Article IV, paragraph 4, of UNESCO's Constitution provides that “the General Conference shall, in adopting proposals for submission to the Member States, distinguish between recommendations and international conventions submitted for their approval ...”.
In certain cases, the instruments adopted under the Organization's auspices will be adopted not by the General Conference but by International Conferences of States convened by it. These instruments will take the form of international conventions (treaties, agreements, etc.), recommendations to Member States or, though the Constitution makes no reference thereto, declarations and charters.
The Director-General is usually appointed as the depositary for such instruments. However, this responsibility may also be vested in the United Nations Secretary-General. This is the case in particular when the instrument has been adopted under the joint auspices of UNESCO and of one or more other organizations.
International Conventions are subject to ratification, acceptance or accession by States. They define rules with which the States undertake to comply.
International conventions adopted by the General Conference and recommendations to Member States are prepared in accordance with a pre-established procedure, namely, the Rules of Procedure concerning Recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitution.
This standard-setting procedure provides for the following stages: first a preliminary study of the technical and legal aspects of the question to be regulated at the international level. This study must be submitted for prior consideration to the Executive Board, whose responsibility it is to include the proposal for international regulation in the agenda of the General Conference.
The General Conference is then required to decide on the desirability of the regulation contemplated and on the form which such a regulation should take (convention or recommendation).
The Director-General is then instructed to prepare a preliminary report setting forth the position with regard to the problem to be regulated and to the possible scope of the regulating action proposed. Member States are invited to present their comments and observations on this report. In the light of these comments and observations, the Director-General prepares a final report containing one or more drafts of the convention or recommendation, which he communicates to Member States. This final report is submitted either direct to the General Conference or, if the Conference bas so decided, to a special committee of governmental experts.
The General Conference considers the draft texts submitted to it and, if it sees fit, adopts the instrument.
By the terms of the above-mentioned Rules of Procedure, recommendations are 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)). These are therefore norms which are not subject to ratification but which Member States are invited to apply.
Emanating from the Organization's supreme governing body and hence possessing great authority, recommendations are intended to influence the development of national laws and practices.
The procedure for drafting recommendations is identical to that followed for preparing conventions adopted by the General Conference. However, recommendations are adopted by a simple majority, while a two-thirds majority is required for the adoption of conventions.
Although the recommendations of the General Conference are not subject to ratification, the mere fact that they have been adopted entails obligations even for those Member States that neither voted for it nor approved it.
The same is true of international conventions adopted by the General Conference, in the case of Member States which have not ratified them, or do not intend to do so. This is the implication of Article VIII of the UNESCO's Constitution, while Article IV, paragraph 4, quoted above, provides that “each of the Member States shall 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”.
In this connection, the General Conference stated at ifs twelfth session that “the General Conference also feels bound to draw attention once again to the distinction to be drawn between the obligation to submit an instrument to the competent authorities, on the one band, and the ratification of a convention or the acceptance of a recommendation, on the other. Their submission to the competent authorities does not imply that conventions should necessarily be ratified or that recommendations should be accepted in their entirety. On the other band, it is incumbent on Member States to submit ail recommendations and conventions without exception to the competent authorities, even if measures of ratification or acceptance are not contemplated in a particular case”.
The above-mentioned Rules of Procedure concerning recommendations and conventions also contain, in Chapter VI regarding the procedure for submission and examination of these reports, the following provisions for promoting Member States’ acceptance and application of conventions and recommendations adopted by the General Conference:
1. While transmitting, pursuant to Article 15 of the present Rules, a certified copy of any convention or recommendation to Member States, the Director-General shall formally remind them of their obligation to submit the convention or recommendation in question to their competent national authorities in accordance with Article IV, paragraph 4, of the Constitution, drawing also their attention to the difference in the legal nature of conventions and recommendations.
2. The Member States shall make the text of any convention or recommendation known to the bodies, target groups and other entities interested in matters dealt with therein.
1. The Member States shall submit, by the dates specified by the General Conference, reports on the measures that they have adopted in relation to each convention in force and each recommendation adopted.
2. The General Conference may invite the Secretariat to assist the Member States in the implementation of the convention or recommendation concerned and in the preparation and follow-up of such reports.
1. The General Conference shall entrust the examination of the reports on such conventions and recommendations received from Member States to the Executive Board*.
2. The Executive Board shall transmit to the General Conference the reports or, if so decided by the General Conference, the analytical summaries thereof, together with its observations or comments and any that the Director-General may make. They shall be examined by the competent subsidiary organs prior to their consideration in plenary meeting.
3. The Director-General shall regularly inform the General Conference and Executive Board with respect to the implementation of the conclusions and decisions adopted by the General Conference concerning reports on conventions and recommendations."
(*With reference to Article 18, paragraph 1, the General Conference took the view that consideration of reports on the application of the standard-setting instruments received from Member States should be entrusted to the Committee on Conventions and Recommendations of the Executive Board)
Declarations are another means of defining norms, which are not subject to ratification. Like recommendations, they set forth universal principles to which the community of States wished to attribute the greatest possible authority and to afford the broadest possible support. Many instances might be quoted, the first being that of Universal Declaration of Human Rights, adopted on 10 December 1948 by the United Nations General Assembly.
As in the case of the United Nations Charter, UNESCO's Constitution does not include declarations among the proposals which may be submitted to the General Conference for adoption. However, the General Conference would seem to be entitled to give a document submitted to it for consideration and adoption the form of a declaration which has its own particular scope-and has indeed already done so on several occasions in the past. In this connection, it is interesting to note the interpretation formulated by the United Nations Legal Adviser in 1962, in response to the request of the Commission on Human Rights, regarding the Universal Declaration of Human Rights:
“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. A “declaration” or a “recommendation” is adopted by resolution of a United Nations organ. As such it cannot be made binding upon Member States, in the sense that a treaty or convention is binding upon the parties to it, purely by the device of terming it a “declaration” rather than a “recommendation”. However, in view of the greater solemnity and significance of a “declaration”, it may be considered to impact, 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.
In conclusion, it may be said that in United Nations practice, a “declaration” is a solemn instrument resorted to only in very rare cases relating to matters of major and lasting importance where maximum compliance is expected. (Report of the Commission on Human Rights, United Nations document E/3616/Rev. l, paragraph 105, eighteenth session, Economic and Social Council, 19 March -14 April 1962, United Nations, New York)
Much the same practice is followed by UNESCO. However, in the drafting, adoption and implementation of UNESCO declarations, no role of procedure similar to the Rules of Procedure concerning Recommendations to Member States and International Conventions covered by the terms of Article IV, paragraph 4, of the Constitutions is followed to date; unlike the latter, declarations are adopted by an ordinary resolution of the General Conference. Nevertheless, it should not be deduced from the foregoing that any one of these various instruments is superior to the others. It is simply that their functions are essentially different; moreover, in the case of declarations, stress is laid on moral authority.
At its 33rd session, the General Conference adopted a 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 (Resolution 33 C/87)