‘No One May Invoke': The Protection of Cultural Heritage and Cultural Diversity for Human Rights and Sustainable Development, Between Synergies to Build and Conflicts to Prevent

The protection of cultural heritage is conceived in the international legal system as a condition for the full realization of human rights, both specifically of cultural rights and of many other human rights, which have an important connection with cultural identity. It is implied in the Charter of the United Nations and the Constitution of UNESCO, and reference to the Universal Declaration of 1948 and to the other instruments for the protection of human rights is also explicit in the preambles of the UNESCO Conventions on intangible cultural heritage and on the diversity of cultural expressions, for which sustainable development is also central. Paradoxically, however, in the articles of the two conventions, the relationship with human rights (and, in the 2003 Convention, also with sustainable development) is regulated through clauses whose formulation is clearly aimed at preventing inconsistencies. In the Convention on intangible cultural heritage there is a provision that constitutes a limitation of the object of protection; the clause inserted in the 2005 Convention seems more problematic, as it is worded as a solemn subordination clause ("no one may invoke", almost literally taken from the previous Declaration of 2001). Negotiators of the 2005 Convention were mainly concerned of possible antinomies with respect to obligations on the liberalization of trade because the cultural goods, services and activities covered by that convention are of a dual nature. Since the need for coherence in the international legal system is protected first and foremost through general principles (subordination clauses are of help, but they could never resolve conflicts linked to the foundations and objectives of the treaties), after a tug-of-war negotiation that has long seen the persistence of two opposing alternative clauses, respectively of prevalence and subordination of the 2005 Convention with respect to WTO obligations, it has been opted - on the contrary - for the “didactic” underlining of mutual supportiveness between treaties, to be pursued through a constructive and synergic operational approach of States, both in negotiating new agreements and in interpreting and executing existing ones. A fortiori, this must be the operational approach to be followed with reference to the relationship with human rights, generally indicated as the "material constitutional framework" of the international legal system, and thus the ultimate key to its coherence. Art. 4.2 of the 2005 Convention could be seen as another call for good faith in respecting treaties, taking into account the broader framework of all existing obligations. This brings us back to the international legal system as a universe of rules whose coherence cannot be pursued through a non-existent centralized jurisdictional power, but rather by correct behavior on the part of all subjects in negotiating, interpreting and applying the rules. Fear for the possible consequences of the "fragmentation" of international law is thus replaced by an appreciation of its abundance and variety, and above all of its effectiveness - the greater the more the relationship between the sources produces synergies and not antinomies. And sustainable development, which can only be achieved through the construction of synergies, calls for the projection into the future of the Community and its needs, hence for an intergenerational dimension which has always been a distinctive feature of the international protection of cultural heritage.