7 ANNEX II Presentation of Mr. Abdulqawi A. Yusuf Director of the - - PDF document

7 ANNEX II Presentation of Mr. Abdulqawi A. Yusuf Director of the Office of International Standards and Legal Affairs, UNESCO First session of the Intergovernmental Meeting of Experts on the Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions UNESCO, 23 September 2004

• n Possible Ways of Dealing with the Question of the Relationship between

Successive Conventions Relating to the Same Subject Matter and Article 19 (Relationship to other instruments) of the Preliminary Draft Convention on the Protection of the Diversity

• f Cultural Contents and Artistic Expressions

8 Possible Ways of Dealing with the Question of the Relationship between Successive Conventions Relating to the Same Subject Matter. 1. In response to the request of the first session of the Intergovernmental Meeting of Experts on the Draft Convention on the Protection of the Diversity of Cultural contents and Artistic Expressions, I have the pleasure of presenting hereunder a written version of my oral intervention made during the discussion on Article 19 of the preliminary draft convention on 23 September, 2004. 2. There is a wide range of possibilities for the regulation of relationships between successive conventions relating to the same subject matter, or some of the provisions of which relate to the same subject matter. 3. There are, first of all, the general rules of international law, particularly, the law of treaties, which are codified in the 1969 Vienna Convention on the Law of Treaties. 4. Article 30 of the Vienna Convention deals with application of successive treaties relating to the same subject matter. This provision was initially entitled in the 1964 draft of the UN International Law Commission (ILC) as “application of treaties having incompatible provisions”. However, since the question of the incompatibility could arise not only in relation to earlier treaties but also to future treaties, the ILC found it more appropriate to state it more generally and widen the title. 5. In its present formulation, Article 30 of the Vienna Convention on the Law of Treaties states in general terms the rule applicable to successive treaties relating to the same subject matter. It deals not only with cases where a treaty itself contains provisions on its relationship to other treaties, but also cases where such clauses are not included in a treaty. In the latter case, it distinguishes between treaties where all the parties to the earlier treaty are also parties to the later treaties relating to the same subject matter and those where only some of the parties to the earlier treaty are parties to the later treaty relating to the same subject matter. It also determines mutual rights and obligations of States Parties in each of the above-mentioned situations. 6. Thus, even if a new convention on the diversity of cultural expressions did not include any provision regulating relationships with other conventions, this matter would be regulated under general international law and could always be referred back to the rules of the Vienna Convention on the Law of Treaties. Consequently, the non-inclusion in the convention of a provision on the relationship to other treaties is a first possibility. 7. This was clearly not the viewpoint of the ad hoc group of experts that proposed Article 19 of the preliminary draft. The group appears to have been of the view that a convention of such importance and magnitude as the present one should have provisions clearly and specifically determining its relationship to other instruments. 8. The group therefore proposed the two options contained in Article 19 of the preliminary draft. One option is that the convention would not affect or should not be interpreted to affect rights and obligations of parties under existing agreements. A second option would be that the convention may affect rights and obligations under existing agreements if the enjoyment of those rights and the observance of such obligations would cause serious damage or threat to the diversity of cultural expressions.

9 9. The source of inspiration for the latter option is clearly Article 22 paragraph 1 of the 1992 UN Convention on Biological Diversity. There is, however, an important difference between the provision proposed under the preliminary draft convention and the provision under Article 22.1

• f the Convention on Biological Diversity. The option contained in the preliminary draft

exempts one category of existing instruments from the possibility of being affected by the provisions of the future convention even in cases of serious damage or threat to the diversity of cultural expressions. This category of instruments is the one dealing with intellectual property

• rights. Such an exemption does not exist under the Convention on Biological Diversity.

10. Should the Intergovernmental Group of Experts wish to consider various other possibilities or

• ptions for the formulation of such clauses, there are a number of possibilities including

“extremes” and “in-betweens”. 11. At one extreme, there are those clauses which stipulate that: “This Convention shall not affect the rights and obligations of States Parties deriving from other international agreements or international law.” (Article 10 of the Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations) A similar provision is also contained in the UNCITRAL Convention on Contracts for the International Sale of Goods.1 12. At the other extreme, there is Article 103 of the UN Charter, which stipulates that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 13. Between these two extremes of either not affecting at all the rights and obligations in existing

• r future conventions, or prevailing over the rights and obligations entered into under any other

conventions, there is a very wide range of possible formulations of clauses. 14. There are, for example, those clauses, which provide that a new convention shall not prejudice

• r affect the rights and obligations contracted under international law (e.g. the South Pacific

Nuclear Free Zone Treaty2);

• r those that provide that it shall not be interpreted as in any way detracting from or limiting

the obligations assumed under other conventions (e.g. the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects3);

1 Article 90 of the Convention provides that: “This Convention does not prevail over any international agreement which

has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement.”

2 Article 2. 2 of the Treaty provides that: “Nothing in this Treaty shall prejudice or in any way affect the rights, or the

exercise of the rights, of any State under international law with regard to freedom of the seas.”

3 Article 2 of the Convention provides that: “Nothing in this Convention or its annexed Protocols shall be interpreted as

detracting from other obligations imposed upon the High Contracting Parties by international humanitarian law applicable in armed conflict.”

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• r those that refer to the fact that it shall not be interpreted as altering the status or the level of
• bligations contracted under another specific convention (e.g. the Convention for the

Safeguarding of the Intangible Cultural Heritage4). 15. There are also those clauses that refer directly to the issue of compatibility itself. Various formulations exist for this type of clauses. There is, for example, what may be referred to as a “simple compatibility” clause stating that: “ The provisions of the Convention and its protocols shall in no way affect the right

• f Parties to enter into bilateral or multilateral agreements, including regional or

subregional agreements, on issues relevant or additional to the Convention and its protocols, provided that such agreements are compatible with their obligations under the Convention and its protocols. The Parties concerned shall communicate such agreements to the Conference of the Parties through the Secretariat.” (Article 2.2 of the WHO Framework Convention on Tobacco Control)

• r that

“This Convention shall not affect the reciprocal rights and obligations of States Parties under existing international agreements, which relate to the matters covered by this Convention, or under future international agreements concluded in accordance with the object and purpose of this Convention.” (Article 12 of the Convention on Assistance in the Case of a Nuclear accident or Radiological Emergency) 16. There is also what may be referred to as a “mutual compatibility” clause whereby it is stated that: “This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.” (Article 311, paragraph 2 of the 1982 Montego Bay Convention on Law of the Sea) 17. Whatever formula may eventually be selected by parties to a convention to ensure overall consensus; in those cases where a follow-up mechanism is established, it is not the conflicts or contradictions between the provisions of various conventions that is usually emphasized, but the mutual supportiveness of such conventions. Whenever a meeting of States Parties to a convention has to deal with the application of successive conventions, experience indicates that State Parties are called upon to implement such conventions in a mutually supportive manner in

• rder to avoid disputes and paralysing conflicts between conventions to which some of those

States are parties.

4 Article 3 (a) of the Convention provides that: “ (Nothing in this Convention may be interpreted) as altering the status or diminishing

the level of protection under the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage of World Heritage properties with which an item of the intangible cultural heritage is directly associated.”