Although great importance is not always attached to the political, economical, social, or cultural role of communication activities, their influence on international relations certainly has not escaped the concern of the United Nations (UN). No matter what its limitations are, international law is not only formal but also symbolic. Further, it has a moral or diplomatic value and, albeit weak, a legal value through international conventions. The UN draws up certain essential general principles for communication. It also provides a framework on which specialized institutions are established to formulate various global communication policies.
The general principles of the United Nations communication policies are found in the Charter of the United Nations, although the Charter does not explicitly refer to them. They are enumerated in the Universal Declaration of Human Rights and in the International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted on December 10, 1948, as a “resolution” by the UN General Assembly. It recognizes the classic idea of freedom of expression, with both its necessary limits and, in a positive and concrete manner, certain rights including the possibility of demanding those rights, which constitutes, as it were, the basis or inspiration of national communication laws.
Freedom of expression is set forth in Article 19 of the UDHR: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers”. This Article does not mention necessary limits to freedom of speech and the press; the limitations on free expression are in Article 12, which states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Its limiting impact on freedom of expression is bolstered by Article 29 of the UDHR. “In the exercise of his rights and freedoms,” Article 29 provides, “everyone shall only be subject to such limitations as determined by law and solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society.”
From a positive perspective on freedom of expression, the UDHR sets forth the right to information. Article 22 is illustrative: “Everyone . . . is entitled to the realisation . . . of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” Article 27–1 is more specific: “everyone has the right to freely participate in the cultural life of the community.” The UDHR guarantees copyright and related rights by declaring that everyone has the right to protect “the moral and material interests” that are derived from their scientific, literary, or artistic production. As the UDHR has no true legal value as an instrument of enforcement, however, these human rights elements of freedom of expression are set out in two 1966 international covenants.
International Covenants On Civil and Political Rights and On Economic, Social, and Cultural Rights
The differences between western Europe’s individualistic idea of freedom, based on the idea of the state’s abstention, and the more collective and interventionist approach to human rights of the eastern block led, in December 1966, to the establishment of two international covenants in order to strengthen the UDRH principles: one on civil and political rights, and the other on economic, social, and cultural rights.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) states that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.” This freedom of expression under the ICCPR is not absolute but qualified. Article 19 notes that “the exercise of rights to freedom entails special duties and responsibilities.” Hence, freedom of expression may be subject to certain restrictions, which “shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public), or of public health or morals.” Freedom of expression is further balanced by various other competing interests such as right to privacy and reputational interests. The ICCPR recognizes individuals’ right to protection against unlawful invasion of their privacy and against injury to their reputations. The ICCPR forbids war propaganda. It further proscribes hate speech that incites national, racial, or religious animosity against others.
The International Covenant on Economic, Social, and Cultural Rights (ICESCR) stands in sharp contrast to the ICCPR in that it provides for a more positive and collective framework of human rights to communication. Article 15 stipulates that “the States party to the present Covenant recognise every individual’s right: (a) to take part in cultural life . . . (b) to benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” It lists what member states must do in helping individuals to fully realize their right to free expression. The states must take actions to conserve, develop, and diffuse science while “respecting the freedom which is indispensable for scientific research and creative activity.” This positive role of the government in making freedom of expression part of an individual’s selfactualization for the good of society as a whole is intertwined with “the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.” Meanwhile, such international cooperation in the field of communication among the nations is one of the main aims of specialized UN institutions.
Several specialized UN institutions determine and implement a wide range of international communication policies. Among the most important and visible UN institutions relating to communication law and policy are the UN Educational, Scientific, and Cultural Organization and the World International Property Organization (WIPO).
UNESCO aims to promote peace and security by facilitating collaboration among the nations through education, science, and culture. It envisions its role in expanding the mutual knowledge and understanding of all peoples, through mass communication and by presenting “such international agreements as may be necessary to promote the free flow of ideas.” It was within the communication assistance framework of UNESCO that, in the 1970s, many “third world” countries, criticizing the one-way movement of information and TV programs from north to south, demanded, but did not succeed in obtaining, a new world information and communication order (NWICO).
The UNESCO General Conference adopted, in October 2005, the Convention on the Protection and Promotion of the Diversity of Cultural Expression, hoping to give strength and legal value to the principles and aims underlying the Universal Declaration of Cultural Diversity. While emphasizing the importance of culture in providing social cohesion, UNESCO’s 2005 convention connected cultural diversity with the free flow of ideas. The Convention stressed that cultural diversity is “nurtured by constant exchanges and interaction between cultures” and that “freedom of thought, expression and information, as well as the diversity of the media, enables cultural expression to flourish within societies.” However, UNESCO’s cultural diversity convention pointed out that whereas globalization, through the rapidly developing information and communication technologies, creates unprecedented conditions for enhanced cultural interactions, it also poses a challenge for cultural diversity, associated with the real or imagined imbalance between the rich and poor countries.
In an effort to implement cultural diversity in information and communication, the 2005 UNESCO Convention recognizes the sovereign right of the states “to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation. These national regulatory measures aim to encourage diversity of cultural expressions; allow domestic cultural industries genuine access to the means of production, dissemination and distribution of cultural activities, goods and services,” provide public financial assistance, and support public institutions.
Nevertheless, some are doubtful about the practical value of the UNESCO Convention on Cultural Diversity, even for the states which have ratified or will ratify it, when they are confronted with international economic agreements like those passed by the World Trade Organization (WTO). The WTO agreements are based on the principles of the free movement of goods and services and on guarantees of competition. Hence, albeit temporarily, they include a principle of “cultural exemption” to place various cultural activities outside the Convention’s application. In order to address this obvious conflict, the Convention characterizes cultural activities, goods, and services as being both economic and cultural because they convey identities, values, and meanings, and thus cannot be treated solely as commercial products or services.
Meanwhile, this UNESCO Convention recognizes the importance of intellectual property rights in protecting those who engage in cultural creativity. Intellectual property is one of UNESCO’s preferred domains. Indeed, it is UNESCO that, in 1952, adopted the Universal Copyright Convention, for which another UN institution has been set up.
WIPO is a UN agency which primarily concerns intellectual property issues, especially copyright and related rights. WIPO is responsible for enforcing the 1886 Berne Convention for the Protection of Literary and Artistic Works. This was the first international convention on copyright. In 1961, WIPO set up the International Convention for the Protection for Performers, Producers of Phonograms, and Broadcasting Organizations.
Two treaties were adopted to implement WIPO’s conventions in 1996: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Their purpose was to ensure the adaptation of rules to technical evolution in communication. The impact of the treaties on copyright protection as an issue, especially in the Internet era, is open to question.
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