCO Dispute Settlement 93
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.
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
94 Normative Action in Education, Science and Culture
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.
UNESCO Dispute Settlement 95
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:
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).
96 Normative Action in Education, Science and Culture
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 thirty-
second 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:
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).
UNESCO Dispute Settlement 97
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.
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.
98 Normative Action in Education, Science and Culture
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.
UNESCO Dispute Settlement 99
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).
100 Normative Action in Education, Science and Culture
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.
UNESCO Dispute Settlement 101
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.
102 Normative Action in Education, Science and Culture
The cases pending today certainly show a close relationship between the Committee’s
activities and the avoidance of disputes:
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.
. 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.
UNESCO Dispute Settlement 103
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
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:
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.
113
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.
114 Normative Action in Education, Science and Culture
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.
An Enduring Legacy For the Knowledge Economy 115
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.
116 Normative Action in Education, Science and Culture
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
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.
An Enduring Legacy For the Knowledge Economy 117
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).
118 Normative Action in Education, Science and Culture
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
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.
An Enduring Legacy For the Knowledge Economy 119
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.
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.
An Enduring Legacy For the Knowledge Economy 121
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.
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.
122 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.
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
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.
124 Normative Action in Education, Science and Culture
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
126 Normative Action in Education, Science and Culture
Appendix A:
International Copyright Relations: A Membership Map
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
Y N N N N
Barbuda
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 Y Y Y N N
Belarus 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
Bosnia and
N1 Y Y N N
Herzegovina
Botswana Y N N Y Y
Brazil Y Y Y N N
Brunei
Y N N N N
Darussalam
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
Cameroon Y Y Y N N
Canada Y Y N Y Y
Cape Verde N1 N N N N
Central African
Y N N N N
Republic
128 Normative Action in Education, Science and Culture
Chad 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 N N N N N
of Korea
Democratic
Republic of the Y N N N N
Congo
Denmark Y Y Y Y Y
Djibouti Y N N N N
Dominica Y N N N N
Dominican
Y Y Y Y Y
Republic
Ecuador Y Y Y Y Y
Egypt Y N N N N
El Salvador Y Y Y Y Y
Equatorial
N1 N N N N
Guinea
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
Gambia Y N 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
Guinea-Bissau Y N N N N
Guyana Y N N N N
Haiti Y Y N N N
Holy See N1 Y Y N N
Honduras Y N N Y Y
Hong Kong
Y N N N N
(China)
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
Kazakhstan N1 Y N Y Y
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
N1 N N N N
Jamahiriya
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
Maldives Y N 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
Mauritius Y Y N N N
Mexico Y Y Y Y Y
Micronesia
(Federated States N N N N N
of )
Moldova Y Y N Y 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
Myanmar Y N 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
Y N N N N
New Guinea
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
Y Y Y Y N
Korea
Romania Y N N Y Y
Russian
N1 Y Y N N
Federation
Rwanda Y Y Y N N
Saint Kitts and
Y N N N N
Nevis
Saint Lucia Y N N Y Y
Saint Vincent
and the Y Y Y N N
Grenadines
An Enduring Legacy For the Knowledge Economy 131
Saudi Arabia Y Y Y N N
Sierra Leone Y N N N N
Senegal Y Y Y Y Y
Serbia and
N1 N N Y Y
Montenegro
Singapore Y N N Y Y
Slovakia Y Y Y Y Y
Slovenia Y Y Y Y Y
Solomon Islands Y N N N N
South Africa Y N N Y Y
Spain Y Y Y Y Y
Sri Lanka Y Y Y N N
Sudan 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
N N N N N
Republic
Taiwan (China) Y N N N N
Tajikistan N1 Y N N N
Tanzania Y N N N N
Thailand Y N N N N
The Former
Yugosl. Rep. of Y Y Y Y Y
Macedonia
Togo Y N N Y Y
Tonga N1 N N N N
Trinidad and
Y Y Y N N
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
Y N N Y Y
Emirates
United Kingdom
of Great Britain
Y Y Y Y Y
and Northern
Ireland
United States of
Y Y Y Y Y
America
Uruguay Y Y Y Y Y
132 Normative Action in Education, Science and Culture
Uzbekistan 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
1. WTO Observer Government. With the exception of the Holy See, observers must start accession negotiations within
5 years of becoming observers.
2. Universal Copyright Convention, as revised at Geneva on 6 September 1952.
3. Universal Copyright Convention, as revised at Paris on 24 July 1971.
An Enduring Legacy For the Knowledge Economy 133
Appendix B
Florence Agreement on the Importation of The Agreement on the Importation of Educational, Scientific
Educational, Scientific and Cultural Materials and Cultural Materials, adopted by the General
(1950) 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 The Protocol broadens the scope of the Florence
Importation of Educational, Scientific and Agreement by extending the benefits it offers to
Cultural Materials (1976) additional objects and by granting further benefits to a
number of materials.
The Multilateral Convention for the Avoidance of This special multilateral tax treaty has largely been
Double Taxation of Copyright Royalties (1976) 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 The Recommendation provides an extensive definition of
Artist (1980) 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.
Convention on the Protection and Promotion of The objective of the Convention is to protect and
the Diversity of Cultural Expressions (2005) 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.
134 Normative Action in Education, Science and Culture
Appendix C:
Important UNESCO Legal Instruments for Culture
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.
2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
135
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
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
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 Jean-
Claude 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.
138 Normative Action in Education, Science and Culture
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:
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.
[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.
Strengthening Moral Solidarity 139
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:
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:
11. See M. Virally, 1983, Panorama du droit international contemporain, Recueil des Cours 183, p. 251.
140 Normative Action in Education, Science and Culture
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:
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:
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.’
142 Normative Action in Education, Science and Culture
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.
Strengthening Moral Solidarity 143
‘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.
144 Normative Action in Education, Science and Culture
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:
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.
147
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.
148 Normative Action in Education, Science and Culture
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.
UNESCO and the Promotion of Cultural Exchange and Cultural Diversity 149
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.
150 Normative Action in Education, Science and Culture
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.
UNESCO and the Promotion of Cultural Exchange and Cultural Diversity 151
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.
152 Normative Action in Education, Science and Culture
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
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.
154 Normative Action in Education, Science and Culture
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.
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.
UNESCO and the Promotion of Cultural Exchange and Cultural Diversity 155
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).
156 Normative Action in Education, Science and Culture
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.
UNESCO and the Promotion of Cultural Exchange and Cultural Diversity 157
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.
158 Normative Action in Education, Science and Culture
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.
UNESCO and the Promotion of Cultural Exchange and Cultural Diversity 159
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 box-
office 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 most-
favoured 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.
160 Normative Action in Education, Science and Culture
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, 1946-
2004, 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.
UNESCO and the Promotion of Cultural Exchange and Cultural Diversity 161
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.
162 Normative Action in Education, Science and Culture
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).
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
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.
166 Normative Action in Education, Science and Culture
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
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 non-
governmental) 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.
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 standard-
setting activities have not yet come to an end, and where continuing vigilance is
advisable.
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.
172 Normative Action in Education, Science and Culture
* 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.
174 Normative Action in Education, Science and Culture
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.
[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.
Advancing Education for Justice, Liberty and Peace 175
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).
176 Normative Action in Education, Science and Culture
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
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).
Advancing Education for Justice, Liberty and Peace 177
(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 […].
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.
[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
Advancing Education for Justice, Liberty and Peace 179
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.
[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
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.
180 Normative Action in Education, Science and Culture
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 non-
discrimination 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:
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.
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 non-
discriminatory 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 age-
group 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
Advancing Education for Justice, Liberty and Peace 183
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).
184 Normative Action in Education, Science and Culture
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.
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.
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).
186 Normative Action in Education, Science and Culture
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).
187
Federico Lenzerini
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.
188 Normative Action in Education, Science and Culture
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.
Fostering Tolerance and Mutual Understanding among Peoples 189
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
[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
(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.
Fostering Tolerance and Mutual Understanding among Peoples 191
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.
192 Normative Action in Education, Science and Culture
[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:
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 standard-
setting 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).
194 Normative Action in Education, Science and Culture
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:
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.
Fostering Tolerance and Mutual Understanding among Peoples 195
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):
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: <http://www.unesco.
org/dialogue/delhi/delhi_declaration.html> (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.’
196
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:
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.’
197
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
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:
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’:
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.
Fostering Tolerance and Mutual Understanding among Peoples 199
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.’
Fostering Tolerance and Mutual Understanding among Peoples 201
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.).
202 Normative Action in Education, Science and Culture
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 inter-
religious 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.
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
Fostering Tolerance and Mutual Understanding among Peoples 203
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
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
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.
207
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.’
208 Normative Action in Education, Science and Culture
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.
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.
The Protection of Human Dignity in the Face of Scientific and Technological Progress 209
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.
210 Normative Action in Education, Science and Culture
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:
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.
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).
212 Normative Action in Education, Science and Culture
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 twenty-
ninth 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.’
The Protection of Human Dignity in the Face of Scientific and Technological Progress 213
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.
214 Normative Action in Education, Science and Culture
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
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
220 Normative Action in Education, Science and Culture
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.
221
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).
222 Normative Action in Education, Science and Culture
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.
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.
A Dynamic Evolution of Concept and Scope 223
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.
224 Normative Action in Education, Science and Culture
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.
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
226 Normative Action in Education, Science and Culture
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
A Dynamic Evolution of Concept and Scope 227
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).
228 Normative Action in Education, Science and Culture
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.
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).
A Dynamic Evolution of Concept and Scope 229
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).
230 Normative Action in Education, Science and Culture
(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
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.
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
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.
234 Normative Action in Education, Science and Culture
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.’
A Dynamic Evolution of Concept and Scope 235
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:
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.
236 Normative Action in Education, Science and Culture
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.
237
Toshiyuki Kono
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.
238 Normative Action in Education, Science and Culture
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 239
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.
240 Normative Action in Education, Science and Culture
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
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.
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.
242 Normative Action in Education, Science and Culture
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
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 243
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 Secretary-
General 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
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.
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 245
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.
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.
246 Normative Action in Education, Science and Culture
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.
industrial economy, while the latter hampers it. Viewing culture as a singular, stationary
and independent source of development is and will remain wrong.47
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.
248 Normative Action in Education, Science and Culture
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.
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 249
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
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 251
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
[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.
252 Normative Action in Education, Science and Culture
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
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 253
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 non-
binding 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.
254 Normative Action in Education, Science and Culture
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,
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
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 257
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.
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.
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.
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
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.
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 263
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, extra-
budgetary 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:
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).
264 Normative Action in Education, Science and Culture
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).
UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development 265
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 well-
being. 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 well-
rounded approach to sustainable development, which focuses attention on intangible
cultural heritage as an additional area to be considered.
267
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).
268 Normative Action in Education, Science and Culture
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
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.
Protecting Natural Heritage and Its Transmission to Future Generations 269
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 Nations-
sponsored 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.
270 Normative Action in Education, Science and Culture
codification of protection of the world heritage – both natural and cultural – and call
on governments to note:
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
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.
Protecting Natural Heritage and Its Transmission to Future Generations 271
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.
272 Normative Action in Education, Science and Culture
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.
Protecting Natural Heritage and Its Transmission to Future Generations 273
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.
274 Normative Action in Education, Science and Culture
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.
Protecting Natural Heritage and Its Transmission to Future Generations 275
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.
Protecting Natural Heritage and Its Transmission to Future Generations 277
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
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.
Protecting Natural Heritage and Its Transmission to Future Generations 279
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. BLG-
3/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.
280 Normative Action in Education, Science and Culture
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
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
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.
282 Normative Action in Education, Science and Culture
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.
Protecting Natural Heritage and Its Transmission to Future Generations 283
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.
284 Normative Action in Education, Science and Culture
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.
Protecting Natural Heritage and Its Transmission to Future Generations 285
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
286 Normative Action in Education, Science and Culture
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.
Protecting Natural Heritage and Its Transmission to Future Generations 287
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.
288 Normative Action in Education, Science and Culture
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.
Introduction
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
292 Normative Action in Education, Science and Culture
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 standard-
setting 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 standard-
setting 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 Programme-
Carrying 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.’
Fostering Access to Education and Knowledge 293
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’.
295
Wolfgang Benedek*
* 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.
296 Normative Action in Education, Science and Culture
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 Standard-
setting 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).
The Normative Implications of Education for All (EFA): The Right to Education 297
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).
298 Normative Action in Education, Science and Culture
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.
The Normative Implications of Education for All (EFA): The Right to Education 299
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).
300 Normative Action in Education, Science and Culture
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
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).
The Normative Implications of Education for All (EFA): The Right to Education 301
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
302 Normative Action in Education, Science and Culture
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.
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
The Normative Implications of Education for All (EFA): The Right to Education 303
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.
304 Normative Action in Education, Science and Culture
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 non-
discrimination 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.
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.
306 Normative Action in Education, Science and Culture
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.
308 Normative Action in Education, Science and Culture
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.
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.
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
310 Normative Action in Education, Science and Culture
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.
The Normative Implications of Education for All (EFA): The Right to Education 311
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.
313
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
314 Normative Action in Education, Science and Culture
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.
Ensuring Equal Opportunities in Education 315
[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
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.
Ensuring Equal Opportunities in Education 317
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 Sub-
Commission 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:
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. Sub-
Commission 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.
318 Normative Action in Education, Science and Culture
• 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
[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.
Ensuring Equal Opportunities in Education 319
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:
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.
Ensuring Equal Opportunities in Education 321
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.
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 non-
profit 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 rights-
based context.
19. See Y. Daudet and K. Singh, 2001, The Right to Education: An Analysis of UNESCO’s Standard-
setting Instruments, Paris, UNESCO, p. 65.
323
. 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.
324 Normative Action in Education, Science and Culture
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.
Access to Scientific and Technological Knowledge 325
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.
326 Normative Action in Education, Science and Culture
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:
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.
Access to Scientific and Technological Knowledge 327
20. Resolutions adopted on the report of Programme Commission I at the thirty-first and thirty-
second 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.
328 Normative Action in Education, Science and Culture
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
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.
Access to Scientific and Technological Knowledge 329
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.
330 Normative Action in Education, Science and Culture
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.
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.
Access to Scientific and Technological Knowledge 331
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.
332 Normative Action in Education, Science and Culture
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.
Access to Scientific and Technological Knowledge 333
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 State-
controlled 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
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..
Access to Scientific and Technological Knowledge 335
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 anti-
circumvention 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.
336 Normative Action in Education, Science and Culture
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,
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 public-
domain 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.
338 Normative Action in Education, Science and Culture
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
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:
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.
Access to Scientific and Technological Knowledge 341
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.
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.
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 development-
oriented 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
Introduction
Abdulqawi A. Yusuf
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.
351
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.
352 Normative Action in Education, Science and Culture
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.
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:
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.
354 Normative Action in Education, Science and Culture
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.
The Impact of Legal Instruments Adopted by Unesco on General International Law 355
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. 82-
109; 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
356 Normative Action in Education, Science and Culture
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
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,
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.
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.
The Impact of Legal Instruments Adopted by Unesco on General International Law 359
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.
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.
360 Normative Action in Education, Science and Culture
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.
The Impact of Legal Instruments Adopted by Unesco on General International Law 361
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.
362 Normative Action in Education, Science and Culture
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:
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
The Impact of Legal Instruments Adopted by Unesco on General International Law 363
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.
365
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 author gratefully acknowledges support from Daniëlla Dam-de Jong (LL.M., M.A.) in
finalizing this chapter.
366 Normative Action in Education, Science and Culture
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.
UNESCO’s Role in the Development and Application of International Law: An Assessment 367
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.
368 Normative Action in Education, Science and Culture
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
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 re-
establish 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
370 Normative Action in Education, Science and Culture
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.
UNESCO’s Role in the Development and Application of International Law: An Assessment 371
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.
372 Normative Action in Education, Science and Culture
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.
UNESCO’s Role in the Development and Application of International Law: An Assessment 373
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
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.
374 Normative Action in Education, Science and Culture
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.
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.
UNESCO’s Role in the Development and Application of International Law: An Assessment 375
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
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.
UNESCO’s Role in the Development and Application of International Law: An Assessment 377
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.
378 Normative Action in Education, Science and Culture
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.
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.
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.
UNESCO’s Role in the Development and Application of International Law: An Assessment 381
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
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.
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.
UNESCO’s Role in the Development and Application of International Law: An Assessment 383
. 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.
384 Normative Action in Education, Science and Culture
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 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:
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.
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
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:
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.
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.
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.
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
Developing New Intergovernmental Institution through Simplified Agreements 391
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.
392 Normative Action in Education, Science and Culture
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
395
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 standard-
setting 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:
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
396 Normative Action in Education, Science and Culture
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.
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
398 Normative Action in Education, Science and Culture
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 follow-
up 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,
General Conclusions 399
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.
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
General Conclusions 401
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.
403
List of Contributors
List of Abbreviations
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 African Charter of Human and People’s
Rights (1981) 253n71
African Convention (1968) 282
A African Union 161
Agenda 21 280n62
A2K 125 agenda for General Conference 35, 38–40, 42
Aarhus Convention see Convention on Access agenda setting 382
to Information, Public Participation in Agreement for Facilitating the International
Decision-making and Access to Justice in Circulation of Visual and Auditory
Environmental Matters Materials of an Educational, Scientific
Abi-Saab, G. 17–18, 26 and Cultural Character (1948) 11, 18n7,
affi rmative action 314 79, 82n23, 85n34, 124, 124n32, 151n22,
Afghanistan 233–4, 360, 361, 376 209n4
Africa Agreement on the Importation of Educational,
cultural charter 154 Scientific, and Cultural Materials
handicrafts in 256n81 (Florence Agreement) (1950) 18n7, 75,
languages 256n81, 264 79, 85n34, 133, 134, 151n22, 209n5, 376
traditions 264 Nairobi Protocol (1976) 79, 133, 134, 376
410 Normative Action in Education, Science and Culture
70n62, 70n63, 74–5, 79, 80, 83, 84, Memorandum of Understanding with
85n31, 85n33, 86, 92n59, 111, 133, 134, World Heritage Convention 280n63
141, 150, 156, 163–5, 168, 193n14, 211, Montreaux Record 280
244, 244n37, 375–6, 382 conventions
signatories 163, 163n93 adoption by UNESCO 11, 17, 25 (see
unclear status/contribution of 382 also individual conventions by name)
Convention on the Protection and Promotion adoption procedure 34
of the Rights and Dignity of Persons with binding nature of 382
Disabilities (proposed) 309n72 dispute settlement mechanisms 78
Convention on the Protection of the draft see under Draft
Underwater Cultural Heritage monitoring of 52 (see also monitoring of
(2001) 79, 81, 82, 83, 84, 92n59, 134, standards)
231–3 not yet in force 81
Convention on the Protection and Use of number/year adopted 49
Transboundary Watercourses and Lakes number of parties to 80
(1992) 284n83 provided for in UNESCO
Convention for the Protection of World Constitution 11 (see also Constitution of
Cultural and Natural Heritage UNESCO)
(1972) 18n7, 54, 62, 62n36, 62n37, relationship to other instruments 35–7,
63n38, 63n39, 67, 78, 80, 102, 134, 150, 40, 42, 143
229, 237, 358 UNESCO’s fi rst 11
parties to 80, 358, 360 Coombe, R. 262
Convention on the Recognition of Studies, cooperation, notion of international 396–9
Diplomas and Degrees in Higher coordination of instruments 51–72
Education in Asia and the Pacific ex ante 67–8
(1983) 87n36, 291 ex post 69–70
Convention on the Recognition of Studies, copyright 17, 110, 113–34, 150, 155, 156,
Diplomas and Degrees concerning Higher 210, 238, 292, 335, 374, 376
Education in the States Belonging to the arguments for reconstructing system 119
European Region 46n34, 80n16, 291 compulsory licensing 122, 122n28, 123
Convention Relating to the Distribution of draft international convention 16
Programme-Carrying Signals international relations membership
Transmitted by Satellite (Brussels 127–32
Convention) (1974) 18n7, 292n1 period of protection 120
Convention on the Rights of the Child Universal Copyright Convention see
(1989) 68n59, 175n8, 181n24, 195n22, Universal Copyright Convention
299n17, 304, 354 see also intellectual property rights
signatories to 304 Corell, Hans 77n12, 89, 93
Convention for the Safeguarding of the Costa Rica 261
Intangible Cultural Heritage costs
(2003) 41n25, 78, 111, 134, 150, 211, of dispute resolution procedures 94–5
240, 243–4, 257–63 of education 301, 302
and sustainable development 240 see also funding
Convention on Technical and Vocational Council of Europe 64, 161, 309, 310, 356–7
Education (1989) 12, 80n16, 180, 210n7, Eurimages fund 159
291, 297–8, 304, 354 Council of International Organisations of
parties to 297 Medical Sciences (CIOMS) 68
Convention on Wetlands of International Covenant on Economic, Social and Cultural
Importance especially as Waterfowl Rights 110
Habitat (Ramsar Convention) 64, cultural agreements, bilateral 17
64n43, 64n46, 80, 271, 272n24, 275, 278, Cultural Charter for Africa 154, 154n41
279, 280–1, 280n65, cultural cooperation 153
414 Normative Action in Education, Science and Culture
intangible cultural heritage see cultural International Convention for the Protection of
heritage, intangible Performers, Producers of Phonograms and
Intangible Cultural Heritage Fund 260 Broadcasting Organizations (Rome
integrity, conditions of 276 Convention) (1961) 75n5, 79, 86, 155,
intellectual property rights 68, 70, 110, 113– 210n11
34, 301, 334–8 International Council on Monuments and
and access to knowledge 342–4 Sites (ICOMOS) 62, 62n37, 272
and dissemination of drugs 204 International Council for Science/of Scientific
and innovation 157–8 Unions (ICSU) 326, 329, 331, 336, 340
and traditional knowledge 262 International Court of Justice (ICJ) 78, 78n13,
see also copyright 81–3, 83n27, 92, 95, 221, 355, 367, 371
Inter Cetera 191 International Covenant on Civil and Political
Intergovernmental Bioethics Committee Rights (1966) 68n59, 175
(IGBC) 58 International Covenant on Economic, Social
Intergovernmental Committee for Promoting and Cultural Rights (ICESCR) 65, 149–
the Return of Cultural Property to its 50, 150n15, 154, 162, 175n4, 175n7, 295,
Countries of Origin or its Restitution in 300, 304, 306–7, 317, 354, 374
Case of Illicit Appropriation 887n38, International Criminal Tribunal for the
89–90, 98, 98n78, 98n81 Former Yugoslavia (ICTY) 66, 66n50,
Intergovernmental Copyright Conference 234–5, 360, 361
(1952) 155 International Cultural Property Society 89
International Declaration on Human Genetic
intergovernmental institutions, development
Data (2003) 58, 141, 144–5, 378
of 385–92
International Development Strategy for the
International Bioethics Committee
Seventies 241–2
(IBC) 58, 212
International Development Strategy for the
International Centre for the Registration of
Eighties 242
Serial Publications (ISDS) 387–90
International Ethical Guidelines for
International Centre for the Study of the
Biomedical Research Involving Human
Preservation and Restoration of Cultural
Subjects 68
Property (ICCROM) 62n37, 386–7, 391
International Institute of International
International Centre for Synchrotron Light for Cooperation (IICI), 16
Experimental Science and Applications in International Institution for the Unification of
the Middle East (SESAME) 386–7, 391 Private Law (UNIDROIT) 79n14,
International Charter of Physical Education 79n15, 226
and Sport 291 Convention on Stolen and Illegally
International Cinema Congress (1926) 16 Exported Cultural Objects 78–9, 79n14
International Civil Aviation Organization International Labour Organization
(ICAO) 31n1, 36n13, 371 (ILO) 28, 33, 61, 65, 155, 311, 352, 354,
International Commission for the Protection 367, 371
of the Danube River 64 constitution 31n1, 36n13, 37
International Commission for the Study of Convention 107 concerning the Protection
Communication Problems 381 and Integration of Indigenous and Other
International Committee on Data for Science Tribal and Semi-Tribal Populations in
and Technology (CODATA) 336, 340 Independent Countries (1957) 194n19
International Convention concerning the Use Convention 169 concerning Indigenous
of Broadcasting for Peace (1936) 16 and Tribal Peoples in Independent
International Convention on the Elimination Countries (1989) 69n59, 181, 194n19,
of All Forms of Racial Discrimination 253n71
(CEDAW) (1965) 68, 189n5, 296, 307, 382 standard-setting activities 32
International Convention on the Protection of International Law Association 91
the Rights of All Migrant Workers and International Law Commission 222, 361
Members of Their Families (1990) 308 International Monetary Fund (IMF) 172
Index 421
and mutual understanding 189, 195 see also Convention concerning the
promotion of 73, 109, 152–3, 189, 198– Exchange of Official Publications and
9, 332, 380, 397 Government Documents between States,
and solidarity 139, 141 Convention concerning the International
Pérez de Cuéllar, Javier 243 Exchange of Publications
Permanent Court of Arbitration (PCA) 83, publicity campaign on tolerance and
88 equity 200
persecution, crime of 235
Peru 261
pharmaceutical industry Q
and doping in sport 211
and intellectual property rights 204 quality assurance in standard setting 44
Philippines 261, 261n87, 286 quality of life 258–9, 265
plans of action 58 see also sustainable development
Poland 173 questionnaires
Policy Guidelines on the Development and on follow-up to the Revised
Promotion of Governmental Public Recommendation concerning Technical
Domain Information 337 and Vocational Education 298
political general to Member States 59–60
participation 247 on the Protection of Folklore 238
regimes, change in nature 172
politicization of UNESCO 379–82
pollution monitoring 211n15 R
Popes
Alexander VI 191 Rabelais, François 355
Paul VI 137–8 racial
poverty 204, 333 discrimination see discrimination
Preah Vihear 78n13 segregation 296, 368–9
precautionary principle 356 Ramsar Convention see Convention on
prejudice see discrimination Wetlands of International Importance
Preliminary Consolidated Report to the especially as Waterfowl Habitat
United Nations on a Culture of Peace ratification
(1998) 203 levels of 181n24
preliminary study 35, 39, 40, 42, 43–4 need for focus on 13
and quality assurance 44 too few for quorum 27, 81, 163
Principles of the International Congress on Recognition of Studies, Diplomas and Degrees
Teaching of Human Rights 298 in Higher Education (1983) 12, 79
Principles on the Settlement of Disputes Recommendation Against Discrimination in
Concerning Cultural Objects Displaced in Education (1960) 196, 291, 297, 353
Relation to the Second World War 87 Recommendation on the Development of
privatization of knowledge 343 Adult Education (1976) 177, 291, 298,
procedure for setting standards 31–49 300
Procedures for the Protection of Human Recommendation concerning Education for
Rights 99 International Understanding, Cooperation
Proclamation of Masterpieces of Oral and and Peace and Education relating to
Intangible Cultural Heritage of Human Rights and Fundamental
Humanity 261 Freedoms (1974) 144, 176–7, 195, 196,
property 200
cultural see cultural property Recommendation on the International
private 79, 79n14, 88, 226 Exchange of Cultural Property
‘Protecting Powers’, 76 (1976) 101, 154n42
public domain 120, 120n23
publications, exchanges of 17
Index 425
Tabassum, A. 248 U
Taiwan 262–3
taxes/import tariffs 124 Ukraine 63–4, 99
Taylor, C. 314 underwater heritage see under cultural heritage,
technology see also Convention on the Protection of
access to knowledge 323–44 the Underwater Cultural Heritage
transfer 211 UNESCO
see also information technology, science analysis of effect of activity 395–6
428 Normative Action in Education, Science and Culture
General Assembly of State Parties to 360 World Plan of Action on Education for
Memorandum of Understanding with Human Rights and Democracy
Ramsar Convention 280n63 (1993) 298
negotiation of 268–70 World Summit on Sustainable Development
signatories to 270 (Johannesburg) (2002) 283n78
World Heritage Fund 271, 272n26 World Summits on the Information
World Heritage List 54–5, 63, 231, 235, 237, Society 301, 338, 339–40, 344
268, 270, 277–8, 359, 360, 399–400 Plan of Action 339
and intangible cultural heritage 239n12 World Trade Organization (WTO) 68,
List of World Heritage in Danger 231, 69n59, 70, 111, 114, 158–60, 165–6, 168,
272, 272n26, 272n27, 278, 280n66, 287 172, 209, 375–6
sites listed 270, 288n104 Appellate Body 160
State Parties 270–1, 277n50 disputes 160, 166
World Heritage sites wrecks, agreements over 233n35
damage to 66 see also cultural heritage, underwater
general 229
specific 63–4, 275nn34–37
World Intellectual Property Organization Y
(WIPO) 70, 115, 119, 155, 156, 335,
338, 342, 343 Yugoslavia (former) 55, 369
Performers and Phonograms Treaty 119, Yusuf, Abdulqawi 27
127–32
World Copyright Treaty 119, 127–32
World Medical Association 68 Z
World Observatory on the Social Status of the
Artist 157 Zambia 372
World Parks Congress (2003) 279n60