Advancing
Cultural Diversity Globally:
The Role of
Civil Society Movements
INCD Fourth Annual Conference
CONVENTION ON CULTURAL
DIVERSITY
A new
international instrument to provide a permanent legal foundation for government
measures directed at ensuring cultural diversity, promoting more balanced
exchanges between cultures and encouraging the development of cultural
capacity.
At this month’s UNESCO
General Council meeting, delegates will consider a recommendation from its
Executive Committee that the UN system’s cultural institution take on the task
of elaborating the terms of a legally-binding instrument on cultural diversity.
This report outlines the
history of that development and summarizes issues that require discussion by
INCD members, its Steering Committee and by the delegates to the Fourth Annual
Conference.
Why
is the new Convention needed?
- There is a growing awareness that aspects of
globalization are leading to cultural homogenization and increasing the
difficulties for local and diverse cultural production.
- Bilateral and multilateral trade agreements make
the situation worse by limiting the ability of nations to support their
own artists, cultural producers and institutions. Trade in “products and services” of the
“entertainment industry” is big business, accounting for an increasing
share of the trade balance of several countries.
- “Exempting” culture from trade rules has been
ineffective in preserving cultural sovereignty. WTO rules have been applied to cultural activities by trade
panels. Cultural policies are increasingly
made to conform to trade commitments.
Developing nations cannot promote their own indigenous artists and
cultural producers even when they have the capacity to implement
appropriate policies.
- Examples of these problems include:
-
The four policies Canada had
used to encourage the Canadian magazine industry were struck down by a WTO
trade panel.
-
New Zealand deregulated its
broadcasting sector and listed it as a covered service under the GATS. It is thus constrained from reintroducing
content quotas, despite a change in government and a clear public will to
re-regulate the sector.
-
The recently concluded
U.S./Chile Free Trade Agreement permits Chile to maintain existing cultural
support measures but prevents it from introducing regulations in relation to
digital content.
- Pressures are growing in global, regional and
bilateral agreements to have trade rules govern important cultural
sectors. The audiovisual and other
cultural sectors are at risk in the WTO GATS talks, and the U.S. is
applying bilateral pressure on several countries to modify significant
cultural policies.
-
In its negotiations with
Australia for a Free Trade Agreement, the U.S. is seeking to roll back existing
support measures and to prevent new ones, particularly in digital media.
-
Negotiations for a bilateral
investment treaty between Korea and the U.S. stalled over U.S. insistence on
significantly reducing the screen quota system.
-
Fully one-half of the requests
for opening up of the European services sector under the GATS negotiations
involve audiovisual and other cultural services, from countries as diverse as
India, Brazil and the U.S.
-
The WTO is set to allow
“non-violation” complaints under TRIPS and this could threaten cultural
policies if they restrict exploitation of copyrighted materials.
The concept of a global
cultural pact has emerged as a serious alternative to these pressures since it
first appeared in Canada several years ago.
But there remain significant questions about the potential content and
the process through which it will be developed.
How
has the idea for the new Convention developed?
- At its meeting in 2000, the INCD determined to
work to achieve a Convention.
Basic principles agreed in 2001 were turned into a Draft Convention
by the Steering Committee, finalized at the Third Annual Meeting in Cape
Town and released in early 2003.
Last month in Mexico, INCD released a letter from leading artists
supporting the initiative.
- The network of culture ministers organized in
the International Network on Cultural Policy prepared a draft in 2002 and
released an updated version in August 2003 in preparation for its Croatia
meeting.
- Many governments have supported the initiative:
44 of 48 members of UNESCO’s Executive Committee spoke in favour of the
proposal: the 55 heads of state of la Francophonie have endorsed the
concept: the European Union resolved to support it.
- The objective is to conclude the terms of a
legally binding instrument before the WTO completes its Doha round of
trade negotiations.
What
provisions will the Convention contain?
While UNESCO will start
from scratch when it begins to elaborate the terms of a legally binding
instrument, they will look to the work of the Ministers. This section therefore summarizes the latest
draft of the Ministerial version and compares it to the Draft Convention
circulated earlier this year by the INCD.
There are some
significant issues of content on which INCD should take a stand.
Preamble
·
The
Ministerial draft has improved considerably from its earlier version and has
incorporated several proposals put forward by the INCD, such as acknowledging
the special needs to preserve and promote indigenous knowledge and languages
and recognition of the importance of media pluralism for cultural diversity.
·
However,
the Ministers’ draft still falls short of the INCD proposal to recognize “the
right of individual artists and creators to practice their craft in security
and freedom” and “to freedom of expression and freedom from censorship.”
Article 1 – Definitions
- The Ministerial draft seeks to define culture,
cultural diversity, cultural expression and so on. The INCD Draft leaves states free to
define these words, providing they do not use the Convention in a manner
that would violate human rights and other overriding international
principles.
- The INCD Cape Town Declaration in 2002 said to
the Ministers: “INCD delegates had rich debate about how culture and
cultural diversity have different meanings in different parts of the
world. The Convention must not
engender debate on sensitive issues that have been resolved in other
recognized international documents and treaties.”
Article
2 – Objectives
- The Ministerial draft is an excellent outline of
the basic objectives, including the need to support development of
cultural capacity, more balanced exchanges between cultures and to work together
to promote its principles in other international fora, such as trade
talks.
- However, the INCD draft posed some of these
objectives as positive commitments that a Party would assume when it signs
the Convention. Therefore, the
INCD draft contains the word “shall” in relation to these issues,
subject only to the limitation that it is within its “capabilities.”
Article 3 – Scope
- Self explanatory provision
Article 4 – Relation to
Other Treaties
- This is perhaps the most significant change from
the first Ministerial version. The
clause reads in full, “Nothing in this Convention shall derogate from
existing rights and obligations that Parties may have to each other under
any other international Treaty.”
- Essentially, this clause is contrary to one of the
principal objectives of the Convention, which is to ensure that, wherever
possible, disputes about trade in cultural goods and services are
adjudicated under its terms rather than the trade agreements.
- The Convention cannot govern a dispute if one country
is party to the Convention, the other party is not, but both are parties
to another treaty, such as a trade agreement. But, it can and should govern a future dispute about a
matter that both parties now agree should fall under its terms. The language proposed by the Ministers explicitly
prevents such an agreement.
- As well, the term “existing” may be ambiguous
and might sustain an interpretation that future iterations of the existing
treaty would continue to prevail over the Convention.
Article 5 – Specificity of
Cultural Goods and Services
- This article obligates Parties to consider the
special nature of cultural goods and services when they develop policies.
Article 6 – Right and
Responsibility of Members to Preserve and Promote Cultural Diversity
- This is a stronger formulation than the previous
draft, and outlines that Parties have sovereignty in this field. It also obligates them to take on the
shared responsibility to preserve and promote cultural diversity globally.
Article 7 – Balance
- This is also a stronger formulation than
previous drafts requiring that a Party “must respect balance between
the promotion of domestic cultural expression and openness to cultural
content from other Parties.”
Article 8 – Transparency
- Parties commit to make their cultural policies
available publicly.
Article 9 – Development of
Cultural Policies
- The Ministerial draft now obligates each Party
to develop a cultural policy framework for the preservation of cultural
diversity when they join the Convention.
This is a significant step toward the INCD position.
Article 10 – Preservation
and Promotion of Cultural Diversity in the Developing and Least Developed
Country Parties
- This also represents an improvement from the
earlier text and now provides that Parties “shall co-operate for the
development” of the capacity in developing and least developed
countries. This is a position that
was encouraged by the INCD.
Article 11 – Availability of
Cultural Content
- This clause obligates countries to work together
to promote more balanced exchanges between cultures
Article 12 – Promotion of
Cultural Diversity Objectives and Coherence
- This provision attempts to redress the problems
created by Article 4. It obligates
Parties to work together in other fora (such as WTO) to promote the
principles of this Convention and to apply existing treaties in a manner
consistent with the principles of the Convention.
Article 13 – Obligations of
Parties to Each Other
- This clause provides limits on the sovereign
right of states, confirmed in Article 6.
It provides that actions of Parties must fall within the scope of
the Convention, reflect the objectives, reflect the principle of balance
and be reasonable.
Article 14 – Co-operation
Between Parties
- This clause provides that Parties will consider
bilateral and multilateral agreements to promote the principles of the
Convention.
Article 15 – Follow-up
- Self-explanatory provision.
Article 16 – Technical
Assistance and Capacity Building
- Similar to Article 10, this provides that the
members will co-operate to provide technical assistance and encourage
exchanges to build capacity.
Article 17 – Development
Fund
- A new and welcome provision, this Article
obligates the members to establish and finance a Development Fund, an
excellent adjunct to the Technical Assistance and Capacity Building
clause.
Article18 – Dispute
Settlement
- In place of the earlier version’s formal system,
this clause only authorizes the creation of a dispute settlement process,
if a particular dispute arises that cannot be resolved satisfactorily
between the Parties involved.
- Last year, the INCD said the following about
dispute settlement: “However, we urge that you incorporate the
following fundamental principles into your Draft. The dispute settlement process must be
transparent, must guarantee input from third parties and non-governmental
organizations and must acknowledge that the rights of individuals are
equivalent to corporate rights.”
Article 19 – Assembly of
Parties
- Authorizes the administrative procedures needed
to make the Convention operable.
Article 20 – Membership and
Observers
- This article permits UNESCO members and regional
economic integration organizations (e.g., the EU) to join and further
contemplates observer status for others.
Where and how will the Convention be negotiated?