 "NORM-SETTING ACTIVITIES OF UNESCO AND INDIA'S CONTRIBUTION" BY V.S. MANI

UNESCO'S MANDATE

The United Nations Educational Scientific and Cultural Organization (UNESCO) shares its genesis with the United Nations as it came into existence from the dying cinders and embers of the Second World War. The idea behind it, however, did not spring up in the later half of 1945, as Minerva did from the head of Jupiter. It represented the point of culmination of the years of quiet and efficient work done by the League of Nations in this field. That there was an urgent need for a separate international institutional framework for inter-governmental co-operation and co-ordination of policies and action in the educational, scientific and cultural aspects of human life clearly reflected a holistic attempt at elimination of causes of war.1 Hence opening works in the preamble to UNESCO's Constitution:

That since war begins in the minds of men, it is in the minds of men that the defences of peace must be constructed.2

The preamble also recognises (1) that "the ignorance of each other's ways and lives has been a common cause, throughout the history of mankind" of suspicion and mutual mistrust between the peoples of the world which have "all too often broken into war"; (2) that the Second World War itself bred on denial of "democratic principles of the dignity, equality and

1For a most elaborate study of the causes of war, see Quincy Wright, A Study of War, 2nd ed. (Chicago, III.: University of Chicago Press, 1942).

mutual respect of men", and on propaganda of the doctrine of inequality of men and races made possible through ignorance and prejudices; (3) that all nations have a "sacred duty" to fulfil by wide diffusion of culture, and education of humanity for justice and liberty and peace; and (4) that "a peace based exclusively upon the political and economic arrangements of governments would not be a peace" based on "the unanimous, lasting and sincere support of the peoples of the world", as it could only be founded upon "the intellectual and moral solidarity of mankind". The Organization is, therefore, mandated to work "for the purpose of advancing, through the educational, scientific and cultural relations of the peoples of the world, the objectives of international peace and of the common welfare of mankind".3

The Constitution of UNESCO being a multilateral treaty, the above postulations in its preamble are both legally and morally binding on states members of the Organization, as well as on the Organization itself.4 In other words, other provisions of the constitution must be interpreted in harmony with, nay in furtherance of, the preambular provisions. These, indeed, include Article I(1), which stipulates as follows:

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 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.

3Ibid., last para.

4Article 31(2) of the 1970 Vienna Convention on the Law of Treaties clarifies that in terms of legal binding effect, no distinction can be made between the provisions of the preamble to a treaty and other provisions. In other words, the provisions of the preamble are equally substantive, and creative of rights and obligations, as other provisions of the treaty.

True that UNESCO is an international organization with a life of its own, and that the member states of the Organization may collectively utilize its faculties for achievement of its objectives. But like all international organizations, UNESCO is not completely autonomous of its membership; its functioning is subject to the influence of the dominant group of member states which seeks to sway the Organization and its functions to serve as much as possible its foreign policy objectives. While functionalism in the process of international organization seeks to identify areas of international relations where bridges for peace and cooperation could be built up, it has not been possible for it to insulate such "functional" areas totally from the dynamic inter-play of international politics. Thus the interpretation and implementation of UNESCO's constitutional mandate are not merely a function of the treaty provisions, but also subject, in good measure, to the state of contemporaneous international politics.

These operational factors apart, the interpretation and implementation of UNESCO'S objectives in the field of norm-setting are of two types, one of the basic prohibition stipulated in Article I(3) itself, and the other, the procedural requirements of norm-creation (to be dealt within Part II of this paper).

Article I(3) prohibits the Organization "from intervening in matters which are essentially within [the] domestic jurisdiction" of member states, and clarifies that this prohibition is "with a view to preserving the independence, integrity and fruitful diversity of the cultures and educational systems of the State Members of the Organization". Although this provision is reminiscent of Article 2 (7) of the UN Charter, the prohibition here directed against the Organization aims at preservation of the independence, integrity and diversity of

cultures and educational systems of member states. It keeps the Organization sensitive to the facts that preservation of cultures and educational systems is essentially a sovereign function of a state and that the Organization is not permitted to intervene in these matters, except through means and methods indicated in the constitution. Particularly, Article I(2) provides that these methods are to "collaborate", "give fresh impulse", "suggest", and "maintain, increase and diffuse knowledge" by assuring conservation and preservation, by encouraging and initiating methods of cooperation in the fields of education, science and culture. Where the Organization initiates actions on its own, it will be well advised to base itself on consensus among member states. Indeed consensus would determine the legitimacy or otherwise of an organizational action.

The scope for judicial review of organizational action appears to be covered by the advisory, jurisdiction of the International Court of Justice.5 Even if the Court may apply the principle of speciality,6 given the wide canvas of the objectives of UNESCO as laid down in the preamble and Article I(1) of its constitution, it would be difficult to define areas that fall outside the collaborative interests of the Organization, so long as the methods employed by it are those indicated in Article I(2). Even these methods of organizational action are too broadly state.

5*Article 65 of the ICJ Statute and Article 96 of the UN Charter and Agreement between the UN and the UNESCO of 14 December 1946 revised on 8 December 1962, Article X: UNTS, Series II, no. 11, vol. 1.

6*The principle of speciality means that the competence of a UN specialized agency must be confined to its own specific field of specialization and not to others -- see the Advisory Opinion of the World Court dated 8 July 1996 on WHO's request re. legality of use of nuclear weapons.

NORM-SETTING COMPETENCE OF UNESCO

Legal Significance of Norm-Setting Decisions of International Organizations

The role of an international organization in creation of international norms has been as old as the international organizations themselves. However, it came to be widely used since the days of the League of Nations and the International Labour Office (now the International Labour organization)

Before the advent of the inter-governmental international organizations, norm-setting has been a function traditionally performed by states rather tediously through formation international customary and principles by prolonged practice backed by their general acceptance as binding or at times through conferences convened specifically to negotiate and conclude treaties. when the conference system became institutionalised in permanent inter-governmental organizations with universal character and global functions, norm- setting by them became a distinct reality, because these organizations provided ready fora for intense Interaction among states on all matters of international life that came before them. It would be simplistic and certainly unrealistic to dismiss the consensual decisional process of these organizations nearly as " recommendations" and hence formally non-binding. The legal significance of consensual norm-setting resolutions of the UN General Assembly received judicial notice in the case concerning Military and Para-Military Activities in and against Nicaragua. The International Court of Justice said in that case that the intention of states to early with a legal rule " may though with all due caution, be deduced from, inter alia, the attitude of the Parties [to the case] and the attitude of States towards certain general assembly meetings... "The affect of a state's consent to such a resolution " may be

understood as an acceptance of the validity of the rule or sets of rules declared by the resolution by themselves".7

Besides, the decisions of an international organization, whether formally binding or non-binding on the member states, are indeed binding on the executive/administrative organs of the organization themselves, in the absence of stipulations to the contrary in the constitution. They provide guidance in relation to interpretation or application of the organizational objectives. They seek to fulfil, clarify and supplement the methods of implementation of the objectives as envisaged in the constitution of the organization. They remind the membership of their commitments; they reflect the latter's fresh commitments. Voting in favour of a resolution or allowing it to be adopted without dissent may permit an argument to be raised in favour of a commitment (or acquiescence of it) by a member state to carry out the action envisaged by the resolution. The member states willing, even a formally non-binding resolution can in effect be binding.

Norm-Setting Competence of UNESCO

Unlike the United Nations, a unique feature of some functional organizations such as UNESCO, ICAO, WHO and ILO is that their norm- setting competence is explicitly recognised and an implementation mechanism for normative decisions is provided for, in their constitutions themselves. Thus, the Constitution of UNESCO explicitly empowers the General

7 ICJ Reports 1986, p. 14, at p. 100. For more on ,this, see V.S. Mani, Basic Principles of Modem International Law. A Study of the United Nations Debates on the Principles of International Law Concerning Friendly Relations... (New Delhi, Lancers Books, 1993), pp.277-80.

Conference of the Organization to adopt two kinds of norm-setting instruments, namely (a) agreements or conventions and (b) recommendations, but it leaves the Organization free to I(2)(a) speaks of recommending of "such international agreements as may be necessary to decide which of these to be utilized in given situation in furtherance of its objectives. Article promote the free flow of ideas...". Article I(2)(c) envisages "recommending to the nations concerned the necessary international conventions" with a view to "assuring the conservation and protection of the world's inheritance of books, works of art and monuments of history and science:.8 Article IV(4) speaks of both conventions and recommendations.

Article IV (4) is in two parts. First, it stipulates that the General Conference of UNESCO (or for that matter a special conference) may adopt proposals for submission to member states in the form of either recommendations or international conventions. Evidently, the choice of form is left to the conference to decide. However, the difference between a recommendation and convention lies in the manner in which they are adopted: the former requires only a simple majority vote, while the latter a two-thirds majority. UNESCO conference have also developed a third form of norm-setting instruments. They are the

8The drafting of UNESCO Constitution leaves much to be desired. Apart from the validity of the seeming distinction which Article I(2)(a) and (c) make between "agreement" and "convention" (in view of the commonly accepted definition of a "treaty" : see Article 2 (a) of the Vienna Convention on the Law of Treaties, 1969), would specific mention of agreement or convention in these provisions render UNESCO incompetent to recommend a convention in furtherance of other provisions of Article I or for that matter any other provision of the Constitution, including the preamble? It would seem so if one were to interpret these two provisions literally, for explicit provisions exclude the possibility of exercise of similar powers in other areas where such powers are not explicitly envisaged--expressio unius est exclusio alterius. On the contrary, it can be argued that since the Organization has the responsibility to fulfil its objectives, there is not constitutional disability cast on it in the choice of means so long as they respect the principle of state consent. The procedure of adoption of a convention underscores the respect of the principle of consent of states.

declarations. Legally, there is no difference between a "declaration" and a "recommendation" as both are technically non-binding instruments. However, like the United Nations General Assembly, UNESCO conferences too have adopted the Practice of designating a resolution as a "declaration" and a "recommendation" as both are technically non-binding instruments. However, like the United Nations General Assembly, UNESCO Conferences too have adopted the practice of designating a resolution as a "declaration" if they deem it to be "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated".9 UNESCO does not recognise that "any one of these various instruments is superior to the others". Yet, "in the case of declarations, stress is laid on moral authority".10

9*In 1962, Oscar Schachter, Legal Adviser to the United Nations, in response to a query by the UN Human Rights Commission regarding the status of the Universal Declaration of Human Rights, stated in his legal opinion:

In United Nations practice, a "declaration" is a formal and solemn instrument suitable for rare occasions when principles of great and lasting importance are being enunciated, such as the Declaration of Human Rights. A recommendation is less formal.

Apart from the distinction just indicated, there is probably no difference between a `recommendation' and a declaration' in United Nations Practice as far as strict legal principle is concerned.... However, in view of the greater solemnity and significance of a `declaration', it may be considered to impart, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by State, practice, a declaration may by custom become recognized as laying down rules binding upon States.

Report of the UN Human Rights Commission, UN Doc. E/3616/Rev. 1, para 105, ECOSOC, 18th sess, 19 March-14 April 1962. See also UNESCO, UNESCO's Standard-Setting Instruments (Paris, 1981), p.XIV.

10UNESCO, UNESCO's Standard-Setting Instruments (Paris, 1981), p.XIV.

The second part of Article IV, (4) relates to implementation of the decisions and conventions adopted by UNESCO. It imposes an obligation or member states to submit the recommendations and conventions "to its competent authorities" within a period of one year from the close of the session of the General Conference in which they were adopted. It may be noted, however, that the obligation is only to submit to competent national authorities for approval. It does not extend to an obligation to carry our the recommendations and conventions "here and now". States may freely decide whether or not to become parties to the conventions. The obligation to implement a convention would arise only if a state decides to be a party to it. When it becomes a party, there arises an obligation to take all actions necessary to bring the convention into effect, including incorporation of the convention obligations in the domestic law of the State.

The above provision is further augmented by Article IV (6) which incorporates a reporting procedure. It provides; "the General Conference shall receive and consider the reports sent to the Organization by Member States on the action taken upon the recommendations and conventions..." while this provision does not directly say that the member states shall submit the action-taken reports, without such a reporting obligation, the function of the General Conference to "receive and consider" such reports will be devoid of any object. In other words, Article IV (6) clearly implies a reporting obligation on the part of member states.

However, the records show that the majority of member states (including India) habitually fail to comply with the reporting obligation. Thus, for instance, the twelfth session

of the General Conference in 1962 noted that not more than 27 reports were received on each of the instruments adopted at the 11th session in 1960 and it was "bound to admit" that:

[A] very large proportion of Member States (over three- quarters) did not transmit to the Organization the reports asked for. It is therefore not in a position to know whether these States have discharged their constitutional obligation to submit the convention and recommendations adopted in 1960 to their "competent authorities', nor whether this obligation was discharged within the stipulated time.

The General Conference cannot but stress in this connexion, the great importance of all Member States fulfilling the two-fold obligation on them by the Constitution with regard to conventions and recommendations adopted by the General Conference: the competent national authorities within a year from the close of the General Conference and second, the obligation to report periodically on the action taken upon these instruments.*11