The Unconventional Adoption of UNESCO Cultural Conventions

Last year, the unusual application of the UNESCO Convention on the Protection of Underwater Cultural Heritage was brought into focus under international law model competitions. In one of them, the case study cited that ‘the X state was a party to the 2001 UNESCO Convention whereas the counterpart, namely Y state, has signed but not ratified it.’

But can a State really ‘sign’ a UNESCO Convention? Not really—UNESCO Conventions are quite ‘unconventional’ when it comes to their adoption: they are adopted by the plenary organ of the Organization as opposed to the Member States; they are not open for signature; and their implementation monitoring is quite special as well. This short contribution offers an overview of these exceptional characteristics of UNESCO Conventions.

UNESCO’s conventions are conventions of UNESCO

Usually, international organizations ‘sponsor’ international conventions prepared or adopted under their auspices. However, the so- called UNESCO Conventions depart from the traditional treaty-making procedure, which is based on the consent of a State as expressed by the signature of the respective legal instrument. Following the example of the International Labor Organisation, several UN specialized agencies (eg. The Food and Agricultural Organization, art.14; UNESCO art.4.B.4; the International Maritime Organization art. 2(b); et al.) are entrusted with law-making competences. Thus, UNESCO conventions are adopted by the plenary organ and not the States per se. In fact, a closer look at the preamble of the conventions makes it clear:

UNESCO’s ability to make treaties in the field of culture rests on its Constitution. In particular, international conventions are hailed as effective means to enhance international cooperation and to serve UNESCO purposes; namely, peace and security. In this context, the General Conference has adopted specific Rules of Procedure concerning recommendations and international conventions covered by the terms of Article IV, paragraph 4, of the Constitution (RoP). The RoP define extensively all the necessary steps from the inclusion of a proposed regulation in the agenda to its discussion, draft preparation and adoption by the General Conference. Regarding the latter, a convention must secure a two- thirds majority (Constitution art. 4.4, RoP art. 12.1). Subsequently, the RoP specify that ‘two copies of any convention or recommendation adopted by the General Conference shall be authenticated by the signatures of the President of the General Conference and of the Director-General’ (art.14). Evidently, VCLT rules on treaty authentication by states apply only to cultural treaties adopted within special conferences convened under the auspices of UNESCO, such as the Convention on the Protection of Cultural Property in the Event of Armed Conflict (1954) or regional conventions (eg. Asia-Pacific Regional Convention on the Recognition of Qualifications in Higher Education (2011), but not those of the General Conference.

Given that UNESCO conventions are not open to signature, they are subject only to ratification, acceptance, approval or accession by Member States. The Conventions are open to accession by all non-Member States of UNESCO.

Implementation of UNESCO Conventions as an internal procedure

The adoption of UNESCO conventions entails further obligations for all Member States, irrespective of their vote and/or ratification. Under UNESCO’s Constitution, the States undertake to ‘submit recommendations or conventions to its competent authorities within a period of one year from the close of the session of the General Conference at which they were adopted’ (art.4.4) and report on the action taken(Art.4.6, 8) as a means to enhance their acceptance and application.

Following the adoption of the convention, a certified copy of it is transmitted to Member States so that it can be submitted to their competent authorities. To this end, the RoP refer to the ‘bodies, target groups and other entities interested in matters dealt with therein’ (art. 16.2) as well as any authorities empowered under the national laws of each Member State, to give effect to conventions or recommendations (CPG. 63/V1 12/A at 147). It is worth noting that this obligation applies to all Member States, without distinguishing between those who voted in favour, those against, or those who abstained. However, the General Conference during its 12^th session underlined:

Further, the RoP introduce a multilevel monitoring procedure, which involves the Organization’s Executive Board, the General Conference and the Director-General (art.18). This participatory procedure enhances transparency and legitimacy. However, in practice, its effectiveness is questioned, as States tend to submit over-general reports, which lack concrete measures. After all, the nature and extent of such measures are at the discretion of Member States.

It should also be noted that this monitoring procedure could apply independently and in parallel to any specific, conventional, monitoring organs. Most commonly, cultural conventions call for a single report, which may be brought to the attention of a specialized treaty body (eg. the World Heritage Committee). For these reasons, the Executive Board adopted a specific multi-stage procedure for the monitoring of the implementation of UNESCO conventions and recommendations, for which no specific institutional mechanism is provided (177 EX/Decision 35 Ι (2007). This practice strengthens the role of the General Conference as a plenary organ acting for the common good, advances interstate cooperation during the drafting procedure, and fosters universal implementation of UNESCO Conventions.

Concluding remarks

The Convention on the Protection of the Underwater Cultural Heritage denotes explicitly a twofold procedure for its ratification, acceptance, approval or accession. On the one hand, the ‘Convention shall be subject to ratification, acceptance or approval by Member States of UNESCO’ (art.26.1). On the other, CPUCH is subject to accession by third states or territories (art.26.2). Consequently, no State may sign but not ratify the Convention. Either it is bound as a Member State by the unilateral adoption of the Convention by the General Conference as analyzed above, or it has to accede as a third country.

Evidently, the unconventional adoption of UNESCO cultural Conventions doesn’t reflect common practice. Still, it advances the uniform application of common standards of protection in the field of culture, even if states abstain or oppose specific conventions due to political considerations.