UNESCO

The Constitution was adopted in London on 16 November 1945 and has been amended by the General Conference at many later sessions. The seat is at Paris.

Purposes and functions: article I

Article I(1), the purpose. 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.

Notice that the purpose is expressed by reference to the Charter's own human rights language, which is articles 1(3) and 55(c) of the Charter appearing in a specialized agency's constitution.

Article I(2), how the purpose is realised, in three limbs.

(a) Mutual knowledge and understanding. Collaborate in advancing the mutual knowledge and understanding of peoples through all means of mass communication, and to that end recommend such international agreements as may be necessary to promote the free flow of ideas by word and image.

(b) Popular education and the spread of culture. By collaborating with Members at their request in developing educational activities; by instituting collaboration among the nations to advance the ideal of equality of educational opportunity without regard to race, sex or any distinctions, economic or social; and by suggesting educational methods best suited to prepare the children of the world for the responsibilities of freedom.

(c) Maintaining, increasing and diffusing knowledge. By assuring the conservation and protection of the world's inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions; by encouraging cooperation in all branches of intellectual activity, including the international exchange of persons active in education, science and culture and the exchange of publications and objects of artistic and scientific interest; and by initiating methods calculated to give the people of all countries access to the printed and published materials produced by any of them.

Article I(2)(c) is the constitutional root of the World Heritage system, since it directs the Organization both to secure the conservation of the world's inheritance of monuments and to recommend the necessary international conventions, which is what the Convention concerning the Protection of the World Cultural and Natural Heritage of 1972 is.

Article I(3), the reserved domain. With a view to preserving the independence, integrity and fruitful diversity of the cultures and educational systems of the States Members, the Organization is prohibited from intervening in matters which are essentially within their domestic jurisdiction.

Compare Charter article 2(7). Both protect what is essentially within domestic jurisdiction. But the Charter's clause is subject to an express exception for Chapter VII enforcement, and UNESCO's is subject to none, and UNESCO's opens with a statement of why the reservation exists, namely to preserve the independence, integrity and fruitful diversity of national cultures and educational systems. That is a substantive reason and not merely a jurisdictional line, and it constrains an organisation whose whole subject matter, what children are taught and what a culture holds, is the most sensitive thing a State does.

Membership: article II

II(1). Membership of the United Nations carries with it the right to membership of UNESCO.

II(2). States not members of the United Nations may be admitted, subject to the conditions of the relationship agreement under article X, upon recommendation of the Executive Board, by a two-thirds majority vote of the General Conference.

II(3). Territories or groups of territories which are not responsible for the conduct of their international relations may be admitted as Associate Members by the General Conference by a two-thirds majority.

Associate membership is a real distinction from the United Nations, whose article 4 admits only States. It is what allows non-self-governing territories to take part in the Organization's work.

Later paragraphs of article II govern suspension, withdrawal and readmission.

Organs: articles III to VI

Article III. The Organization shall include a General Conference, an Executive Board and a Secretariat.

The General Conference: article IV

Composition, IV(1). It consists of the representatives of the Member States, each Government appointing not more than five delegates, who shall be selected after consultation with the National Commission, if established, or with educational, scientific and cultural bodies.

That consultation requirement is unusual and deliberate. It pulls the delegation away from being purely governmental, without going as far as the tripartism in [The International Labour Organisation].

Functions.

IV(2). It determines the policies and the main lines of work and takes decisions on programmes submitted by the Executive Board.

IV(3). It may summon international conferences of states on education, the sciences and humanities or the dissemination of knowledge, and non-governmental conferences on the same subjects may be summoned by it or by the Executive Board.

IV(4), the two instruments and the submission duty. In adopting proposals for submission to Member States the Conference shall distinguish between recommendations and international conventions submitted for their approval. For a recommendation a majority vote suffices; for a convention a two-thirds majority is required. Each Member State shall submit recommendations or conventions to its competent authorities within a period of one year from the close of the session at which they were adopted.

Compare article 19(5)(b) of the ILO Constitution. The same technique: adoption by the organisation, then a duty on every Member, whether or not it voted in favour, to lay the instrument before the national authority competent to act. UNESCO's period is one year, with no eighteen-month extension.

IV(5). It advises the United Nations on the educational, scientific and cultural aspects of matters of concern to it.

IV(6). It receives and considers the reports sent by Member States on the action taken upon those recommendations and conventions.

IV(7). It elects the members of the Executive Board and, on the recommendation of the Board, appoints the Director-General.

Voting, IV(8)(a). Each Member State has one vote, decisions being by simple majority except where the Constitution or the Rules require two thirds, a majority being a majority of the Members present and voting.

IV(8)(b), arrears. A Member has no vote if the total contributions due from it exceed the total payable for the current year and the immediately preceding calendar year, which is the same technique as Charter article 19.

The Executive Board: article V

V(1)(a). Elected by the General Conference, consisting of fifty-eight Member States, with the President of the General Conference sitting ex officio in an advisory capacity.

V(1)(b). A Member State is not eligible if its arrears exceed the contributions payable for the current and immediately preceding year, unless the Conference is satisfied the failure is due to conditions beyond the control of the Member State.

V(2)(b). In selecting its representative, a Member of the Board shall endeavour to appoint a person qualified in one or more of the fields of competence of UNESCO and with the experience and capacity to fulfil the administrative and executive duties of the Board.

Note that the Board is composed of Member States, which appoint representatives, rather than of individuals in their own right. The requirement of qualification in a field of UNESCO's competence is a nod towards expertise inside an inter-governmental structure.

The Secretariat: article VI

A Director-General appointed by the General Conference on the recommendation of the Executive Board, and the staff. The Director-General and staff owe their duties to the Organization and shall not seek or receive instructions from any government or from any authority external to the Organization, on the model of Charter article 100.

National Commissions and reporting: articles VII and VIII

Article VII(1). Each Member State shall make such arrangements as suit its particular conditions for the purpose of associating its principal bodies interested in educational, scientific and cultural matters with the work of the Organization, preferably by the formation of a National Commission broadly representative of the government and such bodies.

VII(2). National Commissions act in an advisory capacity to their delegations to the General Conference, to their representatives on the Executive Board and to their Governments, and function as agencies of liaison.

VII(3). The Organization may, on request, delegate a member of its Secretariat to serve on a National Commission.

Article VII has no parallel in the other agencies in this module. It builds a domestic institution into the constitution of an international organisation, and it is the reason UNESCO's work reaches universities, museums and schools rather than only foreign ministries. India maintains such a Commission.

Article VIII, reporting. Each Member State shall submit reports on the laws, regulations and statistics relating to its educational, scientific and cultural institutions and activities, and on the action taken upon the recommendations and conventions referred to in article IV(4), at such times and in such manner as the General Conference determines.

Relations, status and interpretation: articles IX to XV

Article IX, budget. Administered by the Organization; the General Conference approves and gives final effect to the budget and to the apportionment of financial responsibility among Members, and the Director-General may accept voluntary contributions.

Article X, relations with the United Nations. The Organization shall be brought into relation with the United Nations as one of the specialized agencies referred to in article 57 of the Charter, the relationship being effected by an agreement subject to approval by the General Conference. That is the article 63 machinery described in [The Economic and Social Council], and it is what makes UNESCO a specialized agency, unlike the WTO.

Article XI, relations with other specialized international organisations and agencies, including cooperation with non-governmental international organisations concerned with matters within its competence, which is UNESCO's own counterpart of Charter article 71.

Article XII, legal status. The provisions of Charter articles 104 and 105 concerning the legal status of the United Nations, its privileges and immunities, apply in the same way to this Organization.

Article XIII, amendments. Amendments take effect when adopted by the General Conference by a two-thirds majority, but those involving fundamental alterations in the aims of the Organization or new obligations for the Member States require subsequent acceptance by two thirds of the Member States before entry into force.

Article XIV, interpretation. The English and French texts are equally authoritative, and any question or dispute concerning interpretation is referred for determination to the International Court of Justice or to an arbitral tribunal, as the General Conference may determine under its Rules of Procedure.

Article XIV is a compromissory clause of the kind described in [The International Court of Justice], and it is how a constituent instrument provides for its own construction.

Standard-setting: what UNESCO has produced

The Organization's principal legal output is a body of conventions adopted under article IV(4), and the ones a law student should be able to name are those touching cultural property and heritage.

The Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954, with its Protocols, protecting cultural property in war, which is where UNESCO's subject meets humanitarian law.

The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, the instrument behind national laws restricting the trade in antiquities and behind claims for the return of objects removed from their country of origin.

The Convention concerning the Protection of the World Cultural and Natural Heritage, 1972, which created the World Heritage List and the machinery for inscribing and protecting sites, and which is the direct product of article I(2)(c).

The Convention for the Safeguarding of the Intangible Cultural Heritage, 2003, extending protection beyond monuments to practices, performances and knowledge.

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005, asserting the right of States to adopt cultural policies, and the point at which UNESCO's law meets the trade obligations in [The World Trade Organization].

India is a Member and a party to the principal cultural heritage conventions, and a number of Indian sites are inscribed on the World Heritage List under the 1972 Convention.

A worked example

The General Conference wishes to adopt a convention on the protection of underwater cultural heritage and a recommendation on teacher training. State AA voted against both. State BB is two years in arrears. Territory CC, which does not conduct its own international relations, wishes to take part. State DD says the recommendation touches its school curriculum and is none of the Organization's business.

Majorities. By article IV(4) a convention needs a two-thirds majority and a recommendation a simple majority, decided among Members present and voting under article IV(8)(a).

State AA's duty. Article IV(4) requires each Member State to submit recommendations or conventions to its competent authorities within one year of the close of the session, and the duty is not confined to those who voted in favour. It is not a duty to ratify. Article VIII then requires a report on the action taken.

State BB's vote. Article IV(8)(b) removes the vote where arrears exceed the total payable for the current year and the immediately preceding calendar year, and article V(1)(b) makes it ineligible for the Executive Board on the same footing, unless the Conference is satisfied that the failure is due to conditions beyond its control.

Territory CC. Article II(3) permits territories or groups of territories not responsible for the conduct of their international relations to be admitted as Associate Members by a two-thirds majority.

State DD's objection. Article I(3) prohibits the Organization from intervening in matters which are essentially within the domestic jurisdiction of Member States, expressly to preserve the independence, integrity and fruitful diversity of their cultures and educational systems. But adopting a recommendation and requiring its submission to the competent national authority is not intervention: the Constitution itself provides for it in article IV(4), and the competent authority remains free to reject it.

Change one fact: a dispute arises about what article I(3) means. Article XIV(2) provides that questions and disputes concerning interpretation are referred for determination to the International Court of Justice or to an arbitral tribunal, as the General Conference determines under its Rules.

Distinctions table

What it does NOT mean

UNESCO does not legislate for education. Article I(3) prohibits intervention in matters essentially within domestic jurisdiction, and its conventions bind only States that accept them.

Article I(3) is not identical to Charter article 2(7). It carries no Chapter VII exception and it states its own purpose, preserving the independence, integrity and fruitful diversity of cultures and educational systems.

A recommendation is not a weak convention. It is a different instrument, adopted by a different majority, binding nobody.

The submission duty is not a duty to ratify. Article IV(4) requires submission to the competent authorities within one year.

Membership is not confined to States. Article II(3) admits Associate Members that do not conduct their own international relations.

The Executive Board is not a body of individuals. Article V(1)(a) composes it of Member States, which appoint representatives.

Limits and criticism

Its subject matter is the most politically sensitive an organisation can have, since education, science and culture go to how a State understands itself, and article I(3) exists because the drafters knew it. The result is an organisation whose mandate is vast and whose power over any Member is small.

Inscription on the World Heritage List has become a political contest, with sites proposed and opposed for reasons unrelated to their value, because inscription carries prestige and, in disputed territory, a claim about who the heritage belongs to.

The Organization has been the site of the sharpest disputes about information and culture in the United Nations system, and Members have withdrawn and rejoined over them, so its budget and its programme have been more disrupted by politics than those of the technical agencies.

Its instruments depend on ratification and on national implementation. The 1970 Convention has not stopped the trade in illicitly removed cultural property, because enforcement rests on the customs, police and courts of the States concerned, and the Convention supplies obligations rather than machinery.

Quick revision

Constitution adopted in London on 16 November 1945; seat Paris; a specialized agency under article X and Charter article 57.

Preamble: since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed; ignorance of each other's ways and lives breeds suspicion and mistrust; the war was made possible by the denial of the democratic principles of the dignity, equality and mutual respect of men and the doctrine of the inequality of men and races; the wide diffusion of culture and education for justice, liberty and peace is a sacred duty; a peace resting only on political and economic arrangements of governments would fail, so peace must be founded on the intellectual and moral solidarity of mankind.

Article I(1): contribute to peace and security by promoting collaboration through education, science and culture to further justice, the rule of law and human rights without distinction of race, sex, language or religion. I(2): (a) mutual knowledge through mass communication and the free flow of ideas by word and image; (b) popular education and equality of educational opportunity; (c) conservation of the world's inheritance of books, works of art and monuments and recommending the necessary conventions. I(3): prohibited from intervening in matters essentially within domestic jurisdiction, to preserve the independence, integrity and fruitful diversity of cultures and educational systems.

Article II: United Nations membership carries the right to membership; non-members admitted by two thirds on the Board's recommendation; Associate Members for territories not responsible for their international relations.

Article III: General Conference, Executive Board, Secretariat. Article IV: up to five delegates, chosen after consulting the National Commission; recommendations by simple majority, conventions by two thirds; submission to competent authorities within one year; one vote each, no vote on two years' arrears; elects the Board and appoints the Director-General on its recommendation. Article V: Board of fifty-eight Member States.

Article VII: National Commissions, advisory and liaison. Article VIII: reports on laws, regulations and statistics and on action taken. Article XII: Charter articles 104 and 105 apply. Article XIII: amendment by two thirds, plus acceptance by two thirds of Member States for fundamental alterations or new obligations. Article XIV: English and French equally authoritative; interpretation to the International Court of Justice or an arbitral tribunal.

Conventions to name: 1954 cultural property in armed conflict; 1970 illicit transfer of cultural property; 1972 World Heritage; 2003 intangible heritage; 2005 diversity of cultural expressions.

Test yourself

1. Quote and explain the opening of the UNESCO Preamble.

The Governments of the States Parties declare that since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed. The proposition is that armed conflict originates in ideas, in ignorance of other peoples' ways and lives and in the doctrines of inequality that ignorance permits, so an organisation directed at education, science and culture is directed at the causes of war and not merely at its symptoms. The Preamble develops the point in its fifth recital, which says that a peace based exclusively upon the political and economic arrangements of governments would not secure the unanimous, lasting and sincere support of the peoples of the world, and that peace must therefore be founded upon the intellectual and moral solidarity of mankind. That is an assessment of the limits of the machinery in the Charter, written by the same generation that wrote it.

2. State the purpose and functions of UNESCO.

By article I(1) its purpose 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 affirmed by the Charter without distinction of race, sex, language or religion. Article I(2) sets out three limbs. It is to collaborate in advancing the mutual knowledge and understanding of peoples through all means of mass communication and recommend agreements to promote the free flow of ideas by word and image. It is to give fresh impulse to popular education and the spread of culture, collaborating with Members at their request, advancing the ideal of equality of educational opportunity without regard to race, sex or economic or social distinctions, and suggesting educational methods best suited to prepare the children of the world for the responsibilities of freedom. And it is to maintain, increase and diffuse knowledge by assuring the conservation and protection of the world's inheritance of books, works of art and monuments of history and science, recommending the necessary international conventions, encouraging cooperation in all branches of intellectual activity, and giving the people of all countries access to published materials.

3. Compare article I(3) of the UNESCO Constitution with article 2(7) of the Charter.

Both reserve matters essentially within domestic jurisdiction. Article 2(7) of the Charter provides that nothing in the Charter shall authorise the United Nations to intervene in such matters or require Members to submit them to settlement, but that this shall not prejudice enforcement measures under Chapter VII. Article I(3) of the UNESCO Constitution prohibits the Organization from intervening in matters essentially within the domestic jurisdiction of Member States and contains no exception at all, and it opens by stating its reason: to preserve the independence, integrity and fruitful diversity of the cultures and educational systems of the Member States. The reservation in UNESCO's constitution is therefore both absolute in form and substantive in justification, which reflects the sensitivity of its subject matter, since what a State teaches its children and how it treats its own culture are among the most jealously guarded of its functions.

4. How does UNESCO adopt its instruments, and what must a Member State then do?

By article IV(4) the General Conference, in adopting proposals for submission to Member States, must distinguish between recommendations and international conventions submitted for their approval. A recommendation requires a majority vote and a convention a two-thirds majority, calculated under article IV(8)(a) among the Members present and voting. Each Member State must then submit the recommendation or convention to its competent authorities within a period of one year from the close of the session at which it was adopted, and the duty falls on every Member regardless of how it voted. It is a duty of submission and not of ratification, and article VIII requires each Member State to report on the laws, regulations and statistics relating to its educational, scientific and cultural institutions and on the action taken upon those instruments.

5. What are National Commissions and why are they unusual?

Article VII(1) requires each Member State to make such arrangements as suit its particular conditions for associating its principal bodies interested in educational, scientific and cultural matters with the work of the Organization, preferably by forming a National Commission broadly representative of the government and such bodies. Article VII(2) makes such Commissions advisory to their delegations to the General Conference, to their representatives on the Executive Board and to their Governments, and agencies of liaison in all matters of interest to the Organization. Article VII(3) allows the Organization, on request, to delegate a member of its Secretariat to serve on a National Commission. They are unusual because a constituent instrument of an international organisation rarely prescribes a domestic institution at all, and the effect is that UNESCO's work is channelled through universities, academies, museums and educational bodies rather than only through foreign ministries. Article IV(1) reinforces this, since a Government's delegates to the General Conference are to be selected after consultation with the National Commission or with educational, scientific and cultural bodies.

6. Name and describe the principal conventions adopted under UNESCO's auspices.

The Convention for the Protection of Cultural Property in the Event of Armed Conflict, concluded at The Hague in 1954 with its Protocols, which protects cultural property in war and is the meeting point of UNESCO's subject with humanitarian law. The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, which underlies national restrictions on the antiquities trade and claims for the return of removed objects. The Convention concerning the Protection of the World Cultural and Natural Heritage of 1972, which created the World Heritage List and the machinery for inscribing and protecting sites, and which is the direct product of article I(2)(c) of the Constitution. The Convention for the Safeguarding of the Intangible Cultural Heritage of 2003, extending protection to practices, performances and knowledge. And the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005, asserting the right of States to adopt cultural policies, which is where UNESCO's law meets the trade obligations administered by the World Trade Organization.