25 UNESCO

Sannoy Das

Introduction:

The United Nations Educational, Scientific and Cultural Organization (UNESCO), a specialized agency of the United Nations in terms of Article 57 of the UN Charter, is concerned with ‘contributing to peace and security by promoting collaboration among nations through education, science and culture’. In the field of human rights promotion and protection, it is useful to approach UNESCO as an organization involved with intellectual aspects of human rights protection. As Article 1 of its Constitution makes clear, the collaboration among nations on questions of education, science and culture would further universal respect for justice, for the rule of law, human rights and fundamental freedoms, without discrimination.

This chapter will briefly introduce readers to the origins of UNESCO, and will deal with key provisions of its Constitution that determine the structure and working of the Organization. The module will also explain some of the key standard-setting measures that UNESCO has undertaken in terms of human rights protection. Here, we shall examine key UNESCO Conventions as well as other norm-setting measures. Finally, this module will examine supervisory mechanisms of UNESCO and its other activities aimed at, in a sense, promoting compliance with human rights norms.

Learning Outcomes:

On completing this module, the reader is expected to understand:

• The origins of UNESCO, its functions and its working as an organization;
• The overall place of UNESCO within a matrix of international organizations that promote and protect human rights;
• The key norm-setting activities of UNESCO;
• The supervisory activities of UNESCO, including procedures;
• The nature of UNESCO’s present working programmes and its activities for promoting respect for human rights.

History:

On 16 November 1945, thirty-seven countries founded UNESCO, as the culmination of a United Nations conference for the establishment of an educational and cultural organization. The UNESCO Constitution, signed on that date, came into force on 4 November 1946 after it was ratified by 20 States. Subsequent changes in UNESCO’s membership have been, in the past,

determined by the divisions in the world in the Cold War era and, even today, continue to be determined by world politics. On many occasions, countries have withdrawn from UNESCO for stretches, the most recent of prominent withdrawals being that of the United States and Israel, which have notified their withdrawal in the coming year. The United States had earlier walked out of UNESCO in 1984, complaining of the organization’s anti-Western bias. This form of political criticism will be examined later in this chapter.

As the preamble to the UNESCO Constitution indicates, it was imagined as an organization that would help build the ‘defences of peace’ in the minds of the people. Before examining it as an organization for the protection of human rights, it must be first remembered that as a part of the post-war United Nations system, the aim of UNESCO, one that it shared with all other UN organizations, was the promotion of peace, in a world which was to recover from the scourge of war. Towards the securing of this peace, UNESCO was to contribute by promoting the protection of human rights, through interventions in the fields of education, culture and science. Its efforts were, thus, meant to be ‘intellectual,’ and it is within this milieu that we must examine the working of the organization.

Constitution:

UNESCO’s short, 15 article long Constitution creates the institution and lays out, in a broad manner, the nature of its mandate and its working structure. The two main bodies of UNESCO are its General Conference, which consists of representatives of all member States, and an Executive Board, comprising representatives of 58 States, elected by the General Conference. The preparation of the agenda for the General Conference, and the execution of the agenda approved by the General Conference, is carried out by the Executive Board, on the authority of the General Conference. The Board is assisted in executing the functions of UNESCO through its permanent Secretariat.

Article 1 of the Constitution also lays out the purposes and functions of UNESCO. This forms the legal anchor for all of the organization’s activities. Read with the preamble, it becomes apparent that UNESCO is tasked with promoting collaboration among nations through education, science and culture, with a view to securing justice, respect for the rule of law and for fundamental freedoms, and against discrimination. This makes it clear that UNESCO has a role to play in securing human rights across the world and that its mandate is to do so by working towards advancing knowledge, promoting mutual understanding between people, promoting the free flow of ideas and maintaining and diffusing knowledge. At the same time, the Constitution requires that the working of UNESCO does not end up as a homogenizing force on the questions of knowledge and culture, which would, in fact, undercut the very basis of its functioning. Thus, with a view to protecting diversity, UNESCO is prohibited from interfering in matters essentially within the domestic jurisdiction of member States.

It is evident from reading the Constitution of UNESCO that while the organization has a mandate to ensure respect for human rights, the method of its working is largely through the promotion of intellectual exchange. This distinguishes UNESCO from other human rights organizations, which work within a more defined legal framework. Nonetheless, a part of UNESCO’s work is dedicated to achieving the promotion and diffusion of knowledge and culture through the implementation of legal standards. To that extent, UNESCO has acted as the organization under whose aegis binding treaty instruments have been concluded by States. In the following sections, we will examine some important treaty instruments and other standards set by UNESCO.

Norm-Setting Function of UNESCO:

As evident from Article 4 of its Constitution, UNESCO sets ‘norms’ in respect of matters within the scope of its concern through two distinguishable means. First, UNESCO acts as an organization under whose aegis Conventions that form binding international legal norms are formulated. The General Conference of UNESCO adopts Conventions as the strongest form of setting an international legal standard. However, it is important to note that the adoption of the Convention by the General Conference does not bind member States, but merely opens up the Convention for acceptance and ratification. For States that accept and ratify a Convention, it becomes a binding source of international obligation. A second method for creating international legal norms on a particular question is the adoption of recommendations by the General Conference. Instead of creating international legal obligation by themselves, recommendations contain a formulation of desirable legal principles that States are then invited to apply through domestic legislation. Again, while not forming a direct source of obligation, recommendations are intended to, and often do, influence the behaviour of States, leading to formation of national laws.

While the UNESCO Constitution does not refer to the power of the General Conference to adopt ‘declarations’, the General Conference can adopt a proposal made to it, as a declaration, consistent with the general practice of the United Nations. Once adopted, it would mean that the norms set out in the declaration have been accorded a degree of solemnity. In fact, several of the most important legal principles in the United Nations practice are contained in declarations such as the Universal Declaration on Human Rights. Again, a declaration, while not binding as a treaty, is an expression of a legal principle to which States are invited and indeed strongly expected to adhere.

Key UNESCO Legal Texts:

In this section we will briefly review a few of the key standard-setting instruments of UNESCO. Over the years, UNESCOhas developed a series of standards, mainly related to Articles 19, 26 and 27 of the Universal Declaration of Human Rights (freedom of speech, the right to education and the right to cultural experience and protection). UNESCO’s best-known instruments that deal with human rights are: (1) The 1960 Convention against Discrimination in Education and its 1962 additional Protocol (revised 1978); (2) The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict; (3) The 1997 Universal Declaration on the Human Genome and Human Rights; (4) The 1997 Declaration on the Responsibilities of the Present Generations towards Future Generations; and (5) The 2001 Universal Declaration on Cultural Diversity.

Convention against Discrimination in Education:

The 1960 Convention against Discrimination in Education obliges States parties to eliminate any discrimination that may be prevalent on its territory, whether such discrimination was made applicable through statutory law, administrative instruction or practices, on access to education. It is interesting to note that while this Convention was passed, several regions in the United States had started grappling with undoing its racially segregated school system, following the decision of its Supreme Court in Brown v. Board of Education. Racially segregated schooling would run directly counter to the provisions of the Convention, and the United States has not accepted or ratified this Convention. The Convention mandates that States must ensure that there is no discrimination among pupils in the matter of admission to educational institutions, on any of the grounds mentioned in the Convention (race, sex, language, religion, political or other opinion, national or social origin, or economic condition). The Convention further mandates that States ensure any assistance granted for education by public institutions be given out in a non-discriminatory manner. At the same time, the Convention expressly excludes from the ambit of the word discrimination the maintenance of separate schools for different sexes (so long as these separate institutions offer equivalent access to education), the maintenance of separate educational institutions or systems for religious and linguistic purposes and the maintenance of private institutions which aim to provide facilities in addition to the public institutions. Apart from provisions that cast obligations on States to prevent discrimination, the Convention also obliges States to further formulate policies for free primary education, to ensure that a similar standard of education is available at all public institutions and to encourage access to education among persons who have previously not received access. Finally, the Convention requires States to ensure that the liberty of parents to decide educational matters is respected, thus requiring States to respect the choice of parents to adopt a course of education outside public institutions, including minority institutions.

Convention for the Protection of Cultural Property in the Event of Armed Conflict:

The Convention for the Protection of Cultural Property in the Event of Armed Conflict is a Convention that deals with issues of international humanitarian law. The aim of the Convention is to set out standards for the protection of cultural property, such that cultural property is not destroyed in armed conflict. Often, armed conflict is exacerbated by the fact that elements of cultural property are treated as military targets during conflict, whether international or otherwise, as the recent wanton destruction of cultural sites in Syria, or the earlier destruction of the BamiyanBuddhas in Afghanistan, demonstrate. The Convention obliges States parties to refrain from such conduct, and sets out the principles upon which protection of cultural property rests.

The Convention defines cultural property as movable and immovable property of great importance to the cultural heritage of every people. Cultural property includes things like works of art and architecture, monuments, whether religious or secular, archaeological sites, scientific collections, books, archives etc. A building or centre, like a museum, that houses a significant amount of cultural property is itself protected as cultural property. The Convention obliges States to ensure that, with respect to cultural property on their territory, sufficient measures are taken in peacetime to ensure that they are protected from foreseeable damage in the context of an armed conflict. The Convention further obliges States to refrain from undertaking such activity in the vicinity of centres of cultural property as would render those centres likely targets in an armed conflict. States parties are further obliged to introduce measures during peacetime into military regulations that enforce observance of the principles underlying the Convention. In any event, in the context of an armed conflict, a State party may place cultural property under protection in a limited number of special refuges, provided it does not then use the refuge for a military purpose, and the refuge is placed far from any important military objective. Once placed under refuge, other States are obliged to respect the immunity of the cultural property, so placed. The Convention, with a view to immunizing cultural property from seizure or capture, provides for a distinctive emblem that may be placed on the property to identify it as such.

There have been two additional protocols that have been concluded in respect of this Convention, the first in May 1954, dealing with the prohibition on export of cultural property in the context of a conflict, and taking of custody and return of any cultural property imported into the territory of a State party; and the second, in March 1999, which significantly enhances the protection to cultural property, inter alia by laying out principles of precaution to be followed in the outbreak of hostilities, and by providing for detailed procedures in respect of violations.

It is further important to note that in order to complete the legal landscape of protection to cultural property, reference must be made to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This Convention however, is beyond the scope of this module given that it does not directly deal with aspects of human rights/humanitarian law.

Declarations:

The 1997 Universal Declaration on the Human Genome and Human Rights, based on a rejection of any doctrine that envisages any inequality between ‘men and races’, declares that the human genome underlies the fundamental unity of the human family, and that, in a symbolic sense, it is the heritage of humanity. The declaration asserts that individuals have the right to dignity regardless of their genetic characteristics. Research and treatment involving the genome can only be undertaken after rigorous assessment of potential risks and benefits, and only with the express consent of the person involved. Discrimination based on genetic characteristics are prohibited when such discrimination infringes human rights, fundamental freedoms and human dignity. The interests of research on the human genome cannot take precedence over human rights, and research practices that are contrary to human dignity, like cloning, are not permitted.

The 1997 Declaration on the Responsibilities of the Present Generations towards Future Generations is a generally worded declaration that notes the obligation of the present generations to act in a manner that the needs of present and future generations are fully safeguarded. The Declaration notes that, by respecting human rights, the present generation has the obligation to preserve the choice that future generations may exercise with respect to political, economic and social systems. The Declaration notes the obligation of the present generation to perpetuate mankind (whose very existence, it notes, is threatened), ensure the dignity of the human person, and thus to ensure that human life is not undermined. It further declares, generally, the obligation of the present generation to preserve life on earth, the environment (in which context, the concept of intergenerational equity has been expounded in several international instruments), cultural diversity and heritage, to maintain peaceand to ensure non-discrimination.

The UNESCO Universal Declaration on Cultural Diversity of 2001 declares that cultural diversity is as necessary for humankind as biodiversity is for nature. In that sense, the Declaration affirms this diversity as the common heritage of humanity. The declaration recognizes that people of diverse cultural heritage and practices may harmoniously interact in a cohesive society, when that society adopts a democratic framework that supports cultural pluralism. Respect for cultural diversity, it is declared, implies a commitment to human rights and fundamental freedoms. The Declaration further lays down the responsibility of UNESCO to promote adoption of principles upon which the Declaration is based, as also to pursue further activity in norm-setting, awareness and capacity building in favour of cultural diversity.

UNESCO Supervision:

A key question about UNESCO’s functioning in its earliest days revolved around its ability to address complaints about violations of those rights which were within its spheres of competence. From the Constitution of UNESCO, its supervisory function in the area of human rights, or its role as an enforcement agency, is unclear. A series of efforts to address this culminated in the formulation of a procedure put in place by a decision of the UNESCO Executive Board, adopted at its 104th session in 1978, titled the 104 Ex/Decision 3.3, and which is more commonly known as the ‘104 Procedure’.

The 104 Procedure provides that the Director General of UNESCO will determine, upon receipt of a communication alleging a violation of human rights in areas within UNESCO’s competence, whether such complaint is admissible – in the sense that it is a non-anonymous complaint by a person or a group, relating to a human rights violation in the spheres of UNESCO’s competence, and one that is not manifestly ill-founded, or offensive. Such a complaint must also not be based exclusively on information disseminated through mass media, and must indicate an exhaustion of domestic remedies. Where determined admissible, the Director General will transmit a copy of the complaint to the offending State, and will place the complaint before the Committee on Conventions and Recommendations together with any response of the State. The complaint is examined by the Committee in private, and thereafter representatives of the relevant governments concerned may meet the Committee to answer further questions and provide information. The Committee may ultimately form recommendations based on complaints and communicate them to the Executive Board.

Criticism:

As noted earlier in this module, at different periods of time different States have withdrawn their membership in UNESCO. Given its mandate on questions of education, and that of preserving cultural objects, world heritage and cultural diversity, UNESCO’s position on several issues is inevitably ‘political’. As an international institution, UNESCO was, throughout most of the 20th century, positioned as an institution, critical of neoliberal positions which threatened universal access to education, or placed the cultural diversity, particularly of marginalized communities, at risk. This turned into the allegation of the ‘anti-Western’ bias when the United States withdrew in 1984. At the turn of the 21st century, UNESCO has been criticized for exactly the opposite bias, that is, that its critical political position has been ‘normalized’ in accordance with what critical scholars call the imperial interests of a neoliberal international order, dominated by interests of capital from across the world, and especially ‘Western’ States. Curiously.however, and as noted earlier in this module, the recent withdrawals from UNESCO again represented a Western core, the United States and Israel. In fact, this time, UNESCO has been accused of being ‘anti-Israel’, when it termed Israel as the ‘occupying power’ in Jerusalem charged with protecting the heritage of the city.

Summary:

In this module, we have reviewed the functioning of UNESCO, as a part of the United Nations system for the promotion and protection of human rights. UNESCO’s mandate is to build the defences of peace in the minds of people by promoting education, diffusing knowledge, promoting cultural interaction in order to foster understanding of cultural diversity and to promote understanding of science, while placing scientific work within the context of human rights. Through its work in the spheres of education, culture and science, UNESCO plays a role in promoting and protecting human rights. However, as is evident from the spheres of its competence, the role of UNESCO remains primarily one of pursuing and promoting intellectual activity. In that sense, its manner of working must be assessed slightly differently from organizations that deal more directly with human rights law and practice. Nonetheless, even from the point of view of human rights law, UNESCO is an important organization, particularly because it helps sets legal standards for the protection of human rights within and through the spheres of its competence. The standard-setting function of UNESCO, whether through conventions, recommendations or declarations, has been reviewed in detail in this module, and the importance of this function cannot be overestimated. Additionally, the module has also briefly reviewed how UNESCO, through institutional innovation, has positioned itself as a body that is capable of reviewing violations of human rights, by reviewing individual complaints of such violations, within the spheres of its influence. In fact, with respect to violations of human rights in the context of education, culture and science, the UNESCO mechanism is the primary UN mechanism for the protection of human rights.

Reference

• For a general review of UNESCO’s legal basis for its human rights function, see Stephen Marks, UNESCO and Human Rights: The Implementation of Rights Relating to Education, Science, Culture and Communication, Texas Law Journal, Vol. 13, p. 35 (1977-78).
• For a review of this criticism, see Bhupinder Singh Chimni, International Institutions Today: An Imperial Global State in the Making, European Journal of International Law, Vol. 15 No. 1, pp. 1-37 (2004).