Mme Hélène Ruiz Fabri, professeur à l’Université Paris I – Panthéon Sorbonne, Août 2004 - 2004/08
In this study commissioned by the Intergovernmental Agency of the Francophonie (AIF), Hélène Ruiz Fabri writes that given the current status of the process, the plan to present and even adopt the convention at the UNESCO General Conference in fall 2005 is still realistic. As for the consultations undertaken with the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), and the UN Conference on Trade and Development (UNCTAD), Ms Ruiz Fabri points out that “it was in the interest of take existing legal instruments into account in developing the draft convention that the [UNESCO] director-general was instructed to undertake consultations with these organizations. They were chosen because they are in charge or have in-depth knowledge of the international legal instruments most likely to interfere with the standard-setting initiative undertaken by UNESCO. The goal of the consultations is to identify areas where standards may come into conflict […]. These consultations are not negotiations under which UNESCO must reach agreement with the organizations or bodies consulted as to what it can or cannot do. UNESCO has no legal obligation to act on the comments received. However, as the organization that initiated consultations, it should consider the feedback received in good faith.”
Ms Ruiz Fabri also notes that in the case of the WTO, the consultation process will invest any WTO comments with considerable authority, given their source and the organization’s status as an intergovernmental body. Despite the UNESCO director-general’s wish in his preliminary report that “the member states of both institutions [UNESCO/WTO] have plenty of time to express consistent and concerted views, following consultations within each member state,” Ms Ruiz Fabri stresses the importance of consistency and argues that “individual states must take steps to ensure that positions expressed during WTO discussions—even in a purely consultative framework—do not come back to haunt them during UNESCO negotiations.” Questioning the nature and significance of the exercise for states that belong to both organizations, she notes that they have, and will have, the opportunity to express their positions on the draft treaty at the forum where it is being negotiated (the competent authority for the negotiations). She also points outs that “in terms of form, this could be an opportunity to foster greater coordination between international organizations. Although still rare and relatively ineffective, such cooperation is growing increasingly necessary in light of globalization.
The second half of the study deals with general observations showcasing what Ms Ruiz Fabri considers the most difficult points. In examining these points, she analyzes the structure of the draft text, its philosophy, objectives, and content, and the its relationship with international law. (Available in French)